Federal Register Vol. 80, No.189,

Federal Register Volume 80, Issue 189 (September 30, 2015)

Page Range58573-59020
FR Document

80_FR_189
Current View
Page and SubjectPDF
80 FR 59019 - National Public Lands Day, 2015PDF
80 FR 59015 - National Hunting and Fishing Day, 2015PDF
80 FR 58808 - Membership in the National Parks Overflights Advisory Group Aviation Rulemaking CommitteePDF
80 FR 58805 - In the Matter of the Designation of Peter Cherif, Also Known as Peter Cheraf, Also Known as Abu Hamza Cheraf, as a Specially Designated Global Terrorist Pursuant to Section 1(b) of Executive Order 13224, as AmendedPDF
80 FR 58806 - In the Matter of the Designation of Mujahidin Indonesia Timur (MIT), aka Mujahideen Indonesia Timor, aka Mujahidin of Eastern Indonesia, aka Mujahidin Indonesia Barat, aka Mujahidin Indonesia Timor, aka Mujahidin of Western Indonesia (MIB), as a Specially Designated Global Terrorist Entity Pursuant to Section 1(b) of Executive Order 13224, as AmendedPDF
80 FR 58806 - In the Matter of the Designation of Gulmurod Khalimov as a Specially Designated Global Terrorist Pursuant to Section 1(b) of Executive Order 13224, as AmendedPDF
80 FR 58805 - In the Matter of the Designation of Emilie Konig as a Specially Designated Global Terrorist Pursuant to Section 1(b) of Executive Order 13224, as AmendedPDF
80 FR 58803 - In the Matter of the Designation of Sally-Anne Frances Jones, Also Known as Sally Anne Jones, Also Known as Sally Jones, Also Known as Umm Hussain al-Britani, Also Known as Sakinah Hussain, as a Specially Designated Global Terrorist pursuant to Section 1(b) of Executive Order 13224, as AmendedPDF
80 FR 58804 - In the Matter of the Amendment of the Designation of Islamic State of Iraq and the Levant, Also Known as Islamic State, Also Known as ISIL, Also Known as ISIS, as a Foreign Terrorist Organization Pursuant to Section 219 of the Immigration and Nationality Act, as AmendedPDF
80 FR 58804 - In the Matter of the Amendment of the Designation of Islamic State of Iraq and the Levant, Also Known as Islamic State, Also Known as ISIL, Also Known as ISIS, as a Specially Designated Global Terrorist Pursuant to Section 1(b) of Executive Order 13224PDF
80 FR 58805 - In the Matter of the Designation of Maxime Hauchard, Also Known as Abou Abdallah Al Faransi, as a Specially Designated Global Terrorist Pursuant to Section 1(b) of Executive Order 13224, as AmendedPDF
80 FR 58804 - In the Matter of the Designation of Jaysh Rijal al-Tariq al-Naqshabandi, Also Known as Army of the Men of the Naqshbandi Order, Also Known as Armed Men of the Naqshabandi Order, Also Known as Naqshbandi Army, Also Known as Naqshabandi Army, Also Known as Men of the Army of al-Naqshbandia Way, Also Known as Jaysh Rajal al-Tariqah al-Naqshbandia, Also Known as JRTN, Also Known as JRN, Also Known as AMNO as a Foreign Terrorist Organization Pursuant to Section 219 of the Immigration and Nationality Act, as AmendedPDF
80 FR 58805 - In the Matter of the Designation of Boubaker Ben Habib Ben Ali Hakim, Boubakeur al-Hakim, Boubakeur el-Hakim, Boubaker el Hakim, Abou al Moukatel, Abou Mouqatel, Abu-Muqatil al-Tunisi as a Specially Designated Global Terrorist Pursuant to Section 1(b) of Executive Order 13224, as AmendedPDF
80 FR 58751 - Recovery Policy: Stafford Act Section 705, Disaster Grant Closeout ProceduresPDF
80 FR 58637 - Approval of California Air Plan Revisions, San Joaquin Valley Unified Air Pollution Control DistrictPDF
80 FR 58732 - Office of Federal High-Performance Green Buildings; Green Building Advisory Committee; Notification of Upcoming Public Advisory Committee MeetingPDF
80 FR 58804 - In the Matter of the Amendment of the Designation of Ansar Bayt al-Maqdis, Also Known as Ansar Jerusalem, Also Known as Supporters of Jerusalem, Also Known as Ansar Bayt al-Maqdes, Also Known as Ansar Beit al-Maqdis, Also Known as Jamaat Ansar Beit al-Maqdis, Also Known as Jamaat Ansar Beit al-Maqdis fi Sinaa, Also Known as Supporters of the Holy Place, as a Foreign Terrorist Organization Pursuant to Section 219 of the Immigration and Nationality Act, as AmendedPDF
80 FR 58731 - Submission for OMB Review; Background Investigations for Child Care WorkersPDF
80 FR 58806 - In the Matter of the Amendment of the Designation of Ansar Bayt al-Maqdis, Also Known as Ansar Jerusalem, Also Known as Supporters of Jerusalem, Also Known as Ansar Bayt al-Maqdes, Also Known as Ansar Beit al-Maqdis, Also Known as Jamaat Ansar Beit al-Maqdis, Also Known as Jamaat Ansar Beit al-Maqdis fi Sinaa, Also Known as Supporters of the Holy Place, as a Specially Designated Global Terrorist Pursuant to Section 1(b) of Executive Order 13224PDF
80 FR 58636 - Revisions to Test Methods, Performance Specifications, and Testing Regulations for Air Emission SourcesPDF
80 FR 58711 - Western Hemisphere Institute for Security Cooperation Board of Visitors Meeting NoticePDF
80 FR 58640 - PM10 Plans and Redesignation Request; Truckee Meadows, Nevada; Deletion of TSP Area DesignationPDF
80 FR 58757 - Notice of Intent To Prepare an Environmental Impact Statement for the Lambert Houses Redevelopment Project, Bronx, NYPDF
80 FR 58737 - Administration on Intellectual and Developmental Disabilities, President's Committee for People With Intellectual DisabilitiesPDF
80 FR 58776 - Agency Information Collection Activities: Indian Oil and Gas Valuation; Comment RequestPDF
80 FR 58803 - In the Matter of the Designation of Jaysh Rijal al-Tariq al-Naqshabandi, Also Known as Army of the Men of the Naqshbandi Order, Also Known as Armed Men of the Naqshabandi Order, Also Known as Naqshbandi Army, Also Known as Naqshabandi Army, Also Known as Men of the Army of al-Naqshbandia Way, Also Known as Jaysh Rajal al-Tariqah al-Naqshbandia, Also Known as JRTN, Also Known as JRN, Also Known as AMNO, as a Specially Designated Global Terrorist Pursuant to Section 1(b) of Executive Order 13224, as AmendedPDF
80 FR 58611 - Drawbridge Operation Regulation; Sacramento River, Sacramento, CAPDF
80 FR 58610 - Drawbridge Operation Regulation; Sacramento River, Sacramento, CAPDF
80 FR 58771 - Request for Nominations for the Invasive Species Advisory CommitteePDF
80 FR 58710 - Proposed Collection; Comment RequestPDF
80 FR 58738 - Biosimilar User Fee Act; Stakeholder Meetings on Biosimilar User Fee Act of 2012 Reauthorization; Request for Notification of Regulated Industry Organization Intention To ParticipatePDF
80 FR 58731 - Notice of Proposals To Engage in or To Acquire Companies Engaged in Permissible Nonbanking ActivitiesPDF
80 FR 58731 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
80 FR 58741 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
80 FR 58742 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
80 FR 58702 - National Organic Standards Board (NOSB): Call for NominationsPDF
80 FR 58636 - Milk in California; Reconvened Hearing on a Proposal To Establish a Federal Milk Marketing OrderPDF
80 FR 58793 - Submission for OMB Review; Comments RequestPDF
80 FR 58600 - Listing of Color Additives Exempt From Certification; Mica-Based Pearlescent PigmentsPDF
80 FR 58724 - Agency Information Collection Activities; Comment Request; The Secretary of the Department of Education's Recognition of Accrediting Agencies, and the Comparability of Medical and Veterinary Medical ProgramsPDF
80 FR 58793 - PSEG Power, LLC and PSEG Nuclear, LLC; Establishment of Atomic Safety and Licensing BoardPDF
80 FR 58720 - Privacy Act of 1974; System of RecordsPDF
80 FR 58607 - Privacy Act of 1974; ImplementationPDF
80 FR 58715 - Strategic Environmental Research and Development Program, Scientific Advisory Board; Notice of Federal Advisory Committee MeetingPDF
80 FR 58711 - Proposed Collection; Comment RequestPDF
80 FR 58669 - Defense Federal Acquisition Regulation Supplement: Clauses With Alternates-Small Business Programs (DFARS Case 2015-D017)PDF
80 FR 58632 - Defense Federal Acquisition Regulation Supplement: Contract Debts-Conform to FAR Section Designations (DFARS Case 2015-D029)PDF
80 FR 58630 - Defense Federal Acquisition Regulation Supplement: Electronic Copies of Contractual Documents (DFARS Case 2012-D056)PDF
80 FR 58671 - Defense Federal Acquisition Regulation Supplement: Warranty Tracking of Serialized Items (DFARS Case 2014-D026)PDF
80 FR 58715 - Information Collection Requirement; Defense Federal Acquisition Regulation Supplement (DFARS); Contract FinancingPDF
80 FR 58803 - Notice of Senior Executive Service Performance Review Board MembershipPDF
80 FR 58714 - Advisory Committee on Arlington National Cemetery Meeting NoticePDF
80 FR 58688 - Endangered and Threatened Wildlife and Plants; Threatened Species Status for the Eastern Massasauga RattlesnakePDF
80 FR 58712 - Advisory Committee on Arlington National Cemetery Honor Subcommittee Meeting NoticePDF
80 FR 58707 - Advisory Committee on Arlington National Cemetery Remember Subcommittee MeetingPDF
80 FR 58722 - Proposed Collection; Comment RequestPDF
80 FR 58708 - Proposed Collection; Comment RequestPDF
80 FR 58674 - Endangered and Threatened Wildlife and Plants; Threatened Species Status for the Elfin-woods WarblerPDF
80 FR 58709 - Advisory Committee on Arlington National Cemetery Explore Subcommittee Meeting NoticePDF
80 FR 58707 - Army Science Board Partially Closed Meeting NoticePDF
80 FR 58725 - Notice of Intent To Prepare a Supplement to the Draft Northern Pass Transmission Line Project Environmental Impact Statement and Announcing the Extension of the Public Comment Period and Postponement of Public Hearings To Receive Comments on the Draft Environmental Impact StatementPDF
80 FR 58724 - Availability of a Draft Feasibility Study With Integrated Environmental Impact Statement (EIS), Ala Wai Canal Project, Oahu, HIPDF
80 FR 58814 - Citizens Coinage Advisory Committee MeetingPDF
80 FR 58703 - Proposed Information Collection; Comment Request; Survey of State Government Research and Development (R&D)PDF
80 FR 58810 - BNSF Railway Company-Abandonment Exemption-in Stearns County, Minn.PDF
80 FR 58792 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Extension With Change, of a Previously Approved Collection; Federal Firearms License (FFL) RENEWAL ApplicationPDF
80 FR 58791 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Extension Without Change, of a Previously Approved Collection; Federal Firearms Licensee Firearms Inventory Theft/Loss Report ATF F 3310.11PDF
80 FR 58713 - Proposed Collection; Comment RequestPDF
80 FR 58633 - Pipeline Safety: Miscellaneous Changes to Pipeline Safety Regulations: Response to Petitions for ReconsiderationPDF
80 FR 58705 - Draft 2015 Marine Mammal Stock Assessment ReportsPDF
80 FR 58787 - Certain Hot-Rolled Steel Flat Products From Australia, Brazil, Japan, Korea, the Netherlands, Turkey, and the United Kingdom: DeterminationsPDF
80 FR 58753 - West Virginia; Amendment No. 1 to Notice of a Major Disaster DeclarationPDF
80 FR 58754 - Proposed Flood Hazard DeterminationsPDF
80 FR 58750 - Changes in Flood Hazard DeterminationsPDF
80 FR 58813 - Submission for OMB Review; Comment RequestPDF
80 FR 58723 - National Commission on the Future of the Army; Notice of Federal Advisory Committee MeetingPDF
80 FR 58720 - National Commission on the Future of the Army; Notice of Federal Advisory Committee MeetingPDF
80 FR 58752 - Changes in Flood Hazard DeterminationsPDF
80 FR 58748 - Approval of SGS North America, Inc., as a Commercial GaugerPDF
80 FR 58747 - Accreditation and Approval of Camin Cargo Control, Inc., as a Commercial Gauger and LaboratoryPDF
80 FR 58748 - Advisory Committee on Commercial Operations to U.S. Customs and Border Protection (COAC)PDF
80 FR 58788 - Bulk Manufacturer of Controlled Substances Application: Cerilliant CorporationPDF
80 FR 58790 - Manufacturer of Controlled Substances Registration: Noramco, Inc.PDF
80 FR 58737 - Agency Recordkeeping/Reporting Requirements Under EmergencyPDF
80 FR 58772 - Proposed Renewal of Information Collection: OMB Control Number 1090-0009, Donor Certification FormPDF
80 FR 58811 - Submission for OMB Review; Comment RequestPDF
80 FR 58814 - Proposed Information Collection (Application for Adaptive Sports Grant) Activity: Comment RequestPDF
80 FR 58729 - Shenango Dam Hydroelectric Company, LLC; Notice of Preliminary Permit Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and Competing ApplicationsPDF
80 FR 58728 - Joseph Weinert, Holly Parrish and Kevin Bezner, Notice of Transfer of ExemptionPDF
80 FR 58726 - Oncor Electric Delivery Company LLC; Notice of FilingPDF
80 FR 58727 - Oncor Electric Delivery Company LLC; Notice of FilingPDF
80 FR 58726 - Burgess Capital LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
80 FR 58729 - San Diego Gas & Electric Company; Notice of Petition for Declaratory OrderPDF
80 FR 58726 - Combined Notice of Filings #2PDF
80 FR 58727 - Combined Notice of Filings #1PDF
80 FR 58704 - Synthetic Biology Standards Consortium-Planning and Progress WorkshopPDF
80 FR 58704 - Judges Panel of the Malcolm Baldrige National Quality AwardPDF
80 FR 58815 - Privacy Act of 1974; System of RecordsPDF
80 FR 58597 - Special Conditions: Flight Structures, Inc., Boeing Model 777-200 Dynamic Test Requirements for Single-Occupant, Oblique (Side-Facing) Seats With Airbag DevicesPDF
80 FR 58589 - Special Conditions: Embraer Model EMB-545 Airplanes; Seats With Inflatable Lap BeltsPDF
80 FR 58593 - Special Conditions: Boeing Model 747-8 Airplanes; Seats With Inflatable Lap BeltsPDF
80 FR 58586 - Special Conditions: Boeing Model 747-8, Dynamic Test Requirements for Single-Occupant, Oblique (Side-Facing) Seats With Airbag DevicesPDF
80 FR 58731 - Notice of Agreements FiledPDF
80 FR 58575 - Disclosure of Seat Dimensions To Facilitate Use of Child Safety Seats on Airplanes During Passenger-Carrying OperationsPDF
80 FR 58735 - Proposed Data Collection Submitted for Public Comment and RecommendationsPDF
80 FR 58733 - Proposed Data Collection Submitted for Public Comment and RecommendationsPDF
80 FR 58796 - Joint Industry Plan; Order Approving Amendment No. 2 to the National Market System Plan Governing the Process of Selecting a Plan Processor and Developing a Plan for the Consolidated Audit Trail by BATS Exchange, Inc., BATS-Y Exchange, Inc., BOX Options Exchange LLC, C2 Options Exchange, Incorporated, Chicago Board Options Exchange, Incorporated, Chicago Stock Exchange, Inc., EDGA Exchange, Inc., EDGX Exchange, Inc., Financial Industry Regulatory Authority, Inc., International Securities Exchange, LLC, ISE Gemini, LLC, Miami International Securities Exchange LLC, NASDAQ OMX BX, Inc., NASDAQ OMX PHLX LLC, The NASDAQ Stock Market LLC, National Stock Exchange, Inc., New York Stock Exchange LLC, NYSE MKT LLC, and NYSE Arca, Inc.PDF
80 FR 58797 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to a Change to the Secondary Benchmark Index Applicable to Shares of the PIMCO Global Advantage® Inflation-Linked Bond Active Exchange-Traded FundPDF
80 FR 58794 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Regarding the PIMCO Intermediate Municipal Bond Active Exchange-Traded FundPDF
80 FR 58799 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Order Granting Approval of Proposed Rule Change Relating to the Listing and Trading of the 1-3 Month Enhanced Short Duration ETF, a Series of Plus TrustPDF
80 FR 58744 - Notice of Amendment to Program Comment to Avoid Duplicative Reviews for Wireless Communications Facilities Construction and ModificationPDF
80 FR 58790 - Notice of Lodging of Proposed Consent Decree Under the Clean Air ActPDF
80 FR 58729 - Submission for OMB Review; Comment RequestPDF
80 FR 58791 - Notice of Lodging of Proposed Consent Decree Under the Clean Air ActPDF
80 FR 58792 - Notice of Permit Applications Received Under the Antarctic Conservation ActPDF
80 FR 58770 - Proposed Information Collection; Depredation Orders for Double-Crested CormorantsPDF
80 FR 58663 - Freedom of Information Act RegulationsPDF
80 FR 58738 - Agency Information Collection Activities; Submission to OMB for Review and Approval; Public Comment RequestPDF
80 FR 58773 - Proposed Appointment to the National Indian Gaming CommissionPDF
80 FR 58625 - Minerals Management: Adjustment of Cost Recovery FeesPDF
80 FR 58809 - Petition for Waiver of CompliancePDF
80 FR 58717 - Proposed Collection; Comment RequestPDF
80 FR 58774 - Notice of Public Meeting: Northern California Resource Advisory CouncilPDF
80 FR 58740 - Center for Scientific Review Notice of Closed MeetingsPDF
80 FR 58768 - Endangered Species; Receipt of Applications for PermitPDF
80 FR 58739 - National Center for Complementary & Integrative Health; Notice of Closed MeetingPDF
80 FR 58739 - National Heart, Lung, and Blood Institute Notice of Closed MeetingPDF
80 FR 58740 - Eunice Kennedy Shriver National Institute of Child Health and Human Development Notice of Closed MeetingPDF
80 FR 58741 - Eunice Kennedy Shriver National Institute of Child Health and Human Development; Notice of Closed MeetingPDF
80 FR 58741 - National Library of Medicine; Notice of Closed MeetingPDF
80 FR 58602 - Veterinary Feed Directive Regulation Questions and Answers; Small Entity Compliance Guide; Guidance for Industry; AvailabilityPDF
80 FR 58806 - Public HearingPDF
80 FR 58759 - Information Collection Request Sent to the Office of Management and Budget for Approval; Wildlife and Sport Fish Grants and Cooperative AgreementsPDF
80 FR 58767 - Endangered and Threatened Wildlife and Plants; Recovery Plan for the Coterminous United States Population of Bull TroutPDF
80 FR 58774 - Information Collection Request Sent to the Office of Management and Budget (OMB) for Approval; Nomination of Properties for Listing in the National Register of Historic PlacesPDF
80 FR 58981 - Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Southwest Fisheries Science Center Fisheries ResearchPDF
80 FR 58717 - Privacy Act of 1974; System of RecordsPDF
80 FR 58609 - Privacy Act; ImplementationPDF
80 FR 58603 - Medical Devices; Cardiovascular Devices; Classification of the Steerable Cardiac Ablation Catheter Remote Control SystemPDF
80 FR 58611 - Update to Product ListsPDF
80 FR 58573 - Formatting and Non-Substantive Corrections to Authority Citations; CorrectionsPDF
80 FR 58911 - Transit Asset Management; National Transit DatabasePDF
80 FR 58614 - Acibenzolar-S-methyl; Pesticide TolerancesPDF
80 FR 58786 - Request for Information on the State of the Offshore Renewable Energy Industry-Request for Feedback; MMAA104000PDF
80 FR 58620 - National Priorities ListPDF
80 FR 58658 - National Priorities ListPDF
80 FR 58819 - Endangered and Threatened Wildlife and Plants; Endangered Status for 49 Species From the Hawaiian IslandsPDF
80 FR 58951 - Onshore Oil and Gas Operations; Federal and Indian Oil and Gas Leases; Measurement of OilPDF

Issue

80 189 Wednesday, September 30, 2015 Contents Agency Toxic Agency for Toxic Substances and Disease Registry NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 58733-58736 2015-24718 2015-24719 Agricultural Marketing Agricultural Marketing Service PROPOSED RULES Milk in California: Establishment of a Federal Marketing Order; Hearing, 58636 2015-24799 NOTICES Requests for Nominations: National Organic Standards Board, 58702 2015-24800 Agriculture Agriculture Department See

Agricultural Marketing Service

Army Army Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 2015-24764 58708-58711, 58713-58714 2015-24776 2015-24788 2015-24796 2015-24817 Meetings: Advisory Committee on Arlington National Cemetery, 58714-58715 2015-24781 Advisory Committee on Arlington National Cemetery Explore Subcommittee, 58709 2015-24774 Advisory Committee on Arlington National Cemetery Honor Subcommittee, 58712-58713 2015-24779 Advisory Committee on Arlington National Cemetery Remember Subcommittee, 58707 2015-24778 Army Science Board; Correction, 58707-58708 2015-24773 Western Hemisphere Institute for Security Cooperation Board of Visitors, 58711-58712 2015-24855 Census Bureau Census Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Survey of State Government Research and Development, 58703-58704 2015-24768 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 58737 2015-24746 Coast Guard Coast Guard RULES Drawbridge Operations: Sacramento River, Sacramento, CA, 58610-58611 2015-24828 2015-24829 Commerce Commerce Department See

Census Bureau

See

National Institute of Standards and Technology

See

National Oceanic and Atmospheric Administration

Community Living Administration Community Living Administration NOTICES Meetings: Administration on Intellectual and Developmental Disabilities, President's Committee for People with Intellectual Disabilities, 58737 2015-24848 Defense Acquisition Defense Acquisition Regulations System RULES Defense Federal Acquisition Regulation Supplement: Contract Debts—Conform to FAR Section Designations, 58632-58633 2015-24786 Electronic Copies of Contractual Documents, 58630-58632 2015-24785 PROPOSED RULES Defense Federal Acquisition Regulation Supplement: Clauses with Alternates—Small Business Programs, 58669-58671 2015-24787 Warranty Tracking of Serialized Items, 58671-58674 2015-24784 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Defense Federal Acquisition Regulation Supplement; Contract Financing, 58715 2015-24783 Defense Department Defense Department See

Army Department

See

Defense Acquisition Regulations System

See

Engineers Corps

RULES Privacy Act; Implementation, 58607-58610 2015-24631 2015-24791 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 2015-24696 58717, 58722-58723 2015-24777 Meetings: National Commission on the Future of the Army, 2015-24754 58720, 58723-58724 2015-24755 Strategic Environmental Research and Development Program, Scientific Advisory Board, 58715-58717 2015-24789 Privacy Act; Systems of Records, 58717-58722 2015-24632 2015-24792
Drug Drug Enforcement Administration NOTICES Manufacturers of Controlled Substances; Applications: Cerilliant Corp, Round Rock, TX, 58788-58790 2015-24748 Manufacturers of Controlled Substances; Registrations: Noramco, Inc., Wilmington, DE, 58790 2015-24747 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: The Secretary of the Department of Education's Recognition of Accrediting Agencies, and the Comparability of Medical and Veterinary Medical Programs, 58724-58725 2015-24794 Energy Department Energy Department See

Federal Energy Regulatory Commission

NOTICES Environmental Impact Statements; Availability, etc.: Northern Pass Transmission Line Project, 58725-58726 2015-24772
Engineers Engineers Corps NOTICES Environmental Impact Statements; Availability, etc.: Draft Feasibility Study; Ala Wai Canal Project, Oahu, HI, 58724 2015-24771 Environmental Protection Environmental Protection Agency RULES National Priorities List, 58620-58625 2015-24330 Pesticide Tolerances Acibenzolar-S-methyl, 58614-58620 2015-24463 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Approval of California Air Plan Revisions, San Joaquin Valley Unified Air Pollution Control District, 58637-58640 2015-24870 Truckee Meadows, NV—PM10 Plans and Redesignation Request; Deletion of TSP Area Designation, 58640-58658 2015-24854 National Priorities List, 58658-58663 2015-24318 Revisions to Test Methods, Performance Specifications, and Testing Regulations for Air Emission Sources, 58636-58637 2015-24859 Federal Aviation Federal Aviation Administration RULES Disclosure of Seat Dimensions to Facilitate Use of Child Safety Seats on Airplanes during Passenger-Carrying Operations, 58575-58586 2015-24720 Special Conditions: Boeing Model 747-8 Airplanes; Seats with Inflatable Lap Belts, 58593-58597 2015-24725 Boeing Model 747-8, Dynamic Test Requirements for Single-Occupant, Oblique (Side-Facing) Seats with Airbag Devices, 58586-58589 2015-24724 Embraer Model EMB-545 Airplanes; Seats with Inflatable Lap Belts, 58589-58593 2015-24726 Flight Structures, Inc., Boeing Model 777-200 Dynamic Test Requirements for Single-Occupant, Oblique (Side-Facing) Seats with Airbag Devices, 58597-58599 2015-24727 NOTICES Requests for Nominations: National Parks Overflights Advisory Group Aviation Rulemaking Committee, 58808-58809 2015-24901 Federal Emergency Federal Emergency Management Agency NOTICES Changes in Flood Hazard Determinations, 2015-24753 58750-58753 2015-24757 Major Disaster Declarations: West Virginia; Amendment No. 1, 58753-58754 2015-24759 Proposed Flood Hazard Determinations, 58754-58757 2015-24758 Recovery Policy; Stafford Act Section 705, Disaster Grant Closeout Procedures, 58751-58752 2015-24872 Federal Energy Federal Energy Regulatory Commission NOTICES Combined Filings, 58726-58728 2015-24735 2015-24736 Declaratory Order Petitions: San Diego Gas and Electric Co., 58729 2015-24737 Exemption Transfers: Joseph Weinert to Holly Parrish and Kevin Bezner, 58728 2015-24741 Filings: Oncor Electric Delivery Co. LLC, 58727 2015-24739 Oncor Electric Delivery Co., LLC, 58726 2015-24740 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: Burgess Capital LLC, 58726 2015-24738 Preliminary Permit Applications: Shenango Dam Hydroelectric Co., LLC, 58729 2015-24742 Federal Housing Finance Agency Federal Housing Finance Agency NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 58729-58730 2015-24710 Federal Maritime Federal Maritime Commission NOTICES Agreements Filed, 58731 2015-24723 Federal Railroad Federal Railroad Administration NOTICES Petitions for Waivers of Compliance, 2015-24697 58809-58810 2015-24698 Federal Reserve Federal Reserve System NOTICES Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 58731 2015-24813 Proposals to Engage in or to Acquire Companies Engaged in Permissible Nonbanking Activities, 58731 2015-24814 Federal Transit Federal Transit Administration PROPOSED RULES Transit Asset Management; National Transit Database, 58912-58950 2015-24491 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Wildlife and Plants: Status for 49 Species from the Hawaiian Islands, 58820-58909 2015-24305 Status for the Eastern Massasauga Rattlesnake, 58688-58701 2015-24780 Status for the Elfin-woods Warbler, 58674-58688 2015-24775 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Depredation Orders for Double-Crested Cormorants, 58770-58771 2015-24704 Wildlife and Sport Fish Grants and Cooperative Agreements, 58759-58766 2015-24682 Endangered and Threatened Wildlife and Plants: Recovery Plan for the Coterminous United States Population of Bull Trout, 58767-58768 2015-24670 Endangered Species; Applications for Permits, 58768-58770 2015-24692 Food and Drug Food and Drug Administration RULES Listing of Color Additives Exempt from Certification; Mica-Based Pearlescent Pigments, 58600-58602 2015-24795 Medical Devices; Cardiovascular Devices: Classification of the Steerable Cardiac Ablation Catheter Remote Control System, 58603-58607 2015-24624 Small Entity Compliance Guide: Veterinary Feed Directive Regulation Questions and Answers, 58602-58603 2015-24685 NOTICES Request for Notification of Regulated Industry Organization Intention to Participate: Biosimilar User Fee Act Reauthorization Meetings, 58738 2015-24815 General Services General Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Background Investigations for Child Care Workers, 58731-58732 2015-24865 Meetings: Office of Federal High-Performance Green Buildings; Green Building Advisory Committee, 58732-58733 2015-24867 Health and Human Health and Human Services Department See

Agency for Toxic Substances and Disease Registry

See

Children and Families Administration

See

Community Living Administration

See

Food and Drug Administration

See

National Institutes of Health

See

Substance Abuse and Mental Health Services Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 58738-58739 2015-24702
Historic Historic Preservation, Advisory Council NOTICES Program Comment to Avoid Duplicative Reviews for Wireless Communications Facilities Construction and Modification; Amendments, 58744-58747 2015-24713 Homeland Homeland Security Department See

Coast Guard

See

Federal Emergency Management Agency

See

U.S. Customs and Border Protection

Housing Housing and Urban Development Department NOTICES Environmental Impact Statements; Availability, etc.: Lambert Houses Redevelopment Project, Bronx, NY, 58757-58759 2015-24850 Interior Interior Department See

Fish and Wildlife Service

See

Land Management Bureau

See

National Park Service

See

Ocean Energy Management Bureau

See

Office of Natural Resources Revenue

PROPOSED RULES Freedom of Information Act, 58663-58669 2015-24703 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals Donor Certification Form, 58772-58773 2015-24745 Requests for Nominations: Invasive Species Advisory Committee, 58771-58772 2015-24818 Proposed Appointment to the National Indian Gaming Commission, 58773-58774 2015-24701
International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Certain Hot-Rolled Steel Flat Products from Australia, Brazil, Japan, Korea, the Netherlands, Turkey, and the United Kingdom, 58787-58788 2015-24760 Justice Department Justice Department See

Drug Enforcement Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Federal Firearms License RENEWAL Application, 58792 2015-24766 Federal Firearms Licensee Firearms Inventory Theft/Loss Report, 58791-58792 2015-24765 Proposed Consent Decrees under the Clean Air Act, 2015-24708 58790-58791 2015-24711
Land Land Management Bureau RULES Minerals Management: Adjustment of Cost Recovery Fees, 58625-58630 2015-24699 PROPOSED RULES Onshore Oil and Gas Operations: Federal and Indian Oil and Gas Leases; Measurement of Oil, 58952-58979 2015-24008 NOTICES Meetings: Northern California Resource Advisory Council, 58774 2015-24694 National Institute National Institute of Standards and Technology NOTICES Meetings: Judges Panel of the Malcolm Baldrige National Quality Award, 58704 2015-24733 Synthetic Biology Standards Consortium; Workshop, 58704-58705 2015-24734 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 58740-58741 2015-24693 Eunice Kennedy Shriver National Institute of Child Health and Human Development, 2015-24688 58740, 58741 2015-24689 National Center for Complementary and Integrative, 58739-58740 2015-24691 National Heart, Lung, and Blood Institute, 58739 2015-24690 National Library of Medicine, 58741 2015-24687 National Oceanic National Oceanic and Atmospheric Administration RULES Taking and Importing Marine Mammals: Southwest Fisheries Science Center Fisheries Research, 58982-59013 2015-24639 NOTICES Draft 2015 Marine Mammal Stock Assessment Reports, 58705-58707 2015-24762 National Park National Park Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Nomination of Properties for Listing in the National Register of Historic Places, 58774-58776 2015-24653 National Science National Science Foundation NOTICES Antarctic Conservation Act Permit Applications, 58792-58793 2015-24706 Nuclear Regulatory Nuclear Regulatory Commission RULES Formatting and Non-substantive Corrections to Authority Citations; Corrections, 58573-58574 2015-24603 NOTICES Establishment of Atomic Safety and Licensing Board: PSEG Power, LLC and PSEG, Nuclear, LLC, 58793 2015-24793 Ocean Energy Management Ocean Energy Management Bureau NOTICES Requests for Information: State of the Offshore Renewable Energy Industry, 58786-58787 2015-24406 Natural Resources Office of Natural Resources Revenue NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Indian Oil and Gas Valuation, 58776-58786 2015-24840 Overseas Overseas Private Investment Corporation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 58793-58794 2015-24798 Pipeline Pipeline and Hazardous Materials Safety Administration RULES Pipeline Safety: Miscellaneous Changes: Response to Petitions for Reconsideration, 58633-58635 2015-24763 Postal Regulatory Postal Regulatory Commission RULES Update to Product Lists, 58611-58614 2015-24605 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: National Hunting and Fishing Day (Proc. 9329), 59015-59018 2015-25059 National Public Lands Day (Proc. 9330), 59019-59020 2015-25060 Securities Securities and Exchange Commission NOTICES Joint Industry Plan: Consolidated Audit Trail by BATS Exchange, Inc., BATS-Y Exchange, Inc., BOX Options Exchange LLC, etc., Amendment No. 2, 58796-58797 2015-24717 Self-Regulatory Organizations; Proposed Rule Changes: NASDAQ Stock Market LLC, 58799-58803 2015-24714 NYSE Arca, Inc., 2015-24715 58794-58799 2015-24716 Social Social Security Administration NOTICES Senior Executive Service Performance Review Board Membership, 58803 2015-24782 State Department State Department NOTICES Designations as Global Terrorists: Ansar Bayt al-Maqdis, a.k.a. Ansar Jerusalem, a.k.a. Supporters of Jerusalem, et al., 58804 2015-24866 Ansar Bayt al-Maqdis, a.k.a. Ansar Jerusalem, et al., 58806 2015-24861 Boubaker Ben Habib Ben Ali Hakim, a.k.a. Boubakeur al-Hakim, et al., 58805 2015-24876 Emilie Konig, 58805 2015-24896 Gulmurod Khalimov, 58806 2015-24897 Islamic State of Iraq and the Levant, a.k.a. Islamic State, et al., 2015-24892 58804-58805 2015-24893 Jaysh Rijal al-Tariq al-Naqshabandi, 58804 2015-24878 Jaysh Rijal al-Tariq al-Naqshabandi, a.k.a. Army of the Men of the Naqshbandi Order, et al., 58803-58804 2015-24838 Maxime Hauchard a.k.a. Abou Abdallah Al Faransi, 58805 2015-24890 Mujahidin Indonesia Timur, a.k.a. Mujahideen Indonesia Timor, et al., 58806 2015-24898 Peter Cherif a.k.a. Peter Cheraf, a.k.a. Abu Hamza Cheraf, et al., 58805-58806 2015-24899 Sally-Anne Frances Jones ak.a. Sally Anne Jones, et al., 58803 2015-24894 Substance Substance Abuse and Mental Health Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 2015-24811 58741-58744 2015-24812 Surface Transportation Surface Transportation Board NOTICES Abandonment Exemptions: BNSF Railway Co., Stearns County, MN, 58810-58811 2015-24767 Susquehanna Susquehanna River Basin Commission NOTICES Public Hearings, 58806-58808 2015-24684 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Railroad Administration

See

Federal Transit Administration

See

Pipeline and Hazardous Materials Safety Administration

See

Surface Transportation Board

Treasury Treasury Department See

United States Mint

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 58811-58814 2015-24678 2015-24744 2015-24749 2015-24756
Customs U.S. Customs and Border Protection NOTICES Commercial Gaugers; Approvals: SGS North America, Inc., Baton Rouge, LA, 58748 2015-24752 Commercial Guagers and Laboratories; Accreditations: Camin Cargo Control, Inc., Linden, NJ, 58747-58748 2015-24751 Meetings: Advisory Committee on Commercial Operations, 58748-58749 2015-24750 U.S. Mint United States Mint NOTICES Meetings: Citizens Coinage Advisory Committee, 58814 2015-24769 Veteran Affairs Veterans Affairs Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for Adaptive Sports Grant, 58814-58815 2015-24743 Privacy Act; Systems of Records, 58815-58817 2015-24730 Separate Parts In This Issue Part II Interior Department, Fish and Wildlife Service, 58820-58909 2015-24305 Part III Transportation Department, Federal Transit Administration, 58912-58950 2015-24491 Part IV Interior Department, Land Management Bureau, 58952-58979 2015-24008 Part V Commerce Department, National Oceanic and Atmospheric Administration, 58982-59013 2015-24639 Part VI Presidential Documents, 59015-59020 2015-25059 2015-25060 Reader Aids

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80 189 Wednesday, September 30, 2015 Rules and Regulations NUCLEAR REGULATORY COMMISSION 10 CFR Parts 20, 32, 54, 73, 95, and 110 [NRC-2015-0122] RIN 3150-AJ61 Formatting and Non-Substantive Corrections to Authority Citations; Corrections AGENCY:

Nuclear Regulatory Commission.

ACTION:

Correcting amendments.

SUMMARY:

The U.S. Nuclear Regulatory Commission (NRC) published a final rule in the Federal Register on September 9, 2015, that amended its regulations to better adhere to the Office of Federal Register's (OFR) guidance for formatting authority citations. In addition, the final rule corrected typographical errors and made other non-substantive corrections to the NRC's authority citations. The final rule contained incorrect punctuation and spacing, one incorrect reference, and omitted two references. This document makes additional corrections to NRC's authority citations.

DATES:

This rule is effective on September 30, 2015.

ADDRESSES:

Please refer to Docket ID NRC-2015-0122 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-2015-0122. Address questions about NRC dockets to Carol Gallagher; telephone: 301-415-3463; email: [email protected] For technical questions, contact the individual listed in the FOR FURTHER INFORMATION CONTACT section of this document.

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]

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.

FOR FURTHER INFORMATION CONTACT:

Cindy Bladey, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-415-3280, email: [email protected]

SUPPLEMENTARY INFORMATION: I. Discussion

The NRC published a final rule in the Federal Register on September 9, 2015 (80 FR 54223), that amended its regulations to better adhere to the OFR's guidance for formatting authority citations. In addition, the final rule corrected typographical errors and made other non-substantive corrections to the NRC's authority citations. The final rule inadvertently included incorrect punctuation and spacing in the authority citations for parts 54, 95, and 110 of Title 10 of the Code of Federal Regulations (10 CFR).

The final rule also included an incorrect reference in the authority citation for 10 CFR part 73. In a final rule published on May 20, 2013 (78 FR 29520), the NRC moved the advance notification provisions to governors of affected states for shipments of spent nuclear fuel through their affected states from 10 CFR 73.37(f) to 10 CFR 73.37(b)(2). There was no conforming change made to the authority citation for 10 CFR part 73, which still referenced 10 CFR 73.37(f). In a final rule published on November 10, 2014 (79 FR 66598), the NRC corrected this reference by changing it to 10 CFR 73.37(b)(2) in the authority citation for 10 CFR part 73. The September 9, 2015, final rule inadvertently reversed the previous correction. This document restores the authority citation for 10 CFR part 73 to reference 10 CFR 73.37(b)(2) rather than 10 CFR 73.37(f).

In addition, the final rule did not include a reference to Section 229 of the Atomic Energy Act (42 U.S.C. 2278a) in the authority citation for 10 CFR part 73. In a final rule published on October 14, 2009, the NRC amended its regulations to authorize the imposition of federal criminal penalties on those who introduce weapons or explosives without authorization into specified classes of facilities subject to NRC regulatory authority (74 FR 52667). The authority for this amendment derived from Section 654 of the Energy Policy Act of 2005 (EPAct), codified at 42 U.S.C. 2278a. The September 9, 2015, final rule converted citations to the EPAct to their corresponding citations in the United States Code, but did not include a reference to 42 U.S.C. 2278a. This document adds this reference to the 10 CFR part 73 authority citation.

Lastly, the final rule did not include a reference to Section 170H of the Atomic Energy Act (42 U.S.C. 2210h) in the authority citations for 10 CFR parts 20 and 32. In a final rule published on November 8, 2006, the NRC amended its regulations to implement the National Source Tracking System for certain sealed sources as required by Section 651(d) of the EPAct (71 FR 65686). In the 2006 final rule, the authority citations for 10 CFR parts 20 and 32 both referenced the entirety of the EPAct as authority, but these references were changed to specific references to Section 651(e) of the EPAct in a final rule published on October 1, 2007 (72 FR 55864), effectively removing the references to Section 651(d). The September 9, 2015, final rule did not restore this reference (codified at 42 U.S.C. 2210h). This document adds this reference to the authority citations for 10 CFR parts 20 and 32.

II. Rulemaking Procedure

Under the Administrative Procedure Act (5 U.S.C. 553(b)), an agency may waive the normal notice and comment requirements if it finds, for good cause, that they are impracticable, unnecessary, or contrary to the public interest. As authorized by 5 U.S.C. 553(b)(B), the NRC finds good cause to waive notice and opportunity for comment on the amendments because it will have no substantive impact and is of a minor and administrative nature. Specifically, these amendments are to correct punctuation and spacing and incorrect and omitted references in authority citations. These amendments do not require action by any person or entity regulated by the NRC. Also, the final rule does not change the substantive responsibilities of any person or entity regulated by the NRC. Furthermore, for these reasons, the NRC finds, pursuant to 5 U.S.C. 553(d)(3), that good cause exists to make this rule effective upon publication of this document.

List of Subjects 10 CFR Part 20

Byproduct material, Criminal penalties, Hazardous waste, Licensed material, Nuclear energy, Nuclear materials, Nuclear power plants and reactors, Occupational safety and health, Packaging and containers, Penalties, Radiation protection, Reporting and recordkeeping requirements, Source material, Special nuclear material, Waste treatment and disposal.

10 CFR Part 32

Byproduct material, Criminal penalties, Labeling, Nuclear energy, Nuclear materials, Radiation protection, Reporting and recordkeeping requirements.

10 CFR Part 54

Administrative practice and procedure, Age-related degradation, Backfitting, Classified information, Criminal penalties, Environmental protection, Nuclear power plants and reactors, Penalties, Radiation protection, Reporting and recordkeeping requirements.

10 CFR Part 73

Criminal penalties, Exports, Hazardous materials transportation, Incorporation by reference, Imports, Nuclear energy, Nuclear materials, Nuclear power plants and reactors, Penalties, Reporting and recordkeeping requirements, Security measures.

10 CFR Part 95

Classified information, Criminal penalties, Penalties, Reporting and recordkeeping requirements, Security measures.

10 CFR Part 110

Administrative practice and procedure, Classified information, Criminal penalties, Exports, Incorporation by reference, Imports, Intergovernmental relations, Nuclear energy, Nuclear materials, Nuclear power plants and reactors, Penalties, Reporting and recordkeeping requirements, Scientific equipment.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR parts 20, 32, 54, 73, 95, and 110.

PART 20—STANDARDS FOR PROTECTION AGAINST RADIATION 1. The authority citation for part 20 is revised to read as follows: Authority:

Atomic Energy Act of 1954, secs. 11, 53, 63, 65, 81, 103, 104, 161, 170H, 182, 186, 223, 234, 274, 1701 (42 U.S.C. 2014, 2073, 2093, 2095, 2111, 2133, 2134, 2201, 2210h, 2232, 2236, 2273, 2282, 2021, 2297f); Energy Reorganization Act of 1974, secs. 201, 202 (42 U.S.C. 5841, 5842); Low-Level Radioactive Waste Policy Amendments Act of 1985, sec. 2 (42 U.S.C. 2021b); 44 U.S.C. 3504 note.

PART 32—SPECIFIC DOMESTIC LICENSES TO MANUFACTURE OR TRANSFER CERTAIN ITEMS CONTAINING BYPRODUCT MATERIAL 2. The authority citation for part 32 is revised to read as follows: Authority:

Atomic Energy Act of 1954, secs. 81, 161, 170H, 181, 182, 183, 223, 234, 274 (42 U.S.C. 2111, 2201, 2210h, 2231, 2232, 2233, 2273, 2282, 2021); Energy Reorganization Act of 1974, sec. 201 (42 U.S.C. 5841); 44 U.S.C. 3504 note.

PART 54—REQUIREMENTS FOR RENEWAL OF OPERATING LICENSES FOR NUCLEAR POWER PLANTS 3. The authority citation for part 54 is revised to read as follows: Authority:

Atomic Energy Act of 1954, secs. 102, 103, 104, 161, 181, 182, 183, 186, 189, 223, 234 (42 U.S.C. 2132, 2133, 2134, 2136, 2137, 2201, 2231, 2232, 2233, 2236, 2239, 2273, 2282); Energy Reorganization Act of 1974, secs. 201, 202, 206 (42 U.S.C. 5841, 5842, 5846); 44 U.S.C. 3504 note.

Section 54.17 also issued under E.O. 12829, 58 FR 3479, 3 CFR, 1993 Comp., p. 570; E.O. 13526, 75 FR 707, 3 CFR, 2009 Comp., p. 298; E.O. 12968, 60 FR 40245, 3 CFR, 1995 Comp., p. 391.

PART 73—PHYSICAL PROTECTION OF PLANTS AND MATERIALS 4. The authority citation for part 73 is revised to read as follows: Authority:

Atomic Energy Act of 1954, secs. 53, 147, 149, 161, 170D, 170E, 170H, 170I, 223, 229, 234, 1701 (42 U.S.C. 2073, 2167, 2169, 2201, 2210d, 2210e, 2210h, 2210i, 2273, 2278a, 2282, 2297f); Energy Reorganization Act of 1974, secs. 201, 202 (42 U.S.C. 5841, 5842); Nuclear Waste Policy Act of 1982, secs. 135, 141 (42 U.S.C. 10155, 10161); 44 U.S.C. 3504 note.

Section 73.37(b)(2) also issued under Sec. 301, Public Law 96-295, 94 Stat. 789 (42 U.S.C. 5841 note).

PART 95—FACILITY SECURITY CLEARANCE AND SAFEGUARDING OF NATIONAL SECURITY INFORMATION AND RESTRICTED DATA 5. The authority citation for part 95 is revised to read as follows: Authority:

Atomic Energy Act of 1954, secs. 145, 161, 223, 234 (42 U.S.C. 2165, 2201, 2273, 2282); Energy Reorganization Act of 1974, sec. 201 (42 U.S.C. 5841); 44 U.S.C. 3504 note; E.O. 10865, as amended, 25 FR 1583, 3 CFR, 1959-1963 Comp., p. 398; E.O. 12829, 58 FR 3479, 3 CFR, 1993 Comp., p. 570; E.O. 12968, 60 FR 40245, 3 CFR, 1995 Comp., p. 391; E.O. 13526, 75 FR 707, 3 CFR, 2009 Comp., p. 298.

PART 110—EXPORT AND IMPORT OF NUCLEAR EQUIPMENT AND MATERIAL 6. The authority citation for part 110 is revised to read as follows: Authority:

Atomic Energy Act of 1954, secs. 11, 51, 53, 54, 57, 62, 63, 64, 65, 81, 82, 103, 104, 109, 111, 121, 122, 123, 124, 126, 127, 128, 129, 133, 134, 161, 170H, 181, 182, 183, 184, 186, 187, 189, 223, 234 (42 U.S.C. 2014, 2071, 2073, 2074, 2077, 2092, 2093, 2094, 2095, 2111, 2112, 2133, 2134, 2139, 2141, 2151, 2152, 2153, 2154, 2155, 2156, 2157, 2158, 2160c, 2160d, 2201, 2210h, 2231, 2232, 2233, 2234, 2236, 2237, 2239, 2273, 2282); Energy Reorganization Act of 1974, sec. 201 (42 U.S.C. 5841); Administrative Procedure Act (5 U.S.C. 552, 553); 42 U.S.C. 2139a, 2155a; 44 U.S.C. 3504 note.

Section 110.1(b) also issued under 22 U.S.C. 2403; 22 U.S.C. 2778a; 50 App. U.S.C. 2401 et seq.

Dated at Rockville, Maryland, this 23rd day of September, 2015.

For the Nuclear Regulatory Commission.

Cindy Bladey, Chief, Rules, Announcements, and Directives Branch, Division of Administrative Services, Office of Administration.
[FR Doc. 2015-24603 Filed 9-29-15; 8:45 am] BILLING CODE 7590-01-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Parts 11 and 121 [Docket No.: FAA-2014-0205; Amdt. Nos. 11-57 and 121-373] RIN 2120-AK17 Disclosure of Seat Dimensions To Facilitate Use of Child Safety Seats on Airplanes During Passenger-Carrying Operations AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

This final rule requires air carriers conducting domestic, flag, and supplemental operations to make available on their Web sites information to enable passengers to determine which child restraint system can be used on airplanes in these operations. Specifically, this final rule requires air carriers to make available on their Web sites the width of the narrowest and widest passenger seats in each class of service for each make, model and series of airplane used in passenger-carrying operations.

DATES:

This rule is effective October 30, 2015. Compliance with this rule is required February 29, 2016.

ADDRESSES:

For information on where to obtain copies of rulemaking documents and other information related to this final rule, see “How To Obtain Additional Information” in the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT:

For technical questions concerning this action, contact Catherine Burnett, Flight Standards Service, Air Transportation Division, AFS-200, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-8166; email [email protected] For legal questions concerning this action, contact Sara L. Mikolop, Office of the Chief Counsel, Regulations Division, AGC-200; Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-3073; email [email protected]

SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

Section 412 of the FAA Modernization and Reform Act of 2012 (Pub. L. 112-95) 1 (the Act) required the FAA to conduct rulemaking “[T]o require each air carrier operating under part 121 of title 14, Code of Federal Regulations, to post on the Internet Web site of the air carrier the maximum dimensions of a child safety seat that can be used on each aircraft operated by the air carrier to enable passengers to determine which child safety seats can be used on those aircraft.” 2 This rulemaking is promulgated under the scope of the authority in section 412 of the Act.

1 Codified as a preceding note to 49 U.S.C. 42301, 126 Stat. 89.

2 Section 412 of Public Law 112-95 uses the term “child safety seat.” However, the FAA uses the term “child restraint system” to describe an approved seat or device used to restrain children on aircraft. Thus, for consistency with existing FAA regulations, this final rule uses the term child restraint system (CRS), rather than child safety seat.

In addition to the authority found in the Act, the FAA has authority under Title 49 of the United States Code (49 U.S.C.) to issue rules on aviation safety. Section 106 of Subtitle I 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 consistent with the authority described in 49 U.S.C. 106(f), which establishes the authority of the Administrator to promulgate regulations and rules and 49 U.S.C. 44701(a)(5), which requires the Administrator to promote safe flight of civil aircraft in air commerce by prescribing regulations and minimum standards for other practices, methods, and procedures necessary for safety in air commerce and national security.

I. Overview of the Final Rule

Existing regulations regarding the use of a child restraint system (CRS) on airplanes operating under part 121 are found in 14 CFR 121.311. In accordance with § 121.311, no certificate holder 3 conducting operations under part 121 may prohibit a child from using an approved CRS when the child's caregiver 4 purchases a ticket for the child.

3 The FAA notes that Public Law 112-95 uses the term “air carrier.” FAA regulations use terms such as “certificate holders”, “operators”, and “air carriers” to describe a person who undertakes directly by lease, or other arrangement, to engage in air transportation. This final rule uses the term “air carrier” to refer to these persons.

4 Section 121.311 uses the term “parent, guardian, or designated attendant” to refer to the person traveling with, and providing care for, the child. For ease of reference the FAA has used “caregiver” throughout this final rule to refer to these persons.

The FAA strongly encourages the use of an FAA-approved CRS on aircraft.5 However, in a small number of cases, an approved CRS may not fit in a particular airplane seat because the CRS exceeds the dimensions of the airplane seat. Accordingly, the FAA has issued guidance to facilitate the use of a CRS on airplanes in situations when a caregiver purchased a ticket for the child but the approved CRS that the caregiver wishes to use does not fit in a particular seat on the airplane.6 7 Although the FAA has provided guidance to air carriers regarding how to accommodate a CRS, this rulemaking would give caregivers additional information on whether an FAA-approved CRS will fit on the airplane on which they expect to travel.

5See http://www.faa.gov/passengers/fly_children/crs/ (visited March 26, 2015).

6 Advisory Circular (AC) 120-87B, Use of Child Restraint Systems on Aircraft (September 17, 2010). The agency has revised and updated this AC. The revised and updated AC, published with this final rule, is identified as AC 120-87C. All ACs can be found at http://www.faa.gov/regulations_policies/advisory_circulars/.

7 Information For Operators (InFO) 11007 Regulatory Requirements Regarding Accommodation of Child Restraint Systems—Update (March 10, 2011) is available at http://www.faa.gov/other_visit/aviation_industry/airline_operators/airline_safety/info/all_infos/.

This rule requires air carriers operating under 14 CFR part 121 that have Web sites to post on their Web sites information regarding airplane seat dimensions. The FAA notes, however, that this rule does not require an air carrier that does not have a Web site to establish a Web site to satisfy the information disclosure requirements of this final rule.

Specifically, affected air carriers must post the width of the narrowest and widest passenger seats in each class of service for each airplane make, model and series operated in passenger-carrying operations. By requiring air carriers to make this information available, the agency expects caregivers to have more information about whether a specific CRS can be used on the airplane on which they expect to travel.

The FAA emphasizes that this rule includes an information disclosure requirement only. It does not create any new operational requirements for air carriers or flight attendants; it does not change any existing provisions regarding the use of a CRS on board airplanes or existing regulations regarding passengers under the age of 2 traveling on board airplanes with or without the use of a CRS; and, it does not require an air carrier to identify the specific airplane that it will use on a given flight.

This final rulemaking is minimal cost and is estimated to be $372,600 over a ten-year period ($271,800 present value).

II. Background A. Existing Requirements

Existing requirements regarding CRS use in part 121 operations are found in 14 CFR 121.311. Section 121.311(c)(2) generally states that no air carrier may prohibit a child, if requested by the child's caregiver, from occupying a CRS furnished by the child's caregiver provided that the following conditions are satisfied: The child holds a ticket for an approved seat or a seat is made available by the air carrier for the child's use; the child is accompanied by a caregiver; and, the CRS is appropriately labeled and secured. (Certificate holders are encouraged to allow the use of an empty seat to accommodate a CRS; however, they are not required to allow non-ticketed children to occupy empty passenger seats, even if the child uses a CRS.)

Under § 121.311(c)(3), however, air carriers may determine the most appropriate passenger seat location for a CRS based on safe operating practices. In assessing the most appropriate location for a CRS, an air carrier must consider a number of factors. For example, the CRS must be installed in a forward-facing airplane seat in accordance with the provisions of § 121.311. This includes placing the CRS in the appropriate forward or aft-facing direction as indicated on the label for the size of the child. A window seat is the preferred location; however, other locations may be acceptable, provided the CRS does not block the egress of any passenger, including the child's caregiver, to the aisle used to evacuate the airplane.

B. Public Information and Guidance Material

The FAA encourages the use of an approved CRS on airplanes and has committed to educate and inform passengers, air carriers and crewmembers regarding CRS use on airplanes in order to increase their use on airplanes. Accordingly, the FAA provides information on its Web site for caregivers traveling with children on the use of a CRS on airplanes. The public information and guidance material are intended to be useful to caregivers in support of the agency's commitment regarding CRS use. For example, the FAA has previously addressed the issue of “CRS fit” in airplane seats on the FAA Web site by informing caregivers that a CRS with a maximum width of 16 inches should fit in most airplane seats.8

8http://www.faa.gov/passengers/media/childsafety.pdf (visited July 8, 2015).

Additionally, on November 3, 2005, the FAA published Advisory Circular (AC) 120-87, Use of Child Restraint Systems on Aircraft, to serve as a resource during development, implementation, and revision of an air carrier's standard operating procedures and training programs regarding CRS use. The FAA has since published two amended versions of the AC. AC 120-87A was published on December 1, 2006 and AC 120-87B was published on September 17, 2010. The AC provides information on placement of a CRS on airplanes that may be considered by air carriers as they develop policies regarding seat locations for CRS use on a specific airplane. The AC also explains how placement of a CRS in an aisle seat or in a seat forward or aft of an emergency exit row may affect egress during an evacuation. Further, the AC emphasizes the carrier's discretion in identifying the most appropriate forward-facing passenger seat location for a CRS but explains that prohibiting the use of a CRS by a ticketed child, when there are seats where the CRS could be used safely, is not consistent with § 121.311. The FAA will publish updated AC 120-87C with this final rule to address the seat dimension disclosure requirements of this final rule.

The FAA also published Information for Operators (InFO) 11007, Regulatory Requirements Regarding Accommodation of Child Restraint Systems—Update, to clarify regulations regarding CRS accommodation and to provide information for a CRS with a detachable base. As with AC 120-87, InFO 11007 provides examples of CRS design variations and lists possible solutions for accommodation. For example, a CRS with a base that is too wide to fit properly in a seat with rigid armrests could be moved to a seat with moveable armrests that can be raised to accommodate the CRS, and an aft-facing CRS that cannot be installed properly, because of minimal pitch (distance between rows of seats), can be moved to a bulkhead seat or a seat in a row with additional pitch. The FAA will publish an updated InFO so that it remains consistent with the requirements of this final rule.

C. Summary of the Notice of Proposed Rulemaking (NPRM)

Section 412 of the FAA Modernization and Reform Act of 2012 (Pub. L. 112-95) (the Act) required the FAA to conduct rulemaking “[T]o require each air carrier operating under part 121 of title 14, Code of Federal Regulations, to post on the Internet Web site of the air carrier the maximum dimensions of a child safety seat that can be used on each aircraft operated by the air carrier to enable passengers to determine which child safety seats can be used on those aircraft.” To fulfill the requirements of the Act, the FAA proposed to require air carriers operating under part 121 to make available on their Web sites the width of the widest passenger seat in each class of service for each make, model and series of airplane used in passenger-carrying operations (79 FR 18212, April 1, 2014). The agency intended the proposed revisions to part 121 to provide greater information to caregivers to help them determine whether a particular CRS will fit in an airplane seat. This proposal would not have affected existing regulations regarding the use of a CRS on board airplanes or a passenger under the age of 2 traveling onboard airplanes with or without the use of a CRS. The NPRM provided a public comment period of 90 days, which ended on June 30, 2014.

D. General Overview of Comments

The FAA received ten comments. Commenters included three individuals, Airlines for America (A4A), the American Automobile Association (AAA), the Association of Flight Attendants (AFA), Baby B'Air, Consumers Union, the National Transportation Safety Board (NTSB) and Spirit Airlines (Spirit). All of the commenters generally supported the proposed changes; however, some suggested changes, as addressed in the section of the document entitled, “Discussion of Public Comments and Final Rule.”

The FAA received comments on the following general issue areas related to the proposal:

• Disclosure of the width of the narrowest seat in addition to the proposal to disclose the width of the widest seat in each class of service;

• Disclosure of the width of the narrowest seat in lieu of the proposal to disclose the width of the widest seat in each class of service;

• Disclosure of seat pitch in addition to the proposal to disclose seat width;

• Airplane equipment changes that result in seat measurements different from the measurements relied upon for a seat previously purchased;

• Definition of “seat width”; and

• Commonality of seat dimensions (within the same class of service) among an air carrier's airplanes within the same make, model and series.

Several commenters addressed issues outside of the scope of this rulemaking. These issues included discussion of a requirement for all passengers including infants to be properly secured in their own seats with an approved safety restraint.

III. Discussion of Public Comments and Final Rule

This rulemaking satisfies the rulemaking requirement of section 412 of the Act by making more information available to allow caregivers to make a determination regarding CRS fit prior to a flight. In the NPRM, the agency proposed to require air carriers conducting passenger operations under part 121 to disclose on their Web sites the width of the widest passenger seat in each class of service for each airplane make, model and series within the air carrier's fleet. The proposal was limited in its applicability to part 121 air carriers conducting passenger-carrying operations because all-cargo operations have generally been excluded from part 121 requirements pertaining to passengers.9 See 14 CFR 121.583. The agency notes that the proposed information disclosure requirement would supplement existing regulations that allow the use of an approved CRS and FAA guidance to caregivers regarding CRS fit in airplane seats.

9 Part 121 passenger-carrying operations are defined in § 110.2 to mean “any aircraft operation carrying any person, unless the only persons on the aircraft are those identified in §§ 121.583(a) or 135.85 of this chapter, as applicable. An aircraft used in a passenger-carrying operation may also carry cargo or mail in addition to passengers.”

The final rule differs from the proposal in two respects. First, whereas the proposal required disclosure of only the widest seat in each class of service, the final rule requires disclosure of both the widest and the narrowest seats in each class of service. Second, the final rule clarifies the measurement of seat width. The agency addresses these modifications in more detail in the discussions entitled “Disclosure of width of the widest and narrowest seats in each class of service” and “Definition of seat width” respectively.

A. Airplane Passenger Seat Dimensions

Although section 412 of the Act refers to the maximum dimensions of child safety seats that can be used on each aircraft the operator uses, the FAA proposed an alternate approach in the NPRM in order to implement the statute's goal to enable a passenger to determine which CRS can be used on an airplane. The FAA does not believe that it is practical for each air carrier to provide the maximum dimensions of one or many CRSs the carrier does not possess or to which the carrier does not have ready access. In contrast, air carriers have ready access to the airplanes they operate and information regarding those aircraft.

Therefore, the agency proposed to require air carriers to provide seat dimension data to fulfill the intent of the statutory requirement for rulemaking. Seat dimension data provides information equivalent to CRS dimension data that can be used to assist caregivers in making a determination as to whether a CRS will fit in a passenger seat on the airplane on which they expect to travel.

The agency did not receive any comments objecting to the proposal to provide seat dimension information and A4A specifically supported it. Accordingly, in the final rule, the FAA has maintained the NPRM approach to providing seat dimension information.

B. Disclosure of Seat Dimensions for Each Class of Service for Each Make, Model and Series of Airplane Used for Passenger-Carrying Operations

In the NPRM, the agency proposed to amend § 121.311 by adding a requirement for air carriers to disclose seat dimension information for each class of service for each airplane make, model and series that a certificate holder uses in passenger-carrying operations.

Class of service—Spirit noted that while it has only one class of service, within that class it offers wider seats at a higher price. Spirit's concern is that publishing the dimensions of these higher-priced seats could mislead passengers, causing them to believe that the higher priced seats are available without paying an additional fee.

The FAA appreciates Spirit's comments but has determined that class of service is the most relevant break point for information disclosure as it remains the prevailing concept used to distinguish seat products, including the seat size variations and amenities that are associated with those products. It has also been the agency's longstanding policy that CRS accommodation need only be made within the same class of service as the ticket holder's class of service in order to comply with § 121.311(c)(2). See AC 120-87. Thus, disclosure of seat dimension information for each class of service correlates to the existing air carrier obligations for CRS accommodation. The DOT defines “class of service” to mean seating in the same cabin class such as First, Business, or Economy class, or in the same seating zone if the carrier has more than one seating product in the same cabin such as Economy and Premium Economy class.

The agency recognizes, however, that there may be seat product concepts that are analogous to the distinction in classes of service for purposes of CRS accommodation and that they may be relevant to the assessment of CRS accommodation. The agency will address these analogous seat product concepts and their relevance to CRS accommodation in revised CRS guidance material published with this final rule (AC 120-87C).

The purpose of this final rule is to facilitate CRS use on airplanes through disclosure of seat dimensions. Consistent with this goal, the agency encourages air carriers to provide any additional information to their customers that would further facilitate CRS use on airplanes.

Airplane substitutions and airplane equipment (passenger seats)—Two commenters (NTSB and AAA) expressed concern about airplane substitutions and the absence of a requirement for air carriers to disclose the make, model and series for each flight. NTSB noted that the NPRM does not address situations in which an air carrier makes an airplane substitution and the substitution airplane has different types of seats with measurements that differ from the measurements relied upon for a seat previously purchased for the intended use of a CRS. AAA suggested that the FAA should require air carriers to provide a list of potential planes used for particular routes, as this could provide consumers with information more relevant and useful in planning travel. Consumers Union recommended that air carriers should identify the airplane that will be used for each segment of a flight, whether that segment is operated by the air carrier with which the consumer is dealing directly, or by some other air carrier with which the first air carrier has a code-sharing or other partnership arrangement.

In related comments, A4A and Spirit disagreed with FAA's information about the commonality of seat dimensions among an air carrier's airplanes of the same make, model and series. A4A stated, “The widths of the widest and narrowest passenger seats may vary within a given aircraft series and operated by the same carrier depending on the particular model of seats installed on the aircraft.” Similarly, Spirit commented that its 29 Airbus A319-100 airplanes are equipped with different seat models that differ in width.

The information disclosure requirements in this final rule balance the directive to facilitate CRS use and the necessary operational flexibility that air carriers must have to substitute airplanes as they determine appropriate. Currently, there is no requirement for air carriers to disclose in advance of a flight, the specific airplane that will be used for that flight, and such a requirement is outside of the scope of this rulemaking. Without such a requirement, additional seat information disclosure requirements applicable to each specific airplane in an air carrier's fleet would not further facilitate CRS use.

While the agency agrees with comments indicating that not every airplane of the same make, model and series used by a particular air carrier may be equipped with the same seat model, and that some may differ in size, after further review of airplanes used by affected air carriers, the FAA determined that in many cases, there is commonality in seat dimensions for airplanes of the same make, model, and series operated by an air carrier. Therefore, this final rule leverages the commonality that does exist among aircraft seats to provide caregivers with the most helpful information regarding CRS fit.

Additionally, in the example cited by Spirit where there may be varying models of seats on a particular make, model and series of aircraft, Spirit would still only have to post two measurements. In Spirit's example, the make is Airbus, the model is 319 and the series is 100. If, hypothetically, there were three or four different models of seats with varying widths on their entire A-319-100 fleet, in order to comply with the requirements of this final rule, Spirit would only have to post the dimensions of the narrowest seat and the widest seat in each class of service for their entire fleet of A-319-100s.

Accordingly, the final rule retains the proposed requirement to disclose seat information for each class of service for each airplane make, model, and series operated by the air carrier in passenger carrying operations.

C. Disclosure of Width of the Widest and Narrowest Seats in Each Class of Service

In the NPRM, the agency proposed to require air carriers to disclose the width of the widest passenger seat in each class of service because width is the predominant limiting seat dimension for CRS use on airplanes. Also, if a caregiver knew the width dimension of the widest seat for a particular class of service on an airplane, and if the CRS the caregiver intended to use on the flight fits within that dimension, then the caregiver would be able to expect that at least one seat in the class of service for which the caregiver and child were ticketed would accommodate the CRS.

The agency also sought comment on alternative proposals pertaining to the disclosure of seat width. Specifically, the agency asked whether disclosure of only the narrowest seat in each class of service or disclosure of both narrowest seat and the widest seat in each class of service would be more effective in facilitating CRS use.

Two commenters (an individual and Spirit) recommended that the FAA modify the proposal by requiring air carriers to disclose the dimensions of the narrowest seat in each class of service rather than the widest. An individual commenter noted that if a CRS will fit in the narrowest seat in a particular class of service, it will fit in all seats in that class. Spirit offered a similar argument and added that disclosure of the widest seat in each class of service would lead to passenger confusion about the availability of the widest seats.

Four commenters (A4A, AFA, NTSB and Consumers Union) recommended modifying the proposal by requiring air carriers to disclose the widths of both the narrowest and widest seats in each class of service because such a requirement would further the goal of providing the most useful information to caregivers.

A4A suggested that disclosure of dimensions of only the widest seat on an aircraft could lead caregivers to mistakenly assume that their CRS will fit in their reserved seat if it is smaller than the dimensions of the widest seat available, and that such misunderstandings could lead to airplane boarding delays. A4A also noted that disclosure of only the widest seat could discourage caregivers from using a CRS based on concern that they may not be assigned to that widest seat. Further, A4A commented that provision of the widths of both the narrowest and widest seats in each class of service provides caregivers a more complete picture of the dimensions of the entire seat class, enabling them to make more informed decisions pertaining to CRS use.

AFA commented that requiring disclosure of both dimensions would more effectively achieve the statutory intent of facilitating CRS use. AFA did not support disclosure of only the widest seat in each class of service.

NTSB commented that providing the width for both the narrowest and widest seats in each class of service for seats in which a CRS could be installed would give caregivers more useful information. NTSB explained that this additional information could enable the caregiver to work with the air carrier to determine the most suitable seat assignment. NTSB also commented that providing the dimensions of the narrowest seats could help CRS manufacturers to develop or identify a CRS that can fit in any air carrier seat, thereby assisting caregivers in procuring a CRS suitable for air travel.

Consumers Union generally supports a requirement to disclose seat dimension information, but added that a better approach would be to require disclosure of all the dimensions of all available seats on an airplane to enable the consumer to select an appropriate seat from all available seats.

While the FAA recognizes that other seat dimensions may limit CRS fit on some occasions, seat width remains the predominant limiting dimension for CRS use in an airplane seat and thus remains the focus of this rulemaking. However, upon further consideration of the proposal and review of comments, the FAA agrees with comments regarding the benefits of disclosure of the width of both the narrowest and widest seat in each class of service for each airplane make, model and series. Disclosure of the widths of both the narrowest and widest seats in each class of service would be more effective in achieving the statutory intent of facilitating CRS use. Thus, the final rule requires each air carrier to make available on its Web site the width of both the narrowest and widest passenger seats in each class of service, for each airplane make, model, and series used in passenger-carrying operations under part 121. Disclosure of the width of the narrowest and widest seats in each class of service will enable caregivers to better determine if the CRS they provide for their child will fit in the airplane on which they expect to travel and thus will encourage more widespread use of a CRS in air transportation.

Finally, NTSB commented that “[I]nformation should only be provided for seats in which an approved CRS would be allowed to be installed.” The NTSB noted that CRS use is typically not permitted in exit rows and aisle seats so as not to affect emergency egress. The FAA agrees with the intent of the NTSB comment and recognizes the importance of information about potential limitations on CRS use.

Some air carriers currently publish information regarding regulatory restrictions or approved operating procedures that limit CRS use in specific airplane locations (e.g. exit rows, seats that are not forward facing, aisle seats).10 In the updated guidance material published with this final rule (AC 120-87C), the agency encourages all air carriers to provide passengers with such information. The agency emphasizes that under § 121.311(c) and as further explained in AC 120-87C (and previous editions of this AC), the FAA permits air carriers to determine the most appropriate passenger seat location for a CRS, consistent with safe operating practices. Although some limits on CRS location may be aircraft-specific and thus consistently applied across aircraft of the same make, model and series, in other cases, the air carrier determination regarding CRS location may be operation-specific. Air carriers must retain the operational flexibility to adjust their procedures regarding CRS placement and make real-time determinations regarding CRS placement as necessary to comply with safe operating practices. Thus given the necessity for air carriers to retain the flexibility to determine appropriate seat locations for CRS use, the suggested modification to the requirement for seat information on the air carrier's Web site would not further facilitate CRS use and result in an unnecessary burden.

10 14 CFR 121.585(b) prohibits CRS use in exit rows and 14 CFR 121.311(b) only allows use of CRS in forward-facing seats.

D. Definition of Seat Width

A4A stated that the NPRM did not define seat width and suggests that the FAA include a definition of “seat width” in the final rule to avoid confusion. A4A recommended that seat width should be measured as the distance between the inside of the seat arm rests.

Although the NPRM preamble identified seat width as the distance between arm rests, to ensure clarity, the amendment to § 121.311 will include a definition of seat width applicable to seat dimension disclosure requirements. Consistent with the A4A comment and the NPRM preamble, the definition will specify that seat width is the distance between the inside of the seat arm rests.

E. Seat Pitch

In the NPRM, the FAA considered requiring disclosure of seat pitch (distance between rows of seats); however the agency determined that the predominant passenger seat dimension that limits CRS use is the width of the passenger seat.

Three commenters—NTSB, Consumers Union and AAA—recommended that the FAA require disclosure of seat pitch in addition to seat width, as seat pitch may be the limiting dimension in situations involving a rear-facing CRS. The agency acknowledges that in some circumstances, seat pitch can affect the use of a CRS that must be used in an aft-facing position, but using pitch to determine CRS fit is complex and minimally effective without additional detail.

Air carriers may be able to provide the distance between rows of passenger seats or “pitch” and some air carriers currently do so. However, as stated in the NPRM, a rear-facing CRS does not have an equivalent measurement to “pitch” as it does to “width.” In order to be installed properly, an aft-facing CRS must be installed in an aircraft seat on an angle. An aft-facing CRS has an installed level indicator (typically a moving ball or needle that must stay between two lines) that indicates when the CRS is properly oriented in the airplane seat. Therefore, although seat pitch can affect whether there is enough room to properly use an aft-facing CRS, it is only part of the triangular equation with several variables which makes it difficult for seat pitch data to provide meaningful information to a caregiver. (The agency notes that one way to accommodate an aft-facing CRS that does not fit in a row because of seat pitch, is for the air carrier to move the CRS to a seat in a bulkhead row where pitch is not typically an issue.)

Based on the foregoing and consistent with the proposal, the final rule does not require air carriers to provide information regarding seat pitch.

F. Disclosure of Seat Dimensions on Air Carrier Web Sites

Consistent with the requirement for rulemaking in section 412 of the Act, the agency proposed to require air carriers that have Web sites to disclose on those Web sites certain seat dimension data. The final rule includes this disclosure requirement.

In the NPRM, the FAA noted that a number of air carriers currently conducting passenger-carrying operations already provide seat dimension information on their Web sites. For example, some air carriers currently provide both the pitch and width for the passenger seats in each class of service. The agency expects, however, that the information disclosure proposed in the NPRM and included in this final rule will increase the instances in which caregivers are able to assess whether a CRS will fit on an airplane make, model, and series on which they expect to travel.

Air carriers may use existing information pages on their Web sites that already provide information regarding airplane cabin interior dimensions and CRSs to list the width of the widest and narrowest seats for each class of service on each airplane make, model, and series in their fleets.

The only time an air carrier would need to update its Web site after initial implementation would be when a new airplane make, model, or series is introduced to the air carrier's fleet, or when the air carrier replaces the widest or narrowest seats installed on an existing airplane make, model, or series with wider or narrower seats.

Consumers Union stated that it is insufficient to require seat dimension information to be disclosed only on air carrier Web sites and recommended making such information available “[E]verywhere a consumer might purchase a ticket or change a flight.” While the FAA appreciates the intent behind this comment, this rule is promulgated under the authority of section 412 of the Act, which requires the FAA to initiate rulemaking to require air carriers conducting part 121 operations to make certain information available on those air carriers' Web sites. Therefore, as proposed, the final rule will require seat information disclosure on the air carrier's Web site only.

G. Passenger Seat Requirements

Three commenters—Consumers Union, NTSB, and AFA—suggested that the ultimate goal should be to mandate that all passengers including infants be properly secured in their own seats with approved safety restraints. Consumers Union added that as an interim step, air carriers should facilitate and encourage CRS use by offering seats at no cost or a drastically reduced cost for infants and toddlers under the age of two.

The FAA appreciates the intent of these comments and strongly encourages the use of a CRS on airplanes through multiple outreach efforts. However, this comment recommends changes to current passenger seating requirements that are outside of the scope of the information disclosure NPRM that preceded this final rule.

H. Miscellaneous

The FAA proposed a conforming change to 14 CFR 121.583 to make clear that the requirement applies in passenger-carrying operations only. The FAA did not receive any comments on this proposed conforming change and has included it in the final rule.

I. Part 11 Amendment

The FAA submitted a request for Office of Management and Budget (OMB) approval for the information collection activities in this final rule. OMB has approved the information collection and assigned OMB control number 2120-0760. Accordingly, the FAA is updating the table in § 11.201(b) to display this control number.

J. Effective Date

The FAA recognizes that different operators will need different lengths of time to comply with this regulation due to variations in information technology systems, variations in currently published data, and the range of numbers of airplane make, model and series in each operator's fleet. In the NPRM, the FAA proposed an effective date of 150 days after the date of publication of the final rule in the Federal Register and proposed to require compliance on the effective date.

While the FAA did not receive any comments on the proposed effective and compliance dates, further review of this issue led the FAA to conclude that the effective date of the final rule should be 30 days after publication. Accordingly, the final rule will be effective 30 days after publication in the Federal Register, and compliance will be 150 days after publication of the final rule.

IV. Regulatory Notices and Analyses A. Regulatory Evaluation

Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Agreements Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this rule.

Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a proposed or final rule does not warrant a full evaluation, this order permits that a statement to that effect and the basis for it to be included in the preamble if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made for this rule. The reasoning for this determination follows.

The FAA estimates that children under the age of two represent one percent of all commercial passengers.11 When travelling by air, a caregiver for a child under the age of two may choose either to fly with the child seated in the caregiver's lap (at no additional fee for the caregiver), or to purchase a separate ticket for the child, thus allowing the child to be secured in his or her own seat, with or without the use of a CRS. The agency does not have the exact count of passengers younger than two or whether those passengers arrived at their destinations sitting in the lap of a caregiver or secured in a separate airplane seat.

11 Child Passenger Safety Forum, National Transportation Safety Board, December 9, 2010, Summary Report at page 3.

For child safety purposes, the FAA encourages (but does not require) caregivers to purchase a separate ticket for each child under the age of two so that the child can be securely restrained in a CRS. The FAA does not require the use of CRS for children under the age of two based on the FAA's analysis which shows that when caregivers are forced to purchase airline seats for children under age 2, the additional cost of an airline ticket will motivate some families to drive to their destinations instead of to fly. As background, section 522 of Public Law 103-305, required the Secretary of Transportation to study the impact of mandating the use of CRSs for children under 2 years old on scheduled air carriers. The Secretary submitted a report of this study to Congress in 1995. The report estimated that if a child restraint rule were imposed, approximately five infant lives would be saved aboard aircraft, and two major injuries and four minor injuries would be avoided over a 10-year period. The report also cautioned that this improvement would be offset by additional highway fatalities for airline passengers who chose to drive rather than purchase a seat for children under age 2. Even if infant fares were only 25 percent of full fare, the report estimated that there would be diversion to cars and thus a net increase in fatalities over a 10-year period.

The concern expressed in the 1995 report on mandating the use of CRSs for children under 2 years old, was that mandating CRSs (which require a passenger seat) could increase airline travel costs to families with children under age 2 enough to cause a significant number to travel by automobile instead of by airplane. In turn, this would expose the entire family to the higher risks of automobile travel and associated highway fatalities and injuries.12 The FAA updated this report in December, 2011, and confirmed its conclusion.13

12See 70 FR 50266, Aug. 26, 2005. A copy of the Report to Congress has been placed in the docket.

13 “Update of Safety Benefits & Tradeoffs Related to Requiring the Use of Child Restraint Systems on Aircraft for Children Less Than Two Years of Age” December, 2011. http://www.dot.gov/faac/report/update-safety-benefits-tradeoffs-related.

Currently, air carriers are not required to disclose seat dimension information on their Web sites. It is believed that some caregivers choose not to travel with a CRS due to concern that the seat will not fit the particular equipment being flown. Congress directed the FAA to conduct rulemaking “[T]o require each air carrier operating under part 121, to post on the Internet Web site of the air carrier the maximum dimensions of a child safety seat that can be used to enable passengers to determine which child safety seats can be used on those aircraft.” See Public Law 112-95. Once implemented, this rule would require each part 121 air carrier that conducts passenger-carrying operations to post seat dimension information to their Web site (air carriers that do not have Web sites are excluded from this rule). This rule will benefit caregivers by making seat dimension information accessible, which in turn will allow them to determine if a particular CRS may fit in a seat of an aircraft. A caregiver may be inclined to purchase a separate ticket for a child under age 2 if the caregiver can reasonably expect that the child under age 2 can be secured in a CRS during flight.

The FAA considered several alternatives for determining the type of seat dimension information to be posted on air carrier Web sites.

One alternative required the width of each seat in each class of service for each individual airplane operated by an air carrier be posted on its Web site. While this alternative would provide the most precise information to caregivers, the FAA believes that maintaining this much detail to be unnecessarily onerous for the air carriers because multiple seats of the same width can be found within each class of service. Further, in order for this information to be useful, there can be no change in a flight's equipment from the time a ticket is purchased to the time of the flight's departure.

Another alternative required air carriers to publish only one dimension — that of the narrowest seat across an air carrier's entire fleet. This alternative, however, would only allow a caregiver to determine if there may be a possibility of a particular CRS fitting a particular airline seat on a particular flight. The FAA believes that providing the dimension of the narrowest seat only across an entire fleet would not facilitate CRS use because a caregiver with a CRS larger than the narrowest seat may be discouraged from using a CRS, even though there may be wider seats available that could accommodate one. Therefore this approach would not meet the intent of Congress when it mandated disclosure of seat dimensions.

After considering the alternatives, the FAA decided that the information to be posted on air carrier Web sites should provide caregivers with data to facilitate CRS use but should not be overly burdensome for the air carriers. Based on these criteria and comments to the proposed rule, the final rule requires an air carrier to post on its Web site the width of the narrowest and widest seats for each make, model, and series of aircraft in each class of service in the air carrier's fleet. This level of detail is reasonable given that most air carriers already disclose other airplane-related dimensions on their Web sites, including dimensions for overhead bins, space underneath seats, maximum size of carry-on luggage, and maximum size for pet carriers. Because of the level of detail air carriers are already providing, the FAA believes the requirements of this rule to be a minimal impact to those part 121 air carriers conducting passenger-carrying operations.

In the proposed rule air carriers were required to provide only the dimension of the widest seat for each make, model, and series of aircraft. The FAA received no comments on the cost-benefit methodology and estimates.

To account for the inclusion of providing the narrowest seat dimension in addition to that of the widest, the costs of the final rule exceed those estimated for the proposed rule. The cost increase is a result of the additional workload required by staff to gather and post to an air carrier's Web site the dimension of the narrowest seat dimension for each make, model, and series of aircraft operated by an air carrier, in addition to that of the widest. The FAA assumes that this activity does not impact the time estimated in the NPRM for management to verify that a carrier's Web site has been updated satisfactorily. Thus, adding the narrowest seat dimension to a carrier's Web site for the final rule increases present value costs beyond those of the NPRM by $6,500 for the low case, and $7,600 for the high case (in 2013 dollars).

The FAA reports there to be 81 part 121 air carriers; 14 however, only 58 of the 81 air carriers are impacted by this rule. Excluded from this rule's analysis are 21 cargo carriers; 1 air carrier that has ceased operations and filed for bankruptcy; and 1 air carrier that does not have an Internet Web site (air carriers that do not have Web sites do not need to comply with this rule).

14 FAA data from Q4, FY 2014.

To determine the cost of this rule, hours are estimated for each occupational job series 15 required to complete the task. The estimated hours are then multiplied by the United States Department of Labor Bureau of Labor Statistics (BLS) fully-burdened hourly wage rate for the corresponding occupational job series. Thus, the rule's total cost equals hours worked multiplied by hourly wages, summed across all part 121 air carriers affected by this rule. Further detail on the estimation of costs is provided below.

15 Based on United States Department of Labor, Bureau of Labor Statistics Occupational Codes.

As the basis of costs for this rulemaking, the FAA used assumptions regarding job skills and labor hours from the regulatory analysis 16 for the DOT's “Enhancing Airline Passenger Protections” 17 rule. One provision of the DOT's rule required an air carrier to post on its Web site a tarmac delay plan and a customer commitment plan. The FAA believes that the skills and labor hours necessary to post seat dimension information to an air carrier's Web site are similar to those estimated for posting a tarmac delay plan and customer commitment plan. During the first year of the DOT's implementation of the “Enhancing Airline Passenger Protections” rule, it was estimated that it would take a computer programmer and a supervisor/manager a total of 8 hours to post the customer commitment plan and tarmac delay plan to an air carrier's Web site. The FAA is using the DOT estimate as the basis for the time required for air carriers to comply with the seat dimension disclosure rule.

16 Final Regulatory Analysis, Consumer Rulemaking: Enhancing Airline Passenger Protections II at p. 43. This document can be found in Docket No. DOT-OST-2010-0140 or at http://www.regulations.gov/#!documentDetail;D=DOT-OST-2010-0140-2046.

17 76 FR 23110, April 25, 2011.

To show a range of costs for the 58 air carriers affected by this rulemaking, the FAA first estimated a low and high case of hours worked by staff (database and systems administrators) and management.18 The estimated hours consist of two components: Base hours and variable hours. The base hour component is applicable to both staff and management. For staff, base hours represent the time it takes to identify the tasks required to post seat dimension disclosure information to an air carrier's Web site. For management, base hours represent the time expended verifying that Web sites are in compliance with this rulemaking. Base hours are assumed to be equal across all air carriers.

18 To estimate costs for this rule, labor hours are composed of staff hours and management hours. Staff hours are assumed to be performed by BLS Job Series 15-1140—Database and Systems Administrators and Network Architects. Management hours are performed by BLS Job Series 15-3021—Computer and Information Systems Managers.

The variable hour component is only applicable to the staff labor group. It accounts for the incremental labor required to make Web sites compliant to this rule for air carriers operating a fleet of multiple aircraft makes, models, and series, versus those that may operate only one make, model, and series of aircraft. Thus, the variable hour component increases for each make, model and series of aircraft operated by an individual carrier. Total costs of this rule are calculated by multiplying the hours expended for each of the labor groups by their respective hourly compensation, which are then summed across all carriers.

Following is a more detailed description of the estimated hours and costs by labor group. It is important to note that even for the high case, this final rule is still expected to be minimal cost.

Estimate of Hours for Year 1

The FAA expects the time required for an air carrier to revise its Web site to include seat dimension information is most labor intensive during the first year of the rule's implementation. The estimated hours to comply with this rule include work performed by the staff and management labor groups.

Staff Hours: As in the NPRM, the low and high case base hour component for staff labor totals 8 and 16 hours, respectively, for each of the 58 air carriers. However, the variable hour component used to estimate costs for the NPRM is doubled for the final rule, going from 0.5 hours per make, model and series of aircraft in an air carrier's fleet to 1.0 hour. The doubling of this component is based on the FAA decision to require air carriers to disclose on their Web sites the width of the narrowest seat for each make, model, and series of aircraft, in addition to the requirement for air carriers to disclose the width of the widest seat. The variable hour component does not vary between the low and high case.

As an example, an air carrier operating 3 make, model, and series of aircraft will expend 11 hours complying with this rule for the low case and 19 hours for the high case.19 In the low case, the 11 hours is made up of 8 base hours plus 3 variable hours (1 variable hour for each of the 3 make, model, and series of aircraft). In the high case, base hours are doubled to 16 hours, while the variable hours remain the same as in the low case at 3 hours, for a total of 19 hours.

19 For example, for an A319-100, the make is Airbus; the model is 319; the series is 100.

Management Hours: Management oversight is required by each air carrier to verify that the update to the Web site has been completed satisfactorily. As in the NPRM, it is assumed that each of the 58 Web sites will require two hours of management review time to verify accuracy of data. This assumption is the same for both the low and high case.

Estimate of Hours for Years 2 Through 10

For years 2 through 10, the FAA determined that less time is required, relative to year 1, to maintain the accuracy of seat dimension information posted to an air carrier's Web site. During this timeframe, it is established that air carriers with Web sites have already posted seat dimension information; thus air carriers may only need to revise the data periodically.

Staff Hours: For the low case, we use the same NPRM estimate of four staff hours annually for posting revised data. For the high case, staff hours worked are double that of the low case, for a total of 8 staff hours per year.

Management Hours: Management hours required for oversight during years 2 through 10 is estimated to be one hour per year. This estimate is the same for both the low and high case.

Table 1—Assumptions: Hours Required per Air Carrier To Revise Website [Years 1-10] Year of rule Low case Staff base hours Mgmt. base hours Variable hours High case Staff base hours Mgmt. base hours Variable hours 1 8.0 2.0 * 1.0 16.0 same as low case same as low case. 2-10 4.0 1.0 N/A 8.0 same as low case N/A. * This example is representative of a carrier with one make, model and series of aircraft. This number increases based on the count of different aircraft makes, models, and series. Staff and Management Wages—Years 1 Through 10

The total cost for air carriers to comply with this rule is the sum of compensation paid 20 to staff and management for hours worked. The FAA determined, based on BLS job titles,21 that staff work is performed by Database and System Administrators and Network Architects (BLS Job Series 15-1140), and manager oversight is performed by Computer and Information Systems Managers (BLS Job Series 11-3021).

20 Total hourly compensation is the sum of wages plus benefits.

21 As reported in the April 2014 Occupational Employment Statistics Survey.

Since BLS reports average labor costs for scheduled air carriers independently of those for nonscheduled air carriers, estimated hours worked are tallied individually as well. Of the 58 Web sites in this analysis, 42 are for air carriers engaged in scheduled operations while the remaining 16 Web sites are for air carriers engaged in nonscheduled operations. The following table shows the fully-burdened rates used to estimate costs for the scheduled and nonscheduled air carrier groups.

Table 2—Assumptions: Hourly Wage and Benefits Compensation * NAICS ** Job series Job category Job title Hourly wage Benefits *** Total hourly compensation 481100 Scheduled Air Transportation 15-1140 Staff Database and System Administrators and Network Architects $44.97 $19.00 $63.97 11-3021 Mgmt. Computer and Information System Managers $63.37 $26.77 $90.14 481200 Nonscheduled Air Transportation 15-1140 Staff Database and System Administrators and Network Architects $35.21 $14.88 $50.09 11-3021 Mgmt. Computer and Information System Managers $53.43 $22.57 $76.00 * Source: U.S. Department of Labor, Bureau of Labor Statistics April 2014 Occupational Employment Statistics Survey (released in May 2013) (www.bls.gov/oes/tables.htm). ** North American Industry Classification System—US Census Bureau. *** Source: U.S. Department of Labor, Bureau of Labor Statistics News Release dated June 12, 2014 “Employer Costs for Employee Compensation—March 2013” Page 3—Table A. Hourly wage rates are 70.3 percent of total hourly compensation. (http://www.bls.gov/news.release/archives/ecec_06122013.pdf).

For the low case, multiplying hours required annually for each carrier to comply with this rule by the fully-burdened hourly wage rate over a ten-year period (and summed across all 58 air carriers) totals approximately $219 thousand in 2013 dollars ($161 thousand at 7 percent present value). For the high case, the rule costs approximately $373 thousand ($272 thousand at 7 percent present value), when summed across all carriers. This compares to operating revenues totaling just under $165 billion for 54 reporting air carriers (operating revenues for 4 of the air carriers affected by this rule were not available). Tables 3 and 4 summarize the low and high case costs for years 1 through 10. The FAA considers these costs to be minimal.

Table 3—Low Case Cost Estimate [In thousands of 2013 dollars] Year 1 2 3 4 5 6 7 8 9 10 Total cost Scheduled Air Carrier: Staff Compensation $30.7 $10.7 $10.7 $10.7 $10.7 $10.7 $10.7 $10.7 $10.7 $10.7 $127.4 Management Compensation 7.6 3.8 3.8 3.8 3.8 3.8 3.8 3.8 3.8 3.8 41.6 Nonscheduled Air Carrier: Staff Compensation $7.9 $3.2 $3.2 $3.2 $3.2 $3.2 $3.2 $3.2 $3.2 $3.2 $36.7 Management Compensation 2.4 1.2 1.2 1.2 1.2 1.2 1.2 1.2 1.2 1.2 13.4 Total Costs $48.6 $19.0 $19.0 $19.0 $19.0 $19.0 $19.0 $19.0 $19.0 $19.0 $219.2 Present Value—7% 45.4 16.6 15.5 14.5 13.5 12.6 11.8 11.0 10.3 9.6 160.8 Table 4—High Case Cost Estimate [In thousands of 2013 dollars] Year 1 2 3 4 5 6 7 8 9 10 Total cost Scheduled Air Carrier: Staff Compensation $52.2 $21.5 $21.5 $21.5 $21.5 $21.5 $21.5 $21.5 $21.5 $21.5 $245.6 Management Compensation 7.6 3.8 3.8 3.8 3.8 3.8 3.8 3.8 3.8 3.8 41.6 Nonscheduled Air Carrier: Staff Compensation $14.3 $6.4 $6.4 $6.4 $6.4 $6.4 $6.4 $6.4 $6.4 $6.4 $72.0 Management Compensation 2.4 1.2 1.2 1.2 1.2 1.2 1.2 1.2 1.2 1.2 13.4 Total Costs $76.5 $32.9 $32.9 $32.9 $32.9 $32.9 $32.9 $32.9 $32.9 $32.9 $372.6 Present Value—7% 71.5 28.7 26.9 25.1 23.5 21.9 20.5 19.2 17.9 16.7 271.8

In comparison, NPRM costs in 2013 dollars totaled $211 thousand for the low case ($154 thousand at 7 percent present value), and $362 thousand for the high case ($264 thousand at 7 percent present value).

This final rule addresses Congressional direction that requires air carriers to make available on their Web sites information to enable passengers to determine which child restraint system can be used on airplanes in passenger carrying operations. Industry comments to the NPRM generally support the changes required by Congress. Since this rule is mandated by Congress, the FAA believes that the benefits exceed the costs.

B. Regulatory Flexibility Determination

The Regulatory Flexibility Act (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.

However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

The Small Business Administration (SBA) small entity size standard for air carriers is 1,500 employees or less. Of the 58 part 121 air carriers analyzed for this rule, 23 are classified as large entities and 27 as small entities.22 Employment statistics for the 8 remaining air carriers are not available; however, for purposes of the regulatory flexibility analysis, it is assumed that these 8 air carriers are small entities (for a total of 35 small entities). Since a majority of the air carriers analyzed for this rule are classified as small entities, the rule is expected to impact a substantial number of small entities.

22 Based on air carrier filings to the U.S. Department of Transportation on Form 41, Schedule P10 “Employment Statistics by Labor Category” For the air carriers that did not provide employment statistics to the U.S. Department of Transportation, the Web site www.aviationreferencedesk.com was used.

For this regulatory flexibility analysis, calendar year (CY) 2013 operating revenues 23 were compared to the estimated compliance cost for the high case during year 1 of the rule. Of the 35 air carriers considered to be small entities, operating revenue data were only available for 31 of them. For the 31 air carriers reporting financial data to the BTS, the highest compliance cost of this final rule for any one carrier was estimated to be $1,524 in 2013 dollars and no greater than .06 percent of any carrier's CY 2013 operating revenues. The FAA believes a compliance cost of .06 percent relative to annual revenue is not a significant economic impact. There were no comments to the NPRM concerning the determination of no significant economic impact made in the initial regulatory flexibility determination. Therefore, as provided in section 605(b), the head of the FAA certifies that this rulemaking will not result in a significant economic impact on a substantial number of small entities.

23 Based on air carrier filings to the U.S. Department of Transportation on Form 41, Schedule P1.2 “Statement of Operations” or Form 298C, Schedule F-1 “Report of Financial Data”.

C. Unfunded Mandates Assessment

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $155.0 million in lieu of $100 million. This final rule does not contain such a mandate; therefore, the requirements of Title II do not apply.

D. Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. According to the Paperwork Reduction Act of 1995 and regulations implementing the Act (5 CFR part 1320), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid Office of Management and Budget (OMB) control number.

This final rule will impose the following new information collection requirements. As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the FAA submitted these information collection amendments to OMB for its review. OMB approved these new information collection requirements associated with this final rule and assigned OMB Control Number 2120-0760.

Summary: The rule will require air carriers conducting domestic, flag, and supplemental operations to make available on their Web sites the width of the narrowest and widest passenger seats in each class of service for each airplane make, model, and series, used in passenger-carrying operations. This rule amends 14 CFR 121.311.

Use: This rule is intended to facilitate CRS use onboard airplanes. This rule will provide greater information to caregivers to help them determine whether a particular CRS will fit on a particular airplane.

Respondents (including number of): Respondents include each affected part 121 scheduled and nonscheduled passenger-carrying air carrier, which are 58.

Frequency: Each affected air carrier must comply with this rule. Once this rule is initially implemented, the only time air carriers would need to update their Web sites would be when a new airplane make, model, or series is introduced or when the narrowest or widest seat in a class of service in a currently listed make, model, or series of airplane is replaced with a larger or smaller seat.

Annual Burden Estimate: All of the costs accounted for in the economic analysis for this rulemaking relate to the information collection burden. A summary of the annual burden estimate for the low case and the high case expected to result from this final rule for years 1, 2, and 3 by carrier type (scheduled and nonscheduled) is provided in the tables below.

Table 5— Total Paperwork Hours for Years 1, 2 and 3 by Carrier Type [Scheduled vs. Nonscheduled] Hours Hours Scheduled carriers Staff Mgmt Total Nonscheduled carriers Staff Mgmt Total Total hours Staff Mgmt Total Low Case: Year 1 480 84 564 157 32 189 637 116 753 Year 2-3 168 42 210 64 16 80 232 58 290 High Case: Year 1 816 84 900 285 32 317 1,101 116 1,217 Year 2-3 336 42 378 128 16 144 464 58 522 Table 6— Total Paperwork Costs for Years 1, 2 and 3 by Carrier Type [Scheduled vs. Nonscheduled] Costs Costs
  • (in 2013 dollars)
  • Scheduled carriers Staff Mgmt Total Nonscheduled carriers Staff Mgmt Total Total costs Staff Mgmt Total Present value
  • (7%)
  • Low Case: Year 1 $30,706 $7,572 $38,278 $7,864 $2,432 $10,296 $38,570 $10,004 $48,574 $45,396 Year 2 10,747 3,786 14,533 3,206 1,216 4,422 13,953 5,002 18,955 16,556 Year 3 10,747 3,786 14,533 3,206 1,216 4,422 13,953 5,002 18,955 15,473 High Case: Year 1 $52,200 $7,752 $59,772 $14,276 $2,432 $16,708 $66,476 $10,004 $76,480 $71,476 Year 2 21,494 3,786 25,280 6,412 1,216 7,628 27,905 5,002 32,907 28,743 Year 3 21,494 3,786 25,280 6,412 1,216 7,628 27,905 5,002 32,907 26,862

    Additional detail regarding the annual burden is provided in the regulatory evaluation discussion provided in this preamble (Section VI. Regulatory Notices and Analyses, A. Regulatory Evaluation) as well as the Supporting Statement for Paperwork Reduction Act Submissions associated with this rulemaking.

    The agency did not receive any public comments on this rule's information collection requirements.

    E. International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this rule and has determined that it follows the direction of Congress, which may improve safety and thus is not considered as an unnecessary obstacle to foreign commerce.

    F. International Compatibility and Cooperation

    In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to these regulations.

    G. Executive Order 13609, Promoting International Regulatory Cooperation

    Executive Order 13609, Promoting International Regulatory Cooperation, (77 FR 26413, May 4, 2012) promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of Executive Order 13609, and has determined that this action will have no effect on international regulatory cooperation.

    H. Environmental Analysis

    FAA Order 1050.1F identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 5-5.6 and involves no extraordinary circumstances.

    VII. Executive Order Determinations A. Executive Order 13132, Federalism

    The FAA has analyzed this rule under the principles and criteria of Executive Order 13132, Federalism. The agency has determined that this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, would not have Federalism implications.

    B. Executive Order 13211, Regulations That Significantly Affect Energy Supply, Distribution, or Use

    The FAA analyzed this rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it will not be a “significant energy action” under the executive order and will not be likely to have a significant adverse effect on the supply, distribution, or use of energy.

    VIII. Additional Information A. Comments Submitted to the Docket

    Comments received may be viewed by going to http://www.regulations.gov and following the online instructions to search the docket number for this action. Anyone is able to search the electronic form of all comments received into any of the FAA's dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.).

    B. Availability of Rulemaking Documents

    An electronic copy of rulemaking documents may be obtained from the Internet by—

    1. Searching the Federal eRulemaking Portal (http://www.regulations.gov);

    2. Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies or

    3. Accessing the Government Printing Office's Federal Digital System at http://www.thefederalregister.org/fdsys/.

    Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9677. Commenters must identify the docket or notice number of this rulemaking.

    All documents the FAA considered in developing this rule, including economic analyses and technical reports, may be accessed from the Internet through the Federal eRulemaking Portal referenced in item (1) above.

    List of Subjects 14 CFR Part 11

    Reporting and recordkeeping requirements.

    14 CFR Part 121

    Air carriers, Aircraft, Aviation safety, Charter flights, Reporting and recordkeeping requirements.

    The Amendment

    In consideration of the foregoing, the Federal Aviation Administration amends chapter I of title 14, Code of Federal Regulations as follows:

    PART 11—GENERAL RULEMAKING PROCEDURES 1. The authority citation for part 11 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g), 40101, 40103, 40105, 40109, 40113, 44110, 44502, 44701-44702, 44711, and 46102.

    2. In § 11.201, in paragraph (b), revise the entry to Part 121 to read as follows:
    § 11.201 Office of Management and Budget (OMB) control numbers assigned under the Paperwork Reduction Act.

    (b) * * *

    14 CFR Part or section identified and
  • described
  • Current OMB control number
    *         *         *         *         *         *         * Part 121 2120-0008, 2120-0028, 2120-0535, 2120-0571, 2120-0600, 2120-0606, 2120-0614, 2120-0616, 2120-0631, 2120-0651, 2120-0653, 2120-0691, 2120-0702, 2120-0739, 2120-0760 *         *         *         *         *         *         *
    PART 121—OPERATING REQUIREMENTS: DOMESTIC, FLAG, AND SUPPLEMENTAL OPERATIONS 3. The authority citation for part 121 is revised to read as follows: Authority:

    49 U.S.C. 106(f), 106(g), 40103, 40113, 40119, 41706, 42301 preceding note added by Pub. L. 112-95, sec. 412, 126 Stat. 89, 44101, 44701-44702, 44705, 44709-44711, 44713, 44716-44717, 44722, 44729, 44732; 46105; Pub. L. 111-216, 124 Stat. 2348 (49 U.S.C. 44701 note); Pub. L. 112-95 126 Stat 62 (49 U.S.C. 44732 note).

    4. In § 121.311, add paragraph (k) to read as follows:
    § 121.311 Seats, safety belts, and shoulder harnesses.

    (k) Seat dimension disclosure. (1) Each air carrier that conducts operations under this part and that has a Web site must make available on its Web site the width of the narrowest and widest passenger seats in each class of service for each airplane make, model and series operated by that air carrier in passenger-carrying operations.

    (2) For purposes of paragraph (k)(1) of this section, the width of a passenger seat means the distance between the inside of the armrests for that seat.

    5. In § 121.583, revise paragraph (a) introductory text to read as follows:
    § 121.583 Carriage of persons without compliance with the passenger-carrying requirements of this part.

    (a) When authorized by the certificate holder, the following persons, but no others, may be carried aboard an airplane without complying with the passenger-carrying airplane requirements in §§ 121.309(f), 121.310, 121.391, 121.571, and 121.587; the passenger-carrying operation requirements in part 117 and §§ 121.157(c) and 121.291; the requirements pertaining to passengers in §§ 121.285, 121.313(f), 121.317, 121.547, and 121.573; and the information disclosure requirements in § 121.311(k):

    Issued in Washington, DC, under the authority provided by 49 U.S.C. 106(f), 44701(a), and 49 U.S.C. 42301 preceding note added by Public Law 112-95, sec. 412, 126 Stat. 89, on September 18, 2015. Michael P. Huerta, Administrator.
    [FR Doc. 2015-24720 Filed 9-29-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2015-0309; Special Conditions No. 25-594-SC] Special Conditions: Boeing Model 747-8, Dynamic Test Requirements for Single-Occupant, Oblique (Side-Facing) Seats With Airbag Devices AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final special conditions; request for comments.

    SUMMARY:

    These special conditions are issued for Boeing Model 747-8 airplanes. This airplane will have novel or unusual design features associated with oblique-angled, single-occupant seats equipped with airbag systems. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for these design features. These special conditions contain the additional safety standards the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

    DATES:

    The effective date of these special conditions is September 30, 2015. We must receive your comments by November 16, 2015.

    ADDRESSES:

    Send comments identified by docket number FAA-2015-0309 using any of the following methods:

    Federal eRegulations Portal: Go to http://www.regulations.gov/ and follow the online instructions for sending your comments electronically.

    Mail: Send comments to Docket Operations, M-30, U.S. Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room W12-140, West Building Ground Floor, Washington, DC, 20590-0001.

    Hand Delivery or Courier: Take comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    Fax: Fax comments to Docket Operations at 202-493-2251.

    Privacy: The FAA will post all comments it receives, without change, to http://www.regulations.gov/, including any personal information the commenter provides. Using the search function of the docket Web site, anyone can find and read the electronic form of all comments received into any FAA docket, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). DOT's complete Privacy Act Statement can be found in the Federal Register published on April 11, 2000 (65 FR 19477-19478), as well as at http://DocketsInfo.dot.gov/.

    Docket: Background documents or comments received may be read at http://www.regulations.gov/ at any time. Follow the online instructions for accessing the docket or go to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    John Shelden, Airframe and Cabin Safety, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone 425-227-2785; facsimile 425-227-1149.

    SUPPLEMENTARY INFORMATION:

    The FAA has determined that notice of, and opportunity for, prior public comment on these special conditions are impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected airplane.

    In addition, the substance of these special conditions has been subject to the public-comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance.

    Comments Invited

    We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

    We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

    Background

    On February 3, 2014, the Boeing Company applied for an amendment to Type Certificate no. A20WE to allow installation of single-occupant, oblique-angled (side-facing) seats with airbag devices in Boeing Model 747-8 airplanes.

    Boeing requested special conditions to allow installation of oblique business-class passenger seats in the Boeing Model 747-8 airplane. The seating configuration Boeing proposes in Certification Plan no. 15090, “Installation of Business Class Zodiac Seats and Furniture for 747-8 TRX RC076,” consists of Zodiac Cirrus III model side-facing, pod-style, business-class seats (with surrounding shells and front-row furniture) installed at an angle of up to 30 degrees to the airplane longitudinal centerline. These seats will include inflatable restraint (airbag) systems for occupant restraint and injury protection.

    The Model 747-8 airplane, a derivative of the Model 747-400 airplane, is a bi-level, wide-body airplane powered by four wing-mounted General Electric GEnx-2B engines. The airplane will have a maximum seating capacity of 605 passengers and two crew members, and a maximum takeoff weight of 987,000 pounds.

    Type Certification Basis

    Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.101, Boeing must show that the Model 747-8 airplane meets the applicable provisions of the regulations listed in Type Certificate no. A20WE, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. The regulations listed in the type certificate are commonly referred to as the “original type certification basis.” The regulations listed in Type Certificate no. A20WE are as follows:

    14 CFR part 25, Amendments 25-1 through 25-120, with exceptions permitted by § 21.101. In addition, the certification basis includes certain special conditions, exemptions, or later amended sections of the applicable part that are not relevant to these special conditions.

    If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for Boeing Model 747-8 airplanes because of a novel or unusual design feature, special conditions are prescribed under § 21.16.

    Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

    In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 747-8 airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

    The FAA issues special conditions as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

    Novel or Unusual Design Features

    The business-class seating configuration Boeing proposes is novel or unusual due to the seat installation at 30 degrees to the airplane centerline, the airbag-system installation, and the seat/occupant interface with the surrounding furniture that introduces occupant alignment and loading concerns. The proposed business-class seating configuration also is beyond the limits of current acceptable equivalent-level-of-safety findings.

    Ongoing research is progressing to establish acceptable limits. Until those limits become available, the FAA proposes a set of interim limits based on the current literature available, current National Highway Traffic Safety Administration (NHTSA) regulations, and preliminary test data from the research program.

    The existing regulations do not provide adequate or appropriate safety standards for occupants of oblique-angled seats with airbag systems. To provide a level of safety that is equivalent to that afforded occupants of forward- and aft-facing seats, additional airworthiness standards, in the form of special conditions, are necessary. These special conditions supplement part 25 and, more specifically, supplement §§ 25.562 and 25.785. The requirements contained in these special conditions consist of both test conditions and injury pass/fail criteria.

    Discussion

    Amendment 25-15 to part 25, dated October 24, 1967, introduced the subject of side-facing seats, and a requirement that each occupant in a side-facing seat must be protected from head injury by a safety belt and a cushioned rest that will support the arms, shoulders, head, and spine.

    Subsequently, Amendment 25-20, dated April 23, 1969, clarified the definition of side-facing seats to require that each occupant of a seat, positioned at more than an 18-degree angle to the vertical plane of the airplane longitudinal centerline, must be protected from head injury by a safety belt and an energy-absorbing rest that will support the arms, shoulders, head, and spine; or by a safety belt and shoulder harness that will prevent the head from contacting any injurious object. The FAA concluded that an 18-degree angle would provide an adequate level of safety based on tests that were performed at that time, and thus adopted that standard.

    Part 25 was amended June 16, 1988, by Amendment 25-64, to revise the emergency-landing conditions that must be considered in the design of the airplane. Amendment 25-64 revised the static-load conditions in 14 CFR 25.561, and added the new § 25.562 that requires dynamic testing for all seats approved for occupancy during takeoff and landing. The intent of Amendment 25-64 is to provide an improved level of safety for occupants on transport-category airplanes. Because most seating is forward-facing on transport-category airplanes, the pass/fail criteria developed in Amendment 25-64 focused primarily on these seats. As a result, the FAA issued Policy Memorandums ANM-03-115-30 and PS-ANM-100-2000-00123 to provide the additional guidance necessary to demonstrate the level of safety required by the regulations for side-facing seats.

    To reflect current research findings, the FAA developed a methodology to address all fully side-facing seats (i.e., seats positioned in the airplane with the occupant facing 90 degrees to the vertical plane of the airplane centerline), and has documented those requirements in a set of new special conditions. The FAA issued Policy Statement PS-ANM-25-03-R1 to define revised injury criteria associated with neck and leg injuries.

    The proposed Model 747-8, a Transaero Airlines business-class seat installation, is novel such that the current Model 747-8 airplane certification basis does not adequately address protection of the occupant's neck and spine for seat configurations that are positioned at an angle greater than 18 degrees from the airplane centerline. Therefore, The Boeing Company's proposed configuration will require new special conditions.

    These special conditions will provide head injury criteria, neck injury criteria, spine injury criteria, and body-to-wall contact criteria. They contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

    Applicability

    These special conditions are applicable to the Boeing Model 747-8 airplanes configured with the business-class seating defined in Boeing Certification Plan. Should Boeing apply at a later date for a change to the type certificates to include another model incorporating the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would apply to the other model as well.

    Conclusion

    This action affects only certain novel or unusual design features on one model airplane. It is not a rule of general applicability.

    The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the Federal Register. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

    List of Subjects in 14 CFR Part 25

    Aircraft, Aviation safety, Reporting and recordkeeping requirements.

    The authority citation for these special conditions is as follows:

    Authority:

    49 U.S.C. 106(g), 40113, 44701, 44702, 44704.

    The Special Conditions

    Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the Boeing Model 747-8 airplane.

    Side-Facing Seats Special Conditions

    In addition to the requirements of § 25.562:

    1. Head Injury Criteria.

    Compliance with § 25.562(c)(5) is required, except that, if the anthropomorphic test device (ATD) has no apparent contact with the seat/structure but has contact with an airbag, a head-injury criterion (HIC) unlimited score in excess of 1000 is acceptable, provided the HIC15 score (calculated in accordance with 49 CFR 571.208) for that contact is less than 700.

    2. Body-to-Wall/Furnishing Contact.

    If a seat is installed aft of structure (e.g., an interior wall or furnishing) that does not provide a homogenous contact surface for the expected range of occupants and yaw angles, then additional analysis and/or test(s) may be required to demonstrate that the injury criteria are met for the area that an occupant could contact. For example, if different yaw angles could result in different airbag performance, then additional analysis or separate test(s) may be necessary to evaluate performance.

    3. Neck Injury Criteria.

    The seating system must protect the occupant from experiencing serious neck injury. The assessment of neck injury must be conducted with the airbag device activated, unless there is reason to also consider that the neck-injury potential would be higher for impacts below the airbag-device deployment threshold.

    a. The Nij (calculated in accordance with 49 CFR 571.208) must be below 1.0, where Nij =Fz/Fzc + My/Myc, and Nij critical values are:

    i. Fzc = 1530 lb for tension ii. Fzc = 1385 lb for compression iii. Myc = 229 lb-ft in flexion iv. Myc = 100 lb-ft in extension

    b. In addition, peak Fz must be below 937 lb in tension and 899 lb in compression.

    c. Rotation of the head about its vertical axis, relative to the torso, is limited to 105 degrees in either direction from forward-facing.

    d. The neck must not impact any surface that would produce concentrated loading on the neck.

    4. Spine and Torso Injury Criteria

    a. The shoulders must remain aligned with the hips throughout the impact sequence, or support for the upper torso must be provided to prevent forward or lateral flailing beyond 45 degrees from the vertical during significant spinal loading. Alternatively, the lumbar spine tension (Fz) cannot exceed 1200 lb.

    b. Significant concentrated loading on the occupant's spine, in the area between the pelvis and shoulders during impact, including rebound, is not acceptable. During this type of contact, the interval for any rearward (X-direction) acceleration exceeding 20g must be less than 3 milliseconds as measured by the thoracic instrumentation specified in 49 CFR part 572, subpart E, filtered in accordance with SAE International (SAE) J211-1.

    c. Occupant must not interact with the armrest or other seat components in any manner significantly different than would be expected for a forward-facing seat installation.

    5. Longitudinal test(s), conducted to measure the injury criteria above, must be performed with the FAA Hybrid III ATD, as described in SAE 1999-01-1609. The test(s) must be conducted with an undeformed floor, at the most-critical yaw case(s) for injury, and with all lateral structural supports (armrests/walls) installed.

    Note:

    Boeing must demonstrate that the installation of seats via plinths or pallets meets all applicable requirements. Compliance with the guidance contained in FAA Policy Memorandum PS-ANM-100-2000-00123, dated February 2, 2000, titled “Guidance for Demonstrating Compliance with Seat Dynamic Testing for Plinths and Pallets,” is acceptable to the FAA.

    Inflatable Airbag Systems Special Conditions

    If inflatable airbag systems are installed on single-place side-facing seats, the airbag systems must meet Special Conditions no. 25-589-SC.

    Issued in Renton, Washington, on September 1, 2015. Jeffrey E. Duven, Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2015-24724 Filed 9-29-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2015-2884; Special Conditions No. 25-595-SC] Special Conditions: Embraer Model EMB-545 Airplanes; Seats With Inflatable Lap Belts AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final special conditions; request for comments.

    SUMMARY:

    These special conditions are issued for Embraer Model EMB-545 airplanes. These airplanes will have a novel or unusual design feature associated with seats with inflatable lap belts. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

    DATES:

    The effective date of these special conditions is September 30, 2015. We must receive your comments by November 16, 2015.

    ADDRESSES:

    Send comments identified by docket number FAA-2015-2884 using any of the following methods:

    Federal eRegulations Portal: Go to http://www.regulations.gov/and follow the online instructions for sending your comments electronically.

    Mail: Send comments to Docket Operations, M-30, U.S. Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room W12-140, West Building Ground Floor, Washington, DC, 20590-0001.

    Hand Delivery or Courier: Take comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    Fax: Fax comments to Docket Operations at 202-493-2251.

    Privacy: The FAA will post all comments it receives, without change, to http://www.regulations.gov/, including any personal information the commenter provides. Using the search function of the docket Web site, anyone can find and read the electronic form of all comments received into any FAA docket, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). DOT's complete Privacy Act Statement can be found in the Federal Register published on April 11, 2000 (65 FR 19477-19478), as well as at http://DocketsInfo.dot.gov/.

    Docket: Background documents or comments received may be read at http://www.regulations.gov/ at any time. Follow the online instructions for accessing the docket or go to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Jayson Claar, FAA, Airframe and Cabin Safety Branch, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington, 98057-3356; telephone (425) 227-2194, facsimile (425) 227-1232.

    SUPPLEMENTARY INFORMATION:

    The FAA has determined that notice of, and opportunity for, prior public comment on these special conditions are impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected airplane.

    In addition, the substance of these special conditions has been subject to the public-comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance.

    Comments Invited

    We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

    We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

    Background

    On October 14, 2010, Embraer S.A. applied for an amendment to Type Certificate No. TC00062IB to include the new Embraer Model EMB-545 airplane. These special conditions allow installation of inflatable lap belts for head-injury protection on certain seats in Embraer Model EMB-545 airplanes.

    The Embraer Model EMB-545 airplane is a derivative of the Model EMB-550 airplane currently approved under Type Certificate No. TC00062IB. As compared to the Model EMB-550, the Model EMB-545 fuselage is one meter shorter; the section ahead of the wing is 0.65 meters shorter; and the section aft of the wing is 0.40 meters shorter.

    The fuselage length difference is in the pressurized section. The Model EMB-545 airplane is designed for an eight-passenger configuration and a maximum of nine passengers (including lavatory seat). Like the Model EMB-550, the Model EMB-545 airplane primary structure is aluminum. Materials other than aluminum will be used in areas with unique structural requirements. Advanced composites will be largely employed on the high-lift devices (two flaps), spoilers (three panels), and control surfaces (aileron). A winglet will be attached to each wing tip to further increase airplane aerodynamic efficiency. The empennage will be a swept T-tail composed of advanced composite material with metallic attachment fittings. The rudder and elevators also will be composed of composite material.

    Two Honeywell HTF7500-E medium-bypass-ratio turbofan engines, mounted on aft-fuselage pylons, will power the Model EMB-545 airplane. Each engine will produce approximately 6,540 lbs. of thrust for normal takeoff. However, because the Model EMB-545 is smaller and lighter, software will regulate the thrust. The primary flight-control systems (elevators, ailerons, rudder, and multi-function spoilers) will be electronically controlled and powered by electrohydraulic servoactuators using digital fly-by-wire (FBW) technology. The FBW flight controls will receive commands directly from the cockpit dual sidesticks and conventional rudder pedals.

    Occupants must be protected from head injury, as required by § 25.785, either by eliminating any injurious object within the striking radius of the head, or by installing padding. Traditionally, this has required either a setback of 35 inches from any bulkhead or other rigid interior feature or, where not practical, the installation of specified types of padding. The relative effectiveness of these established means of injury protection was not quantified. With the adoption of Amendment 25-64 to part 25, specifically § 25.562, a new standard was created that quantifies required head-injury protection.

    Each seat-type design approved for crew or passenger occupancy during takeoff and landing, as required by § 25.562, must successfully complete dynamic tests or be demonstrated by rational analysis based on dynamic tests of a similar type seat. In particular, the regulations require that persons not suffer serious head injury under the conditions specified in the tests, and that protection must be provided, or the seat be designed, so that head impact does not exceed a HIC value of 1,000 units. While the test conditions described for HIC are detailed and specific, it is the intent of the requirement that an adequate level of head-injury protection be provided for passengers in a severe crash.

    Because §§ 25.562 and 25.785 and associated guidance do not adequately address seats with inflatable lap belts, the FAA recognizes that appropriate pass/fail criteria need to be developed that fully address the safety concerns specific to occupants of these seats.

    Type Certification Basis

    Under the provisions of 14 CFR 21.101, Embraer must show that the Model EMB-545 airplane meets the applicable provisions of the regulations listed in Type Certificate No. TC00062IB, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. The regulations listed in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in Type Certificate No. TC00062IB are as follows:

    14 CFR part 25, effective February 1, 1965, including Amendments 25-1 through 25-129, in their entirety. In addition, the certification basis includes certain special conditions, exemptions, or later amended sections of the applicable part that are not relevant to these special conditions.

    If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for Embraer Model EMB-545 airplanes because of a novel or unusual design feature, special conditions are prescribed under § 21.16.

    Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

    In addition to the applicable airworthiness regulations and special conditions, Embraer Model EMB-545 airplanes must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

    The FAA issues special conditions as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

    Novel or Unusual Design Features

    Embraer Model EMB-545 airplanes will incorporate the following novel or unusual design feature: seats with inflatable lap belts.

    Discussion

    The inflatable lap belt has two potential advantages over other means of head-impact protection. First, it can provide significantly greater protection than would be expected with energy-absorbing pads, and second, it can provide essentially equivalent protection for occupants of all stature. These are significant advantages from a safety standpoint, because such devices will likely provide a level of safety that exceeds the minimum standards of part 25. Conversely, inflatable lap belts in general are active systems and must be relied upon to activate properly when needed, as opposed to an energy-absorbing pad or upper torso restraint that is passive and always available. Therefore, the potential advantages must be balanced against this and other potential disadvantages to develop standards for this design feature.

    The FAA has considered the installation of inflatable lap belts to have two primary safety concerns: first, that they perform properly under foreseeable operating conditions; and second, that they do not perform in a manner or at such times as would constitute a hazard to the airplane or occupants. This latter point has the potential to be the more rigorous of the requirements, owing to the active nature of the system.

    The inflatable lap belt will rely on electronic sensors for signaling, and will employ an automatic inflation mechanism for activation, so that it is available when needed. These same devices could be susceptible to inadvertent activation, causing deployment in a potentially unsafe manner. The consequences of such deployment must be considered in establishing the reliability of the system. Embraer must substantiate that the effects of an inadvertent deployment in flight are either not a hazard to the airplane, or that such deployment is an extremely improbable occurrence (less than 10−9 per flight hour). The effect of an inadvertent deployment on a passenger or crewmember that might be positioned close to the inflatable lap belt should also be considered. The person could be either standing or sitting. A minimum reliability level will have to be established for this case, depending upon the consequences, even if the effect on the airplane is negligible.

    The potential for an inadvertent deployment could be increased as a result of conditions in service. The installation must take into account wear and tear so that the likelihood of an inadvertent deployment is not increased to an unacceptable level. In this context, an appropriate inspection interval and self-test capability are considered necessary. Other outside influences are lightning and high-intensity radiated fields (HIRF). Existing regulations regarding lightning, § 25.1316, and HIRF, § 25.1317, are applicable. For compliance with those conditions, if inadvertent deployment could cause a hazard to the airplane, the inflatable lap belt is considered a critical system; if inadvertent deployment could cause injuries to persons, the inflatable lap belt should be considered an essential system. Finally, the inflatable lap-belt installation should be protected from the effects of fire, so that an additional hazard is not created by, for example, a rupture of a pyrotechnic squib.

    To function as an effective safety system, the inflatable lap belt must function properly and must not introduce any additional hazards to occupants as a result of its functioning. The inflatable lap belt differs variously from traditional occupant-protection systems and requires special conditions to ensure adequate performance.

    Because the inflatable lap belt is essentially a single-use device, it could potentially deploy under crash conditions that are not sufficiently severe as to require head-injury protection from the inflatable lap belt. And because an actual crash is frequently composed of a series of impacts before the airplane comes to rest, this could render the inflatable lap belt useless if a larger impact follows the initial impact. This situation does not exist with energy-absorbing pads or upper-torso restraints, which tend to provide continuous protection regardless of severity or number of impacts in a crash event. Therefore, the inflatable lap-belt installation should be such that the inflatable lap belt will provide protection when it is required, by not expending its protection during a less-severe impact. Also, it is possible to have several large impact events during the course of a crash, but there will be no requirement for the inflatable lap belt to provide protection for multiple impacts.

    Given that each occupant's restraint system provides protection for that occupant only, the installation must address unoccupied seats. It will be necessary to show that the required protection is provided for each occupant regardless of the number of occupied seats, and that unoccupied seats may have lap belts that are active.

    The inflatable lap belt should be effective for a wide range of occupants. The FAA has historically considered the range from the 5th percentile female to the 95th percentile male as the range of occupants that must be taken into account. In this case, the FAA is proposing consideration of a broader range of occupants due to the nature of the lap-belt installation and its close proximity to the occupant. In a similar vein, these persons could have assumed the brace position for those accidents where an impact is anticipated. Test data indicate that occupants in the brace position do not require supplemental protection, so it would not be necessary to show that the inflatable lap belt will enhance the brace position. However, the inflatable lap belt must not introduce a hazard when it is deployed into a seated, braced occupant.

    Another area of concern is the use of seats so equipped by children, whether they are lap-held, sitting in approved child-safety seats, or occupying the seat directly. Although specifically prohibited by FAA operating regulations, the use of the supplementary loop belt (“belly belt”) may be required by other civil aviation authorities, and should also be considered with the end goal of meeting those regulations. Similarly, if the seat is occupied by a pregnant woman, the installation needs to address such usage, either by demonstrating that it will function properly, or by adding appropriate limitation on usage.

    The inflatable lap belt will be electrically powered. Likewise, the system could possibly fail due to a separation in the fuselage. Because this system is intended as crash/post-crash protection means, failure due to fuselage separation is not acceptable. As with emergency lighting, the restraint system should function properly if such a separation occurs at any point in the fuselage.

    Because the inflatable lap belt is likely to have a large volume displacement, the inflated bag could potentially impede egress of passengers. However, the lap-belt bag deflates to absorb energy, so it is likely that an inflatable lap belt would be deflated by the time passengers begin to leave their seats. Nonetheless, it is appropriate to specify a time interval after which the inflatable lap belt may not impede rapid egress. The maximum time allowed for an exit to open fully after actuation is 10 seconds, according to § 25.809(b)(2). Therefore, the FAA has established 10 seconds as the time interval that the inflatable lap belt must not impede rapid egress from the seat after it is deployed. In actuality, it is unlikely that a flight attendant would prepare an exit this quickly in an accident severe enough to warrant deployment of the inflatable lap belt. The inflatable lap belt will likely deflate much more quickly than 10 seconds.

    This potential impediment to rapid egress is even more critical at the seats installed in the emergency-exit rows. Installation of inflatable restraints at the Type III exit rows presents different egress concerns as compared with front-row seats. However, the need to address egress is already part of the special conditions, so there is no change to the special conditions at this time. As noted below, the method of compliance with the special conditions may involve specific considerations when an inflatable restraint is installed at Type III exits. Section 25.813 clearly requires access to the exit from the main aisle in the form of an unobstructed passageway, and no interference in opening the exit. The restraint system must not create an impediment to the access to, and the opening of, the exit. These lap belts should be evaluated in the exit row under existing regulations (§§ 25.809 and 25.813) and guidance material. The inflatable lap belts must also be evaluated in post-crash conditions, and should be evaluated using representative restraint systems in the bag-deployed condition.

    This evaluation would include reviewing the access to, and opening of, the exit, specifically for obstructions in the egress path; and any interferences in opening the exit. Each unique interior configuration must be considered, e.g., passageway width, single or dual passageways with outboard seat removed, etc. If the restraint creates any obstruction or interference, it is likely that it could impede rapid egress from the airplane. In some cases, the passenger is the one who will open the exit, such as a Type III over-wing hatch. Project-specific means-of-compliance guidance is likely necessary if these restraint systems are installed at the Type III exit rows.

    Note that the special conditions are applicable to the inflatable lap-belt system as installed. The special conditions are not an installation approval. Therefore, while the special conditions relate to each such system installed, the overall installation approval is separate, and must consider the combined effects of all such systems installed.

    Embraer will install inflatable lap belts, a novel design feature, on certain seats of Model EMB-545 airplanes, to reduce the potential for head injury if an accident occurs. The inflatable lap belt works similar to an automotive inflatable air bag, except that the air bag in the Embraer design is integrated into the lap belt of the restraint system.

    The performance criteria for head-injury protection in objective terms is stated in § 25.562. However, none of these criteria are adequate to address the specific issues raised concerning seats with inflatable lap belts. The FAA has therefore determined that, in addition to the requirements of part 25, special conditions are needed to address requirements particular to the installation of seats with inflatable lap belts.

    Accordingly, in addition to the passenger-injury criteria specified in § 25.785, these special conditions are proposed for Embraer Model EMB-545 airplanes equipped with inflatable lap belts. Other conditions may be developed, as needed, based on further FAA review and discussions with the manufacturer and civil-aviation authorities.

    For a passenger-safety system, the inflatable lap belt is unique in that it is both an active and entirely autonomous device. While the automotive industry has good experience with inflatable air bags, the conditions of use and reliance on the inflatable lap belt as the sole means of injury protection are quite different. In automobile installations, the air bag is a supplemental system and works in conjunction with an upper-torso restraint. In addition, the crash event is more definable and typically of shorter duration, which can simplify the activation logic. The airplane-operating environment is also quite different from automobiles and includes the potential for greater wear and tear, and unanticipated abuse conditions (due to galley loading, passenger baggage, etc.). Airplanes also operate where exposure to HIRF could affect the lap-belt activation system.

    Part I of Appendix F to part 25 specifies the flammability requirements for interior materials and components. There is no reference to inflatable restraint systems in Appendix F, because such devices did not exist at the time the flammability requirements were written. The existing requirements are based on material types as well as use, and have been specified in light of state-of-the-art materials available to perform a given function. Without a specific reference, the default requirement would apply to the type of material used in making the inflatable restraint, which is a fabric in this case. However, in writing special conditions, the FAA must also consider the use of the material, and whether the default requirement is appropriate. In this case, the specialized function of the inflatable restraint means that highly specialized materials are needed. The standard normally applied to fabrics is a 12-second vertical ignition test. However, materials that meet this standard do not perform adequately as inflatable restraints. Because the safety benefit of the inflatable restraint is significant, the flammability standard appropriate for these devices should not screen out suitable materials and thereby effectively eliminate the use of inflatable restraints. The FAA must establish a balance between the safety benefit of the inflatable restraint and its flammability performance. Presently, the 2.5-inch-per-minute horizontal test is considered to provide that balance. As the state-of-the-art in materials progresses (which is expected), the FAA may change this standard in subsequent special conditions to account for improved materials.

    These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

    Applicability

    These special conditions are applicable to Embraer Model EMB-545 airplanes. Should Embraer apply at a later date for a change to the type certificates to include another model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would apply to the other model as well.

    Conclusion

    This action affects only certain novel or unusual design features on Embraer Model EMB-545 airplanes. It is not a rule of general applicability, and it affects only Embraer Model EMB-545 airplanes listed on amended Type Certificate No. TC00062IB.

    List of Subjects in 14 CFR Part 25

    Aircraft, Aviation safety, Reporting and recordkeeping requirements.

    The authority citation for these special conditions is as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701, 44702, 44704.

    The Special Conditions Accordingly, pursuant to the authority delegated to me by the administrator, the following special conditions are issued as part of the type certification basis for Embraer Model EMB-545 airplanes with inflatable lap belts installed.

    1. The inflatable lap belt must be shown to deploy and provide protection under crash conditions where it is necessary to prevent serious head injury. The means of protection must take into consideration a range of stature from a two-year-old child to a 95th percentile male. The inflatable lap belt must provide a consistent approach to energy absorption throughout that range of occupants. In addition, the following situations must be considered.

    The seat occupant is:

    • holding an infant

    • a child in a child-restraint device

    • a child not using a child-restraint device

    • a pregnant woman

    2. The inflatable lap belt must provide adequate protection for each occupant regardless of the number of occupants of the seat assembly, considering that unoccupied seats may have an active airbag system in the lap belt.

    3. The design must prevent the inflatable lap belt from being either incorrectly buckled or incorrectly installed such that the inflatable lap belt would not properly deploy. Alternatively, it must be shown that such deployment is not hazardous to the occupant, and will provide the required head-injury protection.

    4. The inflatable lap-belt system must be shown not to be susceptible to inadvertent deployment as a result of wear and tear, or inertial loads resulting from in-flight or ground maneuvers (including gusts and hard landings), likely to be experienced in service.

    5. Deployment of the inflatable lap belt must not introduce injury mechanisms to the seated occupant, nor result in injuries that could impede rapid egress. This assessment should include an occupant who is in the brace position when it deploys, and an occupant whose inflatable lap belt is loosely fastened.

    6. An inadvertent deployment that could cause injury to a standing or sitting person must be shown to be improbable.

    7. It must be shown that inadvertent deployment of the airbag system in the lap belt, during the most critical part of the flight, either will not cause a hazard to the airplane or its occupants, or meets the requirement of § 25.1309(b).

    8. The inflatable lap belt must be shown to not impede rapid egress of occupants 10 seconds after its deployment.

    9. The inflatable lap-belt system must be protected from lightning and HIRF. The threats specified in existing regulations regarding lightning, § 25.1316, and HIRF, § 25.1317, are incorporated by reference for the purpose of measuring lightning and HIRF protection. For the purposes of complying with HIRF requirements, the inflatable lap-belt system is considered a “critical system” if its deployment could have a hazardous effect on the airplane; otherwise it is considered an “essential” system.

    10. The inflatable lap belt must function properly after loss of normal airplane electrical power, and after a transverse separation of the fuselage at the most critical location. A separation at the location of the lap belt does not have to be considered.

    11. The inflatable lap belt must be shown to not release hazardous quantities of gas or particulate matter into the cabin.

    12. The inflatable lap-belt installation must be protected from the effects of fire such that no hazard to occupants will result.

    13. A means must be available for a crewmember to verify the integrity of the inflatable-lap-belt-activation system prior to each flight, or it must be demonstrated to reliably operate between inspection intervals.

    14. The inflatable material may not have an average burn rate of greater than 2.5 inches per minute when tested using the horizontal-flammability test as defined in 14 CFR part 25, Appendix F, Part I(b)(5).

    15. The airbag system in the lap belt, once deployed, must not adversely affect the emergency-lighting system (i.e., block floor-proximity lights to the extent that the lights no longer meet their intended function).

    Issued in Renton, Washington, on September 2, 2015. Jeffrey E. Duven Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2015-24726 Filed 9-29-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2015-2392; Special Conditions No. 25-589-SC] Special Conditions: Boeing Model 747-8 Airplanes; Seats With Inflatable Lap Belts AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final special conditions; request for comments.

    SUMMARY:

    These special conditions are issued for Boeing Model 747-8 airplanes. These airplanes will have a novel or unusual design feature associated with seats with inflatable lap belts. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

    DATES:

    The effective date of these special conditions is September 30, 2015. We must receive your comments by November 16, 2015.

    ADDRESSES:

    Send comments identified by docket number FAA-2015-2392 using any of the following methods:

    Federal eRegulations Portal: Go to http://www.regulations.gov/and follow the online instructions for sending your comments electronically.

    Mail: Send comments to Docket Operations, M-30, U.S. Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room W12-140, West Building Ground Floor, Washington, DC 20590-0001.

    Hand Delivery or Courier: Take comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    Fax: Fax comments to Docket Operations at 202-493-2251.

    Privacy: The FAA will post all comments it receives, without change, to http://www.regulations.gov/, including any personal information the commenter provides. Using the search function of the docket Web site, anyone can find and read the electronic form of all comments received into any FAA docket, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). DOT's complete Privacy Act Statement can be found in the Federal Register published on April 11, 2000 (65 FR 19477-19478), as well as at http://DocketsInfo.dot.gov/.

    Docket: Background documents or comments received may be read at http://www.regulations.gov/ at any time. Follow the online instructions for accessing the docket or go to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Jayson Claar, FAA, Airframe and Cabin Safety Branch, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone (425) 227-2194, facsimile (425) 227-1232.

    SUPPLEMENTARY INFORMATION:

    The FAA has determined that notice of, and opportunity for, prior public comment on these special conditions are impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected airplane.

    In addition, the substance of these special conditions has been subject to the public-comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance.

    Comments Invited

    We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

    We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

    Background

    On February 3, 2014, the Boeing Company applied for an amendment to Type Certificate no. A20WE to allow installation of inflatable lap belts for head-injury protection on certain seats in Boeing Model 747-8 airplanes.

    The Model 747-8 airplane, a derivative of the Model 747-400 airplane, is a bi-level, wide-body airplane powered by four wing-mounted General Electric GEnx-2B engines. The airplane will have a maximum seating capacity of 605 passengers and two crew members, and a maximum takeoff weight of 987,000 pounds.

    The Boeing Company requested special conditions to allow inflatable lap belts on Boeing Model 747-8 series airplanes, similar to Special Conditions no. 25-386-SC for Boeing Model 737 series airplanes; 25-187A-SC for Boeing Model 777 series airplanes; 25-148-SC for Boeing Model 767 series airplanes; and 25-431-SC for Boeing Model 787 series airplanes. These special conditions will allow installation of inflatable lap belts for head-injury protection on certain seats in Boeing Model 747-8 airplanes. Section 121.311(j) of 14 CFR requires that no person may operate a transport-category airplane type-certificated after January 1, 1958, and manufactured on or after October 27, 2009, in passenger-carrying operations after October 27, 2009, unless all passenger and flight-attendant seats on the airplane, operated under part 121 rules, meet the requirements of § 25.562 in effect on or after June 16, 1988.

    The Boeing Model 747-8 airplane, operated under part 121, must meet all of the requirement of § 25.562 for passenger and flight-attendant seats. Therefore, it is in the interest of installers to show full compliance to § 25.562, so that an operator under part 121 may be able to use the airplane without having to conduct additional certification work. The FAA also notes that some foreign civil airworthiness authorities have invoked these same operator requirements in the form of airworthiness directives.

    Occupants must be protected from head injury, as required by § 25.785, either by eliminating any injurious object within the striking radius of the head, or by installing padding. Traditionally, this has required either a setback of 35 inches from any bulkhead or other rigid interior feature or, where not practical, the installation of specified types of padding. The relative effectiveness of these established means of injury protection was not quantified. With the adoption of Amendment 25-64 to part 25, specifically § 25.562, a new standard was created that quantifies required head-injury protection.

    Each seat-type design approved for crew or passenger occupancy during takeoff and landing, as required by § 25.562, must successfully complete dynamic tests or be demonstrated by rational analysis based on dynamic tests of a similar type seat. In particular, the regulations require that persons not suffer serious head injury under the conditions specified in the tests, and that protection must be provided, or the seat be designed, so that head impact does not exceed a HIC value of 1,000 units. While the test conditions described for HIC are detailed and specific, it is the intent of the requirement that an adequate level of head-injury protection be provided for passengers in a severe crash.

    Because §§ 25.562 and 25.785 and associated guidance do not adequately address seats with inflatable lap belts, the FAA recognizes that appropriate pass/fail criteria need to be developed that fully address the safety concerns specific to occupants of these seats.

    Type Certification Basis

    Under the provisions of 14 CFR 21.101, Boeing must show that the Model 747-8 airplane meets the applicable provisions of the regulations listed in Type Certificate no. A20WE, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. The regulations listed in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in Type Certificate no. A20WE are as follows:

    14 CFR part 25, Amendments 25-1 through 25-120, with exceptions permitted by § 21.101. In addition, the certification basis includes certain special conditions, exemptions, or later amended sections of the applicable part that are not relevant to these special conditions.

    If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for Boeing Model 747-8 airplanes because of a novel or unusual design feature, special conditions are prescribed under § 21.16.

    Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

    In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 747-8 airplanes must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

    The FAA issues special conditions as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

    Novel or Unusual Design Features

    Boeing Model 747-8 airplanes will incorporate the following novel or unusual design feature: Seats with inflatable lap belts. The inflatable lap belt is designed to limit occupant forward excursion in the event of an accident. This will reduce the potential for head injury, thereby reducing the Head Injury Criterion (HIC) measurement as required by Title 14, Code of Federal Regulations (14 CFR), 25.562(c)(5). The inflatable lap belt functions similarly to an automotive inflatable airbag, but in this case, the airbag is integrated into the lapbelt, and inflates away from the seated occupant. While inflatable airbags are now standard in the automotive industry, the use of an inflatable lap belt is novel for commercial aviation.

    Discussion

    The inflatable lap belt has two potential advantages over other means of head-impact protection. First, it can provide significantly greater protection than would be expected with energy-absorbing pads, and second, it can provide essentially equivalent protection for occupants of all stature. These are significant advantages from a safety standpoint, because such devices will likely provide a level of safety that exceeds the minimum standards of part 25. Conversely, inflatable lap belts in general are active systems and must be relied upon to activate properly when needed, as opposed to an energy-absorbing pad or upper torso restraint that is passive and always available. Therefore, the potential advantages must be balanced against this and other potential disadvantages to develop standards for this design feature.

    The FAA has considered the installation of inflatable lap belts to have two primary safety concerns: First, that they perform properly under foreseeable operating conditions; and second, that they do not perform in a manner or at such times as would constitute a hazard to the airplane or occupants. This latter point has the potential to be the more rigorous of the requirements, owing to the active nature of the system.

    The inflatable lap belt will rely on electronic sensors for signaling, and will employ an automatic inflation mechanism for activation, so that it is available when needed. These same devices could be susceptible to inadvertent activation, causing deployment in a potentially unsafe manner. The consequences of such deployment must be considered in establishing the reliability of the system. Boeing must substantiate that the effects of an inadvertent deployment in flight are either not a hazard to the airplane, or that such deployment is an extremely improbable occurrence (less than 10−9 per flight hour). The effect of an inadvertent deployment on a passenger or crewmember that might be positioned close to the inflatable lap belt should also be considered. The person could be either standing or sitting. A minimum reliability level will have to be established for this case, depending upon the consequences, even if the effect on the airplane is negligible.

    The potential for an inadvertent deployment could be increased as a result of conditions in service. The installation must take into account wear and tear so that the likelihood of an inadvertent deployment is not increased to an unacceptable level. In this context, an appropriate inspection interval and self-test capability are considered necessary. Other outside influences are lightning and high-intensity radiated fields (HIRF). Existing regulations regarding lightning, § 25.1316, and HIRF, § 25.1317, are applicable. For compliance with those conditions, if inadvertent deployment could cause a hazard to the airplane, the inflatable lap belt is considered a critical system; if inadvertent deployment could cause injuries to persons, the inflatable lap belt should be considered an essential system. Finally, the inflatable lap-belt installation should be protected from the effects of fire, so that an additional hazard is not created by, for example, a rupture of a pyrotechnic squib.

    To function as an effective safety system, the inflatable lap belt must function properly and must not introduce any additional hazards to occupants as a result of its functioning. The inflatable lap belt differs variously from traditional occupant-protection systems and requires special conditions to ensure adequate performance.

    Because the inflatable lap belt is essentially a single-use device, it could potentially deploy under crash conditions that are not sufficiently severe as to require head-injury protection from the inflatable lap belt. And because an actual crash is frequently composed of a series of impacts before the airplane comes to rest, this could render the inflatable lap belt useless if a larger impact follows the initial impact. This situation does not exist with energy-absorbing pads or upper-torso restraints, which tend to provide continuous protection regardless of severity or number of impacts in a crash event. Therefore, the inflatable lap-belt installation should be such that the inflatable lap belt will provide protection when it is required, by not expending its protection during a less-severe impact. Also, it is possible to have several large impact events during the course of a crash, but there will be no requirement for the inflatable lap belt to provide protection for multiple impacts.

    Given that each occupant's restraint system provides protection for that occupant only, the installation must address unoccupied seats. It will be necessary to show that the required protection is provided for each occupant regardless of the number of occupied seats, and that unoccupied seats may have lap belts that are active.

    The inflatable lap belt should be effective for a wide range of occupants. The FAA has historically considered the range from the 5th percentile female to the 95th percentile male as the range of occupants that must be taken into account. In this case, the FAA is proposing consideration of a broader range of occupants due to the nature of the lap-belt installation and its close proximity to the occupant. In a similar vein, these persons could have assumed the brace position for those accidents where an impact is anticipated. Test data indicate that occupants in the brace position do not require supplemental protection, so it would not be necessary to show that the inflatable lap belt will enhance the brace position. However, the inflatable lap belt must not introduce a hazard when it is deployed into a seated, braced occupant.

    Another area of concern is the use of seats so equipped by children, whether they are lap-held, sitting in approved child-safety seats, or occupying the seat directly. Although specifically prohibited by FAA operating regulations, the use of the supplementary loop belt (“belly belt”) may be required by other civil aviation authorities, and should also be considered with the end goal of meeting those regulations. Similarly, if the seat is occupied by a pregnant woman, the installation needs to address such usage, either by demonstrating that it will function properly, or by adding appropriate limitation on usage.

    The inflatable lap belt will be electrically powered. Likewise, the system could possibly fail due to a separation in the fuselage. Because this system is intended as crash/post-crash protection means, failure due to fuselage separation is not acceptable. As with emergency lighting, the restraint system should function properly if such a separation occurs at any point in the fuselage.

    Because the inflatable lap belt is likely to have a large volume displacement, the inflated bag could potentially impede egress of passengers. However, the lap-belt bag deflates to absorb energy, so it is likely that an inflatable lap belt would be deflated by the time passengers begin to leave their seats. Nonetheless, it is appropriate to specify a time interval after which the inflatable lap belt may not impede rapid egress. The maximum time allowed for an exit to open fully after actuation is 10 seconds, according to § 25.809(b)(2). Therefore, the FAA has established 10 seconds as the time interval that the inflatable lap belt must not impede rapid egress from the seat after it is deployed. In actuality, it is unlikely that a flight attendant would prepare an exit this quickly in an accident severe enough to warrant deployment of the inflatable lap belt. The inflatable lap belt will likely deflate much more quickly than 10 seconds.

    This potential impediment to rapid egress is even more critical at the seats installed in the emergency-exit rows. Installation of inflatable restraints at the Type III exit rows presents different egress concerns as compared with front-row seats. However, the need to address egress is already part of the special conditions, so there is no change to the special conditions at this time. As noted below, the method of compliance with the special conditions may involve specific considerations when an inflatable restraint is installed at Type III exits. Section 25.813 clearly requires access to the exit from the main aisle in the form of an unobstructed passageway, and no interference in opening the exit. The restraint system must not create an impediment to the access to, and the opening of, the exit. These lap belts should be evaluated in the exit row under existing regulations (§§ 25.809 and 25.813) and guidance material. The inflatable lap belts must also be evaluated in post-crash conditions, and should be evaluated using representative restraint systems in the bag-deployed condition.

    This evaluation would include reviewing the access to, and opening of, the exit, specifically for obstructions in the egress path; and any interferences in opening the exit. Each unique interior configuration must be considered, e.g., passageway width, single or dual passageways with outboard seat removed, etc. If the restraint creates any obstruction or interference, it is likely that it could impede rapid egress from the airplane. In some cases, the passenger is the one who will open the exit, such as a Type III over-wing hatch. Project-specific means-of-compliance guidance is likely necessary if these restraint systems are installed at the Type III exit rows.

    Note that the special conditions are applicable to the inflatable lap-belt system as installed. The special conditions are not an installation approval. Therefore, while the special conditions relate to each such system installed, the overall installation approval is separate, and must consider the combined effects of all such systems installed.

    Boeing will install inflatable lap belts, a novel design feature, on certain seats of Model 747-8 airplanes, to reduce the potential for head injury if an accident occurs. The inflatable lap belt works similar to an automotive inflatable air bag, except that the air bag in the Boeing design is integrated into the lap belt of the restraint system.

    The performance criteria for head-injury protection in objective terms is stated in § 25.562. However, none of these criteria are adequate to address the specific issues raised concerning seats with inflatable lap belts. The FAA has therefore determined that, in addition to the requirements of part 25, special conditions are needed to address requirements particular to the installation of seats with inflatable lap belts.

    Accordingly, in addition to the passenger-injury criteria specified in § 25.785, these special conditions are proposed for the Boeing Model 747-8 airplanes equipped with inflatable lap belts. Other conditions may be developed, as needed, based on further FAA review and discussions with the manufacturer and civil-aviation authorities.

    For a passenger-safety system, the inflatable lap belt is unique in that it is both an active and entirely autonomous device. While the automotive industry has good experience with inflatable air bags, the conditions of use and reliance on the inflatable lap belt as the sole means of injury protection are quite different. In automobile installations, the air bag is a supplemental system and works in conjunction with an upper-torso restraint. In addition, the crash event is more definable and typically of shorter duration, which can simplify the activation logic. The airplane-operating environment is also quite different from automobiles and includes the potential for greater wear and tear, and unanticipated abuse conditions (due to galley loading, passenger baggage, etc.). Airplanes also operate where exposure to HIRF could affect the lap-belt activation system.

    The current special conditions for the Boeing Model 777 airplane were amended to address flammability of the airbag material. During the development of the inflatable lap belt, the manufacturer was unable to develop a fabric that would meet the inflation requirements for the bag and the flammability requirements of part 25, Appendix F, Part I(a)(1)(ii). The fabrics that were developed that meet the flammability requirement did not produce acceptable deployment characteristics. However, the manufacturer was able to develop a fabric that not only meets the flammability requirements of part 25, Appendix F, Part I(a)(1)(ii), but also has acceptable deployment characteristics.

    Part I of Appendix F to part 25 specifies the flammability requirements for interior materials and components. There is no reference to inflatable restraint systems in Appendix F, because such devices did not exist at the time the flammability requirements were written. The existing requirements are based on material types as well as use, and have been specified in light of state-of-the-art materials available to perform a given function. Without a specific reference, the default requirement would apply to the type of material used in making the inflatable restraint, which is a fabric in this case. However, in writing special conditions, the FAA must also consider the use of the material, and whether the default requirement is appropriate. In this case, the specialized function of the inflatable restraint means that highly specialized materials are needed. The standard normally applied to fabrics is a 12-second vertical ignition test. However, materials that meet this standard do not perform adequately as inflatable restraints. Because the safety benefit of the inflatable restraint is significant, the flammability standard appropriate for these devices should not screen out suitable materials and thereby effectively eliminate the use of inflatable restraints. The FAA must establish a balance between the safety benefit of the inflatable restraint and its flammability performance. Presently, the 2.5-inch-per-minute horizontal test is considered to provide that balance. As the state-of-the-art in materials progresses (which is expected), the FAA may change this standard in subsequent special conditions to account for improved materials.

    These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

    Applicability

    These special conditions are applicable to the Boeing Model 747-8 airplanes. Should Boeing apply at a later date for a change to the type certificates to include another model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would apply to the other model as well.

    Conclusion

    This action affects only certain novel or unusual design features on the Boeing Model 747-8 airplanes. It is not a rule of general applicability, and it affects only Boeing Model 747-8 airplanes listed on amended Type Certificate no. A20WE.

    List of Subjects in 14 CFR Part 25

    Aircraft, Aviation safety, reporting and recordkeeping requirements.

    The authority citation for these special conditions is as follows:

    Authority:

    49 U.S.C. 106(g), 40113, 44701, 44702, 44704.

    The Special Conditions

    Accordingly, pursuant to the authority delegated to me by the administrator, the following special conditions are issued as part of the type certification basis for Boeing Model 747-8 airplanes with inflatable lap belts installed.

    1. The inflatable lap belt must be shown to deploy and provide protection under crash conditions where it is necessary to prevent serious head injury. The means of protection must take into consideration a range of stature from a two-year-old child to a 95th percentile male. The inflatable lap belt must provide a consistent approach to energy absorption throughout that range of occupants. In addition, the following situations must be considered.

    The seat occupant is:

    • Holding an infant

    • a child in a child-restraint device

    • a child not using a child-restraint device

    • a pregnant woman

    2. The inflatable lap belt must provide adequate protection for each occupant regardless of the number of occupants of the seat assembly, considering that unoccupied seats may have an active airbag system in the lap belt.

    3. The design must prevent the inflatable lap belt from being either incorrectly buckled or incorrectly installed such that the inflatable lap belt would not properly deploy. Alternatively, it must be shown that such deployment is not hazardous to the occupant, and will provide the required head-injury protection.

    4. The inflatable lap-belt system must be shown not to be susceptible to inadvertent deployment as a result of wear and tear, or inertial loads resulting from in-flight or ground maneuvers (including gusts and hard landings), likely to be experienced in service.

    5. Deployment of the inflatable lap belt must not introduce injury mechanisms to the seated occupant, nor result in injuries that could impede rapid egress. This assessment should include an occupant who is in the brace position when it deploys, and an occupant whose inflatable lap belt is loosely fastened.

    6. An inadvertent deployment that could cause injury to a standing or sitting person must be shown to be improbable.

    7. It must be shown that inadvertent deployment of the airbag system in the lap belt, during the most critical part of the flight, either will not cause a hazard to the airplane or its occupants, or meets the requirement of § 25.1309(b).

    8. The inflatable lap belt must be shown to not impede rapid egress of occupants 10 seconds after its deployment.

    9. The inflatable lap-belt system must be protected from lightning and HIRF. The threats specified in existing regulations regarding lightning, § 25.1316, and HIRF, § 25.1317, are incorporated by reference for the purpose of measuring lightning and HIRF protection. For the purposes of complying with HIRF requirements, the inflatable lap-belt system is considered a “critical system” if its deployment could have a hazardous effect on the airplane; otherwise it is considered an “essential” system.

    10. The inflatable lap belt must function properly after loss of normal airplane electrical power, and after a transverse separation of the fuselage at the most critical location. A separation at the location of the lap belt does not have to be considered.

    11. The inflatable lap belt must be shown to not release hazardous quantities of gas or particulate matter into the cabin.

    12. The inflatable lap-belt installation must be protected from the effects of fire such that no hazard to occupants will result.

    13. A means must be available for a crewmember to verify the integrity of the inflatable-lap-belt-activation system prior to each flight, or it must be demonstrated to reliably operate between inspection intervals.

    14. The inflatable material may not have an average burn rate of greater than 2.5 inches per minute when tested using the horizontal-flammability test as defined in 14 CFR part 25, Appendix F, Part I(b)(5).

    15. The airbag system in the lap belt, once deployed, must not adversely affect the emergency-lighting system (i.e., block floor-proximity lights to the extent that the lights no longer meet their intended function).

    Issued in Renton, Washington, on September 1, 2015. Jeffrey E. Duven, Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2015-24725 Filed 9-29-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2015-3367; Special Conditions No. 25-596-SC] Special Conditions: Flight Structures, Inc., Boeing Model 777-200 Dynamic Test Requirements for Single-Occupant, Oblique (Side-Facing) Seats With Airbag Devices AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final special conditions; request for comments.

    SUMMARY:

    These special conditions are issued for Boeing Model 777-200 airplanes. This airplane, as modified by Flight Structures, Inc., will have novel or unusual design features associated with oblique-angled, single-occupant seats equipped with airbag systems. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for these design features. These special conditions contain the additional safety standards the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

    DATES:

    The effective date of these special conditions is September 30, 2015. We must receive your comments by November 16, 2015.

    ADDRESSES:

    Send comments identified by docket number FAA-2015-3367 using any of the following methods:

    Federal eRegulations Portal: Go to http://www.regulations.gov/ and follow the online instructions for sending your comments electronically.

    Mail: Send comments to Docket Operations, M-30, U.S. Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room W12-140, West Building Ground Floor, Washington, DC, 20590-0001.

    Hand Delivery or Courier: Take comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    Fax: Fax comments to Docket Operations at 202-493-2251.

    Privacy: The FAA will post all comments it receives, without change, to http://www.regulations.gov/, including any personal information the commenter provides. Using the search function of the docket Web site, anyone can find and read the electronic form of all comments received into any FAA docket, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). DOT's complete Privacy Act Statement can be found in the Federal Register published on April 11, 2000 (65 FR 19477-19478), as well as at http://DocketsInfo.dot.gov/.

    Docket: Background documents or comments received may be read at http://www.regulations.gov/ at any time. Follow the online instructions for accessing the docket or go to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    John Shelden, Airframe and Cabin Safety, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone 425-227-2785; facsimile 425-227-1149.

    SUPPLEMENTARY INFORMATION:

    The FAA has determined that notice of, and opportunity for, prior public comment on these special conditions are impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected airplane.

    In addition, the substance of these special conditions has been subject to the public-comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance.

    Comments Invited

    We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

    We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

    Background

    On July 7, 2014, Flight Structures, Inc., applied for a supplemental type certificate to allow the installation of oblique business-class passenger seats, positioned at 32.5 degrees to the vertical plane of the airplane longitudinal centerline, and to include inflatable lap belts, in Boeing Model 777-200 airplanes.

    The seating configuration Flight Structures, Inc., proposes in certification plan No. B3FS332-D10 includes the installation of TSO-39c-approved, Zodiac Aries model, side-facing, pod-style, business-class seats (with surrounding shells and front-row furniture), installed at an angle of up to 32.5 degrees to the airplane longitudinal centerline. These seats will include restraint (airbag) systems for occupant restraint and injury protection.

    The Boeing Model 777-200 airplane, approved under Type Certificate No. T00001SE, is a swept-wing, conventional-tail, twin-engine, turbofan-powered transport airplane, with seating capacity for 440 passengers.

    Type Certification Basis

    Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Flight Structures, Inc., must show that the Model 777-200 airplane, as changed, meets the applicable provisions of the regulations listed in Type Certificate No. T00001SE, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. The regulations listed in the type certificate are commonly referred to as the “original type- certification basis.” The regulations listed in Type Certificate No. T00001SE are as follows:

    14 CFR part 25, Amendments 25-1 through 25-82, with exceptions listed in the type-certification data sheet. In addition, the certification basis includes certain special conditions, exemptions, or later amended sections of the applicable part that are not relevant to these special conditions.

    If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for Boeing Model 777-200 airplanes because of a novel or unusual design feature, special conditions are prescribed under § 21.16.

    Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

    In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 777-200 airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

    The FAA issues special conditions as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

    Novel or Unusual Design Features

    The business-class seating configuration Flight Structures, Inc., proposes is novel and unusual due to the seat installation at 32.5 degrees to the aircraft centerline, the airbag-system installation, and the seat/occupant interface with the surrounding furniture that introduces occupant alignment and loading concerns. The proposed business-class seating configuration also is beyond the limits of current acceptable equivalent-level-of-safety findings.

    Ongoing research is progressing to establish acceptable limits. Until those limits become available, the FAA proposes a set of interim limits based on the current literature available, current National Highway Traffic Safety Administration (NHTSA) regulations, and preliminary test data from the research program.

    The existing regulations do not provide adequate or appropriate safety standards for occupants of oblique-angled seats with airbag systems. To provide a level of safety that is equivalent to that afforded occupants of forward- and aft-facing seats, additional airworthiness standards, in the form of special conditions, are necessary. These special conditions supplement part 25 and, more specifically, supplement §§ 25.562 and 25.785. The requirements contained in these special conditions consist of both test conditions and injury pass/fail criteria.

    Discussion

    Amendment 25-15 to part 25, dated October 24, 1967, introduced the subject of side-facing seats, and a requirement that each occupant in a side-facing seat must be protected from head injury by a safety belt and a cushioned rest that will support the arms, shoulders, head, and spine.

    Subsequently, Amendment 25-20, dated April 23, 1969, clarified the definition of side-facing seats to require that each occupant of a seat, positioned at more than an 18-degree angle to the vertical plane of the airplane longitudinal centerline, must be protected from head injury by a safety belt and an energy-absorbing rest that will support the arms, shoulders, head, and spine; or by a safety belt and shoulder harness that will prevent the head from contacting any injurious object. The FAA concluded that an 18-degree angle would provide an adequate level of safety based on tests that were performed at that time, and thus adopted that standard.

    Part 25 was amended June 16, 1988, by Amendment 25-64, to revise the emergency-landing conditions that must be considered in the design of the airplane. Amendment 25-64 revised the static-load conditions in 14 CFR 25.561, and added the new § 25.562 that requires dynamic testing for all seats approved for occupancy during takeoff and landing. The intent of Amendment 25-64 is to provide an improved level of safety for occupants on transport-category airplanes. Because most seating is forward-facing on transport-category airplanes, the pass/fail criteria developed in Amendment 25-64 focused primarily on these seats. As a result, the FAA issued Policy Memorandums ANM-03-115-30 and PS-ANM-100-2000-00123 to provide the additional guidance necessary to demonstrate the level of safety required by the regulations for side-facing seats.

    To reflect current research findings, the FAA developed a methodology to address all fully side-facing seats (i.e., seats positioned in the airplane with the occupant facing 90 degrees to the vertical plane of the airplane centerline), and has documented those requirements in a set of new special conditions. The FAA issued Policy Statement PS-ANM-25-03-R1 to define revised injury criteria associated with neck and leg injuries.

    The proposed Model 777-200 airplane business-class seat installation is novel such that the current Model 777-200 airplane certification basis does not adequately protection of the occupant's neck and spine for seat configurations that are positioned at an angle greater than 18 degrees from the airplane centerline. Therefore, the Flight Structures, Inc., proposed configuration will require new special conditions.

    These special conditions will provide head injury criteria, neck injury criteria, spine injury criteria, and body-to-wall contact criteria. They contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

    Applicability

    These special conditions are applicable to the Boeing Model 777-200 airplanes configured with the business-class seating defined in Flight Structures, Inc., certification plan No. B3FS332-D10. Should Flight Structures, Inc., apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. T00001SE to incorporate the same novel or unusual design feature, these special conditions would apply to the other model as well.

    Conclusion

    This action affects only certain novel or unusual design features on one model of airplane. It is not a rule of general applicability, and affects only the applicant who applied to the FAA for approval of these features on the airplane.

    The substance of these special conditions has been subjected to the notice and comment period in several prior instances, and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, because a delay would significantly affect the certification of the airplane, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the Federal Register. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

    List of Subjects in 14 CFR Part 25

    Aircraft, Aviation safety, Reporting and recordkeeping requirements.

    The authority citation for these special conditions is as follows:

    Authority:

    49 U.S.C. 106(g), 40113, 44701, 44702, 44704.

    The Special Conditions

    Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the Boeing Model 777-200 airplane.

    Side-Facing Seats Special Conditions

    In addition to the requirements of § 25.562:

    1. Head-Injury Criteria

    Compliance with § 25.562(c)(5) is required, except that, if the anthropomorphic test device (ATD) has no apparent contact with the seat/structure but has contact with an airbag, a head-injury criterion (HIC) unlimited score in excess of 1000 is acceptable, provided the HIC15 score (calculated in accordance with 49 CFR 571.208) for that contact is less than 700.

    2. Body-to-Wall/Furnishing Contact

    If a seat is installed aft of structure (e.g., an interior wall or furnishing) that does not provide a homogenous contact surface for the expected range of occupants and yaw angles, then additional analysis and/or test(s) may be required to demonstrate that the injury criteria are met for the area that an occupant could contact. For example, if different yaw angles could result in different airbag performance, then additional analysis or separate test(s) may be necessary to evaluate performance.

    3. Neck Injury Criteria

    The seating system must protect the occupant from experiencing serious neck injury. The assessment of neck injury must be conducted with the airbag device activated, unless there is reason to also consider that the neck-injury potential would be higher for impacts below the airbag-device deployment threshold.

    a. The Nij (calculated in accordance with 49 CFR 571.208) must be below 1.0, where Nij =Fz/Fzc + My/Myc, and Nij critical values are:

    i. Fzc = 1530 lb for tension

    ii. Fzc = 1385 lb for compression

    iii. Myc = 229 lb-ft in flexion

    iv. Myc = 100 lb-ft in extension

    b. In addition, peak Fz must be below 937 lb in tension and 899 lb in compression.

    c. Rotation of the head about its vertical axis, relative to the torso, is limited to 105 degrees in either direction from forward-facing.

    d. The neck must not impact any surface that would produce concentrated loading on the neck.

    4. Spine and Torso Injury Criteria

    a. The shoulders must remain aligned with the hips throughout the impact sequence, or support for the upper torso must be provided to prevent forward or lateral flailing beyond 45 degrees from the vertical during significant spinal loading. Alternatively, the lumbar spine tension (Fz) cannot exceed 1200 lb.

    b. Significant concentrated loading on the occupant's spine, in the area between the pelvis and shoulders during impact, including rebound, is not acceptable. During this type of contact, the interval for any rearward (X-direction) acceleration exceeding 20g must be less than 3 milliseconds as measured by the thoracic instrumentation specified in 49 CFR part 572, subpart E, filtered in accordance with SAE International (SAE) J211-1.

    c. Occupant must not interact with the armrest or other seat components in any manner significantly different than would be expected for a forward-facing seat installation.

    5. Longitudinal test(s), conducted to measure the injury criteria above, must be performed with the FAA Hybrid III ATD, as described in SAE 1999-01-1609. The test(s) must be conducted with an undeformed floor, at the most-critical yaw case(s) for injury, and with all lateral structural supports (armrests/walls) installed.

    Note:

    Boeing must demonstrate that the installation of seats via plinths or pallets meets all applicable requirements. Compliance with the guidance contained in FAA Policy Memorandum PS-ANM-100-2000-00123, dated February 2, 2000, titled “Guidance for Demonstrating Compliance with Seat Dynamic Testing for Plinths and Pallets,” is acceptable to the FAA.

    Inflatable Lap Belt Special Conditions

    If inflatable lap belts are installed on single-place side-facing seats, the lap belts must meet Special Conditions No. 25-187A-SC.

    Issued in Renton, Washington, on September 2, 2015. Jeffrey E. Duven, Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2015-24727 Filed 9-29-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 73 [Docket No. FDA-2015-C-1154] Listing of Color Additives Exempt From Certification; Mica-Based Pearlescent Pigments AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Final rule.

    SUMMARY:

    The Food and Drug Administration (“FDA” or “we”) is amending the color additive regulations to provide for the safe use of mica-based pearlescent pigments prepared from titanium dioxide and mica as color additives in certain distilled spirits. This action is in response to a color additive petition (CAP) submitted by E. & J. Gallo Winery.

    DATES:

    This rule is effective November 2, 2015. See section VIII for further information on the filing of objections. Submit either electronic or written objections and requests for a hearing by October 30, 2015.

    ADDRESSES:

    You may submit either electronic or written objections and requests for a hearing, identified by Docket No. FDA-2015-C-1154, by any of the following methods:

    Electronic Submissions

    Submit electronic objections in the following way:

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

    Written Submissions

    Submit written objections in the following ways:

    Mail/Hand delivery/Courier (for paper or submissions): Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    Instructions: All submissions received must include the Agency name and Docket No. FDA-2015-C-1154 for this rulemaking. All objections received will be posted without change to http://www.regulations.gov, including any personal information provided. For detailed instructions on submitting objections, see the “Objections” heading of the SUPPLEMENTARY INFORMATION section.

    Docket: For access to the docket to read background documents or objections received, go to http://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Division of Dockets Management, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    FOR FURTHER INFORMATION CONTACT:

    Salome Bhagan, Center for Food Safety and Applied Nutrition (HFS-265), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740-3835, 240-402-3041.

    SUPPLEMENTARY INFORMATION: I. Background

    In a notice published in the Federal Register on April 22, 2015 (80 FR 22449), we announced that we filed a color additive petition (CAP 5C0302) to amend the color additive regulations in § 73.350 Mica-based pearlescent pigments (21 CFR 73.350).

    CAP 5C0302 was submitted by E. & J. Gallo Winery, c/o Keller and Heckman LLP, Three Embarcadero Center, Suite 1420, San Francisco, CA 94111 (petitioner). In CAP 5C0302, E. & J. Gallo Winery proposed to amend the color additive regulations in § 73.350 to increase the maximum permitted alcohol content of distilled spirits to which mica-based pearlescent pigments may be added from 23 percent to 25 percent alcohol by volume, and to remove the current limitation for distilled spirits mixtures containing more than 5 percent wine on a proof gallon basis. The term “distilled spirits” is defined by the Alcohol and Tobacco Tax and Trade Bureau as ethyl alcohol, hydrated oxide of ethyl, spirits of wine, whisky, rum, brandy, gin, and other distilled spirits, including all dilutions and mixtures thereof, for nonindustrial use. The term does not include mixtures containing wine, bottled at 48 degrees of proof or less, if the mixture contains more than 50 percent wine on a proof gallon basis (27 CFR 5.11).

    Mica-based pearlescent pigments prepared from titanium dioxide and mica are currently approved under § 73.350(c)(1)(i) for use as a color additive in amounts up to 1.25 percent, by weight, in cereals, confections and frostings, gelatin deserts, hard and soft candies (including lozenges), nutritional supplement tablets and gelatin capsules, and chewing gum. They are also approved under § 73.350(c)(1)(ii) in amounts up to 0.07 percent, by weight, in: Distilled spirits containing not less than 18 percent and not more than 23 percent alcohol by volume but not including distilled spirits mixtures containing more than 5 percent wine on a proof gallon basis (§ 73.350(c)(1)(ii)(A)); cordials, liqueurs, flavored alcoholic malt beverages, wine coolers, and cocktails (§ 73.350(c)(1)(ii)(B)); and non-alcoholic cocktail mixes and mixers, such as margarita mix, Bloody Mary mix, and daiquiri mix, but excluding eggnog, tonic water, and beverages that are typically consumed without added alcohol (e.g., fruit juices, fruit juice drinks, and soft drinks) (§ 73.350(c)(1)(ii)(C)). The pigments also are approved under § 73.350(c)(1)(iii) in egg decorating kits used for coloring the shells of eggs in amounts consistent with good manufacturing practice. Mica-based pearlescent pigments prepared from titanium dioxide on mica, iron oxide on mica, and titanium dioxide and iron oxide on mica are approved for use as a color additive in ingested drugs under § 73.1350 (21 CFR 73.1350). Mica-based pearlescent pigments formed by depositing titanium or iron salts from a basic solution onto mica, followed by calcination to produce titanium dioxide or iron oxides on mica, are approved for use in contact lenses under § 73.3128 (21 CFR 73.3128). The color additive that is mica-based pearlescent pigments prepared from titanium dioxide and mica will be referred hereinafter in this final rule as mica-based pearlescent pigments.

    II. Safety Evaluation A. Determination of Safety

    Under section 721(b)(4) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 379e(b)(4)), a color additive cannot be listed for a particular use unless the data and information available to FDA establishes that the color additive is safe for that use. FDA's color additive regulations in 21 CFR 70.3(i) define “safe” to mean that there is convincing evidence that establishes with reasonable certainty that no harm will result from the intended use of the color additive. To establish with reasonable certainty that a color additive intended for use in food is not harmful under its intended conditions of use, we consider the projected human dietary exposure to the additive, the additive's toxicological data, and other relevant information (such as published literature) available to us. We compare an individual's estimated daily intake (EDI) of the additive from all sources to an acceptable daily intake (ADI) established by toxicological data. The EDI is determined by projections based on the amount of the additive proposed for use in particular foods and on data regarding the amount consumed from all sources of the additive. We typically use the EDI for the 90th percentile consumer of a color additive as a measure of high chronic dietary exposure.

    B. Safety of the Petitioned Use of the Color Additive

    During our safety review of the use of mica-based pearlescent pigments proposed in CAP 5C0302, we considered the exposure to the color additive from its petitioned use and from the currently permitted uses in food and ingested drugs under §§ 73.350 and 73.1350, respectively. In estimating the cumulative estimated dietary intake (CEDI) of these pigments, we determined that the exposure to mica-based pearlescent pigments from the use in egg decorating kits used for coloring the shells of boiled eggs and in contact lenses (§§ 73.350(c)(1)(iii) and 73.3128, respectively) is negligible and, therefore, does not contribute to the exposure.

    The petitioner estimated the eaters-only exposure to mica-based pearlescent pigments from the proposed use in distilled spirits containing not less than 18 percent and not more than 25 percent alcohol by volume at 0.14 grams per person per day (g/p/d) at the mean and 0.31 g/p/d at the 90th percentile for the U.S. population (Ref. 1). (An eaters-only exposure is the total of the amount of food consumed per day averaged over the number of days in the survey period by individuals consuming the food at least once during the survey period.) We conclude that the petitioner's exposure estimates are sufficiently conservative to account for the petitioned use of mica-based pearlescent pigments. Regarding cumulative exposure from the current and petitioned uses of mica-based pearlescent pigments, we note that in our recent final rule that provided for the safe use of mica-based pearlescent pigments as color additives in cordials, liqueurs, flavored alcoholic malt beverages, wine coolers, cocktails, non-alcoholic cocktail mixers and mixes, and in egg decorating kits for coloring shell eggs, we estimated the CEDI for the use of mica-based pearlescent pigments in food (§ 73.350) and ingested drugs (§ 73.1350) to be 0.25 g/p/d at the mean and 0.50 g/p/d at the 90th percentile for the U.S. population (80 FR 32303 at 32305, June 8, 2015). Since the petitioned use of mica-based pearlescent pigments will generally substitute for currently-permitted uses of mica-based pearlescent pigments in other alcoholic beverages with no change in the maximum use level of 0.07 percent by weight, we have determined that the petitioned use of mica-based pearlescent pigments will not result in an increase in consumer exposure to these pigments. Therefore, we conclude that our previous CEDI for mica-based pearlescent pigments of 0.25 g/p/d at the mean and 0.50 g/p/d at the 90th percentile for the U.S. population will remain unchanged (Ref. 1).

    To support the safety of the proposed use of mica-based pearlescent pigments in food, the petitioner referenced the safety determination made by FDA for previously filed petitions (70 FR 42271, July 22, 2005); (71 FR 31927, June 2, 2006); and (78 FR 35115, June 12, 2013); including our previously established ADI for mica-based pearlescent pigments of 1.8 g/p/d based on a 2-year rat carcinogenicity bioassay (71 FR 31927 at 31928). Because there is no increase in the intake of mica-based pearlescent pigments beyond a level that has already been established as safe, FDA has no concerns regarding the petitioned use of mica-based pearlescent pigments in distilled spirits containing not less than 18 percent and not more than 25 percent alcohol by volume (Ref. 2).

    III. Conclusion

    Based on the data and information in the petition and other relevant material, FDA concludes that the petitioned use of mica-based pearlescent pigments prepared from titanium dioxide and mica as a color additive at a level of up to 0.07 percent by weight in distilled spirits containing not less than 18 percent and not more than 25 percent alcohol by volume, is safe. We further conclude that the additive will achieve its intended technical effect and is suitable for the petitioned use. Therefore, we are amending the color additive regulations in part 73 as set forth in this document. In addition, based upon the factors listed in 21 CFR 71.20(b), we conclude that certification of mica-based pearlescent pigments prepared from titanium dioxide and mica is not necessary for the protection of the public health.

    IV. Public Disclosure

    In accordance with § 71.15 (21 CFR 71.15), the petitions and the documents that we considered and relied upon in reaching our decision to approve the petition will be made available for public disclosure (see FOR FURTHER INFORMATION CONTACT). As provided in § 71.15, we will delete from the documents any materials that are not available for public disclosure.

    V. Environmental Impact

    We previously considered the environmental effects of this rule, as stated in the April 22, 2015 notice of filing for CAP 5C0302 (80 FR 22449). We stated that we had determined, under 21 CFR 25.32(k), that this action is of a type that does not individually or cumulatively have a significant effect on the human environment such that neither an environmental assessment nor an environmental impact statement is required. We have not received any new information or comments that would affect our previous determination.

    VI. Paperwork Reduction Act of 1995

    This final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

    VII. Section 301(ll) of the Federal Food, Drug, and Cosmetic Act

    Our review of this petition was limited to section 721 of the FD&C Act. This final rule is not a statement regarding compliance with other sections of the FD&C Act. For example, section 301(ll) of the FD&C Act prohibits the introduction or delivery for introduction into interstate commerce of any food that contains a drug approved under section 505 of the FD&C Act (21 U.S.C. 355), a biological product licensed under section 351 of the Public Health Service Act (42 U.S.C. 262), or a drug or biological product for which substantial clinical investigations have been instituted and their existence has been made public, unless one of the exemptions in section 301(ll)(1) to (ll)(4) of the FD&C Act applies. In our review of this petition, we did not consider whether section 301(ll) of the FD&C Act or any of its exemptions apply to food containing this additive. Accordingly, this final rule should not be construed to be a statement that a food containing this additive, if introduced or delivered for introduction into interstate commerce, would not violate section 301(ll) of the FD&C Act. Furthermore, this language is included in all color additive final rules that pertain to food and therefore should not be construed to be a statement of the likelihood that section 301(ll) of the FD&C Act applies.

    VIII. Objections

    This rule is effective as shown in the DATES section, except as to any provisions that may be stayed by the filing of proper objections. If you will be adversely affected by one or more provisions of this regulation, you may file with the Division of Dockets Management (see ADDRESSES) either electronic or written objections. You must separately number each objection, and within each numbered objection you must specify with particularity the provision(s) to which you object, and the grounds for your objection. Within each numbered objection, you must specifically state whether you are requesting a hearing on the particular provision that you specify in that numbered objection. If you do not request a hearing for any particular objection, you waive the right to a hearing on that objection. If you request a hearing, your objection must include a detailed description and analysis of the specific factual information you intend to present in support of the objection in the event that a hearing is held. If you do not include such a description and analysis for any particular objection, you waive the right to a hearing on the objection.

    It is only necessary to send one set of documents. Identify documents with the docket number found in brackets in the heading of this document. Any objections received in response to the regulation may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday, and will be posted to the docket at http://www.regulations.gov. We will publish notice of the objections that we have received or lack thereof in the Federal Register.

    IX. References

    The following references have been placed on display in the Division of Dockets Management (see ADDRESSES) and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday and are available electronically at http://www.regulations.gov.

    1. FDA Memorandum from H. Lee, Chemistry Review Group, Division of Petition Review, to S. Bhagan, Regulatory Group I, Division of Petition Review, May 19, 2015. 2. FDA Memorandum from S. Park, Toxicology Team, Division of Petition Review, to S. Bhagan, Regulatory Group I, Division of Petition Review, June 8, 2015. List of Subjects in 21 CFR Part 73

    Color additives, Cosmetics, Drugs, Medical devices.

    Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, and redelegated to the Director, Center for Food Safety and Applied Nutrition, 21 CFR part 73 is amended as follows:

    PART 73—LISTING OF COLOR ADDITIVES EXEMPT FROM CERTIFICATION 1. The authority citation for 21 CFR part 73 continues to read as follows: Authority:

    21 U.S.C. 321, 341, 342, 343, 348, 351, 352, 355, 361, 362, 371, 379e.

    2. Section 73.350 is amended by revising paragraph (c)(1)(ii)(A) to read as follows:
    § 73.350 Mica-based pearlescent pigments.

    (c) * * *

    (1) * * *

    (ii) * * *

    (A) Distilled spirits containing not less than 18 percent and not more than 25 percent alcohol by volume.

    Dated: September 25, 2015. Susan Bernard, Director, Office of Regulations, Policy and Social Sciences, Center for Food Safety and Applied Nutrition.
    [FR Doc. 2015-24795 Filed 9-29-15; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 558 [Docket No. FDA-2010-N-0155] Veterinary Feed Directive Regulation Questions and Answers; Small Entity Compliance Guide; Guidance for Industry; Availability AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notification of availability.

    SUMMARY:

    The Food and Drug Administration (FDA) is announcing the availability of a small entity compliance guide and guidance for industry #120 entitled “Veterinary Feed Directive Regulation Questions and Answers.” This guidance aids industry in complying with the requirements of the Veterinary Feed Directive (VFD) final rule that published in the Federal Register on June 3, 2015. The purpose of this document is to describe the Veterinary Feed Directive requirements for veterinarians, feed manufacturers and other distributors, animal producers, and other parties involved in the distribution or use of medicated feed containing a Veterinary Feed Directive drug (VFD feed).

    DATES:

    Submit either electronic or written comments on Agency guidances at any time.

    ADDRESSES:

    You may submit comments as follows:

    Electronic Submissions

    Submit electronic comments in the following way:

    • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. Comments submitted electronically, including attachments, to http://www.regulations.gov will be posted to the docket unchanged. Because your comment will be made public, you are solely responsible for ensuring that your comment does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your comments, that information will be posted on http://www.regulations.gov.

    • If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

    Written/Paper Submissions

    Submit written/paper submissions as follows:

    Mail/Hand delivery/Courier (for written/paper submissions): Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

    Instructions: All submissions received must include the Docket No. FDA-2010-N-0155 for “Veterinary Feed Directive Regulation Questions and Answers; Small Entity Compliance Guide; Guidance for Industry; Availability.” Received comments will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at http://www.regulations.gov or at the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.

    • Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION”. The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on http://www.regulations.gov. Submit both copies to the Division of Dockets Management. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your comments and you must identify this information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: http://www.fda.gov/regulatoryinformation/dockets/default.htm.

    Docket: For access to the docket to read background documents or the electronic and written/paper comments received, go to http://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Division of Dockets Management, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    Submit written requests for single copies of the guidance to the Policy and Regulations Staff (HFV-6), Center for Veterinary Medicine, Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855. Send one self-addressed adhesive label to assist that office in processing your requests. See the SUPPLEMENTARY INFORMATION section for electronic access to the guidance document.

    FOR FURTHER INFORMATION CONTACT:

    Dragan Momcilovic, Center for Veterinary Medicine (HFV-226), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240-402-5944, [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    In the Federal Register of June 3, 2015 (80 FR 31520), FDA published a notice of availability for a draft guidance entitled “Veterinary Feed Directive Regulation Questions and Answers” giving interested persons until August 3, 2015, to comment on the draft guidance. FDA received several comments on the draft guidance and those comments were considered as the guidance was finalized. The guidance announced in this notice finalizes the draft guidance dated June 2015. This guidance also serves as a Small Entity Compliance Guide (SECG) to aid industry in complying with the requirements of the VFD final rule that published in the Federal Register on June 3, 2015 (80 FR 31708). FDA has prepared this SECG in accordance with section 212 of the Small Business Regulatory Enforcement Fairness Act (Pub. L. 104-121). This document is intended to provide guidance to small businesses on the requirements of the final rule.

    In 1996, Congress enacted the Animal Drug Availability Act (ADAA) to facilitate the approval and marketing of new animal drugs and medicated feeds. In passing the ADAA, Congress created a new regulatory category for certain animal drugs used in animal feed called VFD drugs. VFD drugs are new animal drugs intended for use in or on animal feed which are limited to use under the professional supervision of a licensed veterinarian. FDA published final regulations implementing the VFD-related provisions of the ADAA in 2000. On June 3, 2015, FDA published a VFD final rule that revised those VFD regulations and introduced clarifying changes to specified definitions, and published the draft revised guidance for comment.

    II. Significance of Guidance

    This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the current thinking of FDA on VFD regulation questions and answers. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.

    III. Paperwork Reduction Act of 1995

    This guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR 558.6 have been approved under OMB control number 0910-0363.

    IV. Electronic Access

    Persons with access to the Internet may obtain the guidance at either http://www.fda.gov/AnimalVeterinary/GuidanceComplianceEnforcement/GuidanceforIndustry/default.htm or http://www.regulations.gov.

    Dated: September 23, 2015. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2015-24685 Filed 9-29-15; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 870 [Docket No. FDA-2015-N-3165] Medical Devices; Cardiovascular Devices; Classification of the Steerable Cardiac Ablation Catheter Remote Control System AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Final order.

    SUMMARY:

    The Food and Drug Administration (FDA) is classifying the steerable cardiac ablation catheter remote control system into class II (special controls). The special controls that will apply to the device are identified in this order and will be part of the codified language for the steerable cardiac ablation catheter remote control system's classification. The Agency is classifying the device into class II (special controls) in order to provide a reasonable assurance of safety and effectiveness of the device.

    DATES:

    This order is effective September 30, 2015. The classification was applicable on December 18, 2014.

    FOR FURTHER INFORMATION CONTACT:

    Deborah Castillo, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 1321, Silver Spring, MD 20993-0002, 301-796-4908.

    SUPPLEMENTARY INFORMATION: I. Background

    In accordance with section 513(f)(1) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 360c(f)(1)), devices that were not in commercial distribution before May 28, 1976 (the date of enactment of the Medical Device Amendments of 1976), generally referred to as postamendments devices, are classified automatically by statute into class III without any FDA rulemaking process. These devices remain in class III and require premarket approval, unless, and until, the device is classified or reclassified into class I or II, or FDA issues an order finding the device to be substantially equivalent, in accordance with section 513(i) of the FD&C Act, to a predicate device that does not require premarket approval. The Agency determines whether new devices are substantially equivalent to predicate devices by means of premarket notification procedures in section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807) of the regulations.

    Section 513(f)(2) of the FD&C Act, as amended by section 607 of the Food and Drug Administration Safety and Innovation Act (Pub. L. 112-144), provides two procedures by which a person may request FDA to classify a device under the criteria set forth in section 513(a)(1) of the FD&C Act. Under the first procedure, the person submits a premarket notification under section 510(k) of the FD&C Act for a device that has not previously been classified and, within 30 days of receiving an order classifying the device into class III under section 513(f)(1) of the FD&C Act, the person requests a classification under section 513(f)(2). Under the second procedure, rather than first submitting a premarket notification under section 510(k) of the FD&C Act and then a request for classification under the first procedure, the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence and requests a classification under section 513(f)(2) of the FD&C Act. If the person submits a request to classify the device under this second procedure, FDA may decline to undertake the classification request if FDA identifies a legally marketed device that could provide a reasonable basis for review of substantial equivalence with the device or if FDA determines that the device submitted is not of “low-moderate risk” or that general controls would be inadequate to control the risks and special controls to mitigate the risks cannot be developed.

    In response to a request to classify a device under either procedure provided by section 513(f)(2) of the FD&C Act, FDA will classify the device by written order within 120 days. This classification will be the initial classification of the device.

    On February 14, 2014, Catheter Robotics, Inc. submitted a request for classification of the AMIGO Remote Catheter System under section 513(f)(2) of the FD&C Act. The manufacturer recommended that the device be classified into class II (Ref. 1).

    In accordance with section 513(f)(2) of the FD&C Act, FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1). FDA classifies devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls to provide reasonable assurance of the safety and effectiveness of the device for its intended use. After review of the information submitted in the request, FDA determined that the device can be classified into class II with the establishment of special controls. FDA believes these special controls, in addition to general controls, will provide reasonable assurance of the safety and effectiveness of the device.

    Therefore, on December 18, 2014, FDA issued an order to the requestor classifying the device into class II. FDA is codifying the classification of the device by adding 21 CFR 870.5700.

    Following the effective date of this final classification order, any firm submitting a premarket notification (510(k)) for a steerable cardiac ablation catheter remote control system will need to comply with the special controls named in this final order. The device is assigned the generic name steerable cardiac ablation catheter remote control system, and it is identified as a prescription device that is external to the body and interacts with the manual handle of a steerable cardiac ablation catheter to remotely control the advancement, retraction, rotation, and deflection of a compatible, steerable ablation catheter used for the treatment of cardiac arrhythmias in the right side of the heart. The device allows reversion to manual control of the steerable cardiac ablation catheter without withdrawal of the catheter and interruption of the procedure.

    FDA has identified the following risks to health associated specifically with this type of device, as well as the mitigation measures required to mitigate these risks in table 1.

    Table 1—Steerable Cardiac Ablation Catheter Remote Control System Risks and Mitigation Measures Identified risk Mitigation measure Device Failure, Resulting in Patient Injury or Interruption of Procedure Non-Clinical Mechanical Performance Testing
  • Non-Clinical Electrical Testing:
  • Electromagnetic Compatibility (EMC), Electrical Safety, Electrical System, Performance, Shelf Life Testing, Sterilization Testing, In Vivo Testing, Labeling, Training.
  • Device Alters Catheter Functionality (Advance/Withdrawal, Rotation, Deflection) Resulting in Patient Injury (e.g., Perforation) or Improper Catheter Performance (Positioning and Contact) or Interruption of Procedure Non-Clinical Mechanical Performance Testing
  • Non-Clinical Electrical Testing: EMC, Electrical Safety, Electrical System, Performance, In Vivo Testing, Labeling, Post Market Surveillance.
  • Adverse Tissue Reaction Sterilization Testing. Improper Device Use/Use Error Labeling, Training, In Vivo Testing, Post Market Surveillance. Interference with Other Electrical Equipment/Devices (e.g., Device Malfunction) Non-Clinical Mechanical Performance Testing
  • Non-Clinical Electrical Testing: EMC, Electrical Safety, Electrical System, Performance, Labeling.
  • Electrical Shock Non-Clinical Electrical Testing: Electrical Safety Testing, Labeling. Device Malfunction Resulting in Unanticipated Operation (e.g., Device Stoppage, Unintended Movement) Non-Clinical Mechanical Performance Testing
  • Non-Clinical Electrical Testing: EMC, Electrical Safety, Electrical System, Performance, In Vivo Testing, Labeling, Training.
  • FDA believes that the following special controls, in combination with the general controls, address these risks to health and provide reasonable assurance of safety and effectiveness:

    • Non-clinical mechanical performance testing must demonstrate that the device performs as intended under anticipated conditions of use. The following performance testing must be performed:

    ○ Mechanical performance of the system (without catheter connected);

    ○ mechanical performance of the system with compatible catheters connected to verify that the system does not impact catheter function or performance. Assessments must include the following:

    Side-by side remote control and manual comparisons of catheter manipulation (including all ranges of motion of catheter deflection and tip curl) for all compatible catheters; must include testing for worst-case conditions, and

    evaluation of the accuracy and function of all device control safety features; and

    ○ simulated-use testing in a bench anatomic model or animal model.

    • Non-clinical electrical testing must include validation of EMC, electrical safety, thermal safety, and electrical system performance. The following performance testing must be performed:

    ○ Electrical performance of the system with compatible catheters connected to verify that the system does not impact catheter function or performance. Assessments must include the following:

    Side-by side remote control and manual comparisons of catheter manipulation (including all ranges of motion of catheter deflection and tip curl) for all compatible catheters; must include testing for worst-case conditions, and

    evaluation of the accuracy and function of all device control safety features; and

    ○ electrical safety between the device and ablation catheter system and with other electrical equipment expected in the catheter lab or operating room.

    • In vivo testing must demonstrate that the device performs as intended under anticipated conditions of use, including an assessment of the system impact on the functionality and performance of compatible catheters, and documentation of the adverse event profile associated with clinical use. Evidence must be submitted to address the following:

    ○ Manipulation and positioning: Ability to manipulate compatible catheters to pre-specified cardiac locations and confirm proper anatomic placement and tissue contact, in accordance with the system indications for use and the compatible catheter indications for use;

    ○ Safety: Assess device-related complication rate and major procedural complication rate (regardless of device relatedness) in comparison to literature and/or a manual comparison group for compatible ablation catheters to support the indications for use;

    ○ Efficacy: Assess ablation success in comparison to literature and/or a manual comparison group for compatible ablation catheters to support the indications for use; and

    ○ User assessment of device remote controls and safety features.

    • Post-market surveillance (PMS) must be conducted and completed in accordance with FDA-agreed upon PMS protocol.

    • A training program must be included with sufficient educational elements that, upon completion of the training program, the clinician and supporting staff can

    ○ Identify the safe environments for device use,

    ○ use all safety features of device, and

    ○ operate the device in simulated or actual use environments representative of indicated environments and use for the indication of compatible catheters.

    • Performance data must demonstrate the sterility of the sterile disposable components of the system.

    • Performance data must support shelf life by demonstrating continued sterility of the device (of the sterile disposable components), package integrity, and device functionality over the requested shelf life.

    • Labeling must include the following:

    ○ Appropriate instructions, warnings, cautions, limitations, and information related to the intended patient population, compatible ablation catheters, and the device safeguards for the safe use of the device;

    ○ specific instructions and the clinical training needed for the safe use of the device, which includes:

    instructions on assembling the device in all available configurations, including installation and removal of compatible catheters;

    instructions and explanation of all controls, inputs, and outputs;

    instructions on all available modes or states of the device;

    instructions on all safety features of the device; and

    validated methods and instructions for reprocessing/disinfecting any reusable components;

    ○ a detailed summary of the mechanical compatibility testing including:

    A table with a complete list of compatible catheters tested (manufacturer trade name and model number), and

    a table with detailed test results, including type of test, acceptance criteria, and test results (i.e., pass for meeting acceptance criteria);

    ○ a detailed summary of the in vivo testing including:

    a table with a complete list of compatible catheters used during testing (manufacturer trade name and model number);

    adverse events encountered pertinent to use of the device under use conditions;

    a detailed summary of the device- and procedure-related complications; and

    a summary of study outcomes and endpoints. Information pertinent to the fluoroscopy times/exposure for the procedure, patient and operator fluoroscopic exposure;

    ○ other labeling items:

    a detailed summary of pertinent non-clinical testing information: EMC, mechanical, electrical, and sterilization of device and components;

    a detailed summary of the device technical parameters; and

    an expiration date/shelf life and storage conditions for the sterile accessories; and

    ○ when available, and according to the timeframe included in the PMS protocol agreed upon with FDA, provide a detailed summary of the PMS data including:

    Updates to the labeling to accurately reflect outcomes or necessary modifications based upon data collected during the PMS experience, and

    inclusion of results and adverse events associated with utilization of the device during the PMS.

    The steerable cardiac ablation catheter remote control system is a prescription device restricted to patient use only upon the authorization of a practitioner licensed by law to administer or use the device; see 21 CFR 801.109 (Prescription devices).

    Section 510(m) of the FD&C Act provides that FDA may exempt a class II device from the premarket notification requirements under section 510(k) if FDA determines that premarket notification is not necessary to provide reasonable assurance of the safety and effectiveness of the device. For this type of device, FDA has determined that premarket notification is necessary to provide reasonable assurance of the safety and effectiveness of the device. Therefore, this device type is not exempt from premarket notification requirements. Persons who intend to market this type of device must submit to FDA a premarket notification, prior to marketing the device, which contains information about the steerable cardiac ablation catheter remote control system they intend to market.

    II. Environmental Impact

    The Agency has determined under 21 CFR 25.33(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

    III. Paperwork Reduction Act of 1995

    This final order establishes special controls that refer to previously approved collections of information found in other FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR part 807, subpart E, regarding premarket notification submissions, have been approved under OMB control number 0910-0120; the collections of information in 21 CFR part 801, regarding labeling, have been approved under OMB control number 0910-0485; and the collections of information in 21 CFR part 820, regarding postmarket surveillance, have been approved under OMB control number 0910-0449.

    IV. Reference

    The following reference has been placed on display in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852, and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday, and is available electronically at http://www.regulations.gov.

    1. DEN140009: De Novo Request from Catheter Robotics, Inc., dated February 14, 2014. List of Subjects in 21 CFR Part 870

    Medical devices.

    Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 870 is amended as follows:

    PART 870—CARDIOVASCULAR DEVICES 1. The authority citation for 21 CFR part 870 continues to read as follows:

    Authority:

    21 U.S.C. 351, 360, 360c, 360e, 360j, 371.

    2. Add § 870.5700 to subpart F to read as follows:
    § 870.5700 Steerable cardiac ablation catheter remote control system.

    (a) Identification. A steerable cardiac ablation catheter remote control system is a prescription device that is external to the body and interacts with the manual handle of a steerable cardiac ablation catheter to remotely control the advancement, retraction, rotation, and deflection of a compatible, steerable ablation catheter used for the treatment of cardiac arrhythmias in the right side of the heart. The device allows reversion to manual control of the steerable cardiac ablation catheter without withdrawal of the catheter and interruption of the procedure.

    (b) Classification. Class II (special controls). The special controls for this device are:

    (1) Non-clinical mechanical performance testing must demonstrate that the device performs as intended under anticipated conditions of use. The following performance testing must be performed:

    (i) Mechanical performance of the system (without catheter connected);

    (ii) Mechanical performance of the system with compatible catheters connected to verify that the system does not impact catheter function or performance. Assessments must include the following:

    (A) Side-by-side remote control and manual comparisons of catheter manipulation (including all ranges of motion of catheter deflection and tip curl) for all compatible catheters; must include testing for worst-case conditions, and

    (B) Evaluation of the accuracy and function of all device control safety features; and

    (iii) Simulated-use testing in a bench anatomic model or animal model.

    (2) Non-clinical electrical testing must include validation of electromagnetic compatibility (EMC), electrical safety, thermal safety, and electrical system performance. The following performance testing must be performed:

    (i) Electrical performance of the system with compatible catheters connected to verify that the system does not impact catheter function or performance. Assessments must include the following:

    (A) Side-by-side remote control and manual comparisons of catheter manipulation (including all ranges of motion of catheter deflection and tip curl) for all compatible catheters; must include testing for worst-case conditions, and

    (B) Evaluation of the accuracy and function of all device control safety features; and

    (ii) Electrical safety between the device and ablation catheter system and with other electrical equipment expected in the catheter lab or operating room.

    (3) In vivo testing must demonstrate that the device performs as intended under anticipated conditions of use, including an assessment of the system impact on the functionality and performance of compatible catheters, and documentation of the adverse event profile associated with clinical use. Evidence must be submitted to address the following:

    (i) Manipulation and Positioning: Ability to manipulate compatible catheters to pre-specified cardiac locations and confirm proper anatomic placement and tissue contact, in accordance with the system indications for use and the compatible catheter indications for use;

    (ii) Safety: Assess device-related complication rate and major procedural complication rate (regardless of device relatedness) in comparison to literature and/or a manual comparison group for compatible ablation catheters to support the indications for use;

    (iii) Efficacy: Assess ablation success in comparison to literature and/or a manual comparison group for compatible ablation catheters to support the indications for use; and

    (iv) User assessment of device remote controls and safety features.

    (4) Post-market surveillance (PMS) must be conducted and completed in accordance with FDA agreed upon PMS protocol.

    (5) A training program must be included with sufficient educational elements that, upon completion of the training program, the clinician and supporting staff can:

    (i) Identify the safe environments for device use,

    (ii) Use all safety features of device, and

    (iii) Operate the device in simulated or actual use environments representative of indicated environments and use for the indication of compatible catheters.

    (6) Performance data must demonstrate the sterility of the sterile disposable components of the system.

    (7) Performance data must support shelf life by demonstrating continued sterility of the device (of the sterile disposable components), package integrity, and device functionality over the requested shelf life.

    (8) Labeling must include the following:

    (i) Appropriate instructions, warnings, cautions, limitations, and information related to the intended patient population, compatible ablation catheters, and the device safeguards for the safe use of the device;

    (ii) Specific instructions and the clinical training needed for the safe use of the device, which includes:

    (A) Instructions on assembling the device in all available configurations, including installation and removal of compatible catheters;

    (B) Instructions and explanation of all controls, inputs, and outputs;

    (C) Instructions on all available modes or states of the device;

    (D) Instructions on all safety features of the device; and

    (E) Validated methods and instructions for reprocessing/disinfecting any reusable components;

    (iii) A detailed summary of the mechanical compatibility testing including:

    (A) A table with a complete list of compatible catheters tested (manufacturer trade name and model number), and

    (B) A table with detailed test results, including type of test, acceptance criteria, and test results (i.e., pass for meeting acceptance criteria);

    (iv) A detailed summary of the in vivo testing including:

    (A) A table with a complete list of compatible catheters used during testing (manufacturer trade name and model number);

    (B) Adverse events encountered pertinent to use of the device under use conditions;

    (C) A detailed summary of the device- and procedure-related complications; and

    (D) A summary of study outcomes and endpoints. Information pertinent to the fluoroscopy times/exposure for the procedure, patient, and operator fluoroscopic exposure;

    (v) Other labeling items:

    (A) A detailed summary of pertinent non-clinical testing information: EMC, mechanical, electrical, and sterilization of device and components;

    (B) A detailed summary of the device technical parameters; and

    (C) An expiration date/shelf life and storage conditions for the sterile accessories; and

    (vi) When available, and according to the timeframe included in the PMS protocol agreed upon with FDA, provide a detailed summary of the PMS data including:

    (A) Updates to the labeling to accurately reflect outcomes or necessary modifications based upon data collected during the PMS experience, and

    (B) Inclusion of results and adverse events associated with utilization of the device during the PMS.

    Dated: September 23, 2015. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2015-24624 Filed 9-29-15; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF DEFENSE Office of the Secretary 32 CFR Part 311 [Docket ID: DoD-2015-OS-0077] Privacy Act of 1974; Implementation AGENCY:

    Office of the Secretary, DoD.

    ACTION:

    Direct final rule with request for comments.

    SUMMARY:

    The Office of the Secretary of Defense (OSD) is exempting those records contained in DPFPA 07, entitled “Counterintelligence Management Information System (CIMIS),” pertaining to investigatory material compiled for counterintelligence and law enforcement purposes (under (k)(2) of the Act), other than material within the scope of subsection (j)(2) of the Privacy Act to enable the protection of identities of confidential sources who might not otherwise come forward and who furnished information under an express promise that the sources' identity would be held in confidence. The exemption will allow DoD to provide protection against notification of investigatory material including certain reciprocal investigations which might alert a subject to the fact that an investigation of that individual is taking place, and the disclosure of which would weaken the on-going investigation, reveal investigatory techniques, and place confidential informants in jeopardy who furnished information under an express promise that the sources' identity would be held in confidence. Further, requiring OSD to grant access to records and amend these records would unfairly impede the investigation of allegations of unlawful activities. To require OSD to confirm or deny the existence of a record pertaining to a requesting individual may in itself provide an answer to that individual relating to an on-going investigation. The investigation of possible unlawful activities would be jeopardized by agency rules requiring verification of record, disclosure of the record to the subject, and record amendment procedures.

    DATES:

    The rule will be effective on December 9, 2015 unless adverse comments are received by November 30, 2015. If adverse comment is received, the Department of Defense will publish a timely withdrawal of the rule in the Federal Register.

    ADDRESSES:

    You may submit comments, identified by docket number and title, by any of the following methods:

    Federal Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

    Mail: Department of Defense, Office of the Deputy Chief Management Officer, Directorate of Oversight and Compliance, Regulatory and Audit Matters Office, 9010 Defense Pentagon, Washington, DC 20301-9010.

    Instructions: All submissions received must include the agency name and docket number for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Cindy Allard at (571) 372-0461.

    SUPPLEMENTARY INFORMATION:

    This direct final rule makes changes to the Office of the Secretary Privacy Program rules. These changes will allow the Department to add an exemption rule to the Office of the Secretary of Defense Privacy Program rules that will exempt applicable Department records and/or material from certain portions of the Privacy Act.

    This rule is being published as a direct final rule as the Department of Defense does not expect to receive any adverse comments, and so a proposed rule is unnecessary.

    Direct Final Rule and Significant Adverse Comments

    DoD has determined this rulemaking meets the criteria for a direct final rule because it involves non-substantive changes dealing with DoD's management of its Privacy Programs. DoD expects no opposition to the changes and no significant adverse comments. However, if DoD receives a significant adverse comment, the Department will withdraw this direct final rule by publishing a notice in the Federal Register. A significant adverse comment is one that explains: (1) Why the direct final rule is inappropriate, including challenges to the rule's underlying premise or approach; or (2) why the direct final rule will be ineffective or unacceptable without a change. In determining whether a comment necessitates withdrawal of this direct final rule, DoD will consider whether it warrants a substantive response in a notice and comment process.

    Executive Order 12866, “Regulatory Planning and Review” and Executive Order 13563, “Improving Regulation and Regulatory Review”

    It has been determined that Privacy Act rules for the Department of Defense are not significant rules. This rule does not (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a sector of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in these Executive orders.

    Public Law 96-354, “Regulatory Flexibility Act” (5 U.S.C. Chapter 6)

    It has been determined that this Privacy Act rule for the Department of Defense does not have significant economic impact on a substantial number of small entities because it is concerned only with the administration of Privacy Act systems of records within the Department of Defense. A Regulatory Flexibility Analysis is not required.

    Public Law 96-511, “Paperwork Reduction Act” (44 U.S.C. Chapter 35)

    It has been determined that this Privacy Act rule for the Department of Defense imposes no information requirements beyond the Department of Defense and that the information collected within the Department of Defense is necessary and consistent with 5 U.S.C. 552a, known as the Privacy Act of 1974.

    Section 202, Public Law 104-4, “Unfunded Mandates Reform Act”

    It has been determined that this Privacy Act rule for the Department of Defense does not involve a Federal mandate that may result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more and that this rulemaking will not significantly or uniquely affect small governments.

    Executive Order 13132, “Federalism”

    It has been determined that this Privacy Act rule for the Department of Defense does not have federalism implications. This rule does not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, no Federalism assessment is required.

    List of Subjects in 32 CFR Part 311

    Privacy.

    Accordingly, 32 CFR part 311 is amended to read as follows:

    PART 311—OFFICE OF THE SECRETARY OF DEFENSE AND JOINT STAFF PRIVACY PROGRAM 1. The authority citation for 32 CFR part 311 continues to read as follows: Authority:

    5 U.S.C. 522a.

    2. Section 311.8 is amended by adding paragraph (c)(25) to read as follows:
    § 311.8 Procedures for exemptions.

    (c) * * *

    (25) System identifier and name: DPFPA 07, Counterintelligence Management Information System (CIMIS).

    (i) Exemptions: Portions of this system that fall within 5 U.S.C. 552a (k)(2) are exempt from the following provisions of 5 U.S.C. 552a, section (c)(3); (d); (e)(1); (e)(4) (G) through (I); and (f) of the Act, as applicable.

    (ii) Authority: 5 U.S.C. 552a(k)(2).

    (iii) Reasons:

    (A) From subsections (c)(3) because making available to a record subject the accounting of disclosure from records concerning him or her would specifically reveal any investigative interest in the individual. Revealing this information could reasonably be expected to compromise ongoing efforts to investigate a known or suspected offender by notifying the record subject that he or she is under investigation. This information could also permit the record subject to take measures to impede the investigation, e.g., destroy evidence, intimidate potential witnesses, or flee the area to avoid or impede the investigation.

    (B) From subsection (d) because these provisions concern individual access to and amendment of certain records contained in this system, including counterintelligence, law enforcement, and investigatory records. Compliance with these provisions could alert the subject of an investigation of the fact and nature of the investigation, and/or the investigative interest of agencies; compromise sensitive information related to national security; interfere with the overall counterintelligence and investigative process by leading to the destruction of evidence, improper influencing of witnesses, fabrication of testimony, and/or flight of the subject; could identify a confidential source or disclose information which would constitute an unwarranted invasion of another's personal privacy; reveal a sensitive investigation or constitute a potential danger to the health or safety of law enforcement personnel, confidential informants, and witnesses. Amendment of these records would interfere with ongoing counterintelligence investigations and analysis activities and impose an excessive administrative burden by requiring investigations, analyses, and reports to be continuously reinvestigated and revised.

    (C) From subsection (e)(1) because it is not always possible to determine what information is relevant and necessary at an early stage in a given investigation. Also, because Pentagon Force Protection Agency and other agencies may not always know what information about a known or suspected offender may be relevant to for the purpose of conducting an operational response.

    (D) From subsections (e)(4)(G) through (I) (Agency Requirements) because portions of this system are exempt from the access and amendment provisions of subsection (d).

    (E) From subsection (f) because requiring the Agency to grant access to records and establishing agency rules for amendment of records would compromise the existence of any criminal, civil, or administrative enforcement activity. To require the confirmation or denial of the existence of a record pertaining to a requesting individual may in itself provide an answer to that individual relating to the existence of an on-going investigation.

    Counterintelligence investigations would be jeopardized by agency rules requiring verification of the record, disclosure of the record to the subject, and record amendment procedures.

    Dated: July 31, 2015. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2015-24791 Filed 9-29-15; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Office of the Secretary [Docket ID: DoD-2015-OS-0071] 32 CFR Part 311 Privacy Act; Implementation AGENCY:

    Office of the Secretary, DoD.

    ACTION:

    Direct final rule with request for comments.

    SUMMARY:

    The Office of the Secretary of Defense (OSD) is exempting those records contained in DPFPA 06, entitled “Internal Affairs Records System,” pertaining to open or closed investigatory material compiled for law enforcement purposes (under (j)(2) of the Act) to enable OSD to conduct certain internal affairs investigations, relay law enforcement information without compromise of the information, protect investigative techniques and efforts employed, as well as open or closed investigatory material compiled for law enforcement purposes (under (k)(2) of the Act), other than material within the scope of subsection (j)(2) of the Privacy Act to enable the protection of identities of confidential informants who might not otherwise come forward and who furnished information under an express promise that the informant's identity would be held in confidence. This exemption rule will allow the Pentagon Force Protection Agency to ensure the integrity of the Internal Affairs investigative process, including certain reciprocal investigations, by preventing the subject of the record from using the Privacy Act to learn of the existence of open investigations, thereby compromising investigative techniques, or open and closed investigations which place confidential informants in jeopardy who furnished information under an express promise that the informant's identity would be held in confidence. Further, requiring the Pentagon Force Protection Agency to grant access to records and amend these records would unfairly impede the investigation. To confirm or deny the existence of a record pertaining to an open investigation a requesting individual may in itself provide an answer to that individual. The investigation of possible unlawful activities would be jeopardized by agency rules requiring verification of record, disclosure of the record to the subject, and record amendment procedures.

    DATES:

    The rule is effective on December 9, 2015 unless adverse comments are received by November 30, 2015. If adverse comment is received, the Department of Defense will publish a timely withdrawal of the rule in the Federal Register.

    ADDRESSES:

    You may submit comments, identified by docket number and title, by any of the following methods:

    Federal Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

    Mail: Department of Defense, Office of the Deputy Chief Management Officer, Directorate of Oversight and Compliance, Regulatory and Audit Matters Office, 9010 Defense Pentagon, Washington, DC 20301-9010.

    Instructions: All submissions received must include the agency name and docket number for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Cindy Allard at (571) 372-0461.

    SUPPLEMENTARY INFORMATION:

    This direct final rule makes non-substantive changes to the Office of the Secretary Privacy Program rules. These changes will allow the Department to add an exemption rule to the Office of the Secretary of Defense Privacy Program rules that will exempt applicable Department records and/or material from certain portions of the Privacy Act.

    This rule is being published as a direct final rule as the Department of Defense does not expect to receive any adverse comments, and so a proposed rule is unnecessary.

    Direct Final Rule and Significant Adverse Comments

    DoD has determined this rulemaking meets the criteria for a direct final rule because it involves non-substantive changes dealing with DoD's management of its Privacy Programs. DoD expects no opposition to the changes and no significant adverse comments. However, if DoD receives a significant adverse comment, the Department will withdraw this direct final rule by publishing a notice in the Federal Register. A significant adverse comment is one that explains: (1) Why the direct final rule is inappropriate, including challenges to the rule's underlying premise or approach; or (2) why the direct final rule will be ineffective or unacceptable without a change. In determining whether a comment necessitates withdrawal of this direct final rule, DoD will consider whether it warrants a substantive response in a notice and comment process.

    Executive Order 12866, “Regulatory Planning and Review” and Executive Order 13563, “Improving Regulation and Regulatory Review”

    It has been determined that Privacy Act rules for the Department of Defense are not significant rules. This rule does not (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a sector of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in these Executive orders.

    Public Law 96-354, “Regulatory Flexibility Act” (5 U.S.C. Chapter 6)

    It has been determined that this Privacy Act rule for the Department of Defense does not have significant economic impact on a substantial number of small entities because it is concerned only with the administration of Privacy Act systems of records within the Department of Defense. A Regulatory Flexibility Analysis is not required.

    Public Law 95-511, “Paperwork Reduction Act” (44 U.S.C. Chapter 35)

    It has been determined that this Privacy Act rule for the Department of Defense imposes no information requirements beyond the Department of Defense and that the information collected within the Department of Defense is necessary and consistent with 5 U.S.C. 552a, known as the Privacy Act of 1974.

    Section 202, Public Law 104-4, “Unfunded Mandates Reform Act”

    It has been determined that this Privacy Act rule for the Department of Defense does not involve a Federal mandate that may result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more and that this rulemaking will not significantly or uniquely affect small governments.

    Executive Order 13132, “Federalism”

    It has been determined that this Privacy Act rule for the Department of Defense does not have federalism implications. This rule does not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, no Federalism assessment is required.

    List of Subjects in 32 CFR Part 311

    Privacy.

    Accordingly, 32 CFR part 311 is amended to read as follows:

    PART 311—OFFICE OF THE SECRETARY OF DEFENSE AND JOINT STAFF PRIVACY PROGRAM 1. The authority citation for 32 CFR part 311 continues to read as follows: Authority:

    5 U.S.C. 552a.

    2. Section 311.8 is amended by adding paragraph (c)(24) to read as follows:
    § 311.8 Procedures for exemptions.

    (c) * * *

    (24) System identifier and name: DPFPA 06, Internal Affairs Records System.

    (i) Exemptions: Portions of this system that fall within 5 U.S.C. 552a(j)(2) and/or (k)(2) are exempt from the following provisions of 5 U.S.C. 552a, section (c)(3) and (4); (d); (e)(1) through (e)(3); (e)(4)(G) through (I); (e)(5); (f) and (g) of the Act, as applicable.

    (ii) Authority: 5 U.S.C. 552a(j)(2) and (k)(2).

    (iii) Reasons:

    (A) From subsections (c)(3) and (4) because making available to a record subject the accounting of disclosure of investigations concerning him or her would specifically reveal an investigative interest in the individual. Revealing this information would reasonably be expected to compromise open or closed administrative or civil investigation efforts to a known or suspected offender by notifying the record subject that he or she is under investigation. This information could also permit the record subject to take measures to impede the investigation, e.g., destroy evidence, intimidate potential witnesses, or flee the area to avoid or impede the investigation.

    (B) From subsection (d) because these provisions concern individual access to and amendment of open or closed investigation records contained in this system, including law enforcement and investigatory records. Compliance with these provisions would provide the subject of an investigation of the fact and nature of the investigation, and/or the investigative interest of the Pentagon Force Protection Agency; compromise sensitive information related to national security; interfere with the overall law enforcement process by leading to the destruction of evidence, improper influencing of witnesses, fabrication of testimony, and/or flight of the subject; could identify a confidential informant or disclose information which would constitute an unwarranted invasion of another's personal privacy; reveal a sensitive investigative or constitute a potential danger to the health or safety of law enforcement personnel, confidential informants, and witnesses. Amendment of investigative records would interfere with open or closed administrative or civil law enforcement investigations and analysis activities and impose an excessive administrative burden by requiring investigations, analyses, and reports to be continuously reinvestigated and revised.

    (C) From subsections (e)(1) through (e)(3) because it is not always possible to determine what information is relevant and necessary in open or closed investigations.

    (D) From subsections (e)(4)(G) through (I) (Agency Requirements) because portions of this system are exempt from the access and amendment provisions of subsection (d).

    (E) From subsection (e)(5) because the requirement that investigative records be maintained with attention to accuracy, relevance, timeliness, and completeness would unfairly hamper the criminal, administrative, or civil investigative process. It is the nature of Internal Affairs investigations to uncover the commission of illegal acts and administrative violations. It is frequently impossible to determine initially what information is accurate, relevant, timely, and least of all complete. With the passage of time, seemingly irrelevant or untimely information may acquire new significant as further investigation brings new details to light.

    (F) From subsection (f) because requiring the Agency to grant access to records and establishing agency rules for amendment of records would compromise the existence of any criminal, civil, or administrative enforcement activity. To require the confirmation or denial of the existence of a record pertaining to a requesting individual may in itself provide an answer to that individual relating to the existence of an on-going investigation. The investigation of possible unlawful activities would be jeopardized by agency rules requiring verification of the record, disclosure of the record to the subject, and record amendment procedures.

    (G) From subsection (g) for compatibility with the exemption claimed from subsection (f), the civil remedies provisions of subsection (g) must be suspended for this record system. Because of the nature of criminal, administrative and civil investigations, standards of accuracy, relevance, timeliness and completeness cannot apply to open or closed investigations in this record system. Information gathered in criminal investigations is often fragmentary and leads relating to an individual in the context of one investigation may instead pertain to a second investigation.

    Dated: July 23, 2015. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2015-24631 Filed 9-29-15; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2015-0924] Drawbridge Operation Regulation; Sacramento River, Sacramento, CA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulation.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the Tower Drawbridge across the Sacramento River, mile 59.0 at Sacramento, CA. The deviation is necessary to allow the community to participate in the 5K Walk to Defeat ALS. This deviation allows the bridge to remain in the closed-to-navigation position during the deviation period.

    DATES:

    This deviation is effective from 11 a.m. to 1 p.m. on October 3, 2015.

    ADDRESSES:

    The docket for this deviation, [USCG-2015-0924], is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this deviation. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email David H. Sulouff, Chief, Bridge Section, Eleventh Coast Guard District; telephone 510-437-3516, email [email protected]

    SUPPLEMENTARY INFORMATION:

    California Department of Transportation has requested a temporary change to the operation of the Tower Drawbridge, mile 59.0, over Sacramento River, at Sacramento, CA. The drawbridge navigation span provides a vertical clearance of 30 feet above Mean High Water in the closed-to-navigation position. The draw opens on signal from May 1 through October 31 from 6 a.m. to 10 p.m. and from November 1 through April 30 from 9 a.m. to 5 p.m. At all other times the draw shall open on signal if at least four hours notice is given, as required by 33 CFR 117.189(a). Navigation on the waterway is commercial and recreational.

    The drawspan will be secured in the closed-to-navigation position from 11 a.m. to 1 p.m. on October 3, 2015, to allow the community to participate in the 5K Walk to Defeat ALS. This temporary deviation has been coordinated with the waterway users. No objections to the proposed temporary deviation were raised.

    Vessels able to pass through the bridge in the closed position may do so at any time. The bridge will be able to open for emergencies and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterway through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.

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

    Dated: September 15, 2015. D.H. Sulouff, District Bridge Chief, Eleventh Coast Guard District.
    [FR Doc. 2015-24828 Filed 9-29-15; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2015-0883] Drawbridge Operation Regulation; Sacramento River, Sacramento, CA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulation.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the Tower Drawbridge across the Sacramento River, mile 59.0 at Sacramento, CA. The deviation is necessary to allow the community to participate in the Urban Cow Half Marathon. This deviation allows the bridge to remain in the closed-to-navigation position during the deviation period.

    DATES:

    This deviation is effective from 7:30 a.m. to 10 a.m. on October 4, 2015.

    ADDRESSES:

    The docket for this deviation, [USCG-2015-0883], is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this deviation. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email David H. Sulouff, Chief, Bridge Section, Eleventh Coast Guard District; telephone 510-437-3516, email [email protected]

    SUPPLEMENTARY INFORMATION:

    California Department of Transportation has requested a temporary change to the operation of the Tower Drawbridge, mile 59.0, over Sacramento River, at Sacramento, CA. The drawbridge navigation span provides a vertical clearance of 30 feet above Mean High Water in the closed-to-navigation position. The draw opens on signal from May 1 through October 31 from 6 a.m. to 10 p.m. and from November 1 through April 30 from 9 a.m. to 5 p.m. At all other times the draw shall open on signal if at least four hours notice is given, as required by 33 CFR 117.189(a). Navigation on the waterway is commercial and recreational.

    The drawspan will be secured in the closed-to-navigation position from 7:30 a.m. to 10 a.m. on October 4, 2015, to allow the community to participate in the Urban Cow Half Marathon. This temporary deviation has been coordinated with the waterway users. No objections to the proposed temporary deviation were raised.

    Vessels able to pass through the bridge in the closed position may do so at anytime. The bridge will be able to open for emergencies and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterway through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.

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

    Dated: September 15, 2015. D.H. Sulouff, District Bridge Chief,Eleventh Coast Guard District.
    [FR Doc. 2015-24829 Filed 9-29-15; 8:45 am] BILLING CODE 9110-04-P
    POSTAL REGULATORY COMMISSION 39 CFR Part 3020 [Docket Nos. MC2010-21 and CP2010-36] Update to Product Lists AGENCY:

    Postal Regulatory Commission.

    ACTION:

    Final rule.

    SUMMARY:

    The Commission is updating the product lists. This action reflects a publication policy adopted by Commission order. The referenced policy assumes periodic updates. The updates are identified in the body of this document. The product lists, which is re-published in its entirety, includes these updates.

    DATES:

    Effective Date: September 30, 2015.

    Applicability Dates: July 1, 2015, Global Expedited Package Services (GEPS)—Non-Published Rates 7 (MC2015-55 and CP2015-83); July 2, 2015, Priority Mail Contract 126 (MC2015-56 and CP2015-84); July 2, 2015, Priority Mail & First-Class Package Service Contract 5 (MC2015-57 and CP2015-85); July 8, 2015, Parcel Return Service Contract 9 (MC2015-58 and CP2015-88); July 8, 2015, Priority Mail Contract 127 (MC2015-60 and CP2015-90); July 8, 2015, Parcel Return Service Contract 10 (MC2015-59 and CP2015-89); July 14, 2015, Priority Mail Contract 129 (MC2015-62 and CP2015-93); July 15, 2015, Priority Mail & First-Class Package Service Contract 6 (MC2015-63 and CP2015-94); July 16, 2015, Priority Mail Contract 128 (MC2015-61 and CP2015-92); July 17, 2015, Priority Mail Contract 130 (MC2015-64 and CP2015-95); July 17, 2015, Priority Mail Contract 131 (MC2015-65 and CP2015-96); July 17, 2015, Priority Mail Contract 132 (MC2015-66 and CP2015-97); July 20, 2015, Priority Mail Contract 133 (MC2015-67 and CP2015-98); August 4, 2015, Priority Mail Contract 135 (MC2015-71 and CP2015-109); August 4, 2015, Priority Mail Contract 134 (MC2015-70 and CP2015-108); August 4, 2015, Priority Mail Express & Priority Mail Contract 19 (MC2015-69 and CP2015-107); August 5, 2015, Priority Mail Contract 138 (MC2015-74 and CP2015-112); August 5, 2015, Priority Mail & First-Class Package Service Contract 7 (MC2015-75 and CP2015-114); August 5, 2015, Priority Mail Contract 137 (MC2015-73 and CP2015-111); August 10, 2015, Priority Mail Contract 136 (MC2015-72 and CP2015-110); August 11, 2015, Priority Mail Contract 139 (MC2015-76 and CP2015-120); August 13, 2015, Priority Mail Express Contract 26 (MC2015-77 and CP2015-121); August 18, 2015, Priority Mail Express & Priority Mail Contract 20 (MC2015-78 and CP2015-123); August 25, 2015, Priority Mail Contract 140 (MC2015-79 and CP2015-126); September 14, 2015, Priority Mail Contract 141 (MC2015-80 and CP2015-134); September 14, 2015, Priority Mail Express Contract 27 (MC2015-81 and CP2015-135).

    FOR FURTHER INFORMATION CONTACT:

    David A. Trissell, General Counsel, at 202-789-6800.

    SUPPLEMENTARY INFORMATION:

    This document identifies updates to the product lists, which appear as 39 CFR Appendix A to Subpart A of Part 3020—Mail Classification Schedule. Publication of the updated product lists in the Federal Register is addressed in the Postal Accountability and Enhancement Act (PAEA) of 2006.

    Authorization. The Commission process for periodic publication of updates was established in Docket Nos. MC2010-21 and CP2010-36, Order No. 445, April 22, 2010, at 8.

    Changes. The product lists are being updated by publishing a replacement in its entirety of 39 CFR Appendix A to Subpart A of Part 3020—Mail Classification Schedule. The following products are being added, removed, or moved within the product lists:

    1. Global Expedited Package Services (GEPS)—Non-Published Rates 7 (MC2015-55 and CP2015-83) (Order No. 2558), added July 1, 2015.

    2. Priority Mail Contract 126 (MC2015-56 and CP2015-84) (Order No. 2559), added July 2, 2015.

    3. Priority Mail & First-Class Package Service Contract 5 (MC2015-57 and CP2015-85) (Order No. 2560), added July 2, 2015.

    4. Parcel Return Service Contract 9 (MC2015-58 and CP2015-88) (Order No. 2569), added July 8, 2015.

    5. Priority Mail Contract 127 (MC2015-60 and CP2015-90) (Order No. 2570), added July 8, 2015.

    6. Parcel Return Service Contract 10 (MC2015-59 and CP2015-89) (Order No. 2572), added July 8, 2015.

    7. Priority Mail Contract 129 (MC2015-62 and CP2015-93) (Order No. 2582), added July 14, 2015.

    8. Priority Mail & First-Class Package Service Contract 6 (MC2015-63 and CP2015-94) (Order No. 2583), added July 15, 2015.

    9. Priority Mail Contract 128 (MC2015-61 and CP2015-92) (Order No. 2592), added July 16, 2015.

    10. Priority Mail Contract 130 (MC2015-64 and CP2015-95) (Order No. 2595), added July 17, 2015.

    11. Priority Mail Contract 131 (MC2015-65 and CP2015-96) (Order No. 2596), added July 17, 2015.

    12. Priority Mail Contract 132 (MC2015-66 and CP2015-97) (Order No. 2598), added July 17, 2015.

    13. Priority Mail Contract 133 (MC2015-67 and CP2015-98) (Order No. 2600), added July 20, 2015.

    14. Priority Mail Contract 135 (MC2015-71 and CP2015-109) (Order No. 2636), added August 4, 2015.

    15. Priority Mail Contract 134 (MC2015-70 and CP2015-108) (Order No. 2637), added August 4, 2015.

    16. Priority Mail Express & Priority Mail Contract 19 (MC2015-69 and CP2015-107) (Order No. 2638), added August 4, 2015.

    17. Priority Mail Contract 138 (MC2015-74 and CP2015-112) (Order No. 2640), added August 5, 2015.

    18. Priority Mail & First-Class Package Service Contract 7 (MC2015-75 and CP2015-114) (Order No. 2641), added August 5, 2015.

    19. Priority Mail Contract 137 (MC2015-73 and CP2015-111) (Order No. 2642), added August 5, 2015.

    20. Priority Mail Contract 136 (MC2015-72 and CP2015-110) (Order No. 2647), added August 10, 2015.

    21. Priority Mail Contract 139 (MC2015-76 and CP2015-120) (Order No. 2651), added August 11, 2015.

    22. Priority Mail Express Contract 26 (MC2015-77 and CP2015-121) (Order No. 2662), added August 13, 2015.

    23. Priority Mail Express & Priority Mail Contract 20 (MC2015-78 and CP2015-123) (Order No. 2670), added August 18, 2015.

    24. Priority Mail Contract 140 (MC2015-79 and CP2015-126) (Order No. 2680), added August 25, 2015.

    25. Priority Mail Contract 141 (MC2015-80 and CP2015-134) (Order No. 2706), added September 14, 2015.

    26. Priority Mail Express Contract 27 (MC2015-81 and CP2015-135) (Order No. 2707), added September 14, 2015.

    The following negotiated service agreements have expired and are being deleted from the Mail Classification Schedule:

    1. Express Mail Contract 12 (MC2012-36 and CP2012-44) (Order No. 1433).

    2. Priority Mail Contract 39 (MC2012-37 and CP2012-45) (Order No. 1434).

    3. Priority Mail Contract 41 (MC2012-39 and CP2012-47) (Order No. 1445).

    4. First-Class Package Service Contract 8 (MC2012-27 and CP2012-36) (Order No. 1394).

    5. First-Class Package Service Contract 9 (MC2012-28 and CP2012-37) (Order No. 1395).

    6. First-Class Package Service Contract 10 (MC2012-35 and CP2012-43) (Order No. 1419).

    7. First-Class Package Service Contract 11 (MC2012-40 and CP2012-48) (Order No. 1446).

    8. First-Class Package Service Contract 12 (MC2012-41 and CP2012-49) (Order No. 1447).

    9. First-Class Package Service Contract 13 (MC2012-42 and CP2012-50) (Order No. 1452).

    10. First-Class Package Service Contract 14 (MC2012-43 and CP2012-51) (Order No. 1453).

    11. First-Class Package Service Contract 15 (MC2012-45 and CP2012-53) (Order No. 1457).

    Updated product lists. The referenced changes to the product lists are incorporated into 39 CFR Appendix A to Subpart A of Part 3020—Mail Classification Schedule.

    List of Subjects in 39 CFR Part 3020

    Administrative practice and procedure, Postal Service.

    For the reasons discussed in the preamble, the Postal Regulatory Commission amends chapter III of title 39 of the Code of Federal Regulations as follows:

    PART 3020—PRODUCT LISTS 1. The authority citation for part 3020 continues to read as follows: Authority:

    39 U.S.C. 503; 3622; 3631; 3642; 3682.

    2. Revise Appendix A of Subpart A of Part 3020—Mail Classification Schedule to read as follows: Appendix A to Subpart A of Part 3020—Mail Classification Schedule

    (An asterisk (*) indicates an organizational class or group, not a Postal Service product.)

    Part A—Market Dominant Products 1000 Market Dominant Product List First-Class Mail Single-Piece Letters/Postcards Presorted Letters/Postcards Flats Parcels Outbound Single-Piece First-Class Mail International Inbound Letter Post Standard Mail (Commercial and Nonprofit)* High Density and Saturation Letters High Density and Saturation Flats/Parcels Carrier Route Letters Flats Parcels Every Door Direct Mail—Retail Periodicals* In-County Periodicals Outside County Periodicals Package Services* Alaska Bypass Service Bound Printed Matter Flats Bound Printed Matter Parcels Media Mail/Library Mail Special Services* Ancillary Services International Ancillary Services Address Management Services Caller Service Credit Card Authentication International Reply Coupon Service International Business Reply Mail Service Money Orders Post Office Box Service Customized Postage Stamp Fulfillment Services Negotiated Service Agreements* Domestic* Valassis Direct Mail, Inc. Negotiated Service Agreement PHI Acquisitions, Inc. Negotiated Service Agreement International* Inbound Market Dominant Multi-Service Agreements with Foreign Postal Operators 1 Inbound Market Dominant Exprés Service Agreement 1 Nonpostal Services* Alliances with the Private Sector to Defray Cost of Key Postal Functions Philatelic Sales Market Tests* Part B—Competitive Products 2000 Competitive Product List Domestic Products* Priority Mail Express Priority Mail Parcel Select Parcel Return Service First-Class Package Service Standard Post International Products* Outbound International Expedited Services Inbound Parcel Post (at UPU rates) Outbound Priority Mail International International Priority Airmail (IPA) International Surface Air List (ISAL) International Direct Sacks—M-Bags Outbound Single-Piece First-Class Package International Service Negotiated Service Agreements* Domestic* Priority Mail Express Contract 8 Priority Mail Express Contract 11 Priority Mail Express Contract 13 Priority Mail Express Contract 14 Priority Mail Express Contract 15 Priority Mail Express Contract 16 Priority Mail Express Contract 17 Priority Mail Express Contract 18 Priority Mail Express Contract 19 Priority Mail Express Contract 20 Priority Mail Express Contract 21 Priority Mail Express Contract 22 Priority Mail Express Contract 23 Priority Mail Express Contract 24 Priority Mail Express Contract 25 Priority Mail Express Contract 26 Priority Mail Express Contract 27 Parcel Return Service Contract 5 Parcel Return Service Contract 6 Parcel Return Service Contract 7 Parcel Return Service Contract 8 Parcel Return Service Contract 9 Parcel Return Service Contract 10 Priority Mail Contract 24 Priority Mail Contract 29 Priority Mail Contract 33 Priority Mail Contract 40 Priority Mail Contract 42 Priority Mail Contract 43 Priority Mail Contract 44 Priority Mail Contract 45 Priority Mail Contract 46 Priority Mail Contract 47 Priority Mail Contract 48 Priority Mail Contract 51 Priority Mail Contract 52 Priority Mail Contract 53 Priority Mail Contract 54 Priority Mail Contract 55 Priority Mail Contract 56 Priority Mail Contract 57 Priority Mail Contract 58 Priority Mail Contract 59 Priority Mail Contract 60 Priority Mail Contract 61 Priority Mail Contract 62 Priority Mail Contract 63 Priority Mail Contract 64 Priority Mail Contract 65 Priority Mail Contract 66 Priority Mail Contract 67 Priority Mail Contract 70 Priority Mail Contract 71 Priority Mail Contract 72 Priority Mail Contract 73 Priority Mail Contract 74 Priority Mail Contract 75 Priority Mail Contract 76 Priority Mail Contract 77 Priority Mail Contract 78 Priority Mail Contract 79 Priority Mail Contract 80 Priority Mail Contract 81 Priority Mail Contract 82 Priority Mail Contract 83 Priority Mail Contract 84 Priority Mail Contract 85 Priority Mail Contract 86 Priority Mail Contract 87 Priority Mail Contract 88 Priority Mail Contract 89 Priority Mail Contract 90 Priority Mail Contract 91 Priority Mail Contract 92 Priority Mail Contract 93 Priority Mail Contract 94 Priority Mail Contract 95 Priority Mail Contract 96 Priority Mail Contract 97 Priority Mail Contract 98 Priority Mail Contract 99 Priority Mail Contract 100 Priority Mail Contract 101 Priority Mail Contract 102 Priority Mail Contract 103 Priority Mail Contract 104 Priority Mail Contract 105 Priority Mail Contract 106 Priority Mail Contract 107 Priority Mail Contract 108 Priority Mail Contract 109 Priority Mail Contract 110 Priority Mail Contract 111 Priority Mail Contract 112 Priority Mail Contract 113 Priority Mail Contract 114 Priority Mail Contract 115 Priority Mail Contract 116 Priority Mail Contract 117 Priority Mail Contract 118 Priority Mail Contract 119 Priority Mail Contract 120 Priority Mail Contract 121 Priority Mail Contract 122 Priority Mail Contract 123 Priority Mail Contract 124 Priority Mail Contract 125 Priority Mail Contract 126 Priority Mail Contract 127 Priority Mail Contract 128 Priority Mail Contract 129 Priority Mail Contract 130 Priority Mail Contract 131 Priority Mail Contract 132 Priority Mail Contract 133 Priority Mail Contract 134 Priority Mail Contract 135 Priority Mail Contract 136 Priority Mail Contract 137 Priority Mail Contract 138 Priority Mail Contract 139 Priority Mail Contract 140 Priority Mail Contract 141 Priority Mail Express & Priority Mail Contract 9 Priority Mail Express & Priority Mail Contract 10 Priority Mail Express & Priority Mail Contract 11 Priority Mail Express & Priority Mail Contract 12 Priority Mail Express & Priority Mail Contract 13 Priority Mail Express & Priority Mail Contract 14 Priority Mail Express & Priority Mail Contract 16 Priority Mail Express & Priority Mail Contract 17 Priority Mail Express & Priority Mail Contract 18 Priority Mail Express & Priority Mail Contract 19 Priority Mail Express & Priority Mail Contract 20 Parcel Select & Parcel Return Service Contract 3 Parcel Select & Parcel Return Service Contract 5 Parcel Select Contract 2 Parcel Select Contract 3 Parcel Select Contract 4 Parcel Select Contract 5 Parcel Select Contract 6 Parcel Select Contract 7 Parcel Select Contract 8 Parcel Select Contract 9 Priority Mail—Non-Published Rates Priority Mail—Non-Published Rates 1 First-Class Package Service Contract 16 First-Class Package Service Contract 17 First-Class Package Service Contract 18 First-Class Package Service Contract 19 First-Class Package Service Contract 20 First-Class Package Service Contract 21 First-Class Package Service Contract 22 First-Class Package Service Contract 23 First-Class Package Service Contract 24 First-Class Package Service Contract 25 First-Class Package Service Contract 26 First-Class Package Service Contract 27 First-Class Package Service Contract 28 First-Class Package Service Contract 29 First-Class Package Service Contract 30 First-Class Package Service Contract 31 First-Class Package Service Contract 32 First-Class Package Service Contract 33 First-Class Package Service Contract 34 First-Class Package Service Contract 35 First-Class Package Service Contract 36 First-Class Package Service Contract 37 Priority Mail Express, Priority Mail & First-Class Package Service Contract 1 Priority Mail Express, Priority Mail & First-Class Package Service Contract 2 Priority Mail Express, Priority Mail & First-Class Package Service Contract 3 Priority Mail Express, Priority Mail & First-Class Package Service Contract 4 Priority Mail & First-Class Package Service Contract 1 Priority Mail & First-Class Package Service Contract 2 Priority Mail & First-Class Package Service Contract 3 Priority Mail & First-Class Package Service Contract 4 Priority Mail & First-Class Package Service Contract 5 Priority Mail & First-Class Package Service Contract 6 Priority Mail & First-Class Package Service Contract 7 Outbound International* Global Expedited Package Services (GEPS) Contracts GEPS 3 Global Direct Contracts Global Direct Contracts 1 Global Bulk Economy (GBE) Contracts Global Plus Contracts Global Plus 1C Global Plus 2C Global Reseller Expedited Package Contracts Global Reseller Expedited Package Services 1 Global Reseller Expedited Package Services 2 Global Reseller Expedited Package Services 3 Global Reseller Expedited Package Services 4 Global Expedited Package Services (GEPS)—Non-Published Rates Global Expedited Package Services (GEPS)—Non-Published Rates 2 Global Expedited Package Services (GEPS)—Non-Published Rates 3 Global Expedited Package Services (GEPS)—Non-Published Rates 4 Global Expedited Package Services (GEPS)—Non-Published Rates 5 Global Expedited Package Services (GEPS)—Non-Published Rates 6 Global Expedited Package Services (GEPS)—Non-Published Rates 7 Priority Mail International Regional Rate Boxes—Non-Published Rates Outbound Competitive International Merchandise Return Service Agreement with Royal Mail Group, Ltd. Priority Mail International Regional Rate Boxes Contracts Priority Mail International Regional Rate Boxes Contracts 1 Inbound International* International Business Reply Service (IBRS) Competitive Contracts International Business Reply Service Competitive Contract 1 International Business Reply Service Competitive Contract 3 Inbound Direct Entry Contracts with Customers Inbound Direct Entry Contracts with Foreign Postal Administrations Inbound Direct Entry Contracts with Foreign Postal Administrations Inbound Direct Entry Contracts with Foreign Postal Administrations 1 Inbound EMS Inbound EMS 2 Inbound Air Parcel Post (at non-UPU rates) Royal Mail Group Inbound Air Parcel Post Agreement Inbound Competitive Multi-Service Agreements with Foreign Postal Operators 1 Special Services* Address Enhancement Services Greeting Cards, Gift Cards, and Stationery International Ancillary Services International Money Transfer Service—Outbound International Money Transfer Service—Inbound Premium Forwarding Service Shipping and Mailing Supplies Post Office Box Service Competitive Ancillary Services Nonpostal Services* Advertising Licensing of Intellectual Property other than Officially Licensed Retail Products (OLRP) Mail Service Promotion Officially Licensed Retail Products (OLRP) Passport Photo Service Photocopying Service Rental, Leasing, Licensing or other Non-Sale Disposition of Tangible Property Training Facilities and Related Services USPS Electronic Postmark (EPM) Program Market Tests* Metro Post International Merchandise Return Service (IMRS)—Non-Published Rates Customized Delivery
    Shoshana M. Grove, Secretary.
    [FR Doc. 2015-24605 Filed 9-29-15; 8:45 am] BILLING CODE 7710-FW-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2014-0840; FRL-9933-27] Acibenzolar-S-methyl; Pesticide Tolerances AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation establishes tolerances for residues of acibenzolar-S-methyl in or on fruit, citrus, group 10-10 and fruit, pome, group 11-10. Syngenta Crop Protection, LLC requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).

    DATES:

    This regulation is effective September 30, 2015. Objections and requests for hearings must be received on or before November 30, 2015, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2014-0840, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    Susan Lewis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address: [email protected]

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

    You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

    B. How can I get electronic access to other related information?

    You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

    C. How can I file an objection or hearing request?

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2014-0840 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before November 30, 2015. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

    In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2014-0840, by one of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

    Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

    Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html. Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

    II. Summary of Petitioned-For Tolerance

    In the Federal Register of February 11, 2015 (80 FR 7559) (FRL-9921-94), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 4F8269) by Syngenta Crop Protection, LLC, P.O. Box 18300, Greensboro, NC. The petition requested that 40 CFR 180.561 be amended by establishing tolerances for residues of the fungicide, acibenzolar-S-methyl, in or on pome fruit, crop group 11-10 at 0.03 parts per million (ppm) and citrus fruit, crop group 10-10 at 0.01 ppm. That document referenced a summary of the petition prepared by Syngenta Crop Protection, LLC, the registrant, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

    Based upon review of the data supporting the petition, EPA has revised the tolerance for residues of acibenzolar-S-methyl in or on fruit, citrus, group 10-10 at 0.02 ppm. The reason for this change is explained in Unit IV.C.

    III. Aggregate Risk Assessment and Determination of Safety

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

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

    A. Toxicological Profile

    EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. In subchronic and chronic oral studies in rats, dogs and mice, signs of mild regenerative hemolytic anemia were consistently observed in all three species. These signs frequently included decreased erythrocyte counts, decreased hemoglobin, decreased hematocrit, increased reticulocyte counts, increased hemosiderosis in the spleen, liver and/or bone marrow, extramedullary hematopoiesis in the spleen, and increased spleen weights in both males and females. A compensatory response (increased erythrocyte production) regularly followed the initial anemia. Additional toxic effects observed in these same studies included decreases in body weight, body weight gain and/or food consumption. No other significant treatment-related effects of toxicological concern were observed in these subchronic and chronic oral studies. In a 28-day dermal study in rats, no systemic or dermal effects were observed at dose levels up to 1,000 milligram (mg)/kilogram (kg)/day, the limit dose. No neurotoxic effects were observed at any dose in a subchronic neurotoxicity study in rats.

    Treatment-related developmental malformations, anomalies and variations were observed in a developmental toxicity study in rats at or below the no observable adverse effect level (NOAEL) for maternal toxicity. At the highest dose tested in this study (400 mg/kg/day), both maternal toxicity (hemorrhagic perineal discharge) and considerable developmental toxicity (including total litter resorptions, fetal malformations, anomalies and variations) were observed. The fetal malformations noted at this dose included treatment-related effects on nervous system tissues (hydrocephaly, craniorachisis and anophthalmia/microphthalmia). At the next lower dose tested (200 mg/kg/day), treatment-related visceral malformations and skeletal variations were demonstrated in the absence of significant maternal toxicity. A similar increased sensitivity of fetuses or pups (as compared to adults) was not observed in a developmental toxicity study in rabbits or in 2-generation and 1-generation (range-finding) studies in rats. In a dermal developmental toxicity study in rats, no maternal or developmental toxicity was observed at dose levels up to 500 mg/kg/day, the highest dose tested.

    In a battery of mutagenicity studies, results were negative in all studies except in an in vitro chromosome aberration study in Chinese hamster ovary (CHO) cells, in which there was evidence of a clastogenic response in the absence of S-9 activation.

    In a 2-year chronic toxicity/carcinogenicity study in rats and an 18-month carcinogenicity study in mice, acibenzolar-S-methyl was negative for carcinogenicity when administered at dose levels adequate for the testing of carcinogenic potential.

    Acibenzolar-S-methyl showed no significant toxicity in a battery of acute toxicity tests (Toxicity Category III or IV in all tests). Considerable skin sensitizing (contact allergenic) potential was demonstrated in a dermal sensitization study in guinea pigs for the technical grade material. The end-use product did not show dermal sensitization in guinea pigs.

    Specific information on the studies received and the nature of the adverse effects caused by acibenzolar-S-methyl as well as the NOAEL and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in document titled “Acibenzolar-S-Methyl. A Human Health Risk Assessment to support Section 3 Use of Acibenzolar-S-Methyl Uses on Citrus Crop Group 10-10, and Pome Crop Group 11-10 at pages 39-44 in docket ID number EPA-HQ-OPP-2014-0840.

    B. Toxicological Points of Departure/Levels of Concern

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

    A summary of the toxicological endpoints for acibenzolar-S-methyl used for human risk assessment is shown in Table 1 of this unit.

    Table 1—Summary of Toxicological Doses and Endpoints for Acibenzolar-S-methyl for Use in Human Health Risk Assessment Exposure/scenario Point of
  • departure and
  • uncertainty/safety factors
  • RfD, PAD, LOC for risk assessment Study and toxicological effects
    Acute Dietary (Females 13-49 years old and children 1-12 years old) NOAEL = 8.2 mg/kg/day
  • UFA = 10x
  • UFH = 10x
  • FQPA SF = 1x
  • Acute RfD = 0.082 mg/kg/day
  • aPAD = 0.082 mg/kg/day
  • Developmental Neurotoxicity Toxicity—Rat.
  • Developmental LOAEL = 82 mg/kg/day based on changes in brain morphometrics in the cerebellum in offspring.
  • Maternal NOAEL = 326.2 mg/kg/day (highest dose tested); no effects observed in maternal animals.
  • Chronic Dietary (Females 13-49 years old and children 1-12 years old) NOAEL = 8.2 mg/kg/day
  • UFA = 10x
  • UFH = 10x
  • FQPA SF = 1x
  • Chronic RfD = 0.082 mg/kg/day
  • cPAD = 0.082 mg/kg/day
  • Developmental Neurotoxicity Toxicity—Rat.
  • Developmental LOAEL = 82 mg/kg/day based on changes in brain morphometrics in the cerebellum in offspring.
  • Maternal NOAEL = 326.2 mg/kg/day (highest dose tested); no effects observed in maternal animals.
  • Chronic Dietary (Males 12+ yrs. and Females 50+ yrs.) NOAEL = 25 mg/kg/day
  • UFA = 10x
  • UFH = 10x
  • FQPA SF = 1x
  • Chronic RfD = 0.25 mg/kg/day
  • cPAD = 0.25 mg/kg/day
  • Chronic Toxicity—Dog; Co-critical; Chronic/Cancer—Rat and Mouse, Reproduction Toxicity—Rat.
  • LOAEL = 105 mg/kg/day based on hemolytic anemia with compensatory response.
  • Incidental Oral NOAEL = 8.2 mg/kg/day
  • UFA = 10x
  • UFH = 10x
  • Occupational LOC for MOE = 100 Developmental Neurotoxicity Toxicity—Rat
  • Developmental LOAEL = 82 mg/kg/day based on changes in brain morphometrics in the cerebellum in offspring.
  • Maternal NOAEL = 326.2 mg/kg/day (highest dose tested); no effects observed in maternal animals.
  • Cancer (all routes) EPA has determined that acibenzolar-S-methyl is not likely to be a human carcinogen. FQPA SF = Food Quality Protection Act Safety Factor. LOAEL = lowest-observed-adverse-effect-level. LOC = level of concern. mg/kg/day = milligram/kilogram/day. MOE = margin of exposure. NOAEL = no-observed-adverse-effect-level. PAD = population adjusted dose (a = acute, c = chronic). RfD = reference dose. UFA = extrapolation from animal to human (interspecies). UFH = potential variation in sensitivity among members of the human population (intraspecies).
    C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary exposure to acibenzolar-S-methyl, EPA considered exposure under the petitioned-for tolerances as well as all existing acibenzolar-S-methyl tolerances in 40 CFR 180.561. EPA assessed dietary exposures from acibenzolar-S-methyl in food as follows:

    i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. Such effects were identified for acibenzolar-S-methyl for females 13-49 years old and children 1-12 years old. No acute endpoint was identified for the general population/adults. In estimating acute dietary exposure, EPA used food consumption data from the U.S. Department of Agriculture's (USDA's) National Health and Nutrition Examination Survey, What We Eat in America, (NHANES/WWEIA) 2003-2008. A probabilistic assessment was performed for the acute analysis. Foods were classified as blended, partially blended, or non-blended. The acute analysis assumed a distribution of residues based on field-trial data for non-blended and partially blended commodities. For blended commodities, the mean field-trial values were used as a point estimate. A value of 1/2 level of quantification (LOQ) was used for samples that contained less than LOQ residues. Time-limited tolerance values were used (0.05 ppm) for the Experimental Use Permit (EUP) commodities, i.e., apple, pear, and grapefruit. Section 3 tolerance-level residues were used for all other citrus and pome fruit commodities. Dietary Exposure Evaluation Model (DEEM) default processing factors were used for apple juice, cranberry juice, dried apples, dried pears, dried onion, dried banana, dried plantain, and dried tomato. Empirical processing factors were used for citrus juice (1.0), tomato paste (7.1), tomato puree (2.9), and tomato juice (1.0). Residues of acibenzolar-S-methyl did not concentrate in citrus juice or oil. The acute analysis used available maximum percent crop treated (MPCT) estimates and assumed 100 PCT for commodities for which no PCT data were available. Based on the lettuce metabolism data, a factor of 1.5X was applied to estimates of acibenzolar-S-methyl residues to account for all of the residues of concern for dietary risk (including CGA-210007, CGA-323060 and CGA-324041).

    ii. Chronic exposure. In conducting the chronic dietary exposure assessment, EPA used the food consumption data from the USDA NHANES/WEIA 2003-2008. A conservative chronic dietary exposure analysis was performed for the general U.S. population and various population subgroups. In the chronic dietary exposure analysis, tolerance-level residues were used and 100% CT was assumed for all commodities. Temporary tolerance values were used for apple, pear, and grapefruit, since they are higher that the new section 3 tolerances, and do not expire until 12/31/2015. Section 3 tolerance levels are used for all other crop group 10-10, and pome crop group 11-10 commodities. DEEM default processing factors were used for apple juice, dried apples, cranberry juice, dried apple, dried pears, dried onion, dried banana, dried plantain, and dried tomato. A processing factor was not used for tomato paste because a separate tolerance has been established for this processed commodity. In the submitted tomato processing study, processing factors of 1.0 and 2.9 were reported for tomato juice and tomato puree, respectively. These processing factors were used in the dietary exposure assessment. Residues of acibenzolar-S-methyl did not concentrate in citrus juice or oil based on a processing study, so a processing factor of 1.0 was used. A factor of 1.5X was applied to estimates of acibenzolar-S-methyl residues to account for all of the residues of concern for dietary risk (including CGA-210007, CGA-323060 and CGA-324041).

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

    iv. Anticipated residue and percent crop treated information. Section 408(b)(2)(F) of FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if:

    • Condition a: The data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain the pesticide residue.

    • Condition b: The exposure estimate does not underestimate exposure for any significant subpopulation group.

    • Condition c: Data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area.

    In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by FFDCA section 408(b)(2)(F), EPA may require registrants to submit data on PCT.

    For the acute dietary analysis, EPA estimated PCT for the following crops for which uses of acibenzolar-S-methyl are currently registered based on available MPCT estimates: Broccoli: 10%; cabbage: 2.5%; cauliflower: 10%; lettuce: 10%; peppers: 10%; spinach: 50%; and tomatoes: 10%.

    In the chronic dietary exposure analysis, 100% CT was assumed for all commodities.

    In most cases, EPA uses available data from United States Department of Agriculture/National Agricultural Statistics Service (USDA/NASS), proprietary market surveys, and the National Pesticide Use Database for the chemical/crop combination for the most recent 6-7 years. EPA uses a maximum PCT for acute dietary risk analysis. The maximum PCT figure is the highest observed maximum value reported within the recent 6 years of available public and private market survey data for the existing use and rounded up to the nearest multiple of 5%.

    The Agency believes that the three conditions discussed in Unit III.C.1.iv. have been met. With respect to Condition a, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions b and c, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency.

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

    Surface water estimated drinking water concentrations (EDWCs) were generated for the total residues of acibenzolar and CGA 210007 using the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) model for all proposed uses. Exposure in ground water due to leaching was assessed with the Pesticide Root Zone Model Ground Water (PRZM-GW). The EDWCs of acibenzolar-S-methyl for acute exposures are estimated to be 47.19 microgram per liter (µg/L) for surface water (citrus) and 13.33 µg/L for ground water. For chronic exposures (non-cancer) assessments the EDWC is 13.33 µg/L for surface water (apple).

    Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 47.19 µg/L was used to assess the contribution to drinking water. For chronic dietary risk assessment, the water concentration of value 13.33 µg/L was used to assess the contribution to drinking water.

    3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

    Acibenzolar-S-methyl is not being registered for any specific use patterns that would result in residential exposure in this action. However, a revised post-application residential exposure assessment was conducted to update the residential exposures based on the 2012 revised Residential SOPs.

    There is the potential for post-application exposure for individuals exposed as a result of being in an environment that has been previously treated with acibenzolar-S-methyl. The quantitative exposure/risk assessment for residential post-application exposures is based on the following scenarios: Adult, 11 to <16 years old, and 6 to <11 years old dermal exposure from playing golf on treated golf courses (short-term dermal exposure).

    Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www.epa.gov/pesticides/trac/science/trac6a05.pdf.

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

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

    D. Safety Factor for Infants and Children

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

    2. Prenatal and postnatal sensitivity. In the rat developmental toxicity study, treatment-related visceral malformations and skeletal variations were observed in fetuses at 200 mg/kg/day, the NOAEL for maternal toxicity. In the developmental neurotoxicity study, offspring toxicity was observed at 82 mg/kg/day while no maternal toxicity was observed at 326 mg/kg/day, the highest dose tested. Additional developmental toxicity studies in rats and rabbits and reproduction studies in rats provided no indication of increased susceptibility of rat or rabbit fetuses or neonates compared to adult animals.

    3. Conclusion. The FQPA factor for increased susceptibility to infants and children is reduced to 1x based on the following considerations.

    i. The toxicology database for acibenzolar-S-methyl is complete and adequate for assessing increased susceptibility under FQPA. The pre- and postnatal toxicity database for acibenzolar-S-methyl includes developmental toxicity studies in rats and rabbits, a developmental neurotoxicity study (DNT) study in rats, and a 2-generation reproduction toxicity study in rats.

    ii. There is some evidence of potential neurotoxicity in a developmental neurotoxicity study. Although there were no treatment-related offspring effects seen on survival, clinical signs, functional observational battery (FOB), developmental land marks, brain weights or neuropathology, significant morphometric changes (decreased thickness of the molecular layer of the cerebellum) were observed in male offspring on postnatal date (PND) 63 at 82 mg/kg/day. At the high dose, treatment-related offspring effects included decreased body weights, increased auditory startle response and increased thickness in the corpus callosum in females. No effects were observed in maternal animals at the highest dose tested. However, in a subchronic neurotoxicity study in rats, no compound-related effects were observed in the FOB, motor activity, gross pathology or neuropathology at the highest doses (575/628 mg/kg/day, male/female) tested.

    iii. Based on the developmental toxicity in rats and the developmental neurotoxicity studies in rats, there is concern for increased qualitative and/or quantitative susceptibility following in utero exposure to acibenzolar-S-methyl. However, the degree of concern for the increased susceptibility seen in these studies is low, as there are no residual uncertainties with regard to pre- and/or postnatal toxicity since (1) NOAELs and LOAELs have been identified for all effects of concern, (2) a clear dose response has been well defined, and (3) the points of departure selected for risk assessment are protective of the fetal/offspring effects.

    iv. There are no residual uncertainties identified in the exposure databases. The refined acute dietary assessment utilizes maximum percent crop treated estimates but is still considered conservative, since it is based on field trial data treated at the shorest preharvest interval and maximum use rate. The chronic dietary and residential risk assessments are also conservative. These assessments will not underestimate dietary and/or non-dietary residential exposure to acibenzolar-S-methyl. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to acibenzolar-S-methyl in drinking water. EPA used similarly conservative assumptions to assess post-application exposure. These assessments will not underestimate the exposure and risks posed by acibenzolar-S-methyl.

    E. Aggregate Risks and Determination of Safety

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

    1. Acute risk. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to acibenzolar-S-methyl will occupy 33% of the aPAD for children 1-2 years old, the population group receiving the greatest exposure.

    2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to acibenzolar-S-methyl from food and water will utilize 13% of the cPAD for children 1-2 years old, the population group receiving the greatest exposure.

    3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). There is potential short-term exposure to acibenzolar-S-methyl via the dietary pathway and the residential pathway (golfing on treated golf courses). Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 1,300 for children 6 to <11 years old. Because EPA's level of concern for acibenzolar-S-methyl is a MOE of 100 or below, these MOEs are not of concern.

    4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Since the short- and intermediate-term PODs are the same and short-term exposure estimates are greater than their intermediate-term counterparts, the short-term aggregate risk assessment is protective of the intermediate-term aggregate exposure.

    5. Aggregate cancer risk for U.S. population. An aggregate cancer risk was not calculated because acibenzolar-S-methyl was classified as “not likely to be carcinogenic to humans”.

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

    IV. Other Considerations A. Analytical Enforcement Methodology

    HPLC/UV Method AG-617A is available for tolerance enforcement. The method consists of an initial hydrolysis with NaOH to convert acibenzolar-S-methyl to CGA-210007 followed by methanol extraction. Residues are then diluted with HCl and purified by a series of solid-phase extraction steps. Prior to HPLC/UV analysis, residues are partitioned into ethyl acetate, dried down, and re-dissolved in phosphoric acid. This method has a LOQ of 0.02 ppm. The method includes optional detection via HPLC/MS, giving a means of residue confirmation.

    The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: [email protected].

    B. International Residue Limits

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

    The Codex has not established a MRL for acibenzolar-S-methyl.

    C. Revisions to Petitioned-For Tolerances

    The tolerance level for fruit, citrus, group 10-10 (0.02 ppm) is being set at the LOQ of the enforcement method which is higher than the petitioned-for tolerance (0.01 ppm). The names of the crop groups for citrus and pome fruit are being corrected to fruit, citrus, group 10-10 and fruit, pome, group 11-10.

    V. Conclusion

    Therefore, tolerances are established for residues of acibenzolar-S-methyl, fungicide, in or on fruit, citrus, group 10-10 at 0.02 ppm and fruit, pome, group 11-10 at 0.03 ppm.

    VI. Statutory and Executive Order Reviews

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

    Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), do not apply.

    This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.).

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

    VII. Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.

    Dated: September 4, 2015. Susan Lewis, Director, Registration Division, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

    PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority:

    21 U.S.C. 321(q), 346a and 371.

    2. In § 180.561, is amended by adding alphabetically the entries for “Fruit, citrus, group”, and “Fruit, pome, group” to the table in paragraph (a)(1) to read as follows:
    § 180.561 Acibenzolar-S-methyl; tolerances for residues.

    (a) * * *

    (1) * * *

    Commodity Parts per
  • million
  • *    *    *    *    * Fruit, citrus, group 10-10 0.02 Fruit, pome, group 11-10 0.03 *    *    *    *    *
    [FR Doc. 2015-24463 Filed 9-29-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 300 [EPA-HQ-SFUND-2015-0136, 0137, 0138, 0140, and 0141; FRL-9934-75-OSWER] National Priorities List AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA” or “the Act”), as amended, requires that the National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”) include a list of national priorities among the known releases or threatened releases of hazardous substances, pollutants or contaminants throughout the United States. The National Priorities List (“NPL”) constitutes this list. The NPL is intended primarily to guide the Environmental Protection Agency (“the EPA” or “the agency”) in determining which sites warrant further investigation. These further investigations will allow the EPA to assess the nature and extent of public health and environmental risks associated with the site and to determine what CERCLA-financed remedial action(s), if any, may be appropriate. This rule adds five sites to the General Superfund section of the NPL.

    DATES:

    The document is effective on October 30, 2015.

    ADDRESSES:

    Contact information for the EPA Headquarters:

    • Docket Coordinator, Headquarters; U.S. Environmental Protection Agency; CERCLA Docket Office; 1301 Constitution Avenue NW., William Jefferson Clinton Building West, Room 3334, Washington, DC 20004, 202/566-0276.

    The contact information for the regional dockets is as follows:

    • Holly Inglis, Region 1 (CT, ME, MA, NH, RI, VT), U.S. EPA, Superfund Records and Information Center, 5 Post Office Square, Suite 100, Boston, MA 02109-3912; 617/918-1413.

    • Ildefonso Acosta, Region 2 (NJ, NY, PR, VI), U.S. EPA, 290 Broadway, New York, NY 10007-1866; 212/637-4344.

    • Lorie Baker (ASRC), Region 3 (DE, DC, MD, PA, VA, WV), U.S. EPA, Library, 1650 Arch Street, Mailcode 3HS12, Philadelphia, PA 19103; 215/814-3355.

    • Jennifer Wendel, Region 4 (AL, FL, GA, KY, MS, NC, SC, TN), U.S. EPA, 61 Forsyth Street SW., Mailcode 9T25, Atlanta, GA 30303; 404/562-8799.

    • Todd Quesada, Region 5 (IL, IN, MI, MN, OH, WI), U.S. EPA Superfund Division Librarian/SFD Records Manager SRC-7J, Metcalfe Federal Building, 77 West Jackson Boulevard, Chicago, IL 60604; 312/886-4465.

    • Brenda Cook, Region 6 (AR, LA, NM, OK, TX), U.S. EPA, 1445 Ross Avenue, Suite 1200, Mailcode 6SFTS, Dallas, TX 75202-2733; 214/665-7436.

    • Preston Law, Region 7 (IA, KS, MO, NE), U.S. EPA, 11201 Renner Blvd., Mailcode SUPR/SPEB, Lenexa, KS 66219; 913/551-7097.

    • Sabrina Forrest, Region 8 (CO, MT, ND, SD, UT, WY), U.S. EPA, 1595 Wynkoop Street, Mailcode 8EPR-B, Denver, CO 80202-1129; 303/312-6484.

    • Sharon Murray, Region 9 (AZ, CA, HI, NV, AS, GU, MP), U.S. EPA, 75 Hawthorne Street, Mailcode SFD 6-1, San Francisco, CA 94105; 415/947-4250.

    • Ken Marcy, Region 10 (AK, ID, OR, WA), U.S. EPA, 1200 6th Avenue, Mailcode ECL-112, Seattle, WA 98101; 206/463-1349.

    FOR FURTHER INFORMATION CONTACT:

    Terry Jeng, phone: (703) 603-8852, email: [email protected] Site Assessment and Remedy Decisions Branch, Assessment and Remediation Division, Office of Superfund Remediation and Technology Innovation (Mailcode 5204P), U.S. Environmental Protection Agency; 1200 Pennsylvania Avenue NW., Washington, DC 20460; or the Superfund Hotline, phone (800) 424-9346 or (703) 412-9810 in the Washington, DC, metropolitan area.

    SUPPLEMENTARY INFORMATION: Table of Contents I. Background A. What are CERCLA and SARA? B. What is the NCP? C. What is the National Priorities List (NPL)? D. How are sites listed on the NPL? E. What happens to sites on the NPL? F. Does the NPL define the boundaries of sites? G. How are sites removed from the NPL? H. May the EPA delete portions of sites from the NPL as they are cleaned up? I. What is the construction completion list (CCL)? J. What is the Sitewide Ready for Anticipated Use measure? K. What is state/tribal correspondence concerning NPL listing? II. Availability of Information to the Public A. May I review the documents relevant to this final rule? B. What documents are available for review at the EPA Headquarters docket? C. What documents are available for review at the EPA regional dockets? D. How do I access the documents? E. How may I obtain a current list of NPL sites? III. Contents of This Final Rule A. Additions to the NPL B. What did the EPA do with the public comments it received? IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act (PRA) C. Regulatory Flexibility Act (RFA) D. Unfunded Mandates Reform Act (UMRA) E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act (NTTAA) J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act I. Background A. What are CERCLA and SARA?

    In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601-9675 (“CERCLA” or “the Act”), in response to the dangers of uncontrolled releases or threatened releases of hazardous substances, and releases or substantial threats of releases into the environment of any pollutant or contaminant that may present an imminent or substantial danger to the public health or welfare. CERCLA was amended on October 17, 1986, by the Superfund Amendments and Reauthorization Act (“SARA”), Public Law 99-499, 100 Stat. 1613 et seq.

    B. What is the NCP?

    To implement CERCLA, the EPA promulgated the revised National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”), 40 CFR part 300, on July 16, 1982 (47 FR 31180), pursuant to CERCLA section 105 and Executive Order 12316 (46 FR 42237, August 20, 1981). The NCP sets guidelines and procedures for responding to releases and threatened releases of hazardous substances, or releases or substantial threats of releases into the environment of any pollutant or contaminant that may present an imminent or substantial danger to the public health or welfare. The EPA has revised the NCP on several occasions. The most recent comprehensive revision was on March 8, 1990 (55 FR 8666).

    As required under section 105(a)(8)(A) of CERCLA, the NCP also includes “criteria for determining priorities among releases or threatened releases throughout the United States for the purpose of taking remedial action and, to the extent practicable, taking into account the potential urgency of such action, for the purpose of taking removal action.” “Removal” actions are defined broadly and include a wide range of actions taken to study, clean up, prevent or otherwise address releases and threatened releases of hazardous substances, pollutants or contaminants (42 U.S.C. 9601(23)).

    C. What is the National Priorities List (NPL)?

    The NPL is a list of national priorities among the known or threatened releases of hazardous substances, pollutants or contaminants throughout the United States. The list, which is appendix B of the NCP (40 CFR part 300), was required under section 105(a)(8)(B) of CERCLA, as amended. Section 105(a)(8)(B) defines the NPL as a list of “releases” and the highest priority “facilities” and requires that the NPL be revised at least annually. The NPL is intended primarily to guide the EPA in determining which sites warrant further investigation to assess the nature and extent of public health and environmental risks associated with a release of hazardous substances, pollutants or contaminants. The NPL is of only limited significance, however, as it does not assign liability to any party or to the owner of any specific property. Also, placing a site on the NPL does not mean that any remedial or removal action necessarily need be taken.

    For purposes of listing, the NPL includes two sections, one of sites that are generally evaluated and cleaned up by the EPA (the “General Superfund section”) and one of sites that are owned or operated by other federal agencies (the “Federal Facilities section”). With respect to sites in the Federal Facilities section, these sites are generally being addressed by other federal agencies. Under Executive Order 12580 (52 FR 2923, January 29, 1987) and CERCLA section 120, each federal agency is responsible for carrying out most response actions at facilities under its own jurisdiction, custody or control, although the EPA is responsible for preparing a Hazard Ranking System (“HRS”) score and determining whether the facility is placed on the NPL.

    D. How are sites listed on the NPL?

    There are three mechanisms for placing sites on the NPL for possible remedial action (see 40 CFR 300.425(c) of the NCP): (1) A site may be included on the NPL if it scores sufficiently high on the HRS, which the EPA promulgated as appendix A of the NCP (40 CFR part 300). The HRS serves as a screening tool to evaluate the relative potential of uncontrolled hazardous substances, pollutants or contaminants to pose a threat to human health or the environment. On December 14, 1990 (55 FR 51532), the EPA promulgated revisions to the HRS partly in response to CERCLA section 105(c), added by SARA. The revised HRS evaluates four pathways: Ground water, surface water, soil exposure and air. As a matter of agency policy, those sites that score 28.50 or greater on the HRS are eligible for the NPL. (2) Each state may designate a single site as its top priority to be listed on the NPL, without any HRS score. This provision of CERCLA requires that, to the extent practicable, the NPL include one facility designated by each state as the greatest danger to public health, welfare or the environment among known facilities in the state. This mechanism for listing is set out in the NCP at 40 CFR 300.425(c)(2). (3) The third mechanism for listing, included in the NCP at 40 CFR 300.425(c)(3), allows certain sites to be listed without any HRS score, if all of the following conditions are met:

    (1) The Agency for Toxic Substances and Disease Registry (ATSDR) of the U.S. Public Health Service has issued a health advisory that recommends dissociation of individuals from the release.

    (2) The EPA determines that the release poses a significant threat to public health.

    (3) The EPA anticipates that it will be more cost-effective to use its remedial authority than to use its removal authority to respond to the release.

    The EPA promulgated an original NPL of 406 sites on September 8, 1983 (48 FR 40658) and generally has updated it at least annually.

    E. What happens to sites on the NPL?

    A site may undergo remedial action financed by the Trust Fund established under CERCLA (commonly referred to as the “Superfund”) only after it is placed on the NPL, as provided in the NCP at 40 CFR 300.425(b)(1). (“Remedial actions” are those “consistent with a permanent remedy, taken instead of or in addition to removal actions” (40 CFR 300.5). However, under 40 CFR 300.425(b)(2), placing a site on the NPL “does not imply that monies will be expended.” The EPA may pursue other appropriate authorities to respond to the releases, including enforcement action under CERCLA and other laws.

    F. Does the NPL define the boundaries of sites?

    The NPL does not describe releases in precise geographical terms; it would be neither feasible nor consistent with the limited purpose of the NPL (to identify releases that are priorities for further evaluation), for it to do so. Indeed, the precise nature and extent of the site are typically not known at the time of listing.

    Although a CERCLA “facility” is broadly defined to include any area where a hazardous substance has “come to be located” (CERCLA section 101(9)), the listing process itself is not intended to define or reflect the boundaries of such facilities or releases. Of course, HRS data (if the HRS is used to list a site) upon which the NPL placement was based will, to some extent, describe the release(s) at issue. That is, the NPL site would include all releases evaluated as part of that HRS analysis.

    When a site is listed, the approach generally used to describe the relevant release(s) is to delineate a geographical area (usually the area within an installation or plant boundaries) and identify the site by reference to that area. However, the NPL site is not necessarily coextensive with the boundaries of the installation or plant, and the boundaries of the installation or plant are not necessarily the “boundaries” of the site. Rather, the site consists of all contaminated areas within the area used to identify the site, as well as any other location where that contamination has come to be located, or from where that contamination came.

    In other words, while geographic terms are often used to designate the site (e.g., the “Jones Co. Plant site”) in terms of the property owned by a particular party, the site, properly understood, is not limited to that property (e.g., it may extend beyond the property due to contaminant migration), and conversely may not occupy the full extent of the property (e.g., where there are uncontaminated parts of the identified property, they may not be, strictly speaking, part of the “site”). The “site” is thus neither equal to, nor confined by, the boundaries of any specific property that may give the site its name, and the name itself should not be read to imply that this site is coextensive with the entire area within the property boundary of the installation or plant. In addition, the site name is merely used to help identify the geographic location of the contamination, and is not meant to constitute any determination of liability at a site. For example, the name “Jones Co. plant site,” does not imply that the Jones Company is responsible for the contamination located on the plant site.

    EPA regulations provide that the remedial investigation (“RI”) “is a process undertaken * * * to determine the nature and extent of the problem presented by the release” as more information is developed on site contamination, and which is generally performed in an interactive fashion with the feasibility study (“FS”) (40 CFR 300.5). During the RI/FS process, the release may be found to be larger or smaller than was originally thought, as more is learned about the source(s) and the migration of the contamination. However, the HRS inquiry focuses on an evaluation of the threat posed and therefore the boundaries of the release need not be exactly defined. Moreover, it generally is impossible to discover the full extent of where the contamination “has come to be located” before all necessary studies and remedial work are completed at a site. Indeed, the known boundaries of the contamination can be expected to change over time. Thus, in most cases, it may be impossible to describe the boundaries of a release with absolute certainty.

    Further, as noted above, NPL listing does not assign liability to any party or to the owner of any specific property. Thus, if a party does not believe it is liable for releases on discrete parcels of property, it can submit supporting information to the agency at any time after it receives notice it is a potentially responsible party.

    For these reasons, the NPL need not be amended as further research reveals more information about the location of the contamination or release.

    G. How are sites removed from the NPL?

    The EPA may delete sites from the NPL where no further response is appropriate under Superfund, as explained in the NCP at 40 CFR 300.425(e). This section also provides that the EPA shall consult with states on proposed deletions and shall consider whether any of the following criteria have been met:

    (i) Responsible parties or other persons have implemented all appropriate response actions required;

    (ii) All appropriate Superfund-financed response has been implemented and no further response action is required; or

    (iii) The remedial investigation has shown the release poses no significant threat to public health or the environment, and taking of remedial measures is not appropriate.

    H. May the EPA delete portions of sites from the NPL as they are cleaned up?

    In November 1995, the EPA initiated a policy to delete portions of NPL sites where cleanup is complete (60 FR 55465, November 1, 1995). Total site cleanup may take many years, while portions of the site may have been cleaned up and made available for productive use.

    I. What is the construction completion list (CCL)?

    The EPA also has developed an NPL construction completion list (“CCL”) to simplify its system of categorizing sites and to better communicate the successful completion of cleanup activities (58 FR 12142, March 2, 1993). Inclusion of a site on the CCL has no legal significance.

    Sites qualify for the CCL when: (1) Any necessary physical construction is complete, whether or not final cleanup levels or other requirements have been achieved; (2) the EPA has determined that the response action should be limited to measures that do not involve construction (e.g., institutional controls); or (3) the site qualifies for deletion from the NPL. For the most up-to-date information on the CCL, see the EPA's Internet site at http://www.epa.gov/superfund/cleanup/ccl.htm.

    J. What is the Sitewide Ready for Anticipated Use Measure?

    The Sitewide Ready for Anticipated Use measure represents important Superfund accomplishments and the measure reflects the high priority the EPA places on considering anticipated future land use as part of the remedy selection process. See Guidance for Implementing the Sitewide Ready-for-Reuse Measure, May 24, 2006, OSWER 9365.0-36. This measure applies to final and deleted sites where construction is complete, all cleanup goals have been achieved, and all institutional or other controls are in place. The EPA has been successful on many occasions in carrying out remedial actions that ensure protectiveness of human health and the environment for current and future land uses, in a manner that allows contaminated properties to be restored to environmental and economic vitality. For further information, please go to http://www.epa.gov/superfund/programs/recycle/pdf/sitewide_a.pdf.

    K. What is state/tribal correspondence concerning NPL listing?

    In order to maintain close coordination with states and tribes in the NPL listing decision process, the EPA's policy is to determine the position of the states and tribes regarding sites that the EPA is considering for listing. This consultation process is outlined in two memoranda that can be found at the following Web site: http://www.epa.gov/superfund/sites/npl/hrsres/policy/govlet.pdf. The EPA has improved the transparency of the process by which state and tribal input is solicited. The EPA is using the Web and where appropriate more structured state and tribal correspondence that (1) explains the concerns at the site and the EPA's rationale for proceeding; (2) requests an explanation of how the state intends to address the site if placement on the NPL is not favored; and (3) emphasizes the transparent nature of the process by informing states that information on their responses will be publicly available.

    A model letter and correspondence between the EPA and states and tribes where applicable, is available on the EPA's Web site at http://www.epa.gov/superfund/sites/query/queryhtm/nplstcor.htm.

    II. Availability of Information to the Public A. May I review the documents relevant to this final rule?

    Yes, documents relating to the evaluation and scoring of the sites in this final rule are contained in dockets located both at the EPA headquarters and in the EPA regional offices.

    An electronic version of the public docket is available through http://www.regulations.gov (see table below for docket identification numbers). Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facilities identified below in section II D.

    Docket Identification Numbers by Site Site name City/county, state Docket ID No. Estech General Chemical Company Calumet City, IL EPA-HQ-SFUND-2015-0136 Colonial Creosote Bogalusa, LA EPA-HQ-SFUND-2015-0137 BJAT LLC Franklin, MA EPA-HQ-SFUND-2015-0138 Main Street Ground Water Plume Burnet, TX EPA-HQ-SFUND-2015-0140 Grain Handling Facility at Freeman Freeman, WA EPA-HQ-SFUND-2015-0141 B. What documents are available for review at the EPA headquarters docket?

    The headquarters docket for this rule contains the HRS score sheets, the documentation record describing the information used to compute the score and a list of documents referenced in the documentation record for each site.

    C. What documents are available for review at the EPA regional dockets?

    The EPA regional dockets contain all the information in the headquarters docket, plus the actual reference documents containing the data principally relied upon by the EPA in calculating or evaluating the HRS score. These reference documents are available only in the regional dockets.

    D. How do I access the documents?

    You may view the documents, by appointment only, after the publication of this rule. The hours of operation for the headquarters docket are from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding federal holidays. Please contact the regional dockets for hours. For addresses for the headquarters and regional dockets, see “ADDRESSES” section in the beginning portion of this preamble.

    E. How may I obtain a current list of NPL sites?

    You may obtain a current list of NPL sites via the Internet at http://www.epa.gov/superfund/sites/npl/index.htm or by contacting the Superfund docket (see contact information in the beginning portion of this document).

    III. Contents of This Final Rule A. Additions to the NPL

    This final rule adds the following five sites to the General Superfund section of the NPL. These sites are being added to the NPL based on HRS score.

    General Superfund section:

    State Site name City/County IL Estech General Chemical Company Calumet City. LA Colonial Creosote Bogalusa. MA BJAT LLC Franklin. TX Main Street Ground Water Plume Burnet. WA Grain Handling Facility at Freeman Freeman. B. What did the EPA do with the public comments it received?

    The EPA is adding five sites to the NPL in this final rule, all to the general Superfund section. All of the sites were proposed for addition to the NPL on March 26, 2015 (80 FR 15972).

    Four of the sites received no comments. They are BJAT LLC in Franklin, MA; Estech General Chemical Company in Calumet City, IL; Colonial Creosote in Bogalusa, LA; and Main Street Ground Water Plume in Burnet, TX. Although two comments were erroneously submitted to the docket for Colonial Creosote along with two erroneous comments for Main Street Ground Water Plume, all four comments related to the Anaconda Aluminum Co Columbia Falls Reduction Plant. Those comments will be addressed at the time a decision is made on the Anaconda Aluminum Co Columbia Falls Reduction Plant site.

    Extensive comments were submitted for the Grain Handling Facility at Freeman in Freeman, WA. Those comments have been addressed in a response to comments support document available in the public docket concurrently with the publication of this rule.

    IV. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

    A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

    B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under the PRA. This rule does not contain any information collection requirements that require approval of the OMB.

    C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This rule listing sites on the NPL does not impose any obligations on any group, including small entities. This rule also does not establish standards or requirements that any small entity must meet, and imposes no direct costs on any small entity. Whether an entity, small or otherwise, is liable for response costs for a release of hazardous substances depends on whether that entity is liable under CERCLA 107(a). Any such liability exists regardless of whether the site is listed on the NPL through this rulemaking.

    D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local or tribal governments or the private sector. Listing a site on the NPL does not itself impose any costs. Listing does not mean that the EPA necessarily will undertake remedial action. Nor does listing require any action by a private party, state, local or tribal governments or determine liability for response costs. Costs that arise out of site responses result from future site-specific decisions regarding what actions to take, not directly from the act of placing a site on the NPL.

    E. Executive Order 13132: Federalism

    This final rule does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

    F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    This action does not have tribal implications as specified in Executive Order 13175. Listing a site on the NPL does not impose any costs on a tribe or require a tribe to take remedial action. Thus, Executive Order 13175 does not apply to this action.

    G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because this action itself is procedural in nature (adds sites to a list) and does not, in and of itself, provide protection from environmental health and safety risks. Separate future regulatory actions are required for mitigation of environmental health and safety risks.

    H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

    I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

    J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

    The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations because it does not affect the level of protection provided to human health or the environment. As discussed in Section I.C. of the preamble to this action, the NPL is a list of national priorities. The NPL is intended primarily to guide the EPA in determining which sites warrant further investigation to assess the nature and extent of public health and environmental risks associated with a release of hazardous substances, pollutants or contaminants. The NPL is of only limited significance as it does not assign liability to any party. Also, placing a site on the NPL does not mean that any remedial or removal action necessarily need be taken.

    K. Congressional Review Act

    This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    Provisions of the Congressional Review Act (CRA) or section 305 of CERCLA may alter the effective date of this regulation. Under 5 U.S.C. 801(b)(1), a rule shall not take effect, or continue in effect, if Congress enacts (and the President signs) a joint resolution of disapproval, described under section 802. Another statutory provision that may affect this rule is CERCLA section 305, which provides for a legislative veto of regulations promulgated under CERCLA. Although INS v. Chadha, 462 U.S. 919,103 S. Ct. 2764 (1983), and Bd. of Regents of the University of Washington v. EPA, 86 F.3d 1214,1222 (D.C. Cir. 1996), cast the validity of the legislative veto into question, the EPA has transmitted a copy of this regulation to the Secretary of the Senate and the Clerk of the House of Representatives.

    If action by Congress under either the CRA or CERCLA section 305 calls the effective date of this regulation into question, the EPA will publish a document of clarification in the Federal Register.

    List of Subjects in 40 CFR Part 300

    Environmental protection, Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Natural resources, Oil pollution, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.

    Dated: September 21, 2015. Mathy Stanislaus, Assistant Administrator, Office of Solid Waste and Emergency Response.

    40 CFR part 300 is amended as follows:

    PART 300—NATIONAL OIL AND HAZARDOUS SUBSTANCES POLLUTION CONTINGENCY PLAN 1. The authority citation for part 300 continues to read as follows: Authority:

    33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O. 13626, 77 FR 56749, 3 CFR, 2013 Comp., p. 306; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p. 193.

    2. Table 1 of Appendix B to Part 300 is amended by adding entries for “Estech General Chemical Company”, “Colonial Creosote”, “BJAT LLC”, “Main Street Ground Water Plume” and “Grain Handling Facility at Freeman” in alphabetical order by state to read as follows: Appendix B to Part 300—National Priorities List Table 1—General Superfund Section State Site name City/County Notes (a) *         *         *         *         *         *         * IL Estech General Chemical Company Calumet City *         *         *         *         *         *         * LA Colonial Creosote Bogalusa *         *         *         *         *         *         * MA BJAT LLC Franklin *         *         *         *         *         *         * TX Main Street Ground Water Plume Burnet *         *         *         *         *         *         * WA Grain Handling Facility at Freeman Freeman *         *         *         *         *         *         * (a) A = Based on issuance of health advisory by Agency for Toxic Substances and Disease Registry (if scored, HRS score need not be greater than or equal to 28.50).
    [FR Doc. 2015-24330 Filed 9-29-15; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF THE INTERIOR Bureau of Land Management 43 CFR Part 3000 [L13100000 PP0000 LLWO310000] RIN 1004-AE44 Minerals Management: Adjustment of Cost Recovery Fees AGENCY:

    Bureau of Land Management, Interior.

    ACTION:

    Final rule.

    SUMMARY:

    This final rule amends the Bureau of Land Management (BLM) mineral resources regulations to update some fees that cover the BLM's cost of processing certain documents relating to its minerals programs and some filing fees for mineral-related documents. These updated fees include those for actions such as lease renewals and mineral patent adjudications.

    DATES:

    This final rule is effective October 1, 2015.

    ADDRESSES:

    You may send inquiries or suggestions to Director (630), Bureau of Land Management, 2134LM, 1849 C Street NW., Washington, DC 20240; Attention: RIN 1004-AE44.

    FOR FURTHER INFORMATION CONTACT:

    Steven Wells, Chief, Division of Fluid Minerals, 202-912-7143; Mitchell Leverette, Chief, Division of Solid Minerals, 202-912-7113; or Mark Purdy, Regulatory Affairs, 202-912-7635. Persons who use a telecommunications device for the deaf (TDD) may leave a message for these individuals with the Federal Information Relay Service (FIRS) at 1-800-877-8339, 24 hours a day, 7 days a week.

    SUPPLEMENTARY INFORMATION:

    I. Background

    The BLM has specific authority to charge fees for processing applications and other documents relating to public lands under section 304 of the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. 1734. In 2005, the BLM published a final cost recovery rule (70 FR 58854) establishing or revising certain fees and service charges, and establishing the method it would use to adjust those fees and service charges on an annual basis.

    At 43 CFR 3000.12(a), the regulations provide that the BLM will annually adjust fees established in Subchapter C (43 CFR parts 3000-3900) according to changes in the Implicit Price Deflator for Gross Domestic Product (IPD-GDP), which is published quarterly by the U.S. Department of Commerce. See also 43 CFR 3000.10. This final rule will allow the BLM to update these fees and service charges by October 1 of this year, as required by the 2005 regulation. The fee recalculations are based on a mathematical formula. The public had an opportunity to comment on this procedure during the comment period on the 2005 cost recovery rule, and this new rule administers the procedure set forth in those regulations. Therefore, the BLM has changed the fees in this final rule without providing opportunity for additional notice and comment. See 43 CFR 3000.10(c). Accordingly, the Department of the Interior for good cause finds under 5 U.S.C. 553(b)(B) and (d)(3) that notice and public comment procedures are unnecessary and that the rule may be effective less than 30 days after publication.

    II. Discussion of Final Rule

    The BLM publishes a fee update rule each year, which becomes effective on October 1 of that year. The fee updates are based on the change in the IPD-GDP from the 4th Quarter of one calendar year to the 4th Quarter of the following calendar year. This fee update rule is based on the change in the IPD-GDP from the 4th Quarter of 2013 to the 4th Quarter of 2014, thus reflecting the rate of inflation over four calendar quarters.

    The fee is calculated by applying the IPD-GDP to the base value from the previous year's rule, also known as the “existing value.” This calculation results in an updated base value. The updated base value is then rounded to the closest multiple of $5 for fees equal to or greater than $1, or to the nearest cent for fees under $1, to establish the new fee.

    Under this rule, 34 fees will remain the same and 14 fees will increase. Of the fees that will be increased, 12 of the fee increases will amount to $5 each. The largest increase, $40, will be applied to the fee for adjudicating a mineral patent application containing more than 10 claims, and will increase the fee from $3,035 to $3,075. The fee for adjudicating a patent application containing 10 or fewer claims will increase by $15, from $1,520 to $1,535.

    The calculations that resulted in the new fees are included in the table below:

    Fixed cost recovery fees FY16 Document/action Existing
  • fee 1
  • Existing
  • value 2
  • IPD-GDP
  • Increase 3
  • New value 4 New fee 5
    Oil & Gas (parts 3100, 3110, 3120, 3130, 3150) Noncompetitive lease application $405 $403.6113 $5.0451 $408.6565 $410 Competitive lease application 155 156.6327 1.9579 158.5906 160 Assignment and transfer of record title or operating rights 90 90.3565 1.1295 91.4859 90 Overriding royalty transfer, payment out of production 10 12.0454 0.1506 12.1960 10 Name change, corporate merger or transfer to heir/devisee 210 210.8318 2.6354 213.4672 215 Lease consolidation 445 445.7650 5.5721 451.3371 450 Lease renewal or exchange 405 403.6113 5.0451 408.6565 410 Lease reinstatement, Class I 80 78.3005 0.9788 79.2793 80 Leasing under right-of-way 405 403.6113 5.0451 408.6565 410 Geophysical exploration permit application—Alaska 6 25 25 Renewal of exploration permit—Alaska 7 25 25 Geothermal (part 3200) Noncompetitive lease application 405 403.6113 5.0451 408.6565 410 Competitive lease application 155 156.6327 1.9579 158.5906 160 Assignment and transfer of record title or operating right 90 90.3565 1.1295 91.4859 90 Name change, corporate merger or transfer to heir/devisee 210 210.8318 2.6354 213.4672 215 Lease consolidation 445 445.7650 5.5721 451.3371 450 Lease reinstatement 80 78.3005 0.9788 79.2793 80 Nomination of lands 115 112.7688 1.4096 114.1784 115 Plus per acre nomination fee 0.11 0.11277 0.00141 0.11418 0.11 Site license application 60 60.2377 0.7530 60.9906 60 Assignment or transfer of site license 60 60.2377 0.7530 60.9906 60 Coal (parts 3400, 3470) License to mine application 10 12.0454 0.1506 12.1960 10 Exploration license application 330 331.3177 4.1415 335.4592 335 Lease or lease interest transfer 65 66.2762 0.8285 67.1047 65 Leasing of Solid Minerals Other Than Coal and Oil Shale (parts 3500, 3580) Applications other than those listed below 35 36.1468 0.4518 36.5987 35 Prospecting permit amendment 65 66.2762 0.8285 67.1047 65 Extension of prospecting permit 110 108.4299 1.3554 109.7853 110 Lease modification or fringe acreage lease 30 30.1294 0.3766 30.5060 30 Lease renewal 520 518.0692 6.4759 524.5451 525 Assignment, sublease, or transfer of operating rights 30 30.1294 0.3766 30.5060 30 Transfer of overriding royalty 30 30.1294 0.3766 30.5060 30 Use permit 30 30.1294 0.3766 30.5060 30 Shasta and Trinity hardrock mineral lease 30 30.1294 0.3766 30.5060 30 Renewal of existing sand and gravel lease in Nevada 30 30.1294 0.3766 30.5060 30 Multiple Use; Mining (Group 3700) Notice of protest of placer mining operations 10 12.0454 0.1506 12.1960 10 Mining Law Administration (parts 3800, 3810, 3830, 3850, 3860, 3870) Application to open lands to location 10 12.0454 0.1506 12.1960 10 Notice of Location 20 18.0629 0.2258 18.2886 20 Amendment of location 10 12.0454 0.1506 12.1960 10 Transfer of mining claim/site 10 12.0454 0.1506 12.1960 10 Recording an annual FLPMA filing 10 12.0454 0.1506 12.1960 10 Deferment of assessment work 110 108.4299 1.3554 109.7853 110 Recording a notice of intent to locate mining claims on Stockraising Homestead Act lands 30 30.1294 0.3766 30.5060 30 Mineral Patent adjudication (more than ten claims) 3,035 3,036.1112 37.9514 3,074.0626 3,075 (ten or fewer claims) 1,520 1,518.0398 18.9755 1,537.0153 1,535 Adverse claim 110 108.4299 1.3554 109.7853 110 Protest 65 66.2762 0.8285 67.1047 65 Oil Shale Management (parts 3900, 3910, 3930) Exploration License Application 320 317.7838 3.9723 321.7561 320 Assignment or sublease of record title or overriding royalty 65 64.6399 0.8080 65.4479 65 Source for Implicit Price Deflator for Gross Domestic Product data: U.S. Department of Commerce, Bureau of Economic Analysis (March 27, 2015). 1 The Existing Fee was established by the 2014 (Fiscal Year 2015) cost recovery fee update rule published September 25, 2014 (79 FR 57476), effective October 1, 2014. 2 The Existing Value is the figure from the New Value column in the previous year's rule. 3 From 4th Quarter 2013 to 4th Quarter 2014, the IPD-GDP increased by 1.25 percent. The value in the IPD-GDP Increase column is 1.25 percent of the Existing Value. 4 The sum of the Existing Value and the IPD-GDP Increase is the New Value. 5 The New Fee for Fiscal Year 2016 is the New Value rounded to the nearest $5 for values equal to or greater than $1, or to the nearest penny for values under $1. 6 Section 365 of the Energy Policy Act of 2005 (Pub. L. 109-58) directed in subsection (i) that “the Secretary shall not implement a rulemaking that would enable an increase in fees to recover additional costs related to processing drilling-related permit applications and use authorizations.” In the 2005 cost recovery rule, the BLM interpreted this prohibition to apply to geophysical exploration permits. 70 FR 58854-58855. While the $25 fees for geophysical exploration permit applications for Alaska and renewals of exploration permits for Alaska pre-dated the 2005 cost recovery rule and were not affected by the Energy Policy Act prohibition, the BLM interprets the Energy Policy Act provision as prohibiting it from increasing this $25 fee. 7 The BLM interprets the Energy Policy Act prohibition discussed in footnote 6, above, as prohibiting it from increasing this $25 fee, as well.
    III. How Fees Are Adjusted

    Each year, the figures in the Existing Value column in the table above (not those in the Existing Fee column) are used as the basis for calculating the adjustment to these fees. The Existing Value is the figure from the New Value column in the previous year's rule. In the case of fees that were not in the table the previous year, or that had no figure in the New Value column the previous year, the Existing Value is the same as the Existing Fee. Because the new fees are derived from the new values, adjustments based on the figures in the Existing Fee column would lead to significantly over- or under-valued fees over time. Accordingly, fee adjustments are made by multiplying the annual change in the IPD-GDP by the figure in the Existing Value column. This calculation defines the New Value for this year, which is then rounded to the nearest $5 for fees equal to or greater than $1 or the nearest penny for fees under $1 to establish the New Fee.

    IV. Procedural Matters Regulatory Planning and Review (Executive Order 12866)

    This document is not a significant rule, and the Office of Management and Budget has not reviewed this rule under Executive Order 12866.

    The BLM has determined that the rule will not have an annual effect on the economy of $100 million or more. It will not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. The changes in today's rule are much smaller than those in the 2005 final rule, which did not approach the threshold in Executive Order 12866. For instructions on how to view a copy of the analysis prepared in conjunction with the 2005 final rule, please contact one of the persons listed in the FOR FURTHER INFORMATION CONTACT section above.

    This rule will not create inconsistencies or otherwise interfere with an action taken or planned by another agency. This rule does not change the relationships of the onshore minerals programs with other agencies' actions. These relationships are included in agreements and memoranda of understanding that would not change with this rule.

    In addition, this final rule does not materially affect the budgetary impact of entitlements, grants, or loan programs, or the rights and obligations of their recipients. This rule applies an inflation factor that increases some existing user fees for processing documents associated with the onshore minerals programs. However, most of these fee increases are less than 2 percent, and none of the increases materially affect the budgetary impact of user fees.

    Finally, this rule will not raise novel legal or policy issues. As explained above, this rule simply implements an annual process to account for inflation that was adopted by and explained in the 2005 cost recovery rule.

    The Regulatory Flexibility Act

    This final rule will not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). A Regulatory Flexibility Analysis is not required. For the purposes of this section, a small entity is defined by the Small Business Administration (SBA) for mining (broadly inclusive of metal mining, coal mining, oil and gas extraction, and the mining and quarrying of nonmetallic minerals) as an individual, limited partnership, or small company considered to be at arm's length from the control of any parent companies, with fewer than 500 employees. The SBA defines a small entity differently, however, for leasing Federal land for coal mining. A coal lessee is a small entity if it employs not more than 250 people, including people working for its affiliates.

    The SBA would consider many, if not most, of the operators the BLM works with in the onshore minerals programs to be small entities. The BLM notes that this final rule does not affect service industries, for which the SBA has a different definition of “small entity.”

    The final rule may affect a large number of small entities since 14 fees for activities on public lands will be increased. However, the BLM has concluded that the effects will not be significant. Most of the fixed fee increases will be less than 2 percent as a result of this final rule. The adjustments result in no increase in the fee for the processing of 34 documents relating to the BLM's minerals programs. The highest adjustment, in dollar terms, is for adjudications of mineral patent applications involving more than 10 mining claims, which will be increased by $40. For the 2005 final rule, the BLM completed a Regulatory Flexibility Act threshold analysis, which is available for public review in the administrative record for that rule. For instructions on how to view a copy of that analysis, please contact one of the persons listed in the FOR FURTHER INFORMATION CONTACT section above. The analysis for the 2005 rule concluded that the fees would not have a significant economic effect on a substantial number of small entities. The fee increases implemented in today's rule are substantially smaller than those provided for in the 2005 rule.

    The Small Business Regulatory Enforcement Fairness Act

    This final rule is not a “major rule” as defined at 5 U.S.C. 804(2). The final rule will not have an annual effect on the economy greater than $100 million; it will not result in major cost or price increases for consumers, industries, government agencies, or regions; and it will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. For the 2005 final rule, which established the fee adjustment procedure that this rule implements, the BLM completed a threshold analysis, which is available for public review in the administrative record for that rule. The fee increases implemented in today's rule are substantially smaller than those provided for in the 2005 rule. Accordingly, a Small Entity Compliance Guide is not required.

    Executive Order 13132, Federalism

    This final rule will 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. In accordance with Executive Order 13132, therefore, we find that the final rule does not have federalism implications. A federalism assessment is not required.

    The Paperwork Reduction Act of 1995

    This rule does not contain information collection requirements that require a control number from the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). After the effective date of this rule, the new fees may affect the non-hour burdens associated with the following control numbers:

    Oil and Gas

    (1) 1004-0034 which expires July 31, 2018;

    (2) 1004-0137 which expires January 31, 2018;

    (3) 1004-0162 which expires September 30, 2015;

    (4) 1004-0185 which expires December 31, 2015;

    Geothermal

    (5) 1004-0132 which expires December 31, 2016;

    Coal

    (6) 1004-0073 which expires August 31, 2016;

    Mining Claims

    (7) 1004-0025 which expires March 31, 2016;

    (8) 1004-0114 which expires October 31, 2016; and

    Leasing of Solid Minerals Other Than Oil Shale

    (9) 1004-0121 which expires March 31, 2016.

    Takings Implication Assessment (Executive Order 12630)

    As required by Executive Order 12630, the BLM has determined that this rule will not cause a taking of private property. No private property rights will be affected by a rule that merely updates fees. The BLM therefore certifies that this final rule does not represent a governmental action capable of interference with constitutionally protected property rights.

    Civil Justice Reform (Executive Order 12988)

    In accordance with Executive Order 12988, the BLM finds that this final rule will not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Executive Order.

    The National Environmental Policy Act (NEPA)

    The BLM has determined that this final rule qualifies as a routine financial transaction and a regulation of an administrative, financial, legal, or procedural nature that is categorically excluded from environmental review under NEPA pursuant to 43 CFR 46.205 and 46.210(c) and (i). The final rule does not meet any of the 12 criteria for exceptions to categorical exclusions listed at 43 CFR 46.215.

    Pursuant to Council on Environmental Quality (CEQ) regulations, the term “categorical exclusions” means categories of actions “which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a federal agency in implementation of [CEQ] regulations (§ 1507.3) and for which, therefore, neither an environmental assessment nor an environmental impact statement is required.” 40 CFR 1508.4.

    The Unfunded Mandates Reform Act of 1995

    The BLM has determined that this final rule is not significant under the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq., because it will not result in State, local, private sector, or tribal government expenditures of $100 million or more in any one year, 2 U.S.C. 1532. This rule will not significantly or uniquely affect small governments. Therefore, the BLM is not required to prepare a statement containing the information required by the Unfunded Mandates Reform Act.

    Consultation and Coordination With Indian Tribal Governments (Executive Order 13175)

    In accordance with Executive Order 13175, the BLM has determined that this final rule does not include policies that have tribal implications. Specifically, the rule would not have substantial direct effects on one or more Indian tribes. Consequently, the BLM did not utilize the consultation process set forth in Section 5 of the Executive Order.

    Information Quality Act

    In developing this rule, the BLM did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Pub. L. 106-554).

    Effects on the Nation's Energy Supply (Executive Order 13211)

    In accordance with Executive Order 13211, the BLM has determined that this final rule is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It merely adjusts certain administrative cost recovery fees to account for inflation.

    Author

    The principal author of this rule is Mark Purdy of the Division of Regulatory Affairs, Bureau of Land Management.

    List of Subjects in 43 CFR Part 3000

    Public lands—mineral resources, Reporting and recordkeeping requirements.

    Janice M. Schneider, Assistant Secretary, Land and Minerals Management.

    For reasons stated in the preamble, the Bureau of Land Management amends 43 CFR part 3000 as follows:

    PART 3000—MINERALS MANAGEMENT: GENERAL 1. The authority citation for part 3000 continues to read as follows: Authority:

    16 U.S.C. 3101 et seq.; 30 U.S.C. 181 et seq., 301-306, 351-359, and 601 et seq.; 31 U.S.C. 9701; 40 U.S.C. 471 et seq.; 42 U.S.C. 6508; 43 U.S.C. 1701 et seq.; and Pub. L. 97-35, 95 Stat. 357.

    Subpart 3000—General 2. Amend § 3000.12 by revising paragraph (a) to read as follows:
    § 3000.12 What is the fee schedule for fixed fees?

    (a) The table in this section shows the fixed fees that you must pay to the BLM for the services listed for Fiscal Year 2016. These fees are nonrefundable and must be included with documents you file under this chapter. Fees will be adjusted annually according to the change in the Implicit Price Deflator for Gross Domestic Product (IPD-GDP) by way of publication of a final rule in the Federal Register and will subsequently be posted on the BLM Web site (http://www.blm.gov) before October 1 each year. Revised fees are effective each year on October 1.

    FY 2016 Processing and Filing Fee Table Document/action FY 2016 fee Oil & Gas (parts 3100, 3110, 3120, 3130, 3150) Noncompetitive lease application $410 Competitive lease application 160 Assignment and transfer of record title or operating rights 90 Overriding royalty transfer, payment out of production 10 Name change, corporate merger or transfer to heir/devisee 215 Lease consolidation 450 Lease renewal or exchange 410 Lease reinstatement, Class I 80 Leasing under right-of-way 410 Geophysical exploration permit application—Alaska 25 Renewal of exploration permit—Alaska 25 Geothermal (part 3200) Noncompetitive lease application 410 Competitive lease application 160 Assignment and transfer of record title or operating rights 90 Name change, corporate merger or transfer to heir/devisee 215 Lease consolidation 450 Lease reinstatement 80 Nomination of lands 115 plus per acre nomination fee 0.11 Site license application 60 Assignment or transfer of site license 60 Coal (parts 3400, 3470) License to mine application 10 Exploration license application 335 Lease or lease interest transfer 65 Leasing of Solid Minerals Other Than Coal and Oil Shale (parts 3500, 3580) Applications other than those listed below 35 Prospecting permit application amendment 65 Extension of prospecting permit 110 Lease modification or fringe acreage lease 30 Lease renewal 525 Assignment, sublease, or transfer of operating rights 30 Transfer of overriding royalty 30 Use permit 30 Shasta and Trinity hardrock mineral lease 30 Renewal of existing sand and gravel lease in Nevada 30 Public Law 359; Mining in Powersite Withdrawals: General (part 3730) Notice of protest of placer mining operations 10 Mining Law Administration (parts 3800, 3810, 3830, 3850, 3860, 3870) Application to open lands to location 10 Notice of location * 20 Amendment of location 10 Transfer of mining claim/site 10 Recording an annual FLPMA filing 10 Deferment of assessment work 110 Recording a notice of intent to locate mining claims on Stockraising Homestead Act lands 30 Mineral patent adjudication 3,075 (more than 10 claims) 1,535 (10 or fewer claims) Adverse claim 110 Protest 65 Oil Shale Management (parts 3900, 3910, 3930) Exploration license application 320 Application for assignment or sublease of record title or overriding royalty 65 * To record a mining claim or site location, you must pay this processing fee along with the initial maintenance fee and the one-time location fee required by statute. 43 CFR part 3833.
    [FR Doc. 2015-24699 Filed 9-29-15; 8:45 am] BILLING CODE 4310-84-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 204 and 237 [Docket No. DARS 2015-0009] RIN 0750-AI29 Defense Federal Acquisition Regulation Supplement: Electronic Copies of Contractual Documents (DFARS Case 2012-D056) AGENCY:

    Defense Acquisition Regulations System, Department of Defense (DoD).

    ACTION:

    Final rule.

    SUMMARY:

    DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to establish that the Electronic Data Access system is the primary tool for distributing contracts and contract data and to provide internal control procedures for data verification to ensure contract documents in the Electronic Data Access system are accurate representations of original documents. This rule also removes outmoded language that is not consistent with electronic document processes.

    DATES:

    Effective September 30, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Tresa Sullivan, telephone 571-372-6089.

    SUPPLEMENTARY INFORMATION:

    I. Background

    DoD published a proposed rule in the Federal Register at 80 FR 4846 on January 29, 2015, to establish that the Electronic Document Access (EDA) system is the primary tool for distributing contracts and contract data and to provide internal control procedures for data verification to ensure contract documents in EDA are accurate representations of original documents; and remove outmoded language that does not resonate with electronic document processes. No respondents submitted public comments in response to the proposed rule.

    II. Discussion and Analysis

    There are some minor editorial changes made from the proposed rule in the final rule to clarify the distribution of signed contract copies to contractors, uploading of certain contract attachments into EDA, and what constitutes an original signature. Accordingly, paragraph (a) is added to DFARS 204.201 to clarify that contracting officers shall distribute one signed copy or reproduction of the signed contract to the contractor in lieu of the requirements at FAR 4.201(a). DFARS 204.270-1, paragraph (a), and 204.802, paragraph (a), now include statements that contract attachments that are classified, are too sensitive for widespread distribution, or cannot be practicably converted to electronic format should be provided by separate cover and not uploaded into EDA. Additionally, section 204.802, paragraph (f) is added to state that a photocopy, facsimile, electronic, mechanically-applied and printed signature, seal, and date are considered to be an original signature, seal, and date.

    III. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

    IV. Regulatory Flexibility Act

    A final regulatory flexibility analysis has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., and is summarized as below. This rule is required to update guidance in the Defense Federal Acquisition Regulation Supplement (DFARS). A review of the DFARS language related to contract files and contract distribution resulted in recommendations to remove coverage that was structured to support processes for and distribution of paper files and paper copies and to add coverage reflecting current electronic processes.

    This final rule amends the DFARS to make the following changes:

    • DFARS 204.201, paragraph (a), clarifies that contracting officers shall distribute one signed copy or reproduction of the signed contract to the contractor in lieu of the requirements at FAR 4.201(a).

    • DFARS 204.270, Electronic Document Access, states the policy that the Electronic Data Access (EDA) System, an online repository for contractual instruments and supporting documents, is DoD's primary tool for electronic distribution of contractual documents. The rule provides that contract attachments that are classified, are too sensitive for widespread distribution, or cannot be practicably converted to electronic format should be provided by separate cover and not uploaded into EDA. This section also provides policy that agencies have certain responsibilities when posting documents to EDA, to include internal control procedures that ensure electronic copies of contract documents and data in EDA are accurate representations of original documents.

    • DFARS 204.802, Contract Files, is revised. The language in this section, which addresses contract file requirements for authenticating and conforming paper documents and copies, is being removed as it is outdated. A new paragraph (a) is being added, providing that electronic documents posted to the EDA system are a part of the contract file. Additionally, paragraph (f) is added to state that a photocopy, facsimile, electronic, mechanically-applied and printed signature, seal, and date are considered to be an original signature, seal, and date.

    No comments were received from the public in response to the initial regulatory flexibility analysis.

    There will be little, if any, impact on small entities as this rule primarily affects procedures for internal Government electronic posting and distribution of contractual documents.

    This rule does not require any reporting or recordkeeping, and no alternatives were identified that will accomplish the objectives of the rule.

    V. Paperwork Reduction Act

    The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

    List of Subjects in 48 CFR Parts 204 and 237

    Government procurement.

    Jennifer L. Hawes, Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 204 and 237 are amended as follows:

    1. The authority citation for 48 CFR parts 204 and 237 continues to read as follows: Authority:

    41 U.S.C. 1303 and 48 CFR chapter 1.

    PART 204—ADMINISTRATIVE MATTERS 2. Amend section 204.201 by adding paragraph (a) to read as follows:
    204.201 Procedures.

    (a) In lieu of the requirement at FAR 4.201 (a), contracting officers shall distribute one signed copy or reproduction of the signed contract to the contractor.

    204.270 [Amended]
    3. Amend section 204.270 by removing the text.
    4. Add sections 204.270-1 and 204.270-2 to subpart 204.2 to read as follows:
    204.270-1 Policy.

    (a) The Electronic Document Access (EDA) system, an online repository for contractual instruments and supporting documents, is DoD's primary tool for electronic distribution of contract documents and contract data. Contract attachments shall be uploaded to EDA, except for contract attachments that are classified, are too sensitive for widespread distribution (e.g., personally identifiable information and Privacy Act and Health Insurance Portability and Accountability Act, or cannot be practicably converted to electronic format (e.g., samples, drawings, and models). Section J (or similar location when the Uniform Contract Format is not used) shall include the annotation “provided under separate cover” for any attachment not uploaded to EDA.

    (b) Agencies are responsible for ensuring the following when posting documents, including contractual instruments, to EDA—

    (1) The timely distribution of documents; and

    (2) That internal controls are in place to ensure that—

    (i) The electronic version of a contract document in EDA is an accurate representation of the contract; and

    (ii) The contract data in EDA is an accurate representation of the underlying contract.

    204.270-2 Procedures.

    The procedures at PGI 204.270-2 provide details on how to record the results of data verification in EDA. When these procedures are followed, contract documents in EDA are an accurate representation of the contract and therefore may be used for audit purposes.

    5. Revise section 204.802 to read as follows:
    204.802 Contract files.

    (a) Any document posted to the Electronic Document Access (EDA) system is part of the contract file and is accessible by multiple parties, including the contractor. Do not include in EDA contract documents that are classified, too sensitive for widespread distribution (e.g., personally identifiable information and Privacy Act and Health Insurance Portability and Accountability Act), or attachments that cannot be practicably converted to electronic format (e.g., samples, drawings, and models). Inclusion of any document in EDA other than contracts, modifications, and orders is optional.

    (f) A photocopy, facsimile, electronic, mechanically-applied and printed signature, seal, and date are considered to be an original signature, seal, and date.

    204.805 [Amended]
    6. Amend section 204.805, paragraph (1), by removing “official contract files” and adding “contract files” in its place.
    PART 237—SERVICE CONTRACTING 7. Revise section 237.172 to read as follows:
    237.172 Service contracts surveillance.

    Ensure that quality assurance surveillance plans are prepared in conjunction with the preparation of the statement of work or statement of objectives for solicitations and contracts for services. These plans should be tailored to address the performance risks inherent in the specific contract type and the work effort addressed by the contract. (See FAR subpart 46.4.) Retain quality assurance surveillance plans in the contract file. See http://sam.dau.mil, Step Four—Requirements Definition, for examples of quality assurance surveillance plans.

    [FR Doc. 2015-24785 Filed 9-29-15; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Part 232 [Docket No. DARS 2015-0047] RIN 0750-AI70 Defense Federal Acquisition Regulation Supplement: Contract Debts—Conform to FAR Section Designations (DFARS Case 2015-D029) AGENCY:

    Defense Acquisition Regulations System, Department of Defense (DoD).

    ACTION:

    Final rule.

    SUMMARY:

    DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) subpart on contract debts to conform with the comparable Federal Acquisition Regulation (FAR) subpart.

    DATES:

    Effective September 30, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Julie Hammond, telephone 571-372-6174.

    SUPPLEMENTARY INFORMATION:

    I. Background

    DoD is amending the numbering structure for various sections in DFARS subpart 232.6 and revising section headings, where appropriate, in order to conform with the FAR. This change will align the DFARS with the same coverage in the FAR. No changes are made beyond the redesignation of DFARS subpart 232.6 section numbers and the conformation of DFARS section headings to the FAR.

    II. Publication of This Final Rule for Public Comment Is Not Required by Statute

    “Publication of proposed regulations”, 41 U.S.C. 1707, is the statute which applies to the publication of the Federal Acquisition Regulation. Paragraph (a)(1) of the statute requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because the DFARS sections are being renumbered merely to conform to the FAR sections and the DFARS section titles are being modified to conform to the FAR section titles. The content of the DFARS sections remains unchanged. This will alleviate any confusion the contracting officers may have and aid in moving between the two regulations with ease. These requirements affect only the internal operating procedures of the Government.

    III. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

    IV. Regulatory Flexibility Act

    The Regulatory Flexibility Act does not apply to this rule because this final rule does not constitute a significant DFARS revision within the meaning of FAR 1.501-1, and 41 U.S.C. 1707 does not require publication for public comment.

    V. Paperwork Reduction Act

    The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

    List of Subjects in 48 CFR Part 232

    Government procurement.

    Jennifer L. Hawes, Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR part 232 is amended as follows:

    PART 232—CONTRACT FINANCING 1. The authority citation for 48 CFR part 232 continues to read as follows: Authority:

    41 U.S.C. 1303 and 48 CFR chapter 1.

    232.605 [Redesignated as 232.602]
    2. Redesignate section 232.605 as 232.602. 3. In the newly redesignated section 232.602, revise the heading to read as follows:
    232.602 Responsibilities.
    232.606 [Redesignated as 232.603]
    4. Redesignate section 232.606 as 232.603.
    5. Revise the newly redesignated section 232.603 to read as follows:
    232.603 Debt determination.

    When transferring a case to the contract financing office, follow the procedures at PGI 232.603.

    232.610 [Redesignated as 232.604]
    6. Redesignate section 232.610 as 232.604. 7. Revise the newly redesignated section 232.604 to read as follows:
    232.604 Demand for payment.

    When issuing a demand for payment of a contract debt, follow the procedures at PGI 232.604.

    232.616 [Redesignated as 232.610]
    8. Redesignate section 232.616 as 232.610.
    9. Revise the newly redesignated section 232.610 to read as follows:
    232.610 Compromising debts.

    Only the department/agency contract financing offices (see PGI 232.070(c)) are authorized to compromise debts covered by this subpart.

    232.617 [Redesignated as 232.611]
    10. Redesignate section 232.617 as 232.611.
    232.611 [Amended]
    11. In the newly redesignated section 232.611, amend paragraph (a) by removing “FAR 32.617(a)(2)” and adding “FAR 32.611(a)(2)” in its place.
    [FR Doc. 2015-24786 Filed 9-29-15; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Part 192 [Docket No. PHMSA-2010-0026; Amdt. Nos. 191-23; 192-120; 195-100] RIN 2137-AE59 Pipeline Safety: Miscellaneous Changes to Pipeline Safety Regulations: Response to Petitions for Reconsideration AGENCY:

    Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT).

    ACTION:

    Final rule; response to petitions for reconsideration.

    SUMMARY:

    On March 11, 2015, PHMSA published a final rule amending the pipeline safety regulations to make miscellaneous changes that updated and clarified certain regulatory requirements. These amendments addressed several subject matter areas, including the performance of post-construction inspections, Type B onshore gas gathering line leak surveys, qualifying plastic pipe joiners, ethanol regulation, pipe transportation, offshore pipeline condition report filing, pressure reduction calculations for hazardous liquid pipeline anomalies, and components fabricated by welding. This final rule responds to petitions for reconsideration of the final rule.

    DATES:

    The effective date of the amendment to 49 CFR 192.305, published at 80 FR 12779, March 11, 2015, is delayed indefinitely. PHMSA will publish a document in the Federal Register announcing a new effective date.

    FOR FURTHER INFORMATION CONTACT:

    Kay McIver, Transportation Specialist, by telephone at 202-366-0113, or by electronic mail at [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    On March 11, 2015, PHMSA published a final rule amending the pipeline safety regulations to make miscellaneous changes that update and clarify certain regulatory requirements (80 FR 12762). These amendments address several subject matter areas, including the performance of post-construction inspections, Type B onshore gas gathering line leak surveys, qualifying plastic pipe joiners, ethanol regulation, pipe transportation, offshore pipeline condition report filing, pressure reduction calculations for hazardous liquid pipeline anomalies, and components fabricated by welding.

    II. Petitions for Reconsideration

    Collectively, PHMSA received four petitions for reconsideration of the final rule from the American Public Gas Association (APGA), the American Gas Association (AGA), the Interstate Natural Gas Association (INGAA), and the National Association of Pipeline Safety Representatives (NAPSR). The APGA, the AGA, and NAPSR expressed concerns about the provisions of the final rule applicable to construction inspection in § 192.305. INGAA and the AGA expressed concerns applicable to provisions in the final rule applicable to components fabricated by welding.

    Components Fabricated by Welding; 49 CFR 192.153 and 192.165(b)(3)

    In the final rule published on March 11, 2015, PHMSA added paragraph (e) to § 192.153 requiring that “a component having a design pressure established under paragraph (a) or paragraph (b) of this section and subject to the strength testing requirements of § 192.505(b) must be tested to at least 1.5 times the MAOP.” PHMSA also modified § 192.165(b)(3) to cross-reference this new subsection. In the preamble to the final rule, PHMSA noted “this proposal is not a change to the current pressure testing requirements found in Part 192, but [is] simply a clarification to ensure a clearer understanding of PHMSA's pressure testing requirements for certain ASME BPVC vessels located in compressor stations, meter stations and other Class 3 or Class 4 locations” (80 FR 12772, March 11, 2015).

    On April 10, 2015, INGAA and AGA filed separate petitions for reconsideration with PHMSA regarding this change (Docket No. PHMSA-2010-0026). INGAA stated that PHMSA's modifications to these code sections were not merely a clarification, but a departure from industry and agency understanding and practice, and require additional review. Specifically, INGAA claimed that PHMSA changed the acceptable test factor for a pressure vessel built under the American Society or Mechanical Engineers (ASME) Boiler and Pressure Vessel Code (BPVC) from the ASME requirements of 1.3 times the Maximum Allowable Working Pressure (MAWP) to 1.5 times the Maximum Allowable Operating Pressure (MAOP).

    INGAA and AGA requested that PHMSA reconsider this change due to a lack of technical justification and regulatory support, asking PHMSA to, at a minimum, conduct a study to validate the future use of 1.5 times MAOP for ASME pressure vessels and create an exception for ASME pressure vessels that were put into operation between July 14, 2004 (when the 1.3 factor was adopted by ASME) and October 1, 2015 (the final rule's effective date).

    After reviewing INGAA's and AGA's petitions for reconsideration, the language in the final rule, and the Pipeline Safety Regulations (PSR), PHMSA disagrees with the petitioners' claim that the change, as written, was a departure from industry and agency understanding. The pressure testing requirements in the PSR for pipelines in Class 3 and 4 areas, as well as facilities located in Class 1 and 2 areas, are subject to the requirements of § 192.505(b) and require a pressure test equal to a minimum of 1.5 times the MAOP. The testing requirements of § 192.505(b), which were not revised in the final rule, state that in a Class 1 or Class 2 location, each compressor station, regulator station, and measuring station must be tested to at least Class 3 location test requirements. PHMSA believes the amendment to § 192.153 and the corresponding cross-reference with § 192.165(b)(3) simply clarify the regulations, is consistent with existing agency understanding and practice, and ensures regulated parties do not incorrectly use the newer ASME BPVC design factor of 1.3 for pressure testing in instances where pipelines must be tested at 1.5 times MAOP.

    Regarding INGAA's request to create an exception for ASME pressure vessels put into operation between July 14, 2004, and October 1, 2015, from the requirements found at § 192.153(e), PHMSA is considering INGAA's request and will be evaluating the potential costs and environmental implications to operators to retest the non-compliant pressure vessels.

    Responsibility To Conduct Construction Inspections; 49 CFR 192.305

    Prior to the issuance of the final rule on March 11, 2015, § 192.305 stated that “each transmission pipeline or main must be inspected to ensure that it is constructed in accordance with this part,” and § 195.204 stated “inspection must be provided to ensure the installation of pipe or pipeline systems in accordance with the requirements of this subpart.” In the final rule issued on March 11, 2015, PHMSA amended § 192.305 to specify that a pipeline operator must not use operator personnel to perform a required inspection if the operator personnel also performed the construction task that required inspection. This amendment was based, in part, on a petition (Docket No. PHMSA-2010-0026) from the National Association of Pipeline Safety Representatives (NAPSR),1 which suggested that contractors who install transmission lines or mains should be prohibited from inspecting their own work for compliance purposes. On Wednesday, July 11, 2012, the Gas Pipeline Advisory Committee recommended that PHMSA adopt the amendment.

    1 NAPSR is a non-profit organization of state pipeline safety personnel who serve to promote pipeline safety in the United States and its territories. Its membership includes the staff manager responsible for regulating pipeline safety from each state that is certified to do so or conducts inspections under an agreement with DOT in lieu of certification.

    On April 10, 2015, the APGA petitioned for a clarification, or in the alternative, a reconsideration of the final rule. The APGA stated that the amendment to § 192.305 has the potential to impose significant costs on publicly-owned gas distribution systems with little, if any, corresponding safety benefit. The APGA stated that if a utility has only one qualified crew that works together to construct distribution mains, there would not be anyone working for the utility available and qualified to perform the inspection. According to the APGA, 585 municipal gas utilities have 5 or fewer employees. The APGA went on to say that prohibiting small utilities from having their own employees inspect pipeline construction work performed by employees of the municipal utility would significantly increase the costs for those utilities by requiring small utilities to contract with third parties for such inspections. The APGA stated that its concerns would be alleviated by a clarification stating a two-man utility crew may inspect each other's work and comply with the amendment to § 192.305.

    On April 10, 2015, the AGA petitioned PHMSA to extend the compliance date for the amendments in § 192.305 and § 195.204 from October 1, 2015, to January 1, 2016. The AGA asked for this additional time to allow pipeline operators to modify their construction inspection procedures, align associated documentation, and ensure proper training is in place for both company employees and contractors.

    On July 28, 2015, NAPSR petitioned PHMSA to reconsider the revision of § 192.305, as it undermines the 2002 NAPSR CR-1-02 resolution. NAPSR asked for a delay in the effective date of the final rule relative to § 192.305 until PHMSA has reviewed the rule and worked with NAPSR to address its concerns. According to NAPSR, allowing contractor personnel to inspect the work performed by their own company does not remove the inherent conflict of interest that is present and defeats the safety benefits that NAPSR intended. NAPSR stated that its original resolution would have prohibited contractors from self-inspecting their own work. NAPSR noted that, unfortunately, the final rule's amendment specifically allows contract personnel to inspect the work of their own crews so long as the inspector did not directly perform the task being inspected. Additionally, the amendment appears to apply to operator construction personnel as well, which was not NAPSR's original intent since, in its experience, operator personnel have less of an incentive to accept poor-quality work. Further, the final rule mistakenly decreases the scope of the inspection by changing the inspection requirements to only those found in Subpart G for the construction of mains and transmission lines,, rather than in all of Part 192 as it was prior to the amendment.

    As stated in the final rule, PHMSA believes that these construction inspections are important safety requirements because transmission pipelines and distribution mains are usually buried after construction, and subsequent examinations of these pipelines often involve a difficult excavation process. Upon further examination of the impacts of this amendment, in particular the issues raised by the petitioners, PHMSA believes that further examination and analysis of this safety issue is warranted prior to this change going into effect. Therefore, PHMSA is delaying the effective date of the amendment to 49 CFR 192.305 indefinitely. During this delay, PHMSA will be evaluating the ways operators are currently complying with § 192.305, developing guidance (based on input from industry and other regulatory bodies) and hosting a series of workshops on the guidance. Upon completion of this evaluation, PHMSA will determine the efficacy of the amendment and decide if any additional amendments to the current regulations are warranted and to propose any necessary amendments to § 192.305. Please note, the effective date for all the other amendments contained in the final rule remains October 1, 2015.

    III. Regulatory Analyses and Notices Executive Order 12866, Executive Order 13563, and DOT Regulatory Policies and Procedures

    This final rule is a non-significant regulatory action under section 3(f) of Executive Order 12866 (58 FR 51735) and therefore was not reviewed by the Office of Management and Budget. This final rule is not significant under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034).

    This final rule will not impose increased compliance costs on the regulated industry. The amendments to the March 11, 2015 final rule provide regulatory relief to pipeline operators involved in construction inspection and do not alter the cost benefit analysis and conclusions.

    Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), PHMSA must consider whether rulemaking actions would have a significant economic impact on a substantial number of small entities. This final rule will not impose increased compliance costs on the regulated industry. The delay in the effective date to § 192.305 does not alter our original certification that the March 11, 2015 final rule does not have a significant impact on a substantial number of small entities. Therefore, I certify under Section 605 of the Regulatory Flexibility Act (5 U.S.C. 605) that this final rule will not have a significant economic impact on a substantial number of small entities.

    Paperwork Reduction Act

    This final rule imposes no new requirements for recordkeeping and reporting.

    Unfunded Mandates Reform Act of 1995

    This final rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It would not result in costs of $100 million, adjusted for inflation, or more in any one year to either State, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of the final rule.

    National Environmental Policy Act

    The National Environmental Policy Act (42 U.S.C. 4321-4375) requires that Federal agencies analyze final actions to determine whether those actions will have a significant impact on the human environment. The Council on Environmental Quality regulations requires Federal agencies to conduct an environmental review considering (1) the need for the final action, (2) alternatives to the final action, (3) probable environmental impacts of the final action and alternatives, and (4) the agencies and persons consulted during the consideration process. 40 CFR 1508.9(b).

    The amendment adopted in this final rule will not impose increased compliance costs on the regulated industry or have any measureable effect on our original assessment. The amendments to the March 11, 2015, final rule provide regulatory relief to pipeline operators involved in construction inspection. Overall, this final rule will reduce the compliance burden without compromising pipeline safety. Therefore, PHMSA has determined that this final rule will not have a significant impact on the human environment.

    Privacy Act Statement

    Anyone may search the electronic form of all comments received for any of our dockets. You may review DOT's complete Privacy Act Statement published in the Federal Register on April 11, 2000 (70 FR 19477).

    Executive Order 13132

    PHMSA has analyzed this final rule according to Executive Order 13132 (“Federalism”). This final rule does not have a substantial direct effect on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. This final rule does not impose substantial direct compliance costs on State and local governments. This final rule does not preempt State law for intrastate pipelines. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

    Executive Order 13211

    This final rule is not a “significant energy action” under Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use). It is not likely to have a significant adverse effect on supply, distribution, or energy use. Further, the Office of Information and Regulatory Affairs has not designated this final rule as a significant energy action.

    The effective date for the amendment revising 49 CFR 192.305, published March 11, 2015, at 80 FR 12779, is delayed indefinitely.

    Issued in Washington, DC on September 25, 2015, under authority delegated in 49 CFR Part 1.97. Stacy Cummings, Interim Executive Director.
    [FR Doc. 2015-24763 Filed 9-29-15; 8:45 am] BILLING CODE P
    80 189 Wednesday, September 30, 2015 Proposed Rules DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 1051 [Doc. No. AO-15-0071; AMS-DA-14-0095] Milk in California; Reconvened Hearing on a Proposal To Establish a Federal Milk Marketing Order AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Notice to reconvene public hearing on proposed rulemaking.

    SUMMARY:

    In the event of a lapse of appropriations necessitating an adjournment of the public hearing on September 30, 2015, this Notice serves to establish a date to reconvene a public hearing that began on September 22, 2015, in Clovis, CA, to consider and take evidence on a proposal to establish a Federal milk marketing order to regulate the handling of milk in California.

    DATES:

    The hearing will reconvene at 9:00 a.m. two business days after the date Federal government operations resume. If the date is a Friday, the hearing will reconvene the following Monday. If the reconvening date is a Federal Holiday, the hearing will reconvene the next business day.

    ADDRESSES:

    The hearing will reconvene at the Clovis Veterans Memorial District Building, 808 Fourth Street, Clovis, California 93612; telephone (559) 299-0471. If still ongoing, the hearing will be held on October 22 and 23, 2015, at the Piccadilly Inn Airport Hotel, 5115 E. McKinley Avenue, Fresno, California 93727; telephone (559) 375-7760.

    FOR FURTHER INFORMATION CONTACT:

    William Francis, Director, Order Formulation and Enforcement Division, USDA/AMS/Dairy Program, Stop 0231—Room 2969-S, 1400 Independence Avenue SW., Washington, DC 20250-0231; (202) 720-6274; email address: [email protected]

    Persons requiring a sign language interpreter or other special accommodations should contact Diane Hirsch, AMS Dairy Program, at (425) 487-5601, email: [email protected], before the hearing begins.

    SUPPLEMENTARY INFORMATION:

    Prior documents in this proceeding:

    Notice of Hearing: Issued August 4, 2015; published August 5, 2015, FR 80 47210.

    In the event of a lapse of appropriations necessitating an adjournment of the public hearing on September 30, 2015, notice is hereby given that the hearing to consider the promulgation of a Federal Milk Marketing Order for the state of California will reconvene in session at the Clovis Veterans Memorial District Building, 808 Fourth Street, Clovis, California 93612; telephone (559) 299-0471. If still ongoing, the hearing will be held on October 22 and 23, 2015, at the Piccadilly Inn Airport Hotel, 5115 E. McKinley Avenue, Fresno, California 93727; telephone (559) 375-7760. At the reconvened hearing, testimony will continue to be received regarding Proposals 1-4 as included in the Notice of Hearing published August 5, 2015, 80 FR 47210.

    List of Subjects in 7 CFR 1051

    Milk marketing orders.

    Authority:

    7 U.S.C. 601-674, and 7253.

    Dated: September 25, 2015. Rex A. Barnes, Associate Administrator.
    [FR Doc. 2015-24799 Filed 9-29-15; 8:45 am] BILLING CODE 3410-02-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 51, 60, 61, and 63 [EPA-HQ-OAR-2014-0292; FRL-9934-85-OAR] RIN 2060-AS34 Revisions to Test Methods, Performance Specifications, and Testing Regulations for Air Emission Sources AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Announcement of public hearing.

    SUMMARY:

    The Environmental Protection Agency (EPA) is announcing a public hearing for the proposed rule titled, “Revisions to Test Methods, Performance Specifications, and Testing Regulations for Air Emission Sources,” that was published in the Federal Register on September 8, 2015. The hearing will be held in Research Triangle Park, North Carolina. The EPA is proposing technical and editorial corrections and revisions to regulations related to source testing of emissions. The EPA is proposing to make corrections and updates to testing provisions that contain inaccuracies and outdated procedures, and to provide alternatives to existing testing regulations. The revisions will improve the quality of data and provide testers flexibility to use recently-approved alternative procedures. Many of the changes were suggested by testers and other end-users and will not impose new substantive requirements on source owners or operators.

    DATES:

    The public hearing will be held on October 8, 2015, in Research Triangle Park. Please refer to SUPPLEMENTARY INFORMATION for additional information on the public hearing.

    ADDRESSES:

    The hearing will be held at the Environmental Protection Agency, 109 T.W. Alexander Drive, Research Triangle Park, NC 27711.

    Written comments on the proposed rule may also be submitted to the EPA electronically by mail, by facsimile, or through hand delivery/courier. Please refer to the proposed rule for the addresses and detailed instructions.

    A complete set of documents related to the proposed rule is available for public inspection at the EPA Docket Center located at Docket ID No. EPA-HQ-OAR-2014-0292, EPA/DC, WJC West Building, Room 3334, 1301 Constitution Avenue NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. A reasonable fee may be charged for copying. Documents are also available through the electronic docket system at www.regulations.gov.

    The proposal and information about the public hearing, can be found at http://www.epa.gov/ttn/emc/proposed.html.

    FOR FURTHER INFORMATION CONTACT:

    If you would like to speak at the public hearing or have questions concerning the public hearing or proposed rule, please contact Ms. Lula Melton, Office of Air Quality Planning and Standards, Air Quality Assessment Division (E143-02), Environmental Protection Agency, 109 T.W. Alexander Drive, Research Triangle Park, NC 27711; telephone: (919) 541-2910; fax number: (919) 541-0516; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    The proposed rule for which the EPA is holding the public hearing was published in the Federal Register on September 8, 2015 (80 FR 54146), and is available at http://www.epa.gov/ttn/emc/proposed.html. The public hearing will provide interested parties the opportunity to present data, views, or arguments concerning the proposed rule. The EPA may ask clarifying questions during the oral presentations but will not respond to the presentations at that time. Written statements and supporting information submitted during the comment period will be considered with the same weight as any oral comments and supporting information presented at the public hearing. Written comments must be postmarked by the last day of the comment period, November 9, 2015, as specified in the proposed rule.

    The public hearing will be held in Research Triangle Park, North Carolina, and will begin at 1:00 p.m. (local time) and continue until 4:00 p.m. (local time). The EPA will make every effort to accommodate all speakers that arrive and register before 1:00 p.m. Please note that the hearing is being held at a U.S. government facility, and individuals planning to attend the hearing should be prepared to show valid picture identification to the security staff in order to gain access to the building. The REAL ID Act, passed by Congress in 2005, established new requirements for entering federal facilities. These requirements took effect July 21, 2014. If your driver's license is issued by American Samoa, Louisiana, Minnesota, New Hampshire, or New York, you must present an additional form of identification to enter the federal building in Research Triangle Park, North Carolina where the public hearing will be held. Acceptable alternative forms of identification include federal employee badges, passports, enhanced driver's licenses, military identification cards, birth certificates, social security cards, voter registration cards, and U.S. citizen ID cards. In addition, you will need to obtain a property pass for any personal belongings you bring with you. Upon leaving the building, you will be required to return this property pass to the security desk. No large signs will be allowed in the building, cameras may only be used outside of the building, and demonstrations will not be allowed on federal property for security reasons.

    If you would like to present oral testimony at the hearing, please notify Ms. Lula Melton, U.S. EPA, Office of Air Quality Planning and Standards, Mail Code: E143-02, 109 T.W. Alexander Drive, Research Triangle Park, NC 27711; telephone: (919) 541-2910; fax number: (919) 541-0516; email address: [email protected] (preferred method for registering) no later than October 5, 2015. Ms. Melton will arrange a general time slot for you to speak. The EPA will make every effort to follow the schedule as closely as possible on the day of the hearing.

    Oral testimony will be limited to 5 minutes for each commenter to address the proposed revisions. The EPA will not provide audiovisual equipment for presentations unless we receive special requests in advance. Commenters should notify Ms. Melton if they will need specific equipment and/or specific translation services for non-English speaking commenters. The EPA encourages commenters to provide written versions of their oral testimonies either electronically on computer disk or CD-ROM, or in paper copy.

    The hearing schedule, including lists of speakers, will be posted at http://www.epa.gov/ttn/emc/proposed.html prior to the hearings. Verbatim transcripts of the hearings and written statements will be included in the rulemaking docket.

    How can I get copies of this document and other related information?

    The EPA has established the official public docket for the proposed rule under Docket ID No. EPA-HQ-OAR-2014-0292. Please refer to the proposed rule (80 FR 54146, September 8, 2015) for detailed information on accessing information related to the proposed rule.

    Dated: September 18, 2015. Michael Koerber, Acting Director, Office of Air Quality Planning and Standards.
    [FR Doc. 2015-24859 Filed 9-29-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2015-0570; FRL-9934-43-Region 9] Approval of California Air Plan Revisions, San Joaquin Valley Unified Air Pollution Control District AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve a revision to the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) portion of the California State Implementation Plan (SIP). This revision concerns emissions of volatile organic compounds (VOCs), oxides of nitrogen (NOX), and particulate matter (PM) from wood burning devices. We are proposing to approve a local rule to regulate these emission sources under the Clean Air Act (CAA or the Act). We are taking comments on this proposal and plan to follow with a final action.

    DATES:

    Any comments must arrive by October 30, 2015.

    ADDRESSES:

    Submit comments, identified by docket ID number EPA-R09-OAR-2015-0570, by one of the following methods:

    1. Federal eRulemaking Portal: www.regulations.gov. Follow the on-line instructions.

    2. Email: [email protected]

    3. Mail or deliver: Andrew Steckel (Air-4), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.

    Instructions: All comments will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through www.regulations.gov or email. www.regulations.gov is an “anonymous access” system, and the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send email directly to the EPA, your email address will be automatically captured and included as part of the public comment. If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

    Docket: Generally, documents in the docket for this action are available electronically at www.regulations.gov or in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed at www.regulations.gov, some information may be publicly available only at the hard copy location (e.g., copyrighted material, large maps), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

    FOR FURTHER INFORMATION CONTACT:

    Rynda Kay, EPA Region IX, (415) 947-4118, [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document, “we,” “us” and “our” refer to the EPA.

    Table of Contents I. The State's Submittal A. What rule did the State submit? B. Are there other versions of this rule? C. What is the purpose of the submitted rule revision? II. The EPA's Evaluation and Action A. How is the EPA evaluating the rule? B. Does the rule meet the evaluation criteria? C. EPA Recommendations to Further Improve the Rule D. Public Comment and Proposed Action III. Incorporation by reference IV. Statutory and Executive Order Reviews I. The State's Submittal A. What rule did the State submit?

    Table 1 lists the rule addressed by this proposal with the date that it was adopted by the local air agency and submitted by the California Air Resources Board.

    Table 1—Submitted Rule Local agency Rule No. Rule title Amended Submitted SJVUAPCD 4901 Wood Burning Fireplaces and Wood Burning Heaters 09/18/14 11/06/14

    On December 18, 2014, the EPA determined that the submittal for SJVUAPCD Rule 4901 met the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review.

    B. Are there other versions of this rule?

    We approved an earlier version of Rule 4901 into the SIP on October 11, 2009 (74 FR 57907). The SJVUAPCD adopted revisions to the SIP-approved version on September 18, 2014 and CARB submitted them to us on November 6, 2014. While we can act on only the most recently submitted version, we have reviewed materials provided with previous submittals.

    C. What is the purpose of the submitted rule revision?

    VOCs help produce ground-level ozone, smog and PM, which harm human health and the environment. NOX helps produce ground-level ozone, smog and PM, which harm human health and the environment. PM, including PM equal to or less than 2.5 microns in diameter (PM2.5) and PM equal to or less than 10 microns in diameter (PM10), contributes to effects that are harmful to human health and the environment, including premature mortality, aggravation of respiratory and cardiovascular disease, decreased lung function, visibility impairment, and damage to vegetation and ecosystems. Section 110(a) of the CAA requires States to submit regulations that control VOC, NOX, and PM emissions.

    Rule 4901 is designed to limit emissions of these pollutants generated by the use of wood burning fireplaces, wood burning heaters, and outdoor wood burning devices. The rule establishes requirements for the sale/transfer, operation, and installation of wood burning devices and on the advertising of wood for sale intended for burning in a wood burning fireplace, wood burning heater, or outdoor wood burning device within the San Joaquin Valley Air Basin (San Joaquin Valley).

    The SIP-approved rule was modified to replace the existing episodic curtailment requirement, which required declaration of a mandatory wood burning curtailment day whenever the PM2.5 concentration was forecasted to be greater than or equal to 30 micrograms per cubic meter (µg/m3) or the PM10 concentration was forecasted to be greater than or equal to 135 µg/m3, with a new two-tiered curtailment program. During a Level One Episodic Wood Burning Curtailment, which is triggered when the PM2.5 concentration is forecasted to be between 20-65 µg/m3, operation of wood burning fireplaces and unregistered wood burning heaters is prohibited, but properly operated, wood burning heaters that meet certification requirements and have a current registration with the District may be used. Specific certification and registration requirements are outlined in the rule. During a Level Two Episodic Wood Burning Curtailment, which is triggered when the PM2.5 concentration is forecasted to be above 65 µg/m3 or the PM10 concentration is forecasted to be above 135 µg/m3, operation of any wood burning device is prohibited.1

    1 Locations where natural gas service is not available or where a wood burning device is the sole source of heat in a residence are exempt from both levels of curtailment.

    The two-tiered curtailment program also replaces a contingency measure provision which would have been implemented in the event that the EPA finalized a rulemaking finding San Joaquin Valley had failed to attain the 1997 PM2.5 National Ambient Air Quality Standard (NAAQS) by the applicable deadline. The provision would have required a ban on the operation of all wood burning devices when the PM2.5 concentration was predicted to be greater than or equal to 20 µg/m3 or the PM10 concentration was predicted to be greater than or equal to 135 µg/m3.

    Additionally, the revised rule adds outdoor wood burning heaters to the applicability paragraph, explicitly references to the New Source Performance Standard (NSPS) for New Residential Wood Heaters (40 CFR part 60, subpart AAA) to assure compliance with the latest Federal requirements, and includes other editorial revisions to improve rule clarity.

    The EPA's technical support document (TSD) has more information about this rule.

    II. The EPA's Evaluation and Action A. How is the EPA evaluating the rule?

    SIP rules must be enforceable (see CAA section 110(a)(2)), must not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements (see CAA section 110(l)), and must not modify certain SIP control requirements in nonattainment areas without ensuring equivalent or greater emissions reductions (see CAA section 193).

    The San Joaquin Valley is currently designated and classified as an extreme 1-hour ozone nonattainment area and an extreme 8-hour ozone nonattainment area under both the 1997 and 2008 8-hour ozone standards (40 CFR 81.305). CAA section 172(c)(1) requires ozone nonattainment areas to implement all reasonably available control measures (RACM), including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology (RACT), as expeditiously as practicable. Therefore, SJVUAPCD must implement RACM for ozone precursors. While our stringency discussion below focuses on PM emissions, we are not aware of reasonably available controls for these sources for ozone precursors that are not also reasonably available controls for PM. In addition, because residential wood burning takes place in the winter months when ozone concentrations are lower and the probability of exceeding the ozone NAAQS is low, we do not believe it is necessary to assess RACM/RACT for ozone and its precursors independently from our assessment of RACM/RACT for PM.

    San Joaquin Valley is designated and classified as a moderate nonattainment area for the 2006 24-hour PM2.5 standard (40 CFR 81.305). CAA sections 172(c)(1) and 189(a)(1)(C) require moderate PM2.5 nonattainment areas to implement RACM and RACT as expeditiously as practicable. Therefore, SJVUAPCD must implement RACM, including RACT, for PM2.5 and PM2.5 precursors.

    San Joaquin Valley is designated and classified as a serious nonattainment area for the 1997 annual and 1997 24-hour PM2.5 standards (40 CFR 81.305). CAA section 189(b)(1)(B) requires serious PM2.5 nonattainment areas to implement best available control measures (BACM), including best available control technology (BACT), within 4 years after reclassification of the area to serious. Therefore, SJVUAPCD must implement BACM, including BACT, for PM2.5 and PM2.5 precursors.

    San Joaquin Valley is currently designated attainment for PM10 (40 CFR 81.305). Accordingly, SJVUAPCD is not required to implement RACM/RACT or BACM/BACT for PM10 and PM10 precursors. Therefore, we are not evaluating Rule 4901 for compliance with RACM or BACM requirements for PM10.

    Guidance and policy documents that we use to evaluate enforceability, revision/relaxation and rule stringency requirements for the applicable criteria pollutants include the following:

    1. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (the Bluebook, revised January 11, 1990). 2. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook). 3. “Restatement to Update of EPA's SSM Policy Applicable to SIPs”, 80 FR 33839, June 12, 2015. 4. “Strategies for Reducing Residential Wood Smoke”, EPA-456/B-13-001, March 2013. B. Does the rule meet the evaluation criteria?

    We believe this rule is consistent with CAA requirements and relevant guidance regarding enforceability, SIP revisions, and RACM/RACT and BACM/BACT.

    The rule requirements and applicability are clear, and the monitoring, recordkeeping, reporting and other provisions sufficiently ensure that affected sources and regulators can evaluate and determine compliance with Rule 4901 consistently. Additionally, Rule 4901 includes several provisions that together provide continuous control of PM emissions consistent with the CAA and EPA guidance on start-up, shut-down, and malfunction, including an episodic curtailment program, certification and registration requirements, restrictions concerning materials that can be burned, and a limit on visible emissions from residential chimneys.

    The District estimates that the new tiered curtailment program described in Rule 4901, Paragraph 5.6, would reduce average winter burning season emissions by 3.27 tons per day (tpd) PM2.5 and would reduce annual average emissions by 1.09 tpd PM2.5, when compared to the current SIP-approved version of Rule 4901. The District states that allowing registered devices to operate on additional days (i.e., during Level One Curtailment days) and subsidizing change-outs for cleaner burning devices would provide significant incentive for residents to transition from higher polluting devices and result in additional emission reductions beyond 3.27 tpd PM2.5.

    We propose to determine that our approval of the submittal would comply with CAA section 110(l), because the proposed SIP revision would not interfere with the on-going process for ensuring that requirements for RFP and attainment are met and the submitted SIP revision is at least as stringent as the rule previously approved into the SIP. CAA section 193 does not apply to this action because the submitted SIP revision does not weaken any SIP control requirement in effect before November 15, 1990.

    We assess whether Rule 4901 implements BACM/BACT for PM2.5,2 by using an analysis provided by the District and comparing provisions found in Rule 4901 with the EPA document “Strategies for Reducing Residential Wood Smoke”, EPA-456/B-13-001, March 2013 and current State and District wood burning rules. This evaluation is described in the TSD. Based on this evaluation, we believe the September 18, 2014 version of Rule 4901 implements BACM/BACT for wood burning devices in the San Joaquin Valley considering technological and economic feasibility.

    2 Because RACM/RACT represents a less stringent level of control than BACM/BACT, we have not separately evaluated the rule with respect to RACM/RACT.

    C. EPA Recommendations to Further Improve the Rule

    The TSD describes additional rule revisions that we recommend for the next time the local agency modifies the rule but are not currently the basis for rule disapproval.

    D. Public Comment and Proposed Action

    As authorized in section 110(k)(3) of the Act, the EPA proposes to fully approve the submitted rule because we believe it fulfills all relevant requirements. We will accept comments from the public on this proposal until October 30, 2015. Unless we receive convincing new information during the comment period, we intend to publish a final approval action that will incorporate this rule into the federally enforceable SIP.

    III. Incorporation by Reference

    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 SJVUAPCD rule described in Table 1 of this notice. The EPA has made, and will continue to make, these documents available electronically through www.regulations.gov and in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

    IV. Statutory and Executive Order Reviews

    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, the EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed 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 Clean Air Act; and

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

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

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: September 14, 2015. Jared Blumenfeld, Regional Administrator, Region IX.
    [FR Doc. 2015-24870 Filed 9-29-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R09-OAR-2015-0633; FRL-9934-94-Region 9] PM10 Plans and Redesignation Request; Truckee Meadows, Nevada; Deletion of TSP Area Designation AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve two revisions to the Nevada state implementation plan (SIP). The first revision provides a demonstration of implementation of best available control measures (BACM) for control of particulate matter with an aerodynamic diameter less than or equal to a nominal ten micrometers (PM10) within Truckee Meadows. The second revision is a plan that provides for the maintenance of the national ambient air quality standard for PM10 in Truckee Meadows through 2030, includes an emissions inventory consistent with attainment, and establishes motor vehicle emissions budgets. In connection with these proposed approvals, the EPA is proposing to determine that major stationary sources of PM10 precursors do not contribute significantly to elevated PM10 levels in the area. Also, based in part on the proposed approvals of the BACM demonstration and maintenance plan and proposed determination regarding PM10 precursors, the EPA is proposing to approve the State of Nevada's request for redesignation of the Truckee Meadows nonattainment area to attainment for the PM10 standard. Lastly, the EPA is proposing to delete the area designation for Truckee Meadows for the revoked national ambient air quality standard for total suspended particulate (TSP). The EPA is proposing these actions because the SIP revisions meet the applicable statutory and regulatory requirements for such plans and related motor vehicle emissions budgets and because the area meets the Clean Air Act requirements for redesignation of nonattainment areas to attainment.

    DATES:

    Comments must be received on or before October 30, 2015.

    ADDRESSES:

    Submit your comments, identified by Docket ID Number EPA-R09-OAR-2015-0633, by one of the following methods:

    1. http://www.regulations.gov: Follow the on-line instructions for submitting comments.

    2. Email: [email protected]

    3. Mail or deliver: John Ungvarsky (AIR-2), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901. Deliveries are only accepted during the Regional Office's normal hours of operation.

    Instructions: All comments will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as suchand should not be submitted through http://www.regulations.gov or email. http://www.regulations.gov is an anonymous access system, and the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send email directly to EPA, your email address will be automatically captured and included as part of the public comment. If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment.

    Docket: The index to the docket and documents in the docket for this action are generally available electronically at www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed at www.regulations.gov, some information may be publicly available only at the hard copy location (e.g., copyrighted material, large maps), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

    FOR FURTHER INFORMATION CONTACT:

    John Ungvarsky, Air Planning Office (AIR-2), U.S. Environmental Protection Agency, Region IX, (415) 972-3963, [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document, whenever “we,” “us,” or “our” is used, we mean the EPA. This supplementary information section is arranged as follows:

    Table of Contents I. Background II. The State's Submittals III. Procedural Requirements for Adoption and Submittal of SIP Revisions IV. Clean Air Act Requirements for Redesignation to Attainment V. Evaluation of the State's Redesignation Request for Truckee Meadows A. The Area Has Attained the PM10 NAAQS B. The Area Has Met All Applicable Requirements for Purposes of Redesignation Under Section 110 and Part D of the CAA and Has a Fully Approved Applicable Implementation Plan Under Section 110(k) of the CAA 1. Basic SIP Requirements Under CAA Section 110 2. SIP Requirements Under Part D a. Emissions Inventory b. Permits for New and Modified Stationary Sources c. Best Available Control Measures d. Control Requirements for PM10 Precursors e. Transportation Conformity 3. Conclusion With Respect to Section 110 and Part D Requirements C. The Improvement in Air Quality Is Due to Permanent and Enforceable Reductions in Emissions D. The Area Has a Fully-Approved Maintenance Plan, Including a Contingency Plan, Under CAA Section 175A 1. Attainment Inventory 2. Maintenance Demonstration 3. Monitoring Network 4. Verification of Continued Attainment 5. Contingency Plan 6. Transportation Conformity and Motor Vehicle Emissions Budgets 7. Conclusion VI. Proposed Deletion of TSP Designation for Truckee Meadows A. General Considerations B. Deletion of TSP Nonattainment Area Designation for Truckee Meadows VII. Proposed Actions and Request for Public Comment VIII. Statutory and Executive Order Reviews I. Background

    On April 30, 1971 (36 FR 8186), pursuant to section 109 of the Clean Air Act (CAA), as amended in 1970, the EPA promulgated the original national ambient air quality standards (NAAQS or “standards”) for the “criteria” pollutants, which included carbon monoxide, hydrocarbons, nitrogen dioxide, photochemical oxidant, sulfur dioxide, and particulate matter.1 The NAAQS are set at concentrations intended to protect public health and welfare. The original NAAQS for particulate matter were defined in terms of a reference method that called for measuring particulate matter up to a nominal size of 25 to 45 micrometers or microns. This fraction of total ambient particulate matter is referred to as “total suspended particulate” or TSP. Within nine months of promulgation of the original NAAQS, each state was required under section 110 of the 1970 amended Act to adopt and submit to the EPA a plan, referred to as a SIP, which provides for the implementation, maintenance, and enforcement of each of the NAAQS within each State. The State of Nevada submitted its SIP on January 28, 1972, and the EPA took action on it later that year. 37 FR 10842 (May 31, 1972).

    1 Particulate matter is the generic term for a broad class of chemically and physically diverse substances that exist as discrete particles (liquid droplets or solids) over a wide range of sizes. Particles originate from a variety of anthropogenic stationary and mobile sources as well as from natural sources. Particles may be emitted directly or form in the atmosphere by transformations of gaseous emissions such as sulfur oxides (SOX), nitrogen oxides (NOX), and volatile organic compounds (VOC). The chemical and physical properties of particulate matter vary greatly with time, region, meteorology, and source category. SOX, NOX, and VOC are referred to as PM10 precursors. As discussed later in this proposed rule, precursor emissions do not contribute significantly to elevated ambient PM10 concentrations in Truckee Meadows.

    Generally, SIPs were to provide for attainment of the NAAQS within three years after EPA approval of the plan. However, many areas of the country did not attain the NAAQS within the statutory period. In response, Congress amended the Act in 1977 to establish a new approach, based on area designations, for attaining the NAAQS. Under section 107(d) of the 1977 amended Act, states were to make recommendations for all areas within their borders as attainment, nonattainment, or unclassifiable for each of the NAAQS, including TSP, and the EPA was to designate areas based on those recommendations, as modified if appropriate. For the State of Nevada, the state recommended, and the EPA approved, the use of hydrographic areas as the geographic basis for designating air quality planning areas. 67 FR 12474 (March 19, 2002). For the TSP NAAQS, the EPA designated a number of areas in Nevada as “nonattainment,” including Truckee Meadows 2 (hydrographic area (HA) #87). 43 FR 8962, at 9012 (March 3, 1978). The area designations for air quality planning purposes within the State of Nevada are codified at 40 CFR 81.329.

    2 Truckee Meadows, also referred to as the “Reno planning area,” lies in the far southern part of Washoe County. Washoe County is located in the northwestern portion of Nevada and is bordered by the State of California to the west and the State of Oregon to the north. Within the State of Nevada, the counties of Humboldt, Pershing, Storey, Churchill, Lyon, and the city of Carson City bound Washoe County to the east and south. Located at an average elevation of 4,500 feet above sea level, Truckee Meadows encompasses a land area of approximately 200 square miles and is surrounded by mountain ranges, which can lead to persistent wintertime temperature inversions where a layer of cold air is trapped in the valley. Warmer air above the inversion acts as a lid, containing and concentrating air pollutants at ground level. Approximately two-thirds of Washoe County's population lives in the Truckee Meadows area. Anthropogenic activities, such as automobile use and residential wood combustion, are also concentrated here. Washoe County has experienced significant growth in population since 1990, with an increase in population from approximately 257,000 in 1990 to approximately 422,000 in 2011, an increase of 64 percent over that 21-year period. The two major cities in Truckee Meadows are Reno and Sparks.

    As amended in 1977, the CAA required states to revise their SIPs by January 1979 for all designated nonattainment areas. The various local entities and the State of Nevada responded by developing and submitting attainment plans for the TSP nonattainment areas, including Truckee Meadows,3 and in 1981, the EPA approved these plans on condition that the State submit, within a prescribed period of time, revisions to correct certain deficiencies. 46 FR 21758 (April 14, 1981). In 1982, we found that the state had submitted the required revisions correcting the identified deficiencies, and we revoked the conditions placed on our approval of the TSP plans. 47 FR 15790 (April 13, 1982).

    3 The reference here is to the TSP portions of the Truckee Meadows Air Quality Implementation Plan (December 6, 1978).

    In 1987, the EPA revised the NAAQS for particulate matter, eliminating TSP as the indicator for the NAAQS and replacing it with the “PM10” indicator. 52 FR 24634 (July 1, 1987). PM10 refers to particles with an aerodynamic diameter less than or equal to a nominal 10 microns. At that time, EPA established two PM10 standards: A 24-hour standard of 150 micrograms per cubic meter (µg/m3) and an annual standard of 50 µg/m3.4 We indicated in the preamble to our regulations implementing the then-new PM10 NAAQS that we would consider deletion of TSP area designations once the EPA had reviewed and approved revised SIPs that include control strategies for the PM10 NAAQS and once the EPA had promulgated PM10 increments for the prevention of significant deterioration (PSD) program. 52 FR 24672, at 24682 (July 1, 1987).

    4 In 2006, the EPA retained the 24-hour PM10 standard but revoked the annual PM10 standard. 71 FR 61144 (October 17, 2006). More recently, as part of the Agency's periodic review of the NAAQS, EPA reaffirmed the 24-hour PM10 NAAQS. 78 FR 3086 (January 15, 2013). See 40 CFR 50.6 (“National primary and secondary ambient air quality standards for PM10”).

    Under our regulations for implementing the revised particulate matter NAAQS (i.e., the PM10 NAAQS), the EPA did not designate areas as nonattainment, attainment, or unclassifiable but categorized areas into three groups, referred to as Group I, Group II, or Group III. Group I areas were those that had a probability of not attaining the PM10 NAAQS (based on existing TSP data) of at least 90%. Group I areas were required to submit SIP revisions that contain full PM10 control strategies including a demonstration of attainment. 52 FR 24672, at 24681 (July 1, 1987). We identified the Las Vegas (HA #212) and Reno (HA #87, i.e., Truckee Meadows) planning areas as Group I areas. 52 FR 29383 (August 7, 1987) and 55 FR 45799 (October 31, 1990).

    The CAA was significantly amended in 1990. Under the 1990 amended Act, Congress replaced the PM10 regulatory approach established by the EPA in 1987 with the area designation concept and designated former “Group I” areas and certain other areas as nonattainment areas for PM10 by operation of law. See CAA section 107(d)(4)(B). As former “Group I” areas, the Reno planning area (i.e., Truckee Meadows) was designated as a nonattainment area for PM10 by operation of law. 56 FR 11101 (March 15, 1991). Truckee Meadows was initially classified as a “Moderate” PM10 nonattainment area with an applicable attainment date of December 31, 1994, but despite improvements in ambient particulate conditions, Truckee Meadows was later reclassified by operation of law to “Serious” upon the EPA's determination that the area had failed to attain the standard by the “Moderate” area attainment date (i.e., based on ambient PM10 data for the 1992-1994 period). 66 FR 1268 (January 8, 2001). States with “Serious” PM10 nonattainment areas were required under the CAA, as amended in 1990, to submit revisions to their SIPs to, among other things, demonstrate attainment of the PM10 standard as expeditiously as practicable, but no later than December 31, 2001. See CAA section 188(c). Despite further improvements, Truckee Meadows failed to attain the December 31, 2001 attainment date based on ambient PM10 data for the 1999-2001 period. Such areas are required to submit an attainment plan under CAA section 189(d) (referred to as a “Five Percent” plan), but the SIP submittal requirement for a Five Percent plan for Truckee Meadows was suspended by a “clean data” determination by the EPA based on ambient PM10 data for the 2007-2009 period. 76 FR 21807 (April 19, 2011).

    The 1990 Act Amendments also provided for the continued transition from TSP to PM10. Specifically, section 107(d)(4)(B) states in relevant part: “Any designation for particulate matter (measured in terms of total suspended particulates) that the Administrator promulgated pursuant to this subsection (as in effect immediately before November 15, 1990) shall remain in effect for purposes of implementing the maximum allowable increases in concentrations of particulate matter (measured in terms of total suspended particulates) pursuant to section 163(b) of this title, until the Administrator determines that such designation is no longer necessary for that purpose.”

    Section 166(f) of the 1990 amended Act authorizes the EPA to replace the TSP increments with PM10 increments, and in 1993, the EPA promulgated the PM10 increments and revised the PSD regulations accordingly. 58 FR 31622 (June 3, 1993). In our June 1993 final rule, we indicated that the replacement of the TSP increments with PM10 increments negates the need for the TSP attainment or unclassifiable area designations to be retained. We also indicated that we would delete such TSP designations in 40 CFR part 81 upon the occurrence of, among other circumstances, the EPA's approval of a State's or local agency's revised PSD program containing the PM10 increments. 58 FR 31622, at 31635 (June 3, 1993).

    In November 2002, we deleted the TSP attainment or unclassifiable area designations throughout the State of Nevada, except for those in Clark County. 67 FR 68769 (November 13, 2002). In April 2013, we deleted the TSP attainment or unclassifiable area designations within Clark County and also deleted the TSP nonattainment area designations for all of the Nevada TSP nonattainment areas, except for Las Vegas Valley and Truckee Meadows.5 78 FR 22425 (April 16, 2013). In July 2014, we deleted the TSP nonattainment area designation for Las Vegas Valley, and in today's proposed rule, we are proposing to delete the TSP nonattainment area designation for Truckee Meadows.

    5 In June 1992, the State of Nevada requested that we reclassify the eight existing TSP nonattainment areas in Nevada to “unclassifiable” status. See letter from L.H. Dodgion, Administrator, NDEP, to Daniel W. McGovern, Regional Administrator, EPA Region IX, dated June 15, 1992. We believe that deletion of the TSP nonattainment designations is administratively more efficient than redesignation of the area to unclassifiable. As noted above, we have already deleted seven of the TSP nonattainment area designations and are proposing to delete the one for Truckee Meadows herein.

    II. The State's Submittals

    The Nevada Division of Environmental Protection (NDEP) is the state agency with overall responsibility for the Nevada SIP and is the designated agency for submitting SIPs and SIP revisions to the EPA for approval. The Washoe County District Board of Health (“Health District”), which administers air quality programs through the Health District's Air Quality Management Division (“WCAQMD”), is empowered under state law to develop air quality plans within Washoe County. The Health District is also empowered under state law to regulate stationary sources within Washoe County with the exception of certain types of power plants, which lie exclusively within the jurisdiction of the NDEP. After it adopts an air quality plan for Washoe County, the Health District submits the plan to NDEP for adoption as part of the Nevada SIP and then for submittal to the EPA for approval.

    As noted above, the Health District adopted, and the EPA approved, an air quality plan in the 1970s to provide for attainment of the TSP standard in Truckee Meadows. Another plan was required for Truckee Meadows in response to the area's classification as a “Moderate” nonattainment area for PM10 under the Clean Air Act Amendments of 1990. On April 15, 1991, the NDEP submitted certain District regulations intended to reduce PM10 emissions in Truckee Meadows to the EPA. On October 30, 1991, the state submitted “Nevada State Implementation Plan for the Truckee Meadows Air Basin, Particulate Matter (PM10)” (“1991 PM10 Attainment Plan”), a PM10 plan for the Truckee Meadows area to address the requirements in CAA section 189(a) for “Moderate” PM10 nonattainment areas. The 1991 PM10 Attainment Plan included a demonstration that the attainment deadline for the Truckee Meadows moderate nonattainment area (December 31, 1994) was not practicably achievable, and carried forward the District regulations that had been submitted previously on April 15, 1991. On March 7, 1994, the NDEP submitted amended District regulations that were intended to address deficiencies that the EPA had identified through its review of the regulations submitted in April 1991 and the 1991 PM10 Attainment Plan submitted in October 1991.

    As noted above, in 2001, the EPA reclassified the Truckee Meadows area to “Serious” nonattainment for the PM10 NAAQS, triggering the requirement for a new attainment plan, and on August 5, 2002, the NDEP submitted a PM10 plan for Truckee Meadows to address the requirements in CAA section 189(b) for “Serious” PM10 nonattainment areas. See “Revisions to the Nevada Particulate Matter (PM10) State Implementation Plan for the Truckee Meadows Air Basin,” August 2002 (“2002 PM10 Attainment Plan”). Generally, each subsequent air quality plan builds upon the foundation established by earlier plans, and, in this instance, the 2002 PM10 Attainment Plan built upon and superseded the earlier “Moderate” area plans. The 2002 PM10 Attainment Plan included an analysis of BACM for the Truckee Meadows area and regulations to control PM10 emissions from all significant PM10 sources identified in that BACM analysis—i.e., street sanding and sweeping operations, fugitive dust-generating activities, and residential wood combustion. The District Regulations submitted as part of the 2002 PM10 Attainment Plan superseded those that had been submitted in April 1991 and those submitted in March 1994. The EPA has approved the various District regulations submitted in connection with the 2002 PM10 Attainment Plan, but has not otherwise taken action on the “Moderate” or “Serious” area attainment plans.

    In 2009, based on ambient PM10 monitoring data showing that the area had attained the PM10 NAAQS, the WCAQMD developed a maintenance plan, and the NDEP submitted the plan to the EPA for approval along with a request to redesignate Truckee Meadows from nonattainment to attainment for the PM10 standard. See “Redesignation Request and Maintenance Plan for the Truckee Meadows 24-Hour PM10 Non-Attainment Area,” May 28, 2009 (“2009 PM10 Maintenance Plan”). The 2009 PM10 Maintenance Plan included motor vehicle emissions budgets (MVEBs) for the Truckee Meadows area, and the EPA found that MVEBs for PM10 contained in the 2009 PM10 Maintenance Plan were adequate for transportation conformity purposes. 75 FR 27776 (May 18, 2010). The WCAQMD subsequently revised the 2009 PM10 Maintenance Plan in response to the EPA's review of the plan, and on November 7, 2014, the NDEP submitted a new maintenance plan, “Redesignation Request and Maintenance Plan for the Truckee Meadows 24-Hour PM10 Non-Attainment Area,” August 28, 2014 (“2014 PM10 Maintenance Plan” or “Plan”) for EPA approval. The 2014 PM10 Maintenance Plan supersedes the 2009 PM10 Maintenance Plan, and includes a revised maintenance plan under CAA section 175A, an updated emissions inventory under CAA section 172(c)(3), and revised MVEBs for the Truckee Meadows area.

    In this proposed rule, we are proposing to approve the 2014 PM10 Maintenance Plan, including the emissions inventory, maintenance demonstration, and related MVEBs. Additionally, we are proposing to approve the BACM demonstration from the 2002 PM10 Attainment Plan but consider the rest of the 2002 PM10 Attainment Plan to be superseded by the 2014 PM10 Maintenance Plan.

    III. Procedural Requirements for Adoption and Submittal of SIP Revisions

    Section 110(l) of the CAA requires states to provide reasonable notice and public hearing prior to adoption of SIP revisions. In this action, we are proposing action on the NDEP's submittal of the 2014 PM10 Maintenance Plan as a revision to the Nevada SIP. The 2014 PM10 Maintenance Plan contains evidence that reasonable notice of a public hearing was provided to the public (via newspaper advertisement) and that a public hearing was conducted prior to adoption by the Health District. More specifically, the Plan provides evidence that the Health District published a notice of the availability of the draft 2014 PM10 Maintenance Plan and of a public hearing to be held on August 28, 2014 in the Reno Gazette-Journal on July 25, August 11, and August 22, 2014. Following adoption by the Health District on August 28, 2014, the Health District forwarded the 2014 PM10 Maintenance Plan to the NDEP. The NDEP then submitted the SIP revision to the EPA for approval on November 7, 2014.

    In this action, we also proposed to approve an element (i.e., the BACM demonstration) of the 2002 PM10 Attainment Plan, and it too contains evidence that reasonable notice of a public hearing was provided to the public (via newspaper advertisement) and that a public hearing was conducted. Following adoption by the Health District on July 26, 2002, the Health District forwarded the 2002 PM10 Attainment Plan to the NDEP, which then submitted the SIP revision to the EPA for approval. Thus, we find that both the 2014 PM10 Plan and the 2002 PM10 Plan satisfy the procedural requirements of section 110(l) of the Act for revising SIPs.

    IV. Clean Air Act Requirements for Redesignation to Attainment

    The CAA establishes the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) allows for redesignation provided that the following criteria are met: (1) the EPA determines that the area has attained the applicable NAAQS; (2) the EPA has fully approved the applicable implementation plan for the area under section 110(k); (3) the EPA determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP, applicable Federal air pollution control regulations, and other permanent and enforceable reductions; (4) the EPA has fully approved a maintenance plan for the area as meeting the requirements of CAA section 175A; and (5) the State containing such area has met all requirements applicable to the area under section 110 and part D of title I of the CAA.

    The EPA provided guidance on redesignations in the form of a General Preamble for the Implementation of Title I of the CAA Amendments of 1990 published in the Federal Register on April 16, 1992 (57 FR 13498), as supplemented on April 28, 1992 (57 FR 18070) (“General Preamble”). Other relevant EPA guidance documents include: “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, EPA Office of Air Quality Planning and Standards, September 4, 1992 (“Calcagni Memo”); “Part D New Source Review (part D NSR) Requirements for Areas Requesting Redesignation to Attainment,” Memorandum from Mary D. Nichols, Assistant Administrator for Air and Radiation, October 14, 1994 (“Nichols Memo”); and “State Implementation Plans for Serious PM10 Nonattainment Areas, and Attainment Date Waivers for PM10 Nonattainment Areas Generally; Addendum to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 59 FR 41998 (August 16, 1994) (“PM10 Addendum”).

    For the reasons set forth below in section V of this document, we are proposing to approve the NDEP's request for redesignation of the Truckee Meadows nonattainment area to attainment for the PM10 NAAQS based on our conclusion that all of the criteria under CAA section 107(d)(3)(E) have been satisfied.

    V. Evaluation of the State's Redesignation Request for Truckee Meadows A. The Area Has Attained the PM10 NAAQS

    Section 107(d)(3)(E)(i) of the CAA states that for an area to be redesignated to attainment, the EPA must determine that the area has attained the applicable NAAQS. In this case, the applicable NAAQS is the PM10 NAAQS. As noted above, in 2011 (76 FR 21807, April 19, 2011), the EPA determined that Truckee Meadows had attained the PM10 standard based on 2007-2009 ambient data; however, to redesignate the area to attainment, it is necessary to update that determination based on the most current information to ensure that the area continues to attain the standard.

    We generally determine whether an area's air quality meets the PM10 standard based upon the most recent period of complete, quality-assured data gathered at established State and Local Air Monitoring Stations (SLAMS) in the nonattainment area and entered into the EPA Air Quality System (AQS) database. Data from air monitors operated by state/local agencies in compliance with EPA monitoring requirements must be submitted to the EPA AQS database. Heads of monitoring agencies annually certify that these data are accurate to the best of their knowledge. Accordingly, the EPA relies primarily on data in its AQS database when determining the attainment status of areas. See 40 CFR 50.6; 40 CFR part 50, appendix J; 40 CFR part 53; 40 CFR part 58, appendices A, C, D and E. All data are reviewed to determine the area's air quality status in accordance with 40 CFR part 50, appendix K.

    The PM10 standard is attained when the expected number of days per calendar year with a 24-hour concentration in excess of the standard (referred to herein as “exceedance”),6 as determined in accordance with 40 CFR part 50, appendix K, is equal to or less than one.7 See 40 CFR 50.6 and 40 CFR part 50, appendix K. For purposes of redesignation, the most recent three consecutive years of complete air quality data are necessary to show attainment of the 24-hour standard for PM10. See 40 CFR part 50, appendix K. A complete year of air quality data, as referred to in 40 CFR part 50, appendix K, includes all four calendar quarters with each quarter containing data from at least 75 percent of the scheduled sampling days. Id.

    6 An exceedance is defined as a daily value that is above the level of the 24-hour standard (i.e., 150 µg/m3) after rounding to the nearest 10 µg/m3 (i.e., values ending in 5 or greater are to be rounded up). Thus, a recorded value of 154 µg/m3 would not be an exceedance since it would be rounded to 150 µg/m3 whereas a recorded value of 155 µg/m3 would be an exceedance since it would be rounded to 160 µg/m3. See 40 CFR part 50, appendix K, section 1.0.

    7 The comparison with the allowable expected exceedance rate of one per year is made in terms of a number rounded to the nearest tenth (fractional values equal to or greater than 0.05 are to be rounded up; e.g., an exceedance rate of 1.05 would be rounded to 1.1, which is the lowest rate for nonattainment). See 40 CFR part 50, appendix K, section 2.1(b).

    The WCAQMD currently operates five SLAMS within the Truckee Meadows PM10 nonattainment area, but operated six such stations over most of the 2012-2014 period. The locations of the five current PM10 monitors in Truckee Meadows are as follows. In the City of Reno, the “Reno3” monitoring site is located in downtown Reno just south of Interstate 80; the “Plumb-Kit” site is in a graveled area close to residences, about half a mile west of Interstate 580 and the Reno-Tahoe International Airport; and the “Toll” site is located along State Route 341, at the corner of the Washoe County School District parking lot. In South Reno, the “South Reno” monitoring site is located in an unpaved, vegetated area at the northeast corner of the Nevada Energy campus. In the City of Sparks, the “Sparks” monitoring site is located along a paved parking lot about half a mile north of Interstate 80. The sixth monitoring site, the “Galletti” site, which was closed in mid-November 2014, was located in downtown Reno just south of Interstate 80.8 The locations of the monitoring sites are illustrated in figure 2-1 in the 2014 PM10 Maintenance Plan, and are described in more detail in “Washoe County Health District, Air Quality Management Division, 2015 Ambient Air Monitoring Network Plan,” submitted to EPA Region IX July 1, 2015. All of the PM10 monitor sites operate on a daily schedule using continuous monitors. Id. at 3. Despite the closure of the “Galletti” site, the WCAQMD PM10 network continues to meet minimum monitoring requirements per appendix D to 40 CFR part 58.

    8 The WCAQMD closed the “Galletti” site in mid-November 2014 as a result of emergency construction at the location of the site. The EPA has approved WCAQMD's request to close the Galletti site, due to lease issues beyond their control as well as siting issues. See letter from Meredith Kurpius, Manager, Air Quality Analysis Office, EPA Region IX, to Daniel Inouye, Chief, Monitoring and Planning, WCAQMD, April 22, 2015.

    WCAQMD reports the PM10 data from its monitors to AQS on a quarterly basis as required under the EPA's monitoring regulations. The EPA has approved the WCAQMD's monitoring network as satisfying the network design and data adequacy requirements of 40 CFR part 58.9 The EPA's most recent audit of WCAQMD's ambient air monitoring program found, generally, that the program is robust and meets EPA requirements.10 As with any audit, the EPA uncovered some program areas that can be improved, but none are cause for data invalidation. The WCAQMD annually certifies that the data it submits to AQS are complete and quality-assured. See, e.g., letter dated April 30, 2015, from Daniel Inouye, Branch Chief, Monitoring and Planning, WCAQMD, to Jared Blumenfeld, Regional Administrator, EPA Region IX, “Re: CY2014 Ambient Air Monitoring Data Certification.”

    9See letter from Meredith Kurpius, Manager, Air Quality Analysis Office, EPA Region IX, to Daniel Inouye, Director, WCAQMD, October 29, 2014.

    10See letter from Deborah Jordan, Director, Air Division, EPA Region IX, to Charlene Albee, Director, WCAQMD, August 19, 2014 and enclosed report titled “Technical System Audit Report, Washoe County Health District Air Quality Management Division, Ambient Air Monitoring Program (September 4-6, 2013),” dated August 2014.

    Table 1 provides the highest measured PM10 concentrations and the number of expected exceedances in Truckee Meadows during the 2010-2014 period. Table 1 shows generally that Truckee Meadows has continued to attain the PM10 standard since the EPA made the determination of attainment in 2011 based on 2007-2009 data; however, a determination of attainment requires a more detailed examination of the data for the most recent three-year period. For the purposes of this action, we are focusing our evaluation on the most recent three-year period for which data is available, i.e., 2012-2014.

    Table 1—Monitored PM10 Concentrations and Expected Exceedances (2010-2014) Monitoring site name and AQS No. Maximum 24-hour
  • (µg/m3)
  • 2010 2011 2012 2013 2014 Expected exceedances
  • (calendar year)
  • 2010 2011 2012 2013 2014 Expected exceedances
  • (3-year averages)
  • 2010-2012 2011-2013 2012-2014
    Reno3 (32-031-0016) 142 64 46 121 134 0 0 0 0 0 0 0 0 South Reno (32-031-0020) 52 63 61 133 106 0 0 0 0 0 0 0 0 Galletti (32-031-0022) 87 113 77 131 * 159 0 0 0 0 ** 1 0 0 ** 0.3 Toll (32-031-0025) 34 121 85 144 121 0 0 0 0 0 0 0 0 Plumb-Kit (32-031-0030) 77 71 92 127 136 0 0 0 0 0 0 0 0 Sparks (32-031-1005) 55 76 100 100 135 0 0 0 0 0 0 0 0 Source: EPA AQS database. August 7, 2015. Values shown in bold type represent exceedances of the PM10 standard. * The exceedance occurred on September 18, 2014 and has been flagged by WCAQMD as an exceptional event. While the EPA has not concurred on the exceedance as an exceptional event nor excluded it from our proposed determination of attainment, the Agency recognizes that the exceedance was monitored during a period when a significant regional wildfire (the King Fire) burned tens of thousands of acres in the Sierra Nevada Mountains east of Sacramento, generally upwind of Truckee Meadows. ** The Galletti site closed in mid-November 2014 as a result of emergency construction at the location of the site. The EPA approved the closure of the site in April 2015. The 2014 data is incomplete, however; the EPA has determined that the data remains valid for NAAQS comparison purposes.

    For the 2012-2014 period, with one exception, the AQS database contains complete, quality-assured and certified data from the six PM10 monitoring sites operating during this period within Truckee Meadows. The one exception relates to the “Galletti” site, which, as noted above, was closed in mid-November 2014 due to emergency construction at the site, and for which the fourth quarter's 2014 data is incomplete. However, we find that the data from the “Galletti” site, while incomplete in one quarter of one year of the 2012-2014 period, remain valid for PM10 NAAQS comparison purposes based on the statistical analysis prepared by the WCAQMD in its March 5, 2015 request for approval for closure of the “Galletti” site. The WCAQMD's statistical analysis demonstrates, using the annual maximum 24-hour concentrations from 2009-2013, that there is just over a 10 percent probability of exceeding 80 percent of the PM10 NAAQS at the “Galletti” site during the next three years (2014-2016), and the EPA cited this statistical analysis in its approval of the closure of the Galletti site.11

    11See letter from Meredith Kurpius, Manager, Air Quality Analysis Office, EPA Region IX, to Daniel Inouye, Chief, Monitoring and Planning, WCAQMD, April 22, 2015, page 2.

    Based on our review of the quality-assured, certified, and complete (or otherwise validated) PM10 data for the six PM10 monitoring sites, we find that the expected number of days per calendar year with an exceedance is less than 1.0 at all six sites over the most recent three-year period (2012-2014). See table 1 above. Preliminary data for calendar year 2015 indicate that there has been only one measured exceedance of the PM10 standard (on February 6, 2015 at the Toll site), but this exceedance does not result in a violation of the standard at that site given that it has no other recorded exceedances since 2002. See table 1, above, and our proposed determination of attainment at 76 FR 10817 (February 28, 2011). Thus, we find that preliminary 2015 data is consistent with continued attainment. As such, we find that Truckee Meadows is attaining the PM10 standard and thereby meets the criterion for redesignation in CAA section 107(d)(3)(E)(i).

    B. The Area Has Met All Applicable Requirements for Purposes of Redesignation Under Section 110 and Part D of the CAA and Has a Fully Approved Applicable Implementation Plan Under Section 110(k) of the CAA

    Section 107(d)(3)(E)(ii) and (v) require the EPA to determine that the area has a fully-approved applicable SIP under section 110(k) that meets all applicable requirements under section 110 and part D for the purposes of redesignation. The EPA may rely on prior SIP approvals in approving a redesignation request, Calcagni Memo at 3; Wall v. EPA, F.3d 416 (6th Cir. 2001), Southwestern Pennsylvania Growth Alliance v. Browner, 144 F.3d 984, 989-990 (6th Cir. 1998), as well as any additional measure it may approve in conjunction with a redesignation action. See 68 FR 25426 (May 12, 2003) and citations therein. In this instance, we are proposing to approve several part D elements as part of this action [i.e., emissions inventory under CAA section 172(c)(3) and the BACM demonstration under CAA section 189(b)(1)(B)]. With full approval of those two elements, the Truckee Meadows portion of the Nevada SIP will be fully approved under section 110(k) of the Act with respect to all SIP elements that are applicable for the purposes of redesignation of the area to attainment.

    1. Basic SIP Requirements Under CAA Section 110

    The general SIP elements and requirements set forth in section 110(a)(2) include, but are not limited to, the following: submittal of a SIP that has been adopted by the state after reasonable public notice and hearing; provisions for establishment and operation of appropriate procedures needed to monitor ambient air quality; implementation of a source permit program; provisions for the implementation of part C requirements for Prevention of Significant Deterioration (PSD); provisions for air pollution modeling; and provisions for public and local agency participation in planning and emission control rule development.

    We note that SIPs must be fully approved only with respect to applicable requirements for purposes of redesignation in accordance with CAA section 107(d)(3)(E)(ii). The section 110 and part D requirements that are linked to a particular nonattainment area's designation and classification are the relevant measures to evaluate in reviewing a redesignation request. Requirements that apply regardless of the designation of any particular area in the state are not applicable requirements for purposes of redesignation, and the state will remain subject to these requirements after the nonattainment area is redesignated to attainment.

    Thus, for example, CAA section 110(a)(2)(D) requires that SIPs contain certain measures to prevent sources in a state from significantly contributing to air quality problems in another state, known as “transport SIPs.” Because the section 110(a)(2)(D) requirements for transport SIPs are not linked to a particular nonattainment area's designation and classification but rather apply regardless of attainment status, these are not applicable requirements for purposes of redesignation under CAA section 107(d)(3)(E). This policy is consistent with EPA's existing policy on applicability of the conformity SIP requirement (i.e., for redesignations). See discussion in 75 FR 36023, 36026 (June 24, 2010) (proposed rule to redesignate Coso Junction, California, to attainment for the PM10 NAAQS) and related citations.

    On numerous occasions over the past 40 years, NDEP has submitted, and we have approved, provisions addressing the basic CAA section 110 provisions for Truckee Meadows. See, e.g., 37 FR 15080 (July 27, 1972); 77 FR 60915 (October 5, 2012); and 77 FR 64737 (October 23, 2012). The Truckee Meadows portion of the Nevada SIP contains enforceable emission limitations; requires monitoring, compiling and analyzing of ambient air quality data; requires preconstruction review of new or modified stationary sources; provides for adequate funding, staff, and associated resources necessary to implement its requirements; and provides the necessary assurances that the state maintains responsibility for ensuring that the CAA requirements are satisfied in the event that the Health District is unable to meet its CAA obligations.12 Based on our review of the Nevada SIP, we have concluded that it meets the general SIP requirements under section 110(a)(2) of the CAA to the extent they are applicable for purposes of redesignation of Truckee Meadows to attainment for the PM10 standard.

    12 The applicable Nevada SIP can be found at http://yosemite.epa.gov/r9/r9sips.nsf/allsips?readform&state=Nevada.

    2. SIP Requirements Under Part D

    Subparts 1 and 4 of part D, title I of the CAA contain air quality planning requirements for PM10 nonattainment areas. Subpart 1 contains general requirements for all nonattainment areas of any pollutant, including PM10, governed by a NAAQS. The subpart 1 requirements include, in relevant part, provisions for implementation of reasonably available control measures (RACM), a demonstrations of reasonable further progress (RFP), emissions inventories, a program for preconstruction review and permitting of new or modified major stationary sources, contingency measures, conformity, and, for areas that fail to attain the standard by the applicable attainment date, a plan meeting the requirements of section 179(d).

    Subpart 4 contains specific SIP requirements for PM10 nonattainment areas. The requirements set forth in CAA section 189(a), (c), and (e) apply specifically to “Moderate” PM10 nonattainment areas and include, in relevant part: (1) Provisions for implementation of reasonably available control measures (RACM); (2) quantitative milestones demonstrating RFP toward attainment by the applicable attainment date; and (3) provisions to ensure that the control requirements applicable to major stationary sources of PM10 also apply to major stationary sources of PM10 precursors except where the EPA has determined that such sources do not contribute significantly to PM10 levels that exceed the NAAQS in the area. Under CAA section 189(b), “Serious” PM10 nonattainment areas, such as Truckee Meadows, must meet the subpart 1 and “Moderate” area requirements discussed above and, in addition, must develop and submit provisions to assure the implementation of BACM for the control of PM10. In addition, under CAA section 189(d), “Serious” PM10 nonattainment areas that fail to attain the standard by the applicable attainment date, such as Truckee Meadows, must develop and submit plan revisions which provide for attainment of the PM10 standard, and from the date of such submission until attainment, for an annual reduction in PM10 within the area of not less than 5 percent of the amount of such emissions.

    However, we have determined that, in accordance with our Clean Data Policy, the obligation to submit the following CAA requirements for Truckee Meadows is not applicable for so long as the area continues to attain the PM10 standard: The part D, subpart 4 obligations to provide the RACM provisions of section 189(a)(1)(C), the RFP provisions of section 189(c), the requirement for a section 189(d) plan, the attainment demonstration, RACM, RFP and contingency measure provisions of part D, subpart 1 contained in section 172 of the Act, and requirements for additional plan previsions in section 179(d) of the Act. 76 FR 21807 (April 19, 2011). As discussed above in section V.A, Truckee Meadows has continued to attain the PM10 standard since the EPA's 2011 determination of attainment, which was based on 2007-2009 data, and we are specifically proposing to determine that the area currently meets the standard based on the most recent three-year period (2012-2014). As such, the part D SIP submittal requirements suspended by our 2011 “clean data” determination do not apply for the purposes of evaluating Truckee Meadows' eligibility for redesignation under CAA section 107(d)(3)(E)(v).13

    13 The suspended SIP planning requirements will cease to apply to the Truckee Meadows area upon the effective date of redesignation to attainment for the PM10 standard. For another rulemaking action citing the “clean data policy” in the context of evaluating a redesignation request of a PM10 nonattainment area under CAA section 107(d)(3)(E)(v), see 75 FR 36023, at 36027 (June 24, 2010) and 75 FR 54031 (September 3, 2010) (proposed and final redesignation for Coso Junction, California). See also, 40 CFR 51.918.

    Moreover, in the context of evaluating the area's eligibility for redesignation, there is a separate and additional justification for finding that requirements associated with attainment are not applicable for purposes of redesignation. Prior to and independently of the Clean Data Policy, and specifically in the context of redesignations, the EPA interpreted attainment-linked requirements as not applicable for purposes of redesignation. In the General Preamble, the EPA stated:

    [t]he section 172(c)(9) requirements are directed at ensuring RFP and attainment by the applicable date. These requirements no longer apply when an area has attained the standard and is eligible for redesignation. Furthermore, section 175A for maintenance plans * * * provides specific requirements for contingency measures that effectively supersede the requirements of section 172(c)(9) for these areas. General Preamble, 57 FR 13498 at 13564 (April 16, 1992).

    See also Calcagni memorandum at 6 (“The requirements for reasonable further progress and other measures needed for attainment will not apply for redesignations because they only have meaning for areas not attaining the standard.”). Thus, even if the requirements associated with attainment had not previously been suspended, they would not apply for purposes of evaluating whether an area that has attained the standard qualifies for redesignation. The EPA has enunciated this position since the General Preamble was published more than twenty years ago, and it represents the Agency's interpretation of what constitutes applicable requirements under section 107(d)(3)(E). The Courts have recognized the scope of EPA's authority to interpret “applicable requirements” in the redesignation context. See Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004).

    The remaining applicable part D requirements for serious PM10 nonattainment areas are: (1) An emissions inventory under section 172(c)(3); (2) a permit program for the construction and operation of new and modified major stationary sources of PM10 under sections 172(c)(5) and 189(a)(1)(A), including a major source threshold of 70 tons per year as required by section 189(b)(3); (3) provisions to assure implementation of BACM for the control of PM10 under section 189(b)(1)(B); (4) control requirements for major stationary sources of PM10 precursors under section 189(e), except where the EPA determines that such sources do not contribute significantly to PM10 levels which exceed the standard in the area; and (5) provisions to ensure that Federally supported or funded projects conform to the air quality planning goals in the applicable SIP under section 176(c). We discuss each of these requirements below.

    a. Emissions Inventory

    Section 172(c)(3) of the Act requires the state to submit a comprehensive, accurate, current inventory of actual emissions from all sources of the relevant pollutant(s) in the nonattainment area, including periodic updates as required by the EPA. We interpret the Act such that the emission inventory requirement of section 172(c)(3) is satisfied by the inventory requirement of the maintenance plan. See 57 FR 13498 at 13564 (April 16, 1992). In this action, the EPA is proposing to approve the 2011 attainment inventory submitted in the 2014 PM10 Maintenance Plan as meeting the emission inventory requirement under section 172(c)(3). See discussion below in section V.D.1.

    b. Permits for New and Modified Stationary Sources

    Sections 172(c)(5) and 189(a)(1)(A) of the CAA require the state to submit SIP revisions that establish certain requirements for new or modified stationary sources in nonattainment areas, including provisions to ensure that major new or modified sources of nonattainment pollutants comply with the lowest achievable emission rate (LAER), and that increases in emissions from such stationary sources are offset so as to provide for reasonable further progress towards attainment in the nonattainment area. For “Moderate” PM10 areas that are reclassified as “Serious,” such as Truckee Meadows, the “major source” threshold is reduced from 100 to 70 tons per year of PM10. The process for reviewing permit applications and issuing permits for new major sources or major modifications to such sources in nonattainment areas is referred to as “nonattainment New Source Review” (“nonattainment NSR” or simply “NSR”).

    EPA-approved District regulations include rules for the review of applications for new or modified stationary sources; however, the EPA has not approved District regulations specifically meeting the NSR requirements of sections 172(c)(5) and 189(a)(1)(A). However, the EPA interprets section 107(d)(3)(E)(v) of the CAA such that final approval of a NSR program is not a prerequisite to approving the state's redesignation request. The EPA has determined in past redesignations that a NSR program does not have to be approved prior to redesignation, provided that the area demonstrates maintenance of the standard without part D NSR requirements in effect. See generally Nichols Memo; see also the more detailed explanations in the following redesignation rulemakings: Detroit, Michigan (60 FR 12467-12468, March 7, 1996); Cleveland-Akron-Lorrain, Ohio (61 FR 20458, 20469-20470, May 7, 1996); Louisville, Kentucky (66 FR 53665, 53669, October 23, 2001); Grand Rapids, Michigan (61 FR 31831, 31836-31837, June 21, 1996); and San Joaquin Valley, California (73 FR 22307, 22313, April 25, 2008 and 73 FR 66759, 66766-67, November 12, 2008).

    The demonstration of maintenance of the standard in the 2014 PM10 Maintenance Plan relies on projections of future emissions based on various growth factors. For the types of stationary sources that are subject to District permitting requirements, future emissions are projected based on employment growth projections and do not take credit for future control technology requirements, such as LAER, or for imposition of emissions offsets. See appendix B of the 2014 PM10 Maintenance Plan. Thus, we find that the maintenance demonstration for the Truckee Meadows PM10 nonattainment area does not rely on an NSR program, and that the area need not have a fully-approved nonattainment NSR program prior to approval of the PM10 redesignation request.

    Once Truckee Meadows has been redesignated to attainment, the requirements of the PSD program set forth at 40 CFR 52.21 will apply with respect to PM10 (PSD already applies with respect to the other pollutants in Truckee Meadows). See 40 CFR 52.1485. Thus, new major sources of PM10 emissions and major modifications at existing major sources, as defined in 40 CFR 52.21, will be required to obtain a PSD permit before constructing. Currently, the WCAQMD has full responsibility for implementing and enforcing the Federal PSD regulations in 40 CFR 52.21 for sources within its jurisdiction throughout Washoe County, including the Truckee Meadows area, under a delegation agreement with the EPA. See “Agreement for Delegation of the Federal Prevention of Significant Deterioration (PSD) Program by the United States Environmental Protection Agency, Region 9, to the Washoe County District Health Department,” dated March 13, 2008. The NDEP has permitting jurisdiction over certain types of power plants located anywhere within the State of Nevada, and if such a source were to locate within Truckee Meadows, the PSD regulations at 40 CFR 52.21 would still apply but would be implemented and enforced by the NDEP, which also administers the program through a delegation agreement with the EPA.

    c. Best Available Control Measures

    Section 189(b)(1)(B) of the Act requires for any “Serious” PM10 nonattainment area that the state submit provisions to assure that BACM for the control of PM10 will be implemented no later than four years after the date the area is classified (or reclassified) as a “Serious” area. The PM10 Addendum (59 FR 41998, August 16, 1994) provides preliminary guidance on meeting this BACM requirement. Even though the EPA previously determined that Truckee Meadows is attaining the PM10 24-hour standard (76 FR 21807, April 19, 2011), the overall structure and purpose of title I of the CAA Amendments of 1990, the standard suggested by the word “best,” and the differences in the statute between the requirements for BACM as compared to those for RACM, lead the EPA to believe that, unlike RACM, BACM are to be established generally independent of an analysis of the attainment needs of the “Serious” area. PM10 Addendum, at 42011. Thus, unlike RACM, BACM remains an applicable requirement for the purposes of evaluating a redesignation request even though the area is attaining the standard.

    The EPA defines BACM as, among other things, the maximum degree of emissions reduction achievable for a source or source category, which is determined on a case-by-case basis considering energy, environmental, and economic impacts. See id. at 42010, 42013. BACM must be implemented for all categories of sources in a “Serious” PM10 nonattainment area unless the state adequately demonstrates that a particular source category does not contribute significantly to nonattainment of the PM10 standard. See id. at 42011, 42012. The PM10 Addendum discusses the following steps for determining BACM:

    • Inventory the sources of PM10 and PM10 precursors 14 and determine which source categories are significant;

    14 As described further in section V.B.2.d of this document, we find that PM10 precursors (NOX, SOX, and VOC) do not significantly impact ambient PM10 concentrations in Truckee Meadows.

    • Evaluate alternative control techniques and their technological feasibility; and evaluate the costs of control measures or their economic feasibility.

    See PM10 Addendum, at 42012-42014.

    BACM must be applied to each significant (i.e., non-de minimis) source category. PM10 Addendum at 42011. In guidance, we have established a presumption that a “significant” source category is one that contributes 5 µg/m3 or more of PM10 to a location of a violation of the 24-hour standard. PM10 Addendum at 42011. However, whether the threshold should be lower than this in any particular area depends upon the specific facts of that area's nonattainment problem. Specifically, it depends on whether requiring the application of BACM on source categories below a proposed de minimis level would meaningfully expedite attainment. Once these analyses are complete, the individual measures must then be converted into a legally enforceable vehicle (e.g., a regulation or permit process) to ensure BACM implementation. Also, the regulations or other measures should meet the EPA's criteria regarding the enforceability of SIPs and SIP revisions. CAA sections 172(c)(6) and 110(a)(2)(A). We use these steps as guidelines in our evaluation of the BACM analysis in the 2002 PM10 Attainment Plan.

    The first step in the BACM analysis is to develop a detailed emissions inventory of PM10 sources and source categories that can be used in modeling to determine their impact on ambient air quality. PM10 Addendum at 42012. The second step is to use this inventory in air quality modeling to evaluate the impact on PM10 concentrations over the standards of the various sources and source categories to determine which are significant.

    The 2002 PM10 Attainment Plan contains a detailed inventory of direct PM10 sources and source categories and, based on the percent contributions of the various source categories to the design day inventory, divides the design day concentration (of 215 µg/m3) into source category components, as follows:

    • Paved streets/reentrained dust/street sanding (142 µg/m3) • Residential wood combustion (36 µg/m3) • Fugitive dust from construction activities (15 µg/m3) • Stationary/industrial processes (9 µg/m3) • Mobile on-road (4 µg/m3) • Mobile non-road (3 µg/m3) • Unpaved streets (2 µg/m3) • Other fuel combustion and miscellaneous Area (2 µg/m3) • Charbroilers (1 µg/m3) Based on the estimated contribution of the various source categories to the design-day concentration, the following source categories are considered significant, i.e., contribute 5 µg/m3 or more to the exceedance: (1) Paved streets/reentrained dust/street sanding, (2) residential wood combustion, (3) fugitive dust from construction activities, and (4) other stationary/industrial processes.15 We believe that the 2002 PM10 Attainment Plan presents an acceptable methodology to evaluate the impact of various PM10 sources and source categories on PM10 levels and to derive a comprehensive list of significant source categories.

    15 The stationary/industrial processes category includes a disparate group of source subcategories (e.g., concrete production, sand and gravel operations, asphalt production, etc.). For a complete list of the subcategories included in the stationary/industrial processes category, see table 1-2 in appendix B of the 2002 PM10 Attainment Plan.

    In preparing the list of candidate BACM to reduce emissions from the various significant source categories, the WCAQMD reviewed our guidance documents on BACM, other EPA documents on PM10 control, as well as PM10 plans and measures from other “Serious” PM10 areas in the United States. The WCAQMD also evaluated controls proposed during public comment, sought input from work groups (e.g., Road Sanding and Sweeping Working Group) and requested review and comment by the EPA on individual measures to help ensure that their adopted measures would constitute BACM. The processes that the WCAQMD used to identify BACM are described in section V of the 2002 PM10 Attainment Plan. We believe that, based on the description of the process in the 2002 PM10 Attainment Plan, the WCAQMD appropriately screened the list of candidate BACM to eliminate certain measures and appropriately identified and evaluated potential BACM for the Truckee Meadows area consistent with our guidance.

    Since 1988, the Health District has adopted and strengthened a number of regulations to reduce PM10 emissions from the significant source categories in Truckee Meadows. See 2002 PM10 Attainment Plan at 10-17. The District PM10 regulations were originally submitted to the EPA in 1991, but in the wake of the reclassification of Truckee Meadows to “Serious,” the Health District strengthened them to assure implementation of BACM. See id. Each of the Health District regulations intended to implement BACM was effective in Truckee Meadows on or before February 7, 2005 (i.e., within four years of the area's reclassification to serious nonattainment on February 7, 2001), and the EPA has approved all of these regulations as satisfying BACM control requirements.

    Specifically, we have approved the following Health District regulations as satisfying BACM control requirements:

    • District Regulation 040.005 (“Visible Air Contaminants”) (72 FR 33397, June 18, 2007) (stationary/industrial processes);

    • District Regulation 040.030, “Dust Control” (72 FR 25969, May 8, 2007) (fugitive dust from construction activities and stationary/industrial processes);

    • District Regulation 040.031, “Street Sanding Operations” (71 FR 14386, March 22, 2006) (paved streets/reentrained dust/street sanding);

    • District Regulation 040.032, “Street Sweeping Operations” (71 FR 14386, March 22, 2006) (paved streets/reentrained dust/street sanding);

    • District Regulation 040.051, “Wood Stove/Fireplace Insert Emissions” (72 FR 33397, June 18, 2007) (residential wood combustion); and

    • District Regulation 050.001, “Emergency Episode Plan,” (72 FR 33397, June 18, 2007) (residential wood combustion).16

    16 On August 22, 2013, the WCAQMD amended regulation 040.051, and the amendment was submitted to the EPA on November 26, 2013. The EPA is currently reviewing the submittal and preparing to act on it. The 2014 PM10 Maintenance Plan does not rely on emissions reductions from the amendments to the rule.

    Based on our prior approval of these regulations and our conclusion that they cover all significant PM10 source categories in the Truckee Meadows nonattainment area, we propose approval of the WCAQMD's demonstration in Section V (“Control Strategies”) of the 2002 PM10 Attainment Plan as satisfying the requirement to assure implementation of BACM under CAA section 189(b) (1) (B).17

    17 After BACM is applied to the significant source categories, the significant categories still account for approximately 75 percent of the WCAQMD's remaining 2011 attainment year inventory of daily emissions during the PM10 season (November, December, and January). See 2014 PM10 Maintenance Plan at Appendix C (“Truckee Meadows Projected PM10 Seasonal Emissions (lbs/day)”). Based on a review of the remaining source categories in the 2011 inventory, no new significant source categories (i.e., above the de minimis threshold) were identified, and, therefore, no additional sources are subject to BACM requirements.

    d. Control Requirements for PM10 Precursors

    Section 189(e) of the CAA requires that the control requirements applicable under part D (of title I of the CAA) for major stationary sources of PM10 also apply to major stationary sources of PM10 precursors, except where the EPA determines that such sources do not contribute significantly to PM10 levels which exceed the standard in the area. In general, a major stationary source in a PM10 “Serious” area includes any stationary source that emits, or has the potential to emit, 70 tons per year of PM10.

    The 1991 PM10 Attainment Plan concluded that major stationary sources of PM10 precursors do not contribute significantly to PM10 levels which exceed the standard in Truckee Meadows based on technical study conducted by the Desert Research Institute (DRI) intended to identify the sources of ambient PM10 in Truckee Meadows. In its February 1988 report, PM 10 Source Apportionment the Truckee Meadows, Nevada, for State Implementation Plan Development, Volume I: Modeling Methods and Results, Final Report (“DRI Report”), submitted as appendix B to the 1991 PM10 Attainment Plan, the DRI performed over 300 chemical mass balance source apportionments on fine and coarse particle fractions from three sites within the Truckee Meadows nonattainment area. The source apportionments found that that the PM10 contribution from precursors (i.e., ammonium nitrates and ammonium sulfates) was very small (i.e., approximately 5-6%) compared to the contributions from wood/vegetative burning (i.e., residential wood stoves and fireplaces), mobile source exhaust (e.g., diesel powered vehicles), and geologic materials (e.g., road dust, sand/salt used for deicing).

    We also note that more recent stationary source inventory data and ambient PM2.5 speciation data for Truckee Meadows continue to support the WCAQMD's 1991 conclusion regarding the (less-than-significant) contribution to elevated ambient PM10 concentrations from major stationary sources of PM10 precursors. First, based on the 2011 Periodic Emissions Inventory, there are no stationary sources in Truckee Meadows that emit more than 100 tons per year of NOX or SO2, and only two such sources that emit more than 100 tons per year of VOC. Second, ammonium nitrate and ammonium sulfate contributed only about 11% to the total ambient PM10 based on the averages for the five highest PM10 measurements collected during the winter of 2013 at the Reno3 monitoring site (which is the only site operated by the WCAQMD with speciation capability).

    Based on the DRI Report and the more recent inventory and monitoring data, we propose to make the finding authorized under CAA section 189(e) and to determine that major sources of PM10 precursor emissions do not contribute significantly to PM10 levels which exceed the standard in the Truckee Meadows area.

    e. Transportation Conformity

    Under the Clean Air Act, as amended in 1990, section 176(c) of the CAA required the states to revise their SIPs to establish criteria and procedures to ensure that federally supported or funded projects in nonattainment and formerly nonattainment areas subject to a maintenance plan (referred to as “maintenance” areas) “conform” to the air quality planning goals in the applicable SIP. SIP revisions intended to meet the conformity requirement in section 176(c) are referred to as “conformity SIPs.” The requirement to determine conformity applies to transportation plans, programs and projects developed, funded or approved under Title 23 U.S.C. and the Federal Transit Act (“transportation conformity”) as well as to other federally supported or funded projects (“general conformity”). In 2005, Congress amended section 176(c), and under the amended conformity provisions, states are no longer required to submit conformity SIPs for “general conformity,” and the conformity SIP requirements for “transportation conformity” have been reduced to include only those relating to consultation, enforcement and enforceability. CAA section 176(c) (4) (E).

    On July 31, 1995, the NDEP submitted the general and transportation conformity procedures and criteria for Truckee Meadows as a revision to the Nevada SIP. Given the 2005 amendments to the CAA, the NDEP has withdrawn the earlier conformity SIP submittal, and on March 21, 2013, submitted the Washoe County Transportation Conformity Plan as a replacement for the earlier submittal. We have not taken action on the March 21, 2013 SIP revision submittal. However, the EPA believes it is reasonable to interpret the conformity SIP requirements as not applying for purposes of a redesignation request under section 107(d) (3) (E) (v) because state conformity rules are still required after redesignation and Federal conformity rules apply where state rules have not been approved. See Wall v. EPA, 265 F. 3d 426 (6th Cir. 2001), upholding this interpretation. See also 60 FR 62748 (December 7, 1995).

    3. Conclusion With Respect to Section 110 and Part D Requirements

    Therefore, based on the evaluation presented above, and based on our proposed approval of the 2011 emissions inventory submitted as part of the 2014 PM10 Maintenance Plan (see section V.D.1 of this document), our proposed approval of the BACM demonstration submitted as part of the 2002 PM10 Attainment Plan, and in light of our proposed determination that major stationary sources of PM10 precursors do not contribute significantly to PM10 exceedances in the area, we find that that the state has met all requirements applicable to the Truckee Meadows PM10 nonattainment area under section 110 and part D (of title I) of the CAA and has therefore met the redesignation criterion set forth in CAA section 107(d) (3) (E) (v).

    C. The Improvement in Air Quality Is Due to Permanent and Enforceable Reductions in Emissions

    Section 107(d)(3)(E)(iii) of the CAA requires the EPA, in order to approve a redesignation to attainment, to determine that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP and applicable Federal air pollution control regulations and other permanent and enforceable regulations. Improvement should not be a result of temporary reductions (e.g., economic downturns or shutdowns) or unusually favorable meteorology. Calcagni Memo at 4.

    PM10 levels in Truckee Meadows are driven primarily by direct PM10 emissions from re-entrained dust from paved roads, residential wood combustion, fugitive dust from construction activities, and emissions from industrial sources. See 2002 PM10 Attainment Plan at 7; and appendix C to the 2014 PM10 Maintenance Plan. The peak PM10 season in Truckee Meadows occurs during the winter months (i.e., November, December, and January), due in large part to increased residential wood combustion and application of sanding material to paved roads for wintertime traction control. In addition, because Truckee Meadows sits in a valley surrounded by mountain ranges, cold winter nights create temperature inversions that trap pollutants in a layer of cold air beneath a layer of warmer air above. 2014 PM10 Maintenance Plan at 13.

    The 2014 PM10 Maintenance Plan describes long-term air quality improvements implemented in the Truckee Meadows area during the 1999 to 2011 time frame. The improvements in air quality occurred despite substantial growth in population, economic activity, and vehicle miles traveled (VMT) between 1990 and 2011, suggesting that the air quality improvements were not due to temporary reductions in emission rates or unusual meteorology but, instead, resulted from implementation of federally-enforceable PM10 control measures. The Plan describes the significant source categories of PM10 emissions in the Truckee Meadows area and the SIP-approved regulations that have significantly reduced PM10 emissions from these and other emission sources. According to the 2014 PM10 Maintenance Plan, SIP-approved regulations collectively reduced daily PM10 emissions from residential wood combustion and street sanding and sweeping, and construction activities during the 2011 PM10 season by approximately 68 percent. See table 4-1 of the 2014 PM10 Maintenance Plan.

    First, the 2014 PM10 Maintenance Plan cites the Health District's residential wood combustion program (RWC) as a significant source of emissions reductions in Truckee Meadows. The program relies on two regulations as well as a public outreach program. District Regulation 040.051, “Wood Stove/Fireplace Insert Emissions,” limits PM10 emissions throughout Washoe County by, among other things: (1) Establishing wood stove and fireplace insert control areas; (2) requiring use of seasoned wood; (3) requiring the removal or upgrade of existing solid fuel combustion devices upon the sale of real estate; and (4) establishing a mandatory burning curtailment during Stage 1 episodes.18 District Regulation 050.001, “Emergency Episode Plan,” requires that the WCAQMD take certain actions when 24-hour PM10 concentrations reach or are predicted to reach “Stage 1” levels (154 µg/m3), such as: (1) Implementing procedures to notify the public of potential health problems; (2) prohibiting all open and prescribed burning; (3) prohibiting the use of permitted incinerators, crematoriums, and pathological incinerators; (4) prohibiting the use of solid fuel burning devices; and (5) activating control plans for the largest PM10 sources in Washoe County. 2014 PM10 Maintenance Plan at 11.

    18 Regulation 040.051 defines “Stage 1 alert” by reference to the Health District's Emergency Episode Plan (i.e., District Regulation 050.001), which establishes a “Stage 1 (alert)” episode criteria level of 154 µg/m3. See District Regulation 040.051 at Section E.5 and Regulation 050.001 at Table 1.

    In addition, the WCAQMD implements a “Keep it Clean, Know the Code” public outreach program (formerly known as the “Green, Yellow, Red” program), which runs from November through February and which consists in part of a daily burn code that provides the community a recommendation on whether RWC will impact air quality in Washoe County. The program also commits the WCAQMD to conduct an RWC survey at least once every three years to track the effectiveness of the public outreach program. The EPA has approved District Regulations 040.051 and 050.001, and the commitment to conduct the RWC survey as revisions of the Nevada SIP, making them permanent and enforceable for the purposes of CAA section 107(d)(3)(E)(iii). See 72 FR 33397 (June 18, 2007) and 73 FR 38124, at 38127 (July 3, 2008). According to the 2014 PM10 Maintenance Plan, District Regulations 040.051 and 050.001 (as implemented in part through the public outreach program) reduced PM10 emissions in the Truckee Meadows area on a “typical PM10 Season Day” during 2011 by approximately 800 lbs/day and approximately 4,300 lbs/day, respectively. 2014 PM10 Maintenance Plan at 10, 12 (Table 4-1).

    Second, the 2014 PM10 Maintenance Plan cites the Health District's street sanding and sweeping program as a source of significant emissions reductions in Truckee Meadows. PM10 emissions from street sanding and sweeping are generated directly from application of traction control material (i.e., sand, salt, and chlorides) and indirectly from increased silt loading on paved streets. Motor vehicle traffic grinds and re-entrains the material into the ambient air. 2014 PM10 Maintenance Plan at 11. The Health District adopted Regulation 040.031, “Street Sanding Operations,” and Regulation 040.032, “Street Sweeping Operations,” to limit PM10 emissions from street standing and sweeping activities throughout the urbanized portions of Washoe County south of Township 22N, which includes the cities of Reno and Sparks. See 2014 PM10 Maintenance Plan at 11; 2002 PM10 Attainment Plan at 12-16.

    These regulations require, among other things, that municipalities: (1) Use a harder and cleaner type of sand on paved roads following snow storms; (2) reduce the sand application rate by 50 percent compared to 1999 rates; (3) remove the sand within four days after a storm event; and (4) only purchase new sweepers that are PM10 certified. The EPA approved District Regulations 040.031 and 040.032 as revisions of the Nevada SIP in 2006, making them permanent and enforceable for the purposes of CAA section 107(d)(3)(E)(iii). 71 FR 14386 (March 22, 2006). According to the 2014 PM10 Maintenance Plan, District Regulations 040.031 and 040.032 reduced PM10 emissions in the Truckee Meadows area on a “typical PM10 Season Day” during 2011 by approximately 1,600 lbs/day. 2014 PM10 Maintenance Plan at 11, 12 (Table 4-1).

    Third, the 2014 PM10 Maintenance Plan cites District Regulation 040.030, “Dust Control,” as another source of significant emissions reductions in Truckee Meadows. District Regulation 040.030 limits emissions of fugitive dust from a variety of dust generating activities, including, but not limited to, public or private construction; mining; processing of sand, gravel, or dirt; and operation and use of unpaved parking facilities. See section A of District Regulation 040.030. Specifically, District Regulation 040.030 establishes (1) stabilization requirements for unpaved parking lots/staging areas, unpaved haul/access roads, and open, vacant, or disturbed areas, and open storage piles; (2) work practice requirements for bulk material hauling, and spillage, carry-out, erosion and/or trackout; and (3) dust control permit requirements for dust generating activities. The EPA approved District Regulation 040.030 as a revision of the Nevada SIP in 2007 making it permanent and enforceable for the purposes of CAA section 107(d)(3)(E)(iii). 72 FR 25969 (May 8, 2007). According to the 2014 PM10 Maintenance Plan, District Regulation 040.030 reduced PM10 emissions in the Truckee Meadows area on a “typical PM10 Season Day” during 2011 by approximately 400 lbs/day. 2014 PM10 Maintenance Plan at 11, 12 (Table 4-1).

    The 2014 PM10 Maintenance Plan also provides an analysis of economic and meteorological conditions in Washoe County during the 1990 to 2011 period to demonstrate that the emission reductions in the Truckee Meadows area did not result from temporary reductions (e.g., economic downturns or shutdowns) or unusually favorable meteorology. According to the plan, demographic and economic indicators such as population, full-time employment, total industry earnings, and VMT demonstrated steady, positive growth during this period. See 2014 PM10 Plan at 13, Table 4-2 (“Washoe County Demographic and Economic Indicators (1990-2011)”). For example, during the 1990-2011 period in Washoe County, growth in several key economic indicators (i.e., population 64%, full-time employment 41%, total industry earnings 158%, and VMT 19 86%) coincided with improved air quality. Id. With respect to meteorological conditions, the 2014 PM10 Maintenance Plan presents data from the 1990-2011 period that indicate that wintertime precipitation, wind speed, and barometric pressure levels fluctuated above and below historic averages throughout that period. Id. at 14-16.

    19 The VMT data in this table are expressed in miles per day and represent only the Truckee Meadows portion of Washoe County. See 2011 PM10 Maintenance Plan at 13, Table 4-2 (“Washoe County Demographic and Economic Indicators (1990-2011)”).

    Thus, we find that the improvements in PM10 air quality during the 1990-2011 period resulted from implementation of permanent and enforceable control measures that significantly reduced PM10 emissions in the Truckee Meadows area, rather than from temporary emission reductions or unusually favorable meteorology. During the 2011 PM10 season, implementation of these SIP-approved measures reduced daily PM10 emission levels by approximately 68 percent, indicating that these SIP control measures countered the emissions increases that otherwise would have occurred due to steady growth in the area during this period. As such, we find that the criterion for redesignation in CAA section 107(d)(3)(E)(iii) has been met.

    D. The Area Has a Fully-Approved Maintenance Plan, Including a Contingency Plan, Under CAA Section 175A

    Section 107(d)(3)(E)(iv) of the CAA requires the EPA, in order to approve a redesignation to attainment, to fully approve a maintenance plan for the area as meeting the requirements of section 175A of the Act. Section 175A sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. We interpret this section of the Act to require, in general, the following core elements:

    • An attainment emissions inventory to identify the level of emissions in the area sufficient to attain the NAAQS;

    • A demonstration of maintenance of the NAAQS for at least 10 years after redesignation;

    • Provisions for continued operation of an air quality monitoring network;

    • Provisions to verify continued attainment; and

    • Contingency provisions that the EPA deems necessary to assure that the state will promptly correct any violation of the NAAQS that occurs after redesignation of the area.

    See Calcagni Memo at 7-12. We discuss below how each of these core elements is addressed in the 2014 PM10 Maintenance Plan. 1. Attainment Inventory

    A maintenance plan for the PM10 standard must include an inventory of emissions of PM10 in the area to identify a level of emissions sufficient to attain the PM10 NAAQS.20 This inventory must be consistent with the EPA's most recent guidance on emissions inventories for nonattainment areas available at the time and should represent emissions during the time period associated with the monitoring data showing attainment. The inventory must also be comprehensive, including emissions from stationary sources, area sources, nonroad mobile sources and on-road mobile sources, and must be based on actual emissions during the appropriate season or episode, if applicable. See CAA section 172(c)(3). EPA's primary guidance for developing PM10 emissions inventories is a document titled, “PM10 Emissions Inventory Requirements,” EPA-454/R-94-033 (September 1994).

    20 PM10 precursor emissions may also be required depending upon the contribution of secondarily-formed particulate matter to ambient PM10 concentrations. As discussed above, a 1988 DRI study concluded that the PM10 contribution from precursors (i.e., ammonium nitrates and ammonium sulfates) was very small (i.e., approximately 5-6%) compared to the contributions of other direct PM10 sources in Truckee Meadows. As such, we find that the absence of PM10 precursors from the attainment inventory in the 2014 PM10 Maintenance Plan to be acceptable.

    The 2014 PM10 Maintenance Plan provides an emissions inventory of actual emissions from all direct PM10 sources within Truckee Meadows on an average day during the winter season during year 2011. See table 2 below. The WCAQMD developed this inventory based on the methods and assumptions presented in detail in the WCAQMD's 2011 Periodic Emissions Inventory (November 2012), with the following adjustments:

    • Paved road fugitive dust was re-calculated based on the most recent VMT estimates provided by the Regional Transportation Commission of Washoe County (RTC) and the most recent version of EPA emission factors published in AP-42,21 section 13.2.1 (“Paved Roads”), dated January 2011, whereas the corresponding estimates in the 2011 Periodic Emissions Inventory relied on earlier VMT estimates and an earlier version of AP-42 section 13.2.1 (dated November 2006);

    21 AP-42, Compilation of Air Pollutant Emission Factors, is a document published by the EPA as the primary collection of EPA approved emission factor information. The emission factors have been developed and compiled from source test data, material balance studies, and engineering estimates.

    • Unpaved road fugitive dust was re-calculated based on the most recent VMT estimates provided by the RTC and updated silt loading factors; and

    • On-road mobile source emissions (combustion, brake and tire wear) were re-calculated based on the most recent VMT estimates provided by the RTC and a different traffic demand model.

    In addition to showing the estimated actual emissions in 2011, table 2 below also the baseline maintenance plan inventory used by the 2014 PM10 Maintenance Plan to demonstrate maintenance through 2030. The only difference between the 2011 actuals and the maintenance plan baseline is in the wildfire source category. An unusually high number of wildfires occurred during the winter of 2011, which greatly increased the contribution of wildfires to the overall 2011 PM10 inventory, and thus, for the purposes of developing a baseline attainment inventory for maintenance plan purposes, the WCAQMD replaced the actual PM10 emissions from wildfires in 2011 with the average of wildfire emissions from the four previous inventory years (1999, 2002, 2005, and 2008). 2014 PM10 Maintenance Plan at 25. We find that adjustment to be reasonable. Even with the adjustment for wildfires, over 85 percent of direct PM10 emissions is attributed to nonpoint sources.

    Table 2—Truckee Meadows 2011 Winter-Season Emission Inventory for Direct PM10 [lbs/day] Category Subcategory Estimated
  • actual
  • emissions
  • Maintenance plan baseline
    Point Sources All 25 25 Nonpoint Sources Fuel Combustion 111 111 Residential Wood Combustion 5,888 5,888 Construction a 460 460 Non-Construction Industrial Processes 929 929 Paved Roads—Fugitive Dust 1,453 1,453 Paved Road—Sanding and Salting 339 339 Unpaved Roads—Fugitive Dust 2,623 2,623 Wildfires 10,947 21 All Other Nonpoint 61 61 Subtotal—Nonpoint 22,812 11,885 Non-road Mobile All 606 606 Onroad Mobile All 1,183 1,183 Totals 24,626 13,700 a Construction-related emissions represents a sum of several different types of construction. One such type, road construction (178 lbs/day), is included in the motor vehicle emissions budget (MVEB) discussed in section V.D.6 of this proposed rule (along with paved road fugitive dust, unpaved road fugitive dust, and on-road mobile sources). Source: 2014 PM10 Maintenance Plan, appendix C. Totals may not add up due to rounding.

    The EPA believes that the selection of 2011 as the attainment year inventory is appropriate given that it represents emissions from an attainment year and the year for which the most recent emissions inventory information was available at the time of preparation of the maintenance plan. Moreover, preparation of a seasonal (winter) inventory in this instance is appropriate given that winter is typically the season when the highest ambient PM10 concentrations are monitored in Truckee Meadows. We find that the WCAQMD's 2011 emissions inventory for direct PM10 is based upon reasonable assumptions and methodologies, as described in the 2014 PM10 Maintenance Plan and 2011 Periodic Emissions Inventory,22 and that the inventory is comprehensive, current and accurate. We therefore propose to approve the inventory of actual emissions in 2011 as meeting the requirements of CAA section 172(c)(3) and find the 2011 inventory, as adjusted to discount 2011 wildfire emissions, acceptable for use in demonstrating maintenance of the PM10 standard in the future.

    22 The WCAQMD's 2011 Periodic Emissions Inventory, dated November 2012 and submitted to the EPA for purposes of meeting the AERR requirements, provides significant detail regarding the assumptions and methodologies used to develop the 2011 PM10 inventory used in the 2014 PM10 Maintenance Plan. The 2011 Periodic Emissions Inventory also includes emissions inventories for VOCs, NOX, SOX, and ammonia. AERR requires state, local and tribal agencies to collect and submit emissions data for criteria pollutants to EPA's Emissions Inventory System.

    2. Maintenance Demonstration

    Section 175A of the CAA requires a demonstration of maintenance of the NAAQS for at least 10 years after redesignation. A state may generally demonstrate maintenance of the NAAQS by either showing that future emissions of a pollutant or its precursors will not exceed the level of the attainment inventory, or by modeling to show that the future anticipated mix of sources and emission rates will not cause a violation of the NAAQS. See Calcagni Memo at 9-11.

    The 2014 PM10 Maintenance Plan demonstrates that the Truckee Meadows area will maintain the PM10 NAAQS through 2030 by comparing the adjusted 2011 attainment inventory (also referred to as the maintenance plan baseline) against the projected emissions for 2015, 2020, 2025, and 2030. See 2014 PM10 Maintenance Plan at 26-28 (Tables 6-4 and 6-5) and Appendix C (“Truckee Meadows Projected PM10 Seasonal Emissions (lbs/day)”). Using the adjusted 2011 emissions inventory as a baseline and appropriate growth factors described in appendix B of the 2014 PM10 Maintenance Plan, the WCAQMD projected emissions inventories for 2015, 2020, 2025, and 2030. These projections were based on Washoe County's forecasts of population, employment, and VMT (see 2014 PM10 Maintenance Plan at appendix B, table B-2), consistent with the forecasts used by the local metropolitan planning organization (MPO); the EPA nonroad and on-road emissions models (i.e., NONROAD2008a and MOVES2010a) that the WCAQMD used to calculate the 2011 emissions inventory; and a survey of RWC activities that the WCAQMD conducts at least once every three years. See 2014 PM10 Plan at appendix B (“Growth Factors for 2015, 2020, 2025, and 2030 Projections”). The WCAQMD's projected PM10 emission levels for 2015, 2020, 2025, and 2030 are shown in table 3.

    Table 3—Truckee Meadows PM10 Maintenance Plan Projections for 2015, 2020, 2025, and 2030 [Average winter day, lbs/day] Category Maintenance plan
  • baseline—2011
  • 2015 2020 2025 2030
    Point Sources 25 28 32 37 42 Nonpoint Sources 11,885 11,510 11,379 11,361 11,512 Non-road Mobile 606 501 386 328 307 Onroad Mobile 1,183 953 839 828 883 Totals 13,700 12,992 12,637 12,554 12,744 Source: 2014 PM10 Plan at 27, Table 6-4.

    Despite expected growth in the area, the maintenance plan's projected PM10 emissions in Truckee Meadows for 2015, 2020, 2025, and 2030 are below the 2011 maintenance inventory of 13,700 lbs/day. The downward trend in PM10 emissions reflects the offsetting effects of the WCAQMD's RWC program and the gradual replacement over time of older motor vehicle and nonroad equipment with newer models that are designed to meet more stringent emissions standards than had applied to the older models. Based on our review, we find that the methods, growth factors, and assumptions used by the WCAQMD to project emissions to 2015, 2020, 2025 and 2030 levels are reasonable. Given that the projections (summarized in table 3 above) show future emissions in 2015, 2020, 2025, and 2030 to be below those in 2011 (and that reflect attainment conditions), we find that the projections provide an adequate basis to demonstrate maintenance of the PM10 standard within Truckee Meadow through 2030. Also, as described further in section V.D.6 of this document, the WCAQMD has chosen to include “safety margins” in the motor vehicle emissions budgets for 2015 (708 lbs/day), 2020 (1,063 lbs/day), 2025 (1,146 lbs/day), and 2030 (955 lbs/day), but we find that the overall emissions projections, including the safety margins, continue to demonstrate maintenance because they do not exceed the emissions in 2011, and thus, the safety margins are consistent with maintenance through 2030.

    Section 175A requires that the EPA approve a plan providing for maintenance in the area for at least ten years after redesignation. If this redesignation becomes effective in 2015, the projected 2030 inventory demonstrates that Truckee Meadows will maintain the PM10 NAAQS for more than 10 years beyond redesignation. Moreover, the projected emissions inventories for 2015, 2020, and 2025, i.e., milestone years between the attainment inventory and the maintenance plan horizon year, sufficiently demonstrate that Truckee Meadows will maintain the standard throughout the period from redesignation through 2030. As such, the EPA concludes that the 2014 PM10 Maintenance Plan adequately demonstrates maintenance of the standard through 2030.

    3. Monitoring Network

    Continued ambient monitoring within an area is required over the maintenance period. See Calcagni Memo at 11. In the 2014 PM10 Maintenance Plan, the WCAQMD indicates its intention to continue to operate an air quality monitoring network consistent with 40 CFR part 58 to verify the attainment status. 2014 PM10 Maintenance Plan at 29. The plan also notes that Washoe County's PM10 monitoring network will be reviewed annually pursuant to 40 CFR 58.10 to ensure the network meets the monitoring objectives defined in 40 CFR part 58, appendix D. As discussed above in section V.A, the WCAQMD operates an EPA-approved air quality monitoring network. The WCAQMD obtains funding to meet the requirements of part 58 primarily from CAA section 105 grants and from the Nevada Department of Motor Vehicles. For these reasons, we find that the 2014 PM10 Maintenance Plan provides adequately for continued ambient PM10 monitoring through the maintenance period.

    4. Verification of Continued Attainment

    Each state should ensure that it has the legal authority to implement and enforce all measures necessary to attain and maintain the NAAQS, including the acquisition of ambient and source emission data to demonstrate attainment and maintenance, pursuant to CAA sections 110(a)(2)(B) and (F). See Calcagni Memo at 11. The NDEP and the WCAQMD have the legal authority to implement and enforce the requirements of the 2014 PM10 Maintenance Plan. This includes the authority to adopt, implement and enforce any emission control contingency measures determined to be necessary to correct PM10 NAAQS violations. As noted above, to implement the maintenance plan, the WCAQMD will continue to monitor PM10 levels in Truckee Meadows. The WCAQMD will also continue to use three existing mechanisms to track emissions levels to screen for significant increases in actual PM10 emissions.

    First, the WCAQMD will continue to prepare and submit to the EPA comprehensive periodic PM10 emissions inventories on a triennial schedule. Second, the WCAQMD will continue to submit regular updates of stationary and area sources within Washoe County, consistent with the requirements of EPA's Consolidated Emissions Reporting Rule (CERR) and AERR. Finally, the WCAQMD remains committed to conducting its residential wood use surveys at least once every three years, to estimate the number of devices (fireplaces, woodstoves, and pellet stoves), amounts of wood burned, and PM10 emissions from these activities in Washoe County. See 2014 PM10 Maintenance Plan at 29-30.

    We find that the WCAQMD's commitments to verify continued attainment of the PM10 NAAQS through continued ambient air monitoring and emissions tracking are acceptable.

    5. Contingency Plan

    Section 175A(d) of the CAA requires that maintenance plans include such contingency provisions as the EPA deems necessary to promptly correct any violations of the NAAQS that occur after redesignation of the area. These contingency measures are distinguished from those generally required for nonattainment areas under section 172(c)(9) in that they are not required to be fully adopted measures that will take effect without further action by the state. However, the contingency plan is an enforceable part of the SIP and should ensure that the contingency measures are adopted expeditiously once they are triggered by a specified event. The maintenance plan should clearly identify the measures to be adopted, a schedule and procedure for adoption and implementation, and a specific timeline for action by the state. Contingency provisions should also identify indicators or triggers which will be used to determine when the contingency measures need to be implemented. The EPA evaluates contingency measures on a case-by-case basis.23 Calcagni Memo at 12, 13.

    23 Section 175A(d) also requires contingency provisions to include a requirement that the state will implement all measures with respect to the control of the air pollutant concerned which were contained in the SIP for the area before redesignation of the area to attainment. In this case, no SIP measures for the control of PM10 in Truckee Meadows are being rescinded or relaxed, and thus, the contingency provisions in the 2014 PM10 Maintenance Plan need not address this requirement.

    The 2014 PM10 Maintenance Plan contains a contingency plan that is triggered upon a violation of the PM10 standard, that requires the WCAQMD to make certain recommendations to the Health District within a certain time period after the triggering event, and that commits the Health District to adopting and implementing such recommendations as promptly and expediently as possible, but not later than the next PM10 (i.e., winter) season. 2014 PM10 Maintenance Plan at 30-32.

    More specifically, the contingency plan is triggered when any monitor operated by the WCAQMD records a violation of the PM10 NAAQS, as defined by 40 CFR part 50, Appendix K (i.e., when the expected number of exceedances at the monitoring site during the calendar year is greater than one).24 If the contingency plan is triggered, the WCAQMD will provide recommendations for implementation of specific contingency measures to the Washoe County District Board of Health (referred to herein as the “Health District.”). The recommendations must occur at the next regularly scheduled meeting but no later than 45 days after the violation. The recommendations will include a timeline for adoption and implementation as expeditiously as possible, but no later than the next PM10 season (November, December, and January). The WCAQMD maintains a list of potential contingency measures, focusing on significant PM10 emission sources, for recommendation in such events. Table 4 presents the WCAQMD's current list of potential contingency measures.

    24 An exceedance is defined as a daily value that is above the level of the 24-hour standard (i.e., 150 µg/m3) after rounding to the nearest 10 µg/m3 (i.e., values ending in 5 or greater are to be rounded up).

    Table 4—2014 PM10 Maintenance Plan Contingency Measures Category Potential contingency measure Paved Streets Increase stringency of street sanding and sweeping programs. Improve unpaved shoulders. Transportation control measures to reduce VMT. Unpaved Streets Improve unpaved streets and shoulders. Post speed limits to decrease vehicle speeds. Restrict access to decrease Average Daily Trips and VMT. Dust Control Phased mass grading. Mass grading allocation system. Stabilize projects during PM10 season. Decrease one acre dust control permit exemption. Residential Wood Combustion Increase one acre lot size exemption. Mandatory curtailment at lower PM10 concentrations. Change-out program to clean burning device. Mobile Sources (Diesel) Non-road diesel engine repowers and rebuilds. Non-road diesel tailpipe controls (i.e., filters and catalysts). Truck Stop Electrification systems for heavy-duty vehicles. More stringent heavy-duty diesel vehicle idling limits. Fleet modernization. More stringent inspection & maintenance program of light-duty, medium-duty, and heavy-duty vehicles Source: 2014 PM10 Plan at 32, Table 6-7, “Potential PM10 Contingency Measures.”

    To address changes in growth and technology, which may alter the effectiveness of different measures over time, the WCAQMD will conduct a triennial review and reprioritization of these potential contingency measures in coordination with the periodic PM10 emissions inventory. See 2014 PM10 Plan at 31. The WCAQMD will notify EPA Region 9 within 30 days of implementation of a contingency measure. Id.

    In addition to the contingency plan described above, the maintenance plan identifies a SIP-approved program that serves as an automatically triggered measure when 24-hour PM10 concentrations reach or are predicted to reach “Stage 1” levels (154 µg/m3). Specifically, District Regulation 050.001, “Emergency Episode Plan,” is a SIP-approved program that requires the WCAQMD to take certain actions when 24-hour PM10 concentrations reach or are predicted to reach “Stage 1” levels such as: (1) Implementing procedures to notify the public of potential health problems; (2) prohibiting all open and prescribed burning; (3) prohibiting the use of permitted incinerators, crematoriums, and pathological incinerators; (4) prohibiting the use of solid fuel burning devices; and (5) activating control plans for the largest PM10 sources in Washoe County. 2014 PM10 Maintenance Plan at 11. As such, implementation of District Regulation 050.001 acts to reduce the chances that the contingency plan set forth in the 2014 PM10 Maintenance Plan will be triggered.

    Based on our review of the contingency provisions in the 2014 PM10 Maintenance Plan, as described above, we find that they are adequate to ensure that the Health District will promptly correct any violation of the PM10 NAAQS that occurs after redesignation, as required by CAA section 175A(d).

    6. Transportation Conformity and Motor Vehicle Emissions Budgets

    Transportation conformity is required by section 176(c) of the CAA. Our transportation conformity rule (codified in 40 CFR part 93, subpart A) requires that transportation plans, programs and projects conform to SIPs and establishes the criteria and procedures for determining whether or not they do so. Conformity to the SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS. In this context, “transportation activities” refers to plans, programs, and projects affecting the road network (paved and unpaved) and the public transit system in nonattainment areas and in former nonattainment areas that have been redesignated to attainment (commonly referred to as “maintenance” areas.).

    PM10 maintenance plan submittals must specify the maximum emissions of transportation-related PM10 emissions 25 allowed in the last year of the maintenance period, i.e., the motor vehicle emissions budgets (MVEBs). (MVEBs may also be specified for additional years during the maintenance period.) The MVEBs serve as a ceiling on emissions that would result from an area's planned transportation system. The MVEB concept is further explained in the preamble to the November 24, 1993, transportation conformity rule (58 FR 62188). The preamble describes how to establish MVEBs in the SIP and how to revise the MVEBs if needed.

    25 Transportation-related emissions of volatile organic compounds (VOC) and/or oxides of nitrogen (NOX) emissions must also be specified in PM10 areas if the EPA or the state finds that transportation-related emissions of one or both of these precursors within the nonattainment area are a significant contributor to the PM10 nonattainment problem and has so notified the metropolitan planning organization (MPO) and the U.S. Department of Transportation (DOT), or if the applicable SIP revision or SIP revision submittal establishes an approved or adequate budget for such emissions as part of the RFP, attainment or maintenance strategy. 40 CFR 93.102(b)(2)(iii). Neither of these conditions apply to Truckee Meadows.

    The maintenance plan submittal must demonstrate that these emissions levels, when considered with emissions from all other sources, are consistent with maintenance of the NAAQS. In order for us to find these emissions levels or “budgets” adequate and approvable, the submittal must meet the conformity adequacy provisions of 40 CFR 93.118(e)(4) and (5). For more information on the transportation conformity requirement and applicable policies on MVEBs, please visit our transportation conformity Web site at: http://www.epa.gov/otaq/stateresources/transconf/index.htm. EPA's process for determining adequacy of a MVEB consists of three basic steps: (1) Notifying the public of a SIP submission; (2) providing the public the opportunity to comment on the MVEB during a public comment period; and, (3) making a finding of adequacy or inadequacy. The process for determining the adequacy of a submitted MVEB is codified at 40 CFR 93.118(f).

    On January 19, 2010, the EPA announced the availability of the Truckee Meadows 2009 PM10 Maintenance Plan with MVEBs (for 2009, 2013, 2018, and 2020) and of a 30-day public comment period on the EPA's Adequacy Web site at: http://www.epa.gov/otaq/stateresources/transconf/currsips.htm. The comment period for this notification ended on February 19, 2010, and the EPA received no comments from the public. Later that year, the EPA found the MVEBs from the 2009 PM10 Maintenance Plan adequate for transportation conformity purposes. 75 FR 27776 (May 18, 2010).

    The 2014 PM10 Maintenance Plan contains PM10 MVEBs for Truckee Meadows for 2015, 2020, 2025, and 2030. The MVEBs are the on-road mobile source primary PM10 emissions inventory plus a safety margin for the Truckee Meadows nonattainment area for 2015, 2020, 2025, and 2030. The MVEBs in the 2014 PM10 Maintenance Plan are presented in table 5 below. The derivation of the MVEBs is discussed on page 28 of the 2014 PM10 Maintenance Plan and further described below.

    Table 5—2014 PM10 Maintenance Plan Motor Vehicle Emissions Budgets [Average winter day, lbs/day] Budget year PM10 2015 5,638 2020 6,088 2025 6,473 2030 6,927 Source: 2014 PM10 Maintenance Plan at table 6-6, page 28.

    The WCAQMD developed the MVEBs in the 2014 PM10 Maintenance Plan by using the on-road motor vehicle emission inventory factors in MOVES2010b and AP-42 and recent vehicle activity data from TransCAD, a travel demand model used by the RTC, which is the MPO for the area. The components of the MVEBs are shown in table 6 and are comprised of direct on-road mobile source emissions, road construction emissions, fugitive emissions from paved and unpaved roads, and safety margins.

    Table 6—Source Categories and Direct PM10 Emissions Comprising the Motor Vehicle Emissions Budgets (Lbs per Day, Average Winter Day) in the 2014 PM10 Plan Category 2015 2020 2025 2030 Diesel Idling 7 4 1 1 Paved Road—Fugitives 1,414 1,517 1,627 1,736 Unpaved Road—Fugitives 2,380 2,479 2,688 3,174 Road Construction 183 189 185 180 On-road Motor Vehicles a 946 835 825 880 Safety Margin 708 1,063 1,146 955 Totals 5,638 6,088 6,473 6,927 a On-road Motor Vehicles includes directly emitted PM10 from combustion and also reflects tire and brake wear. Source: 2014 PM10 Maintenance Plan at table 6-6, page 28.

    A state may choose to apply a safety margin under our transportation conformity rule so long as such margins are explicitly quantified in the applicable plan and are shown to be consistent with attainment or maintenance of the NAAQS (whichever is relevant to the particular plan). See 40 CFR 93.124(a). As shown in table 7 below, each safety margin was calculated by subtracting a future inventory from the 2011 maintenance inventory. Also, see table 6-5 in the 2014 PM10 Maintenance Plan. The safety margins equal the difference between the projected level of overall PM10 emissions in Truckee Meadows in each of the maintenance years and the 2011 maintenance inventory. Each safety margin, when combined with its corresponding future-year inventory, is consistent with continued maintenance of the PM10 NAAQS through 2030.

    Table 7—Calculation of Safety Margins (lbs/day) 2015 2020 2025 2030 2011 Maintenance Inventory 13,700 13,700 13,700 13,700 Future-Year Inventory 12,992 12,637 12,554 12,744 Safety Margin 708 1,063 1,146 955 Source: 2014 PM10 Maintenance Plan at table 6-5, page 28.

    With respect to the 2014 Plan and related MVEBs, we have evaluated the budgets against our adequacy criteria in 40 CFR 93.118(e)(4) and (5) as part of our review of the budgets' approvability and are completing the adequacy review of these budgets concurrent with our final action on the 2014 Plan.26 The details of the EPA's evaluation of the MVEBs for compliance with the budget adequacy criteria of 40 CFR 93.118(e) are provided in the TSD for this proposed rulemaking. On September 10, 2015, the EPA announced the availability of the 2014 Plan with MVEBs and a 30-day public comment period. This announcement was posted on EPA's Adequacy Web site at:http://www.epa.gov/otaq/stateresources/transconf/reg9sips.htm#nv.

    26 Under the Transportation Conformity regulations, the EPA may review the adequacy of submitted motor vehicle emission budgets simultaneously with the EPA's approval or disapproval of the submitted implementation plan. 40 CFR 93.118(f)(2).

    The EPA is proposing to approve the MVEBs for 2015, 2020, 2025 and 2030, shown in table 5 above, as part of our approval of 2014 PM10 Maintenance Plan. The EPA has determined that the MVEB emission targets are consistent with emission control measures in the SIP and are consistent with maintenance of the PM10 standard in Truckee Meadows through 2030.27 As noted above, we found the MVEBs (for years 2009, 2013, 2018, and 2020) in the 2009 PM10 Maintenance Plan to be adequate for transportation purposes, and those are the PM10 MVEBs in effect for transportation conformity purposes today. If we finalize today's action, as proposed, the PM10 MVEBs (for years 2015, 2020, 2025, and 2030) from the 2014 PM10 Maintenance Plan would replace the PM10 MVEBs previously found adequate. Any and all comments on the adequacy and approvability of the MVEBs in the 2014 PM10 Maintenance Plan should be submitted during the comment period stated in the DATES section of this document.

    27 On page 28 of the 2014 Plan, the WCAQMD explains “For years beyond 2030, the MVEB will remain at the 2030 level of 6,927 bs/day.” This sentence refers to the fact that if the SIP does not have a budget in a particular analysis year, the budget established for the most recent prior year is used as described in 40 CFR 93.118(b)(ii). The 2014 Plan does not establish budgets for any subsequent year after 2030. To avoid any ambiguity about the intent of the language on page 28 of the 2014 Plan, WCAQMD staff clarified that “For years beyond 2030” means “For analysis years beyond 2030.” See September 16, 2015 email from Daniel Inouye, WCAQMD, to John Ungvarsky, EPA Region 9.

    7. Conclusion

    Based on the review presented above of the various elements of the state's submitted maintenance plan, we are proposing to approve the 2014 PM10 Maintenance Plan as a revision to the Nevada SIP. In so doing, we find that the 2014 PM10 Maintenance Plan, adopted on August 28, 2014 by the Health District and submitted by the NDEP to the EPA on November 7, 2014, satisfies the requirements of section 175A of the Act. If finalized as proposed, our approval of the 2014 PM10 Maintenance Plan will satisfy the criterion for redesignation under CAA section 107(d)(3)(E)(iv).

    VI. Proposed Deletion of TSP Designation for Truckee Meadows A. General Considerations

    Consistent with CAA section 107(d)(4)(B), we have considered the continued necessity for retaining the remaining TSP area designation in Nevada, and as discussed below, we have decided that the TSP nonattainment designation for Truckee Meadows (HA #87) is no longer necessary. As a result, we are proposing to delete it from the TSP table in 40 CFR 81.329.

    To evaluate whether the TSP area designation should be retained or can be deleted, we have relied upon the final rule implementing the PM10 NAAQS (see 52 FR 24634, July 1, 1987), a policy memorandum on TSP redesignations (see memo dated May 20, 1992 from Joseph W. Paisie, Acting Chief, SO2/Particulate Matter Programs Branch, EPA Office of Air Quality Planning and Standards, to Chief, Air Branch, Regions I-X, entitled “TSP Redesignation Request”), and our proposed and final rules establishing maximum allowable increases in concentrations (also known as “increments”) for PM10 (see the proposed rule at 54 FR 41218, October 5, 1989, and the final rule at 58 FR 31622, June 3, 1993).

    Based on the above references, we believe that the relevant considerations for evaluating whether the necessity of retaining the TSP area designations depend upon the status of a given area with respect to TSP and PM10. For areas that are nonattainment for TSP but attainment for PM10, we generally find that the TSP designations are no longer necessary and can be deleted when the EPA (1) approves a state's revised PSD program containing the PM10 increments, (2) promulgates the PM10 increments into a state's SIP where the State chooses not to adopt the increments on their own, or (3) approves a state's request for delegation of PSD responsibility under 40 CFR 52.21(u). See 58 FR 31622, at 31635 (June 3, 1993).

    For areas that are nonattainment for TSP and nonattainment for PM10, an additional consideration is whether deletion of the TSP designations would automatically relax any emissions limitations, control measures or programs approved into the SIP. If such a relaxation would occur automatically with deletion of the TSP area designations, then we will not delete the designations until we are satisfied that the resulting SIP relaxation would not interfere with any applicable requirement concerning attainment, reasonable further progress (RFP), or maintenance of the NAAQS or any other requirement of the Clean Air Act in the affected areas. See section 110(l) of the Act.

    In the case of Truckee Meadows, we believe that the considerations for both types of areas described above are relevant because, although Truckee Meadows Valley is nonattainment for TSP and PM10, we are proposing to redesignate the area to attainment for PM10 in today's action. Thus, we must take into account both the potential for relaxation that would be inconsistent with continued maintenance of the PM10 NAAQS as well as protection of the PM10 increments (as applies in areas designated attainment or unclassifiable).

    B. Deletion of TSP Nonattainment Area Designation for Truckee Meadows

    With respect to protection of the PM10 increments, the TSP nonattainment designation is no longer necessary in Truckee Meadows because, even though the WCAQMD does not currently have an approved PSD program, if the EPA finalizes the actions in today's proposed rulemaking, the federal PSD requirements under 40 CFR 52.21 (including the PM10 increments) will apply to new major sources or major modifications to existing major sources of PM10. See 40 CFR 52.1485(b). The WCAQMD administers the PSD pre-construction permit program in 40 CFR 52.21 within Washoe County except for coal-fired power plants, which fall under the jurisdiction of NDEP. Both the WCAQMD and the NDEP administer the PSD permit program in 40 CFR 52.21 under delegation agreements with the EPA.

    To ensure that deletion of the TSP nonattainment designation for Truckee Meadows would not result in any automatic relaxations in SIP emissions limitations, control measures or programs that would interfere with attainment, RFP or maintenance of the NAAQS (including PM10) or any other requirement of the Act, we reviewed the following portions of the Nevada SIP:

    The TSP portions of the Truckee Meadows Air Quality Implementation Plan (AQIP) adopted in response to the CAA, as amended in 1977;

    Washoe County stationary source rules, including section 040.005 (“Visible Air Contaminants”), section 040.010 (“Particulate Matter”), section 040.020 (“Dust and Fumes”), section 040.030 (“Dust Control”), section 040.031 (“Street Sanding Operations”), section 040.032 (“Street Sweeping Operations”), section 040.035 (“Open Fires”), section 040.040 (“Burning Permit Conditions”), section 040.045 (“Refuge Disposal”), section 040.050 (“Incinerator Emissions”), section 040.051 (“Wood Stove/Fireplace Insert Emissions”), and section 040.060 (“Sulfur Content of Fuel”).

    Based on our review of the TSP provisions in the Truckee Meadows AQIP and the various rules cited above, we find that none are contingent upon continuation of the TSP nonattainment designation, and thus deletion of the TSP designation would not automatically relax any standard.

    In summary, because upon redesignation the PSD PM10 increments will apply in Truckee Meadows and because the deletion of the TSP nonattainment designation for Truckee Meadows would not automatically relax any emissions limitation or control measure in the Nevada SIP, we find that the TSP nonattainment designation is no longer necessary and can be deleted. Based on the above discussion and evaluation, therefore, we are proposing to delete the TSP nonattainment area designation for Truckee Meadows (HA #87) from the “Nevada-TSP” table in 40 CFR 81.329.28

    28 Because the TSP area designation for Truckee Meadows is the last such designation for the State of Nevada in 40 CFR 81.329, we will delete the entire TSP table in 40 CFR 81.329 if we finalize our proposed deletion of the TSP area designation for Truckee Meadows.

    VII. Proposed Actions and Request for Public Comment

    Under CAA section 110(k)(3), and for the reasons set forth above, the EPA is proposing to approve the BACM demonstration submitted by the NDEP on August 5, 2002 as part of the 2002 Truckee Meadows PM10 Attainment Plan and the 2014 Truckee Meadows PM10 Maintenance Plan submitted by the NDEP on November 7, 2014 as revisions of the Nevada SIP. In so doing, the EPA finds that the 2011 attainment inventory in the maintenance plan meets the requirements of CAA section 172(c)(3) and finds that the maintenance demonstration showing how Truckee Meadows will continue to attain the PM10 standard through 2030, and the contingency provisions describing the actions that the WCAQMD will take in the event of a future monitored violation, meet all applicable requirements for maintenance plans and related contingency provisions in CAA section 175A. The EPA is also proposing to approve the motor vehicle emissions budgets in the 2014 PM10 Maintenance Plan (and shown in table 5 above) because we find they meet the applicable adequacy criteria under 40 CFR 93.118(e).

    In addition, under CAA section 107(d)(3)(D), we are proposing to approve the state's request, which accompanied the submittal of the 2014 PM10 Maintenance Plan, to redesignate the Truckee Meadows PM10 nonattainment area to attainment for the PM10 standard. We are doing so based on our conclusion that the area has met, or will meet as part of this action, all of the criteria for redesignation under CAA section 107(d)(3)(E). More specifically, we propose to find that Truckee Meadows has attained the PM10 standard based on the most recent three-year period (2012-2014) of quality-assured, certified, and complete (or otherwise validated) PM10 data; that relevant portions of the Nevada SIP are, or will be as part of this action, fully approved; that the improvement in air quality is due to permanent and enforceable reductions in emissions; that Nevada has met all requirements applicable to the Truckee Meadows PM10 nonattainment area with respect to section 110 and part D of the CAA if we finalize our approvals of the BACM demonstration in the 2002 PM10 Attainment Plan and the attainment inventory in the 2014 PM10 Maintenance Plan, as proposed herein; and that Truckee Meadows will have a fully approved maintenance plan meeting the requirements of CAA section 175A if we finalize our approval of it, also as proposed herein.

    In connection with the above proposed approvals and determinations, and as authorized under CAA section 189(e), we are proposing to determine that major stationary sources of PM10 precursors do not contribute significantly to PM10 exceedances in the Truckee Meadows area based on the information in the 1988 DRI Report and more recent inventory and speciation data available from the WCAQMD.

    Lastly, the EPA is proposing to delete the nonattainment area designation for Truckee Meadows for the revoked national standard for total suspended particulate because we have concluded that the designation is no longer necessary.29

    29 If we finalize the proposed approval of the redesignation request for Truckee Meadows to attainment for the PM10 standard and the proposed deletion of the TSP area designation for Truckee Meadows, as proposed, then all areas within the State of Nevada will be designated attainment or unclassifiable for all of the current NAAQS for particulate matter (i.e., PM10 and PM2.5). At that point, the EPA's finding at 40 CFR 52.1476(a) (“The requirements of subpart G of this chapter are not met since the plan does not provide for the attainment and maintenance of the national standards for particulate matter in the Northwest Nevada and Nevada Intrastate Regions.”), promulgated at 37 FR 10842, 10879 (May 31, 1972), will become obsolete, and therefore, we intend to delete 40 CFR 52.1476(a) if we finalize this proposed rule, as proposed.

    We are soliciting comments on these proposed actions. We will accept comments from the public on this proposal for 30 days following publication of this proposal in the Federal Register. We will consider these comments before taking final action.

    VIII. Statutory and Executive Order Reviews

    Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by state law. Redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, 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, these actions merely propose to approve a State plan and redesignation request as meeting Federal requirements and do not impose additional requirements beyond those imposed by state law. For these reasons, these proposed actions:

    • Are 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);

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

    • Are 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.);

    • Do 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);

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

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

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

    • Are 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 Clean Air Act; and,

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

    In addition, the State plan for which the EPA is proposing approval does not apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the proposed rule, as it relates to the maintenance plan, 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). However, the EPA has contacted the Reno-Sparks Indian Colony and invited them to consult on today's action. The Reno-Sparks Indian Colony, which consists of members of three Great Basin Tribes—the Paiute, the Shoshone, and the Washo—and which has Indian country within the Truckee Meadows air quality planning area because the Indian country within the Truckee Meadows area would be redesignated to attainment along with State lands if the EPA were to finalize the proposed rules, as set forth herein.

    List of Subjects 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide.

    40 CFR Part 81

    Environmental protection, Air pollution control, National parks, Wilderness areas.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: September 18, 2015. Jared Blumenfeld, Regional Administrator, Region IX.
    [FR Doc. 2015-24854 Filed 9-29-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 300 [EPA-HQ-SFUND-2015-0573, 0574, 0575, 0576, 0578, 0579 and 0580; FRL-9934-76-OSWER] National Priorities List AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA” or “the Act”), as amended, requires that the National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”) include a list of national priorities among the known releases or threatened releases of hazardous substances, pollutants or contaminants throughout the United States. The National Priorities List (“NPL”) constitutes this list. The NPL is intended primarily to guide the Environmental Protection Agency (“EPA” or “the agency”) in determining which sites warrant further investigation. These further investigations will allow the EPA to assess the nature and extent of public health and environmental risks associated with the site and to determine what CERCLA-financed remedial action(s), if any, may be appropriate. This rule proposes to add seven sites to the General Superfund section of the NPL.

    DATES:

    Comments regarding any of these proposed listings must be submitted (postmarked) on or before November 30, 2015.

    ADDRESSES:

    Identify the appropriate docket number from the table below.

    Docket Identification Numbers by Site Site name City/county, state Docket ID No. PCE Former Dry Cleaner Atlantic, IA EPA-HQ-SFUND-2015-0573 Old American Zinc Plant Fairmont City, IL EPA-HQ-SFUND-2015-0574 West Vermont Drinking Water Contamination Indianapolis, IN EPA-HQ-SFUND-2015-0575 SBA Shipyard Jennings, LA EPA-HQ-SFUND-2015-0576 Iowa-Nebraska Light & Power Co Norfolk, NE EPA-HQ-SFUND-2015-0578 Former Kil-Tone Company Vineland, NJ EPA-HQ-SFUND-2015-0579 Lea and West Second Street Roswell, NM EPA-HQ-SFUND-2015-0580

    Submit your comments, identified by Docket ID No. listed above to the Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or withdrawn. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    For additional docket addresses and further details on their contents, see section II, “Public Review/Public Comment,” of the Supplementary Information portion of this preamble.

    FOR FURTHER INFORMATION CONTACT:

    Terry Jeng, phone: (703) 603-8852, email: [email protected], Site Assessment and Remedy Decisions Branch, Assessment and Remediation Division, Office of Superfund Remediation and Technology Innovation (Mailcode 5204P), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460; or the Superfund Hotline, phone (800) 424-9346 or (703) 412-9810 in the Washington, DC, metropolitan area.

    SUPPLEMENTARY INFORMATION: Table of Contents I. Background A. What are CERCLA and SARA? B. What is the NCP? C. What is the National Priorities List (NPL)? D. How are sites listed on the NPL? E. What happens to sites on the NPL? F. Does the NPL define the boundaries of sites? G. How are sites removed from the NPL? H. May the EPA delete portions of sites from the NPL as they are cleaned up? I. What is the Construction Completion List (CCL)? J. What is the sitewide ready for anticipated use measure? K. What is state/tribal correspondence concerning NPL listing? II. Public Review/Public Comment A. May I review the documents relevant to this proposed rule? B. How do I access the documents? C. What documents are available for public review at the headquarters docket? D. What documents are available for public review at the regional dockets? E. How do I submit my comments? F. What happens to my comments? G. What should I consider when preparing my comments? H. May I submit comments after the public comment period is over? I. May I view public comments submitted by others? J. May I submit comments regarding sites not currently proposed to the NPL? III. Contents of This Proposed Rule A. Proposed Additions to the NPL IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act (PRA) C. Regulatory Flexibility Act (RFA) D. Unfunded Mandates Reform Act (UMRA) E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments G. Executive Order 13045: Protection of Children from Environmental Health and Safety Risks H. Executive Order 13211: Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act (NTTAA) J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations I. Background A. What are CERCLA and SARA?

    In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601-9675 (“CERCLA” or “the Act”), in response to the dangers of uncontrolled releases or threatened releases of hazardous substances, and releases or substantial threats of releases into the environment of any pollutant or contaminant that may present an imminent or substantial danger to the public health or welfare. CERCLA was amended on October 17, 1986, by the Superfund Amendments and Reauthorization Act (“SARA”), Public Law 99-499, 100 Stat. 1613 et seq.

    B. What is the NCP?

    To implement CERCLA, the EPA promulgated the revised National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”), 40 CFR part 300, on July 16, 1982 (47 FR 31180), pursuant to CERCLA section 105 and Executive Order 12316 (46 FR 42237, August 20, 1981). The NCP sets guidelines and procedures for responding to releases and threatened releases of hazardous substances or releases or substantial threats of releases into the environment of any pollutant or contaminant that may present an imminent or substantial danger to the public health or welfare. The EPA has revised the NCP on several occasions. The most recent comprehensive revision was on March 8, 1990 (55 FR 8666).

    As required under section 105(a)(8)(A) of CERCLA, the NCP also includes “criteria for determining priorities among releases or threatened releases throughout the United States for the purpose of taking remedial action and, to the extent practicable taking into account the potential urgency of such action, for the purpose of taking removal action.” “Removal” actions are defined broadly and include a wide range of actions taken to study, clean up, prevent or otherwise address releases and threatened releases of hazardous substances, pollutants or contaminants (42 U.S.C. 9601(23)).

    C. What is the National Priorities List (NPL)?

    The NPL is a list of national priorities among the known or threatened releases of hazardous substances, pollutants or contaminants throughout the United States. The list, which is appendix B of the NCP (40 CFR part 300), was required under section 105(a)(8)(B) of CERCLA, as amended. Section 105(a)(8)(B) defines the NPL as a list of “releases” and the highest priority “facilities” and requires that the NPL be revised at least annually. The NPL is intended primarily to guide the EPA in determining which sites warrant further investigation to assess the nature and extent of public health and environmental risks associated with a release of hazardous substances, pollutants or contaminants. The NPL is only of limited significance, however, as it does not assign liability to any party or to the owner of any specific property. Also, placing a site on the NPL does not mean that any remedial or removal action necessarily need be taken.

    For purposes of listing, the NPL includes two sections, one of sites that are generally evaluated and cleaned up by the EPA (the “General Superfund section”), and one of sites that are owned or operated by other federal agencies (the “Federal Facilities section”). With respect to sites in the Federal Facilities section, these sites are generally being addressed by other federal agencies. Under Executive Order 12580 (52 FR 2923, January 29, 1987) and CERCLA section 120, each federal agency is responsible for carrying out most response actions at facilities under its own jurisdiction, custody or control, although the EPA is responsible for preparing a Hazard Ranking System (“HRS”) score and determining whether the facility is placed on the NPL.

    D. How are sites listed on the NPL?

    There are three mechanisms for placing sites on the NPL for possible remedial action (see 40 CFR 300.425(c) of the NCP): (1) A site may be included on the NPL if it scores sufficiently high on the HRS, which the EPA promulgated as appendix A of the NCP (40 CFR part 300). The HRS serves as a screening tool to evaluate the relative potential of uncontrolled hazardous substances, pollutants or contaminants to pose a threat to human health or the environment. On December 14, 1990 (55 FR 51532), the EPA promulgated revisions to the HRS partly in response to CERCLA section 105(c), added by SARA. The revised HRS evaluates four pathways: ground water, surface water, soil exposure and air. As a matter of agency policy, those sites that score 28.50 or greater on the HRS are eligible for the NPL. (2) Pursuant to 42 U.S.C. 9605(a)(8)(B), each state may designate a single site as its top priority to be listed on the NPL, without any HRS score. This provision of CERCLA requires that, to the extent practicable, the NPL include one facility designated by each state as the greatest danger to public health, welfare or the environment among known facilities in the state. This mechanism for listing is set out in the NCP at 40 CFR 300.425(c)(2). (3) The third mechanism for listing, included in the NCP at 40 CFR 300.425(c)(3), allows certain sites to be listed without any HRS score, if all of the following conditions are met:

    • The Agency for Toxic Substances and Disease Registry (ATSDR) of the U.S. Public Health Service has issued a health advisory that recommends dissociation of individuals from the release.

    • The EPA determines that the release poses a significant threat to public health.

    • The EPA anticipates that it will be more cost-effective to use its remedial authority than to use its removal authority to respond to the release.

    The EPA promulgated an original NPL of 406 sites on September 8, 1983 (48 FR 40658) and generally has updated it at least annually.

    E. What happens to sites on the NPL?

    A site may undergo remedial action financed by the Trust Fund established under CERCLA (commonly referred to as the “Superfund”) only after it is placed on the NPL, as provided in the NCP at 40 CFR 300.425(b)(1). (“Remedial actions” are those “consistent with permanent remedy, taken instead of or in addition to removal actions. . . . ” 42 U.S.C. 9601(24).) However, under 40 CFR 300.425(b)(2) placing a site on the NPL “does not imply that monies will be expended.” The EPA may pursue other appropriate authorities to respond to the releases, including enforcement action under CERCLA and other laws.

    F. Does the NPL define the boundaries of sites?

    The NPL does not describe releases in precise geographical terms; it would be neither feasible nor consistent with the limited purpose of the NPL (to identify releases that are priorities for further evaluation), for it to do so. Indeed, the precise nature and extent of the site are typically not known at the time of listing.

    Although a CERCLA “facility” is broadly defined to include any area where a hazardous substance has “come to be located” (CERCLA section 101(9)), the listing process itself is not intended to define or reflect the boundaries of such facilities or releases. Of course, HRS data (if the HRS is used to list a site) upon which the NPL placement was based will, to some extent, describe the release(s) at issue. That is, the NPL site would include all releases evaluated as part of that HRS analysis.

    When a site is listed, the approach generally used to describe the relevant release(s) is to delineate a geographical area (usually the area within an installation or plant boundaries) and identify the site by reference to that area. However, the NPL site is not necessarily coextensive with the boundaries of the installation or plant, and the boundaries of the installation or plant are not necessarily the “boundaries” of the site. Rather, the site consists of all contaminated areas within the area used to identify the site, as well as any other location where that contamination has come to be located, or from where that contamination came.

    In other words, while geographic terms are often used to designate the site (e.g., the “Jones Co. Plant site”) in terms of the property owned by a particular party, the site, properly understood, is not limited to that property (e.g., it may extend beyond the property due to contaminant migration), and conversely may not occupy the full extent of the property (e.g., where there are uncontaminated parts of the identified property, they may not be, strictly speaking, part of the “site”). The “site” is thus neither equal to, nor confined by, the boundaries of any specific property that may give the site its name, and the name itself should not be read to imply that this site is coextensive with the entire area within the property boundary of the installation or plant. In addition, the site name is merely used to help identify the geographic location of the contamination, and is not meant to constitute any determination of liability at a site. For example, the name “Jones Co. Plant site,” does not imply that the Jones Company is responsible for the contamination located on the plant site.

    The EPA regulations provide that the remedial investigation (“RI”) “is a process undertaken . . . to determine the nature and extent of the problem presented by the release” as more information is developed on site contamination, and which is generally performed in an interactive fashion with the feasibility Study (“FS”) (40 CFR 300.5). During the RI/FS process, the release may be found to be larger or smaller than was originally thought, as more is learned about the source(s) and the migration of the contamination. However, the HRS inquiry focuses on an evaluation of the threat posed and therefore the boundaries of the release need not be exactly defined. Moreover, it generally is impossible to discover the full extent of where the contamination “has come to be located” before all necessary studies and remedial work are completed at a site. Indeed, the known boundaries of the contamination can be expected to change over time. Thus, in most cases, it may be impossible to describe the boundaries of a release with absolute certainty.

    Further, as noted above, NPL listing does not assign liability to any party or to the owner of any specific property. Thus, if a party does not believe it is liable for releases on discrete parcels of property, it can submit supporting information to the agency at any time after it receives notice it is a potentially responsible party.

    For these reasons, the NPL need not be amended as further research reveals more information about the location of the contamination or release.

    G. How are sites removed from the NPL?

    The EPA may delete sites from the NPL where no further response is appropriate under Superfund, as explained in the NCP at 40 CFR 300.425(e). This section also provides that the EPA shall consult with states on proposed deletions and shall consider whether any of the following criteria have been met:

    (i) Responsible parties or other persons have implemented all appropriate response actions required;

    (ii) All appropriate Superfund-financed response has been implemented and no further response action is required; or

    (iii) The remedial investigation has shown the release poses no significant threat to public health or the environment, and taking of remedial measures is not appropriate.

    H. May the EPA delete portions of sites from the NPL as they are cleaned up?

    In November 1995, the EPA initiated a policy to delete portions of NPL sites where cleanup is complete (60 FR 55465, November 1, 1995). Total site cleanup may take many years, while portions of the site may have been cleaned up and made available for productive use.

    I. What is the Construction Completion List (CCL)?

    The EPA also has developed an NPL construction completion list (“CCL”) to simplify its system of categorizing sites and to better communicate the successful completion of cleanup activities (58 FR 12142, March 2, 1993). Inclusion of a site on the CCL has no legal significance.

    Sites qualify for the CCL when: (1) Any necessary physical construction is complete, whether or not final cleanup levels or other requirements have been achieved; (2) the EPA has determined that the response action should be limited to measures that do not involve construction (e.g., institutional controls); or (3) the site qualifies for deletion from the NPL. For the most up-to-date information on the CCL, see the EPA's Internet site at http://www.epa.gov/superfund/cleanup/ccl.htm

    J. What is the Sitewide Ready for Anticipated Use Measure?

    The Sitewide Ready for Anticipated Use measure (formerly called Sitewide Ready-for-Reuse) represents important Superfund accomplishments and the measure reflects the high priority the EPA places on considering anticipated future land use as part of the remedy selection process. See Guidance for Implementing the Sitewide Ready-for-Reuse Measure, May 24, 2006, OSWER 9365.0-36. This measure applies to final and deleted sites where construction is complete, all cleanup goals have been achieved, and all institutional or other controls are in place. The EPA has been successful on many occasions in carrying out remedial actions that ensure protectiveness of human health and the environment for current and future land uses, in a manner that allows contaminated properties to be restored to environmental and economic vitality. For further information, please go to http://www.epa.gov/superfund/programs/recycle/pdf/sitewide_a.pdf

    K. What is state/tribal correspondence concerning NPL listing?

    In order to maintain close coordination with states and tribes in the NPL listing decision process, the EPA's policy is to determine the position of the states and tribes regarding sites that the EPA is considering for listing. This consultation process is outlined in two memoranda that can be found at the following Web site: http://www.epa.gov/superfund/sites/npl/hrsres/policy/govlet.pdf. The EPA is improving the transparency of the process by which state and tribal input is solicited. The EPA is using the Web and where appropriate more structured state and tribal correspondence that (1) explains the concerns at the site and the EPA's rationale for proceeding; (2) requests an explanation of how the state intends to address the site if placement on the NPL is not favored; and (3) emphasizes the transparent nature of the process by informing states that information on their responses will be publicly available.

    A model letter and correspondence from this point forward between the EPA and states and tribes where applicable, is available on the EPA's Web site at http://www.epa.gov/superfund/sites/query/queryhtm/nplstcor.htm

    II. Public Review/Public Comment A. May I review the documents relevant to this proposed rule?

    Yes, documents that form the basis for the EPA's evaluation and scoring of the sites in this proposed rule are contained in public dockets located both at the EPA Headquarters in Washington, DC, and in the regional offices. These documents are also available by electronic access at http://www.regulations.gov (see instructions in the “Addresses” section above).

    B. How do I access the documents?

    You may view the documents, by appointment only, in the Headquarters or the regional dockets after the publication of this proposed rule. The hours of operation for the Headquarters docket are from 8:30 a.m. to 4:30 p.m., Monday through Friday excluding federal holidays. Please contact the regional dockets for hours.

    The following is the contact information for the EPA Headquarters Docket: Docket Coordinator, Headquarters, U.S. Environmental Protection Agency, CERCLA Docket Office, 1301 Constitution Avenue NW., William Jefferson Clinton Building West, Room 3334, Washington, DC 20004; 202/566-0276. (Please note this is a visiting address only. Mail comments to the EPA Headquarters as detailed at the beginning of this preamble.)

    The contact information for the regional dockets is as follows:

    • Holly Inglis, Region 1 (CT, ME, MA, NH, RI, VT), U.S. EPA, Superfund Records and Information Center, 5 Post Office Square, Suite 100, Boston, MA 02109-3912; 617/918-1413.

    • Ildefonso Acosta, Region 2 (NJ, NY, PR, VI), U.S. EPA, 290 Broadway, New York, NY 10007-1866; 212/637-4344.

    • Lorie Baker (ASRC), Region 3 (DE, DC, MD, PA, VA, WV), U.S. EPA, Library, 1650 Arch Street, Mailcode 3HS12, Philadelphia, PA 19103; 215/814-3355.

    • Jennifer Wendel, Region 4 (AL, FL, GA, KY, MS, NC, SC, TN), U.S. EPA, 61 Forsyth Street SW., Mailcode 9T25, Atlanta, GA 30303; 404/562-8799.

    • Todd Quesada, Region 5 (IL, IN, MI, MN, OH, WI), U.S. EPA Superfund Division Librarian/SFD Records Manager SRC-7J, Metcalfe Federal Building, 77 West Jackson Boulevard, Chicago, IL 60604; 312/886-4465.

    • Brenda Cook, Region 6 (AR, LA, NM, OK, TX), U.S. EPA, 1445 Ross Avenue, Suite 1200, Mailcode 6SFTS, Dallas, TX 75202-2733; 214/665-7436.

    • Preston Law, Region 7 (IA, KS, MO, NE), U.S. EPA, 11201 Renner Blvd., Mailcode SUPRERNB, Lenexa, KS 66219; 913/551-7097.

    • Sabrina Forrest, Region 8 (CO, MT, ND, SD, UT, WY), U.S. EPA, 1595 Wynkoop Street, Mailcode 8EPR-B, Denver, CO 80202-1129; 303/312-6484.

    • Sharon Murray, Region 9 (AZ, CA, HI, NV, AS, GU, MP), U.S. EPA, 75 Hawthorne Street, Mailcode SFD 6-1, San Francisco, CA 94105; 415/947-4250.

    • Ken Marcy, Region 10 (AK, ID, OR, WA), U.S. EPA, 1200 6th Avenue, Mailcode ECL-112, Seattle, WA 98101; 206/463-1349.

    You may also request copies from the EPA Headquarters or the regional dockets. An informal request, rather than a formal written request under the Freedom of Information Act, should be the ordinary procedure for obtaining copies of any of these documents. Please note that due to the difficulty of reproducing oversized maps, oversized maps may be viewed only in-person; since the EPA dockets are not equipped to either copy and mail out such maps or scan them and send them out electronically.

    You may use the docket at http://www.regulations.gov to access documents in the Headquarters docket (see instructions included in the “Addresses” section above). Please note that there are differences between the Headquarters docket and the regional dockets and those differences are outlined below.

    C. What documents are available for public review at the headquarters docket?

    The Headquarters docket for this proposed rule contains the following for the sites proposed in this rule: HRS score sheets; documentation records describing the information used to compute the score; information for any sites affected by particular statutory requirements or the EPA listing policies; and a list of documents referenced in the documentation record.

    D. What documents are available for public review at the regional dockets?

    The regional dockets for this proposed rule contain all of the information in the Headquarters docket plus the actual reference documents containing the data principally relied upon and cited by the EPA in calculating or evaluating the HRS score for the sites. These reference documents are available only in the regional dockets.

    E. How do I submit my comments?

    Comments must be submitted to the EPA Headquarters as detailed at the beginning of this preamble in the “Addresses” section. Please note that the mailing addresses differ according to method of delivery. There are two different addresses that depend on whether comments are sent by express mail or by postal mail.

    F. What happens to my comments?

    The EPA considers all comments received during the comment period. Significant comments are typically addressed in a support document that the EPA will publish concurrently with the Federal Register document if, and when, the site is listed on the NPL.

    G. What should I consider when preparing my comments?

    Comments that include complex or voluminous reports, or materials prepared for purposes other than HRS scoring, should point out the specific information that the EPA should consider and how it affects individual HRS factor values or other listing criteria (Northside Sanitary Landfill v. Thomas, 849 F.2d 1516 (D.C. Cir. 1988)). The EPA will not address voluminous comments that are not referenced to the HRS or other listing criteria. The EPA will not address comments unless they indicate which component of the HRS documentation record or what particular point in the EPA's stated eligibility criteria is at issue.

    H. May I submit comments after the public comment period is over?

    Generally, the EPA will not respond to late comments. The EPA can guarantee only that it will consider those comments postmarked by the close of the formal comment period. The EPA has a policy of generally not delaying a final listing decision solely to accommodate consideration of late comments.

    I. May I view public comments submitted by others?

    During the comment period, comments are placed in the Headquarters docket and are available to the public on an “as received” basis. A complete set of comments will be available for viewing in the regional dockets approximately one week after the formal comment period closes.

    All public comments, whether submitted electronically or in paper form, will be made available for public viewing in the electronic public docket at http://www.regulations.gov as the EPA receives them and without change, unless the comment contains copyrighted material, confidential business information (CBI) or other information whose disclosure is restricted by statute. Once in the public dockets system, select “search,” then key in the appropriate docket ID number.

    J. May I submit comments regarding sites not currently proposed to the NPL?

    In certain instances, interested parties have written to the EPA concerning sites that were not at that time proposed to the NPL. If those sites are later proposed to the NPL, parties should review their earlier concerns and, if still appropriate, resubmit those concerns for consideration during the formal comment period. Site-specific correspondence received prior to the period of formal proposal and comment will not generally be included in the docket.

    III. Contents of This Proposed Rule A. Proposed Additions to the NPL

    In today's proposed rule, the EPA is proposing to add seven sites to the NPL, all to the General Superfund section. All of the sites in this proposed rulemaking are being proposed based on HRS scores of 28.50 or above.

    The sites are presented in the table below.

    General Superfund section State Site name City/County IA PCE Former Dry Cleaner Atlantic IL Old American Zinc Plant Fairmont City IN West Vermont Drinking Water Contamination Indianapolis LA SBA Shipyard Jennings NE Iowa-Nebraska Light & Power Co Norfolk NJ Former Kil-Tone Company Vineland NM Lea and West Second Street Roswell IV. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

    A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

    B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under the PRA. This rule does not contain any information collection requirements that require approval of the OMB.

    C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This rule listing sites on the NPL does not impose any obligations on any group, including small entities. This rule also does not establish standards or requirements that any small entity must meet, and imposes no direct costs on any small entity. Whether an entity, small or otherwise, is liable for response costs for a release of hazardous substances depends on whether that entity is liable under CERCLA 107(a). Any such liability exists regardless of whether the site is listed on the NPL through this rulemaking.

    D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local or tribal governments or the private sector. Listing a site on the NPL does not itself impose any costs. Listing does not mean that the EPA necessarily will undertake remedial action. Nor does listing require any action by a private party, state, local or tribal governments or determine liability for response costs. Costs that arise out of site responses result from future site-specific decisions regarding what actions to take, not directly from the act of placing a site on the NPL

    E. Executive Order 13132: Federalism

    This rule does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

    F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    This action does not have tribal implications as specified in Executive Order 13175. Listing a site on the NPL does not impose any costs on a tribe or require a tribe to take remedial action. Thus, Executive Order 13175 does not apply to this action.

    G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because this action itself is procedural in nature (adds sites to a list) and does not, in and of itself, provide protection from environmental health and safety risks. Separate future regulatory actions are required for mitigation of environmental health and safety risks.

    H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

    I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

    J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

    The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations because it does not affect the level of protection provided to human health or the environment. As discussed in Section I.C. of the preamble to this action, the NPL is a list of national priorities. The NPL is intended primarily to guide the EPA in determining which sites warrant further investigation to assess the nature and extent of public health and environmental risks associated with a release of hazardous substances, pollutants or contaminants. The NPL is of only limited significance as it does not assign liability to any party. Also, placing a site on the NPL does not mean that any remedial or removal action necessarily need be taken.

    List of Subjects in 40 CFR Part 300

    Environmental protection, Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Natural resources, Oil pollution, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.

    Authority:

    33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O. 13626, 77 FR 56749, 3 CFR, 2013 Comp., p. 306; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p. 193.

    Dated: September 21, 2015. Mathy Stanislaus, Assistant Administrator,Office of Solid Waste and Emergency Response.
    [FR Doc. 2015-24318 Filed 9-29-15; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF THE INTERIOR Office of the Secretary 43 CFR Part 2 [13XD4523WS DS10200000 DWSN00000.000000 WBS DP10202] RIN 1093-AA19 Freedom of Information Act Regulations AGENCY:

    Office of the Secretary, Interior.

    ACTION:

    Proposed rule.

    SUMMARY:

    This rule would revise the regulations that the Department of the Interior (Department) follows in processing records under the Freedom of Information Act. The revisions clarify and update procedures for requesting information from the Department and procedures that the Department follows in responding to requests from the public.

    DATES:

    Comments on the rulemaking must be submitted on or before November 30, 2015.

    ADDRESSES:

    You may submit comments on the rulemaking by either of the methods listed below. Please use Regulation Identifier Number 1093-AA19 in your message.

    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions on the Web site for submitting comments.

    2. U.S. mail, courier, or hand delivery: Executive Secretariat—FOIA regulations, Department of the Interior, 1849 C Street NW., Washington, DC 20240.

    FOR FURTHER INFORMATION CONTACT:

    Cindy Cafaro, Office of Executive Secretariat and Regulatory Affairs, 202-208-5342.

    SUPPLEMENTARY INFORMATION:

    I. Why We're Publishing This Rule and What It Does

    In late 2012, the Department published a final rule updating and replacing the Department's previous Freedom of Information Act (FOIA) regulations. Since that time, in order to maintain the independence of the Office of Inspector General (OIG), the Department and the OIG have agreed to authorize the OIG to process their own FOIA appeals. Additionally, the Department has recently migrated its Web site to a new framework, leading to updated links. Finally, the Department has received feedback from its FOIA practitioners and requesters and identified areas where it would be possible to further update, clarify, and streamline the language of some procedural provisions. Therefore, the Department is proposing to make the following changes:

    • Section 2.1(e) would be amended to identify the regulations applicable to Privacy Act requests.

    • Section 2.5(d) would be amended to provide more guidance on what happens when a request does not reasonably describe the records sought.

    • Portions of § 2.6 would be amended to make explicit that a fee waiver request is a valid way of responding to a request for additional fee information and to emphasize fee issues must be resolved before processing will begin.

    • A sentence would be added to § 2.8(a) to require a bureau that cannot readily reproduce the requested record in the form or format requested to explain why it cannot.

    • Section 2.9(b) would be amended to remove a superfluous introductory phrase.

    • Section 2.10 would be amended to highlight the requirements a requester seeking expedited processing must meet and the consequences of not meeting those requirements.

    • Section 2.11 would be amended to reduce the suggested contact information provided by requesters.

    • Section 2.12(c) would be amended to emphasize that reasonable efforts must be made to search for requested records and to clarify when searching for requested records in electronic form or format will not occur.

    • A sentence would be added to § 2.15(e) to require bureaus to provide more information to requesters when placing them in a different processing track than requested.

    • Section 2.16(a) would be amended to clarify and streamline discussion of when the time period for responding to a request begins and ends.

    • The introductory language of § 2.19(a) would be amended to clarify when bureaus may extend the basic time limit.

    • Portions of § 2.20 would be amended to make explicit that expedited processing requests are only appropriate before the bureau issues its final response; to require bureaus to provide more information to requesters when denying expedited processing requests; and to clarify that the portion of an appeal that relates to an expedited processing denial, rather than the entire appeal, will be processed ahead of other appeals.

    • Section 2.22(c) and (d) would be amended to clarify when records may be released to requesters.

    • Section 2.23(a)(3) would be amended to add a clarifying phrase.

    • Section 2.24(b) would be amended and enlarged to require bureaus to provide more information to requesters in denial notifications.

    • Section 2.25(c) would be amended to clarify what information must be provided to requesters, and where, when portions of responsive records have been deleted.

    • Section 2.26 and § 2.27(a) would be amended to provide more information on when submitter notification is required.

    • One word in § 2.27(b) would be replaced to more closely track the language of Executive Order No. 12600, (52 FR 23781, published June 23, 1987).

    • Section 2.28(a) would be amended to clarify that a general description of the request would suffice for submitter notices published under § 2.27(b).

    • Section 2.31(a)(1) and (2) would be amended to clarify the information a submitter must provide when objecting to the release of responsive information under Exemption 4.

    • Section 2.37(g) would be added and § 2.49(a)(1) would be amended so the concept that requesters generally will not be charged if the fee for processing their request is less than $50 is introduced sooner.

    • Section 2.37(h) would be added to make the consequences of failure to pay bills for FOIA-related fees explicit.

    • Section 2.37(i) would be added to notify requesters they can seek assistance, when considering reformulating their request to meet their needs at a lower cost, from the bureau's designated FOIA contact or FOIA Public Liaison.

    • A sentence would be added to § 2.38(b) to require bureaus to provide more information to requesters when placing them in a different fee category than requested.

    • Section 2.39 would be amended to replace one word for the sake of grammatical consistency.

    • Section 2.42(d) would be amended to further discuss the impact of requester preferences for paper and/or electronic formats.

    • Section 2.44(b) would be amended to provide different examples of special services a requester might have to pay for.

    • The introductory language of §§ 2.45(a) and 2.48(a) would be amended to clarify what a requester must demonstrate to be entitled to a fee waiver.

    • Section 2.46(b) would be amended to clarify when fee waiver requests may be made.

    • Minor grammatical changes would be made to § 2.47(a), (c), and (d) to allow a new § 2.47(e) to increase clarity and require bureaus to provide the requester with notice of anticipated fees when denying a request for a fee waiver.

    • Section 2.48(a)(2)(v) would be amended to note that representatives of the news media will be presumed to have the ability and intent to disseminate the requested information to a reasonably broad audience of persons interested in the subject.

    • Section 2.49(c) would be amended to allow requesters more flexibility in resolving fee issues.

    • Portions of § 2.50 would be amended to clarify and streamline discussion of advance payments.

    • Section 2.51(b)(3) would be amended to ensure consistent phrasing.

    • Section 2.57(a)(5) and (6) would be amended to include minor, clarifying additions.

    • Section 2.60 would be amended to reflect that the FOIA Appeals Officer would no longer be the deciding official for FOIA appeals arising from OIG FOIA responses, and small portions of §§ 2.20(c), 2.24(b)(5), 2.47(d), 2.62, and 2.63 would also be amended to reflect this change.

    • Section 2.62 would be streamlined to follow the requirements of FOIA more closely.

    • Section 2.66 would be amended to provide more information on the role played by FOIA Public Liaisons.

    • A word would be added to the definition of “multitrack processing” in Section 2.70 to ensure it is consistent with Section 2.14.

    • Section 2.1(d), 2.1(g), 2.3(c), 2.21(a), 2.41(c), 2.59(a), 2.65, and 2.70 would be amended to reflect updated Web site links.

    II. Compliance With Laws and Executive Orders 1. Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order (E.O) 12866 provides that the Office of Information and Regulatory Affairs 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.

    2. Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

    3. Small Business Regulatory Enforcement Fairness Act

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

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

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

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

    4. Unfunded Mandates Reform Act

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

    5. Takings (E.O. 12630)

    In accordance with Executive Order 12630, this rule does not have significant takings implications. A takings implication assessment is not required.

    6. Federalism (E.O. 13132)

    In accordance with Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. It would not substantially and directly affect the relationship between the Federal and state governments. A federalism summary impact statement is not required.

    7. Civil Justice Reform (E.O. 12988)

    In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Executive Order.

    8. Consultation With Indian Tribes (E.O. 13175)

    Under the criteria in Executive Order 13175, we have evaluated this rule and determined that it has no potential effects on federally recognized Indian tribes. This rule does not have tribal implications that impose substantial direct compliance costs on Indian Tribal governments.

    9. Paperwork Reduction Act

    This rule does not contain information collection requirements, and a submission to the Office of Management and Budget under the Paperwork Reduction Act is not required.

    9. National Environmental Policy Act

    This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required. Pursuant to Department Manual 516 DM 2.3A(2), Section 1.10 of 516 DM 2, Appendix 1 excludes from documentation in an environmental assessment or impact statement “policies, directives, regulations and guidelines of an administrative, financial, legal, technical or procedural nature; or the environmental effects of which are too broad, speculative or conjectural to lend themselves to meaningful analysis and will be subject late to the NEPA process, either collectively or case-by-case.”

    10. Effects on the Energy Supply (E.O. 13211)

    This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required. This rule will not have a significant effect on the nation's energy supply, distribution, or use.

    11. Clarity of This Regulation

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

    (a) Be logically organized;

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

    (c) Use clear language rather than jargon;

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

    (e) Use lists and tables wherever possible.

    If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. 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 you find unclear, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

    12. Public Availability of Comments

    Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

    List of Subjects in 43 CFR Part 2

    Freedom of information.

    Kristen J. Sarri, Principal Deputy Assistant Secretary for Policy, Management, and Budget.

    For the reasons stated in the preamble, the Department of the Interior proposes to amend part 2 of title 43 of the Code of Federal Regulations as follows:

    PART 2—FREEDOM OF INFORMATION ACT; RECORDS AND TESTIMONY 1. The authority citation for part 2 continues to read as follows: Authority:

    5 U.S.C. 301, 552, 552a, 553; 31 U.S.C. 3717; 43 U.S.C. 1460, 1461.

    Subpart A—Introduction 2. Amend § 2.1 by: a. In paragraph (d), the second sentence, removing the Web site address “http://www.doi.gov/foia/guidance.cfm” and adding in its place the Web site address https://www.doi.gov/foia/news/guidance; b. Revising paragraph (e); and c. In paragraph (g), the first sentence, removing the Web site address “http://www.doi.gov/foia/libraries.cfm” and adding in its place the Web site address “http://www.doi.gov/foia/libraries”.

    The revision reads as follows:

    § 2.1 What should you know up front?

    (e) The Department's regulations for requests made under the Privacy Act of 1974, 5 U.S.C. 552a, are located at subpart K of this part.

    Subpart B—How To Make a Request
    § 2.3 [Amended]
    3. Amend § 2.3(c), the second sentence, by: a. Removing the Web site address “http://www.doi.gov/foia/index.cfm” and adding in its place the Web site address “https://www.doi.gov/foia”; and b. Removing the Web site address “http://www.doi.gov/foia/contacts.cfm” and adding in its place the Web site address “http://www.doi.gov/foia/contacts”. 4. In § 2.5, revise paragraph (d) to read as follows:
    § 2.5 How should you describe the records you seek?

    (d) If the request does not reasonably describe the records sought, the bureau will inform you what additional information you need to provide in order to reasonably describe the records that you seek so the requested records can be located with a reasonable amount of effort. The bureau will also notify you that it will not be able to comply with your request unless the additional information it has requested is received from you in writing within 20 workdays and that you may appeal this determination. If you receive this type of notification, you may wish to discuss it with the bureau's designated FOIA contact or its FOIA Public Liaison (see § 2.66 of this part). If you do not provide the bureau with the additional information as discussed above, the bureau will presume that you are no longer interested in the records and will close the file on the request.

    5. Amend § 2.6 by: a. In paragraph (b) introductory text by adding the words “or request a fee waiver” after the words “pay processing fees”; and b. Revising paragraphs (b)(3), (d), and (e).

    The revisions read as follows:

    § 2.6 How will fee information affect the processing of your request?

    (b) * * *

    (3) That it will not be able to fully comply with your request unless you provide a fee waiver request and/or the requested written assurance or advance payment.

    (d) If you are seeking a fee waiver, your request must include a justification that addresses and meets the criteria in §§ 2.45, 2.48, and 2.56 of this part. Failure to provide sufficient justification will result in a denial of the fee waiver request. If you are seeking a fee waiver, you may also indicate the amount you are willing to pay if the fee waiver is denied. This allows the bureau to process the request for records while it considers your fee waiver request.

    (e) The bureau will begin processing the request only after all issues regarding fees are resolved.

    6. In § 2.8, add a sentence to the end of paragraph (a) to read as follows:
    § 2.8 Can you ask for records to be disclosed in a particular form or format?

    (a) * * * If the bureau cannot readily reproduce the record in that form or format, it must explain why it cannot.

    7. In § 2.9, revise paragraph (b) to read as follows:
    § 2.9 What if your request seeks records about another person?

    (b) The bureau can require you to supply additional information if necessary to verify that a particular person has consented to disclosure or is deceased.

    8. Revise § 2.10 to read as follows:
    § 2.10 May you ask for the processing of your request to be expedited?

    You may ask for the processing of your request to be expedited. If you are seeking expedited processing, your request must include a justification that addresses and meets the criteria in § 2.20 of this part. Failure to provide sufficient justification will result in a denial of the expedited processing request.

    9. Revise § 2.11 to read as follows:
    § 2.11 What contact information should your request include?

    A request should include your name and a way (such as a mailing or email address) for the bureau to send responsive records to you and to request additional information or clarification of your request. You may also wish to include a daytime telephone number (or the name and telephone number of an appropriate contact).

    Subpart C—Processing Requests 10. In § 2.12, revise paragraph (c) to read as follows:
    § 2.12 What should you know about how bureaus process requests?

    (c) The bureau will make reasonable efforts to search for the requested records. As part of its reasonable efforts, the bureau will search paper and/or electronic records (for example, emails), as appropriate. The bureau will not search for records in an electronic form or format if these efforts would significantly interfere with the operation of the bureau's automated information system.

    Subpart D—Timing of Responses to Requests 11. In § 2.15, add a sentence to the end of paragraph (e) to read as follows:
    § 2.15 What is multitrack processing and how does it affect your request?

    (e) * * * If you request placement in a particular processing track but the bureau places you in a different processing track, the bureau will provide you with an explanation of why you were not placed in the processing track you requested.

    12. In § 2.16, revise paragraph (a) to read as follows:
    § 2.16 What is the basic time limit for responding to a request?

    (a) Ordinarily, the bureau has 20 workdays (including the date of receipt) to determine whether to comply with a request, but unusual circumstances may allow the bureau to take longer than 20 workdays (see § 2.19 of this subpart).

    13. In § 2.19, revise paragraph (a) introductory text to read as follows:
    § 2.19 When may the bureau extend the basic time limit?

    (a) The bureau may extend the basic time limit, if unusual circumstances exist, by notifying you in writing of:

    14. In § 2.20, revise paragraphs (c), (f), and (g) to read as follows:
    § 2.20 When will expedited processing be provided and how will it affect your request?

    (c) You may ask for expedited processing of your request by writing to the appropriate FOIA contact in the bureau that maintains the records requested any time before the bureau issues its final response to your request. When making a request for expedited processing of an administrative appeal, submit the request to the appropriate deciding official for FOIA appeals.

    (f) If expedited processing is denied, the bureau will:

    (1) Inform you of the basis for the denial, including an explanation of why the expedited processing request does not meet the Department's expedited processing criteria under this section; and

    (2) Notify you of the right to appeal the decision on expedited processing in accordance with the procedures in subpart H of this part.

    (g) If you appeal the bureau's expedited processing decision, this portion of your appeal (if it is properly formatted under § 2.59 of this part) will be processed before appeals that do not challenge expedited processing decisions.

    Subpart E—Responses to Requests
    § 2.21—[Amended]
    15. In § 2.21(a), the second sentence, remove the Web site address “http://www.doi.gov/foia/news/guidance/index.cfm” and add in its place the Web site address “https://www.doi.gov/foia/news/guidance”. 16. Amend § 2.22 by: a. Revising paragraph (c); and b. In paragraph (d), adding the words “released or” after the words “the records will be”.

    The revision reads as follows:

    § 2.22 How will bureaus grant requests?

    (c) The bureau will release records (or portions of records) to you promptly upon payment of any applicable fees (or before then, at its discretion).

    § 2.23—[Amended]
    17. In § 2.23(a)(3), add the words “and/or control” after the words “bureau's possession”. 18. In § 2.24, revise paragraph (b) to read as follows:
    § 2.24 How will the bureau deny requests?

    (b) The denial notification must include:

    (1) The name and title or position of the person responsible for the denial, along with an office phone number or email address;

    (2) A statement of the reasons for the denial;

    (3) A reference to any FOIA exemption applied by the bureau to withhold records in full or in part;

    (4) An estimate of the volume of any records withheld in full or in part (for example, by providing the number of pages or some other reasonable form of estimation), unless an estimate would harm an interest protected by an exemption used to withhold the records;

    (5) The name and title of the Office of the Solicitor or Office of General Counsel attorney consulted (if the bureau is denying a fee waiver request or withholding all or part of a requested record); and

    (6) A statement that the denial may be appealed under subpart H of this part and a description of the procedures in subpart H of this part.

    19. In § 2.25, revise paragraph (c) to read as follows:
    § 2.25 What if the requested records contain both exempt and nonexempt material?

    (c) If technically feasible, indicating the FOIA exemption under which the deletion of information was made, as required by paragraph (b) of this section, at the place in the record where the deletion was made.

    Subpart F—Handling Confidential Information 20. Revise § 2.26 to read as follows:
    § 2.26 May submitters of possibly confidential information designate confidential information when making Departmental submissions?

    (a) The Department encourages, but does not require, submitters to designate confidential information in good faith (in other words, to identify specific information as information considered protected from disclosure under Exemption 4 of the FOIA, found at 5 U.S.C. 552(b)(4)), at the time of submission or reasonably soon thereafter.

    (b) The designations discussed in paragraph (a) of this section assist the bureau in determining whether information obtained from the submitter is confidential, but are not determinative; these designations therefore do not preempt the requirement for bureau-provided notifications under § 2.27 of this subpart.

    21. Amend § 2.27 by: a. Revising paragraph (a); and b. In paragraph (b), removing the word “large” and adding in its place the word “voluminous”.

    The revision reads as follows:

    § 2.27 When will the bureau notify a submitter of a request for their possibly confidential information?

    (a) Except as outlined in § 2.29 of this subpart, a bureau must promptly notify a submitter in writing when it receives a FOIA request if:

    (1) The requested information has been designated by the submitter under § 2.26(a) of this subpart; or

    (2) The requested information has not been designated by the submitter under § 2.26(a) of this subpart, but the requested information may be protected from disclosure under Exemption 4 of the FOIA, found at 5 U.S.C. 552(b)(4).

    22. In § 2.28, revise paragraph (a) to read as follows:
    § 2.28 What information will the bureau include when it notifies a submitter of a request for their possibly confidential information?

    (a) Either a copy of the request, the exact language of the request, or (for notices published under § 2.27(b) of this subpart) a general description of the request;

    23. In § 2.31, revise paragraphs (a)(1) and (2) to read as follows:
    § 2.31 What must a submitter include in a detailed Exemption 4 objection statement?

    (a) * * *

    (1) Whether the submitter provided the information voluntarily and, if so, how disclosure will impair the Government's ability to obtain similar information in the future and/or how the information fits into a category of information that the submitter does not customarily release to the public;

    (2) Whether the Government required the information to be submitted, and if so, how disclosure will impair the Government's ability to obtain similar information in the future and/or how substantial competitive or other business harm would likely result from disclosure; and

    Subpart G—Fees

    24. In § 2.37, add paragraphs (g), (h), and (i) to read as follows:

    § 2.37 What general principles govern fees?

    (g) If the fee for processing your request is less than $50, you will not be charged unless multiple requests are aggregated under § 2.54 of this subpart to an amount that is $50 or more.

    (h) If you fail to pay any FOIA-related fee within 30 calendar days of the date of billing, the processing of any new or ongoing requests and/or appeals from you shall ordinarily be suspended.

    (i) If you would like to reformulate your request so it will meet your needs at a lower cost, you may wish to seek assistance from the bureau's designated FOIA contact or its FOIA Public Liaison (see § 2.66 of this part).

    25. In § 2.38, add a sentence to the end of paragraph (b) to read as follows:
    § 2.38 What are the requester fee categories?

    (b) * * * If you request placement in a particular fee category but the bureau places you in a different fee category, the bureau will provide you with an explanation of why you were not placed in the fee category you requested (for example, if you were placed in the commercial use requester category rather than the category you requested, the bureau will describe how the records would further your commercial, trade, or profit interests).

    § 2.39—[Amended]
    26. In § 2.39, in the table in paragraph (a), remove the word “non-commercial” and add in its place the word “noncommercial.”
    § 2.41—[Amended]
    27. In § 2.41(c), remove the Web site address “http://www.doi.gov/foia/fees-waivers.cfm” and add in its place the Web site address “http://www.doi.gov/foia/fees-waivers”. 28. In § 2.42, revise paragraph (d) to read as follows:
    § 2.42 What duplication fees will you have to pay?

    (d) If the bureau must scan paper records to accommodate your preference to receive records in an electronic format or print electronic records to accommodate your preference to receive records in a paper format, you will pay both the per page amount noted in Appendix A to this part and the time spent by personnel scanning or printing the requested records. For each quarter hour spent by personnel scanning or printing the requested records, the fees will be the same as those charged for a search under § 2.41(b) of this subpart.

    29. In § 2.44, revise paragraph (b) to read as follows:
    § 2.44 What fees for other services will you have to pay?

    (b) Examples of these services include providing multiple copies of the same record, converting records that are not already maintained in a requested format to the requested format, obtaining research data under § 2.69 of this part, sending records by means other than first class mail, and conducting a search that requires the creation of a new computer search program to locate the requested records.

    § 2.45 [Amended]
    30. In § 2.45, in paragraph (a) introductory text, remove the words “under the factors” and add in their place the words “by addressing and meeting each of the criteria”. 31. In § 2.46, revise paragraph (b) to read as follows:
    § 2.46 When may you ask the bureau for a fee waiver?

    (b) You may submit a fee waiver request at a later time if the bureau has not yet completed processing your request.

    32. Amend § 2.47 by: a. In paragraph (a), removing the period at the end of the paragraph and adding in its place a semicolon; b. In paragraph (c), removing the word “and” at the end of the paragraph; c. In paragraph (d), removing the period at the end of the paragraph and adding in its place “; and”; and d. Adding paragraph (e).

    The addition reads as follows:

    § 2.47 How will the bureau notify you if it denies your fee waiver request?

    (e) Your anticipated fees, in accordance with § 2.49 of this subpart.

    33. Amend § 2.48 by revising paragraph (a) introductory text and adding a sentence to the end of paragraph (a)(2)(v) to read as follows:
    § 2.48 How will the bureau evaluate your fee waiver request?

    (a) In deciding whether your fee waiver request meets the requirements of § 2.45(a)(1) of this subpart, the bureau will consider the criteria listed in paragraphs (a)(1) through (4) of this section. You must address and meet each of these criteria in order to demonstrate that you are entitled to a fee waiver.

    (2) * * *

    (v)* * * If you are a representative of the news media, we will presume you have this ability and intent.

    34. In § 2.49, revise paragraphs (a)(1) and (c) to read as follows:
    § 2.49 When will you be notified of anticipated fees?

    (a) * * *

    (1) The anticipated fee is less than $50 (see § 2.37(g) of this subpart).

    (c) The bureau must receive information from you that resolves any fee issues, in accordance with paragraphs (b)(2) and/or (4) of this section, within 20 workdays or the bureau will close the request.

    35. In § 2.50, revise paragraph (a), paragraph (b) introductory text, and paragraphs (c) and (d) to read as follows:
    § 2.50 When will the bureau require advance payment?

    (a) When a bureau determines or estimates that the total fee you will be charged under this subpart will exceed $250, the bureau may require you to make an advance payment up to the amount of the entire anticipated fee before the bureau begins, or continues, to process your request. If you have a history of prompt payment of FOIA fees, a bureau may elect to process your request before collecting fees when you provide it with a satisfactory assurance of full payment.

    (b) If the bureau believes that you did not pay a previous FOIA fee within 30 calendar days of the date of billing, the bureau will require you to either:

    (c) When the bureau notifies you that an advance payment is due under paragraph (a) of this section, it will give you an opportunity to reduce the fee by modifying the request.

    (d) Your payment of the funds you owe the bureau for work it has already completed before records are sent to you is not an advance payment under § 2.50(a) of this subpart.

    § 2.51 [Amended]
    36. In § 2.51(b)(3), remove the words “hears from you” and add in their place the words “receives a written response from you”. Subpart H—Administrative Appeals
    § 2.57 [Amended]
    37. Amend § 2.57 by: a. In paragraph (a)(5), adding the words “or you have been placed in the wrong fee category” after the word “calculated”; and b. In paragraph (a)(6), adding the words “your request for” after the word “denied”.
    § 2.59 [Amended]
    38. In § 2.59(a), the first sentence, remove the Web site address “http://www.doi.gov/foia/appeals.cfm” and add in its place the Web site address “http://www.doi.gov/foia/appeals”. 39. Revise § 2.60 to read as follows:
    § 2.60 Who makes decisions on appeals?

    (a) The FOIA Appeals Officer is the deciding official for FOIA appeals that do not appeal a decision of the Office of the Inspector General.

    (b) The General Counsel is the deciding official for FOIA appeals that appeal a decision of the Office of the Inspector General.

    (c) When necessary, the appropriate deciding official for FOIA appeals will consult other appropriate offices, including the Office of the Solicitor or Office of General Counsel for denials of records and fee waivers.

    (d) The deciding official for FOIA appeals normally will not make a decision on an appeal if the request becomes a matter of FOIA litigation.

    40. Revise § 2.62 to read as follows:
    § 2.62 When can you expect a decision on your appeal?

    (a) The basic time limit for responding to an appeal is 20 workdays after receipt of an appeal meeting the requirements of § 2.59 of this subpart.

    (b) If the Department is unable to reach a decision on your appeal within the given time limit for response, the appropriate deciding official for FOIA appeals will notify you of your statutory right to seek review in a United States District Court.

    § 2.63 [Amended]
    41. In § 2.63, paragraphs (b) and (c), remove the words “FOIA Appeals Officer” and add in their place the words “appropriate deciding official for FOIA appeals”. Subpart I—General Information
    § 2.65 [Amended]
    42. In § 2.65, the first sentence, remove the Web site address “http://www.doi.gov/foia/libraries.cfm” and add in its place the Web site address “http://www.doi.gov/foia/libraries”. 43. In § 2.66, revise paragraph (a) to read as follows:
    § 2.66 What are public liaisons?

    (a) Each bureau has a FOIA Public Liaison who can assist requesters who have concerns about the service they received when seeking records or who are seeking assistance under § 2.3(d) or § 2.37(i) of this part.

    § 2.70 [Amended]
    44. Amend § 2.70 by: a. In the definition of Bureau, removing the Web site address “http://www.doi.gov/foia/contacts.cfm” and adding in its place the Web site address http://www.doi.gov/foia/contacts; and b. In the definition of Multitrack processing, the second sentence, adding the word “ordinarily” after the word “are”.
    [FR Doc. 2015-24703 Filed 9-29-15; 8:45 am] BILLING CODE 4310-10-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 219 and 252 [Docket No. DARS 2015-0044] RIN 0750-AI68 Defense Federal Acquisition Regulation Supplement: Clauses With Alternates—Small Business Programs (DFARS Case 2015-D017) AGENCY:

    Defense Acquisition Regulations System, Department of Defense (DoD).

    ACTION:

    Proposed rule.

    SUMMARY:

    DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to clarify clauses and their prescriptions for small business programs and to create a basic and alternate clause structured in a manner to facilitate use of automated contract writing systems. The rule also includes the full text of the alternate, rather than only providing the paragraphs that differ from the basic clause. The rule also clarifies one clause that is an alternate to a Federal Acquisition Regulation (FAR) clause.

    DATES:

    Comments on the proposed rule should be submitted in writing to the address shown below on or before November 30, 2015, to be considered in the formation of a final rule.

    ADDRESSES:

    Submit comments identified by DFARS Case 2015-D017, using any of the following methods:

    Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by entering “DFARS Case 2015-D017” under the heading “Enter keyword or ID” and selecting “Search.” Select the link “Submit a Comment” that corresponds with “DFARS Case 2015-D017.” Follow the instructions provided at the “Submit a Comment” screen. Please include your name, company name (if any), and “DFARS Case 2015-D017” on your attached document.

    Email: [email protected] Include DFARS Case 2015-D017 in the subject line of the message.

    Fax: 571-372-6094.

    Mail: Defense Acquisition Regulations System, Attn: Ms. Julie Hammond, OUSD(AT&L)DPAP/DARS, Room 3B941, 3060 Defense Pentagon, Washington, DC 20301-3060.

    Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To confirm receipt of your comment(s), please check www.regulations.gov, approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail).

    FOR FURTHER INFORMATION CONTACT:

    Ms. Julie Hammond, telephone 571-372-6174.

    SUPPLEMENTARY INFORMATION:

    I. Background

    DoD is issuing this proposed rule to clarify, in the small business programs clause prescriptions, the appropriate use of the basic clause and its alternate clause. This rule does not substantively change the text of any clause (basic or alternate) nor does it change the requirement for use of any clause.

    II. Discussion and Analysis

    This proposed rule addresses one DFARS part 219 clause that has an alternate and one clause that is an alternate to a FAR clause. The affected clauses are 252.219-7003, Small Business Subcontracting Plan (DoD Contracts), with one alternate, and 252.219-7010, Alternate A.

    This proposed rule provides a basic clause in full text and the alternate to the basic clause in full text for DFARS clause 252.219-7003 instead of only providing the paragraphs that are changed in the alternate. Each clause (basic and alternate) will have a separate prescription, stating the applicability of the clause. A separate DFARS clause has been modified to incorporate FAR clause 52.219-18 and its two alternates into 252.219-7010, now titled “Notification of Competition Limited to Eligible 8(a) Concerns—Partnership Agreement.”

    The proposed rule does not change the clause prescriptions, and only clarifies for contracting officers the applicability of the clause (basic and alternate). The introductory text for the alternate clause will continue to explain what portions of the alternate are different from the basic clause.

    III. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

    IV. Regulatory Flexibility Act

    DoD does not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because it merely revises the prescriptions for clarity and use of provisions and clauses in solicitation and contracts. The clauses with alternates are revised to include full text of the basic clause and the alternate clause for ease of use for the small businesses. However, an initial regulatory flexibility analysis has been performed and is summarized as follows: DFARS 252.219-7003 Small Business Subcontracting Plan (DoD Contracts) and its alternate are prescribed to be used with FAR 52.210-9 and its alternates. FAR 52.219-9 does not apply to small business concerns. Therefore there is no burden on any small business from this rule relative to the DFARS 252.219-7003 basic and alternate clauses.

    DFARS 252.219-7010, Alternate A, is the alternate for FAR 52.219-18, Notification of Competition Limited to Eligible 8(a) Concerns. DFARS 252.219-7010 will affect only those 8(a) concerns when competing for an 8(a) award. Currently there are approximately 8,567 active small business concerns in the 8(a) program. However, these entities should not be economically impacted by the changes addressed in this proposed rule, since nothing substantive will change in solicitations or contracts for potential offerors, and only the appearance of how clause alternates are presented in solicitations and contracts will be changed. This rule should result in potential benefits to offerors, including small businesses, resulting in offerors expending less time to review and understand the solicitation and contract. The rule anticipates saving contractors' time by making all paragraph substitutions from the basic clause and by not requiring offerors to read inapplicable paragraphs contained in the basic clauses where alternates are also included in the solicitations and contracts.

    DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2015-D017), in correspondence.

    V. Paperwork Reduction Act

    The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

    List of Subjects in 48 CFR Parts 219 and 252

    Government procurement.

    Jennifer L. Hawes, Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 219 and 252 are proposed to be amended as follows:

    1. The authority citation for parts 202 and 252 continues to read as follows: Authority:

    41 U.S.C. 1303 and 48 CFR chapter 1.

    PART 219—SMALL BUSINESS PROGRAMS 2. In section 219.708, revise paragraph (b)(1)(A) to read as follows:
    219.708 Contract clauses.

    (b)(1)(A) Use the basic or alternate clause at 252.219-7003, Small Business Subcontracting Plan (DoD Contracts), in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that contain the clause at FAR 52.219-9, Small Business Subcontracting Plan.

    (1) Use the basic clause at 252.219-7003, when using the basic, alternate I, or alternate II of FAR 52.219-9.

    (2) Use the alternate I clause at 252.219-7003, when using Alternate III of FAR 52.219-9.

    3. In section 219.811-3, revise paragraph (2) to read as follows:
    219.811-3 Contract clauses.

    (2) Use the clause at 252.219-7010, Notification of Competition Limited to Eligible 8(a) Concerns—Partnership Agreement, in lieu of the clause at FAR 52.219-18, Notification of Competition Limited to Eligible 8(a) Concerns, in competitive solicitations and contracts when the acquisition is accomplished using the procedures of FAR 19.805 and processed in accordance with the PA cited in 219.800.

    PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 4. Amend section 252.219-7003 by— a. Revising the introductory text, clause title, and date; b. In paragraph (c)(2), removing “Section” and adding “section” in its place; and c. Revising Alternate I.

    The revisions read as follows:

    252.219-7003 Small Business Subcontracting Plan (DoD Contracts).

    Basic. As prescribed in 219.708(b)(1)(A) and (b)(1)(A)(1), use the following clause:

    Small Business Subcontracting Plan (DOD Contracts)—Basic (Date)

    Alternate I. As prescribed in 219.708(b)(1)(A) and (b)(1)(A)(2), use the following clause, which uses a different paragraph (f) than the basic clause.

    Small Business Subcontracting Plan (DOD Contracts)—Alternate I (Date)

    This clause supplements the Federal Acquisition Regulation 52.219-9, Small Business Subcontracting Plan, clause of this contract.

    (a) Definitions. Summary Subcontract Report (SSR) Coordinator, as used in this clause, means the individual at the department or agency level who is registered in eSRS and is responsible for acknowledging receipt or rejecting SSRs in eSRS for the department or agency.

    (b) Subcontracts awarded to workshops approved by the Committee for Purchase from People Who are Blind or Severely Disabled (41 U.S.C. 8502-8504), may be counted toward the Contractor's small business subcontracting goal.

    (c) A mentor firm, under the Pilot Mentor-Protege Program established under section 831 of Public Law 101-510, as amended, may count toward its small disadvantaged business goal, subcontracts awarded to—

    (1) Protege firms which are qualified organizations employing the severely disabled; and

    (2) Former protege firms that meet the criteria in section 831(g)(4) of Public Law 101-510.

    (d) The master plan is approved by the Contractor's cognizant contract administration activity.

    (e) In those subcontracting plans which specifically identify small businesses, the Contractor shall notify the Administrative Contracting Officer of any substitutions of firms that are not small business firms, for the small business firms specifically identified in the subcontracting plan. Notifications shall be in writing and shall occur within a reasonable period of time after award of the subcontract. Contractor-specified formats shall be acceptable.

    (f)(1) For DoD, the Contractor shall submit reports in eSRS as follows:

    (i) The Standard Form 294, Subcontracting Report for Individual Contracts, shall be submitted in accordance with the instructions on that form.

    (ii) An SSR for other than a commercial subcontracting plan, or construction and related maintenance repair contracts, shall be submitted in eSRS to the department or agency within DoD that administers the majority of the Contractor's individual subcontracting plans. An example would be Defense Finance and Accounting Service or Missile Defense Agency.

    (2) For DoD, the authority to acknowledge receipt or reject reports in eSRS is as follows:

    (i) Except as provided in paragraph (f)(2)(ii) of this clause, the authority to acknowledge receipt or reject SSRs in eSRS resides with the SSR Coordinator at the department or agency that administers the majority of the Contractor's individual subcontracting plans.

    (ii) The authority to acknowledge receipt or reject SSRs for construction and related maintenance and repair contracts resides with the SSR Coordinator for each department or agency.

    (End of clause)
    5. Revise section 252.219-7010 to read as follows:
    252.219-7010 Notification of Competition Limited to Eligible 8(a) Concerns—Partnership Agreement.

    As prescribed in 219.811-3(2), use the following clause:

    Notification of Competition Limited to Eligible 8(a) Concerns—Partnership Agreement (Date)

    (a) Offers are solicited only from small business concerns expressly certified by the Small Business Administration (SBA) for participation in the SBA's 8(a) Program and which meet the following criteria at the time of submission of offer:

    (1) The Offeror is in conformance with the 8(a) support limitation set forth in its approved business plan.

    (2) The Offeror is in conformance with the Business Activity Targets set forth in its approved business plan or any remedial action directed by the SBA.

    (3) If the competition is to be limited to 8(a) concerns within one or more specific SBA regions or districts, then the offeror's approved business plan is on the file and serviced by _____.

    [Contracting Officer completes by inserting the appropriate SBA District and/or Regional Office(s) as identified by the SBA.]

    (b) By submission of its offer, the Offeror represents that it meets all of the criteria set forth in paragraph (a) of this clause.

    (c) Any award resulting from this solicitation will be made directly by the Contracting Officer to the successful 8(a) offeror selected through the evaluation criteria set forth in this solicitation.

    (d)(1) Agreement. A small business concern submitting an offer in its own name shall furnish, in performing the contract, only end items manufactured or produced by small business concerns in the United States or its outlying areas, unless—

    (i) The Small Business Administration has determined that there are no small business manufactures or processors in the Federal market place in accordance with FAR 19.502-2(c);

    (ii) The acquisition is processed under simplified acquisition procedures and the total amount of this contract does not exceed $25,000, in which case a small business concern may furnish the product of any domestic firm; or

    (iii) The acquisition is a construction or service contract.

    (2) The _____ [insert name of SBA's contractor] will notify the _____ [insert name of contracting agency] Contracting Officer in writing immediately upon entering an agreement (either oral or written) to transfer all or part of its stock or other ownership interest to any other party.

    (End of clause)
    [FR Doc. 2015-24787 Filed 9-29-15; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 246 and 252 [Docket No. DARS-2015-0054] RIN 0750-AI39 Defense Federal Acquisition Regulation Supplement: Warranty Tracking of Serialized Items (DFARS Case 2014-D026) AGENCY:

    Defense Acquisition Regulations System, Department of Defense (DoD).

    ACTION:

    Proposed rule.

    SUMMARY:

    DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to require use of the electronic contract attachments accessible via the Product Deficiency Reporting and Evaluation Program to record and track warranty data and source of repair information for serialized items.

    DATES:

    Comments on the proposed rule should be submitted in writing to the address shown below on or before November 30, 2015, to be considered in the formation of a final rule.

    ADDRESSES:

    Submit comments identified by DFARS Case 2014-D026, using any of the following methods:

    Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by entering “DFARS Case 2014-D026” under the heading “Enter keyword or ID” and selecting “Search.” Select the link “Submit a Comment” that corresponds with “DFARS Case 2014-D026.” Follow the instructions provided at the “Submit a Comment” screen. Please include your name, company name (if any), and “DFARS Case 2014-D026” on your attached document.

    Email: [email protected] Include DFARS Case 2014-D026 in the subject line of the message.

    Fax: 571-372-6094.

    Mail: Defense Acquisition Regulations System, Attn: Ms. Kyoung Lee, OUSD(AT&L)DPAP/DARS, Room 3B941, 3060 Defense Pentagon, Washington, DC 20301-3060.

    Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To confirm receipt of your comment(s), please check www.regulations.gov, approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail).

    FOR FURTHER INFORMATION CONTACT:

    Ms. Kyoung Lee, telephone 571-372-6093.

    SUPPLEMENTARY INFORMATION:

    I. Background

    On June 8, 2011, DoD published a final rule in the Federal Register (76 FR 33166) to establish the requirements and formats for tracking warranties for items subject to Item Unique Identification (IUID) in the IUID registry in the DFARS. The rule added the provision at DFARS 252.246-7005, Notice of Warranty Tracking of Serialized Items, and the clause at DFARS 252.246-7006, Warranty Tracking of Serialized Items, with standard contract attachments and instructions for reporting data necessary to track warranty information for each serialized item.

    On April 12, 2012, the Director, Defense Procurement Acquisition Policy (DPAP), issued a memorandum entitled “Implementation of Defense Federal Acquisition Regulation Supplement Provision and Clause for Warranty Tracking of Serialized Items” to encourage the use of a machine readable, fillable Adobe portable document format (PDF) for the electronic submission of warranty information required by the provision and clause. This memorandum also announced planned updates to the Product Deficiency Reporting and Evaluation Program (PDREP) to facilitate the electronic collection, storage and distribution of warranty data and provide for a common, searchable data source for enterprise warranty data.

    II. Discussion and Analysis

    The electronic warranty attachments entitled “Warranty Tracking Information” and “Source of Repair Instructions” are now available in PDREP. The purpose of this proposed rule is to amend DFARS 246.710, DFARS clause 252.246-7005, Notice of Warranty Tracking of Serialized Items, and DFARS clause 252.246-7006, Warranty Tracking of Serialized Items, to make use of the electronic warranty attachments in PDREP mandatory for solicitations and contracts when warranty of serialized items is anticipated or required. This rule also clarifies the requirements for completion and submission of the warranty attachments.

    III. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

    IV. Regulatory Flexibility Act

    DoD expects that this proposed rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act 5 U.S.C. 601, et seq. However, an initial regulatory flexibility analysis has been prepared and is summarized as follows:

    The purpose of this proposed rule is to amend the DFARS to require the use of the electronic formats for the “Warranty Tracking Information” and “Source of Repair Instructions” attachments, required for use in tracking the warranties of serialized items by the provision at DFARS 252.246-7005, Notice of Warranty Tracking of Serialized Items, and the clause at DFARS 252.246-7006, Warranty Tracking of Serialized Items.

    Use of the electronic formats will improve the process of collecting and sharing data on warranties provided by contractors on serialized items procured by DoD. Additionally, use of the electronic formats available via the Product Deficiency Reporting and Evaluation Program (PDREP) ensure the data elements for warranty terms are effectively transmitted through various systems such as: Electronic Document Access; Wide Area WorkFlow; the Invoice, Receipt, Acceptance and Property Transfer module; and the PDREP Warranty Tracking database.

    According to data available in the Federal Procurement Data System, in fiscal year (FY) 2014 DoD awarded 5,807 contracts that contain one or more warranty clauses. Subject matter experts within DoD estimate that almost twice as many solicitations (11,500) issued by DoD in FY 2014 may have contained a warranty clause. It is also estimated that an average of four offers may have been received in response those solicitations, or 46,000 total offers. Of those responses, approximately 85%, or 39,100 responses, are estimated to be received from small businesses.

    This rule does not create any new reporting or recordkeeping requirements. Offerors and contractors are already required to complete the attachments in accordance with the provision at DFARS 252.246-7005, Notice of Warranty Tracking of Serialized Items, and the clause at DFARS 252.246-7006, Warranty Tracking of Serialized Items. Rather, this rule requires contractors and offerors to complete the warranty attachments using the specified electronic formats.

    It is estimated that fifty percent of the time (for approximately 5,750 solicitations) the Government will specify the desired warranty terms, in which case the contractor provides the remaining data elements on the “Warranty Tracking Information” attachment and the “Source of Repair Instructions” attachment with its proposal, at contract award, or at the point of delivery. The other fifty percent of the time, the Contractor will be required to specify all the warranty terms on the “Warranty Tracking Information” attachment and the “Source of Repair Instructions” attachment.

    The rule does not duplicate, overlap, or conflict with any other Federal rules. There are no known significant alternatives to the rule. The impact of this rule on small business is not expected to be significant.

    DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

    DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2014-D026), in correspondence.

    V. Paperwork Reduction Act

    The rule contains information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C chapter 35); however, these changes to the DFARS do not impose additional information collection requirements to the paperwork burden previously approved under OMB Control Number 0704-0481, entitled Warranty Tracking of Serialized Items.

    List of Subjects in 48 CFR Parts 246 and 252

    Government procurement.

    Jennifer L. Hawes, Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 246 and 252 are proposed to be amended as follows:

    1. The authority citation for parts 246 and 252 continues to read as follows: Authority:

    41 U.S.C. 1303 and 48 CFR chapter 1.

    PART 246—QUALITY ASSURANCE 2. Amend section 246.701 by— a. Revising the section heading. b. Adding introductory text. c. Removing “Duration, enterprise, enterprise identifier, fixed expiration, issuing agency, item type, starting event, serialized item, unique item identifier, usage, warranty administrator, warranty guarantor, warranty repair source, and warranty tracking are defined in the clause at 252.246-7006, Warranty Tracking of Serialized Items”; and d. Adding, in alphabetical order, the definitions of Enterprise, Enterprise identifier, Issuing agency, Serialized item, Unique item identifier, and Warranty tracking.

    The additions read as follows:

    246.701 Definitions.

    As used in this subpart—

    Enterprise means the entity (e.g., a manufacturer or vendor) responsible for granting the warranty and/or assigning unique item identifiers to serialized warranty items.

    Enterprise identifier means a code that is uniquely assigned to an enterprise by an issuing agency.

    Issuing agency means an organization responsible for assigning a globally unique identifier to an enterprise (e.g., Dun & Bradstreet's Data Universal Numbering System (DUNS) Number, GS1 Company Prefix, Allied Committee 135 NATO Commercial and Government Entity (NCAGE)/Commercial and Government Entity (CAGE) Code, or the Coded Representation of the North American Telecommunications Industry Manufacturers, Suppliers, and Related Service Companies (ATIS-0322000) Number), European Health Industry Business Communication Council (EHIBCC) and Health Industry Business Communication Council (HIBCC)), as indicated in the Register of Issuing Agency Codes for ISO/IEC 15459, located at http://www.aimglobal.org/?Reg_Authority15459.

    Serialized item means each item produced is assigned a serial number that is unique among all the collective tangible items produced by the enterprise, or each item of a particular part, lot, or batch number is assigned a unique serial number within that part, lot, or batch number assignment within the enterprise identifier. The enterprise is responsible for ensuring unique serialization within the enterprise identifier or within the part, lot, or batch numbers, and that serial numbers, once assigned, are never used again.

    Unique item identifier means a set of data elements marked on an item that is globally unique and unambiguous.

    Warranty tracking means the ability to trace a warranted item from delivery through completion of the effectivity of the warranty.

    3. Amend section 246.710 by revising paragraph (3) to read as follows:
    246.710 Solicitation provision and contract clauses.

    (3) When the solicitation includes the clause at 252.211-7003, Item Unique Identification and Valuation, which is prescribed in 211.274-6(a), and it is anticipated that the resulting contract will include a warranty for serialized items—

    (i) Use the provision at 252.246-7005, Notice of Warranty Tracking of Serialized Items, in the solicitation if the Government does not specify a warranty and offerors will be required to enter data with the offer;

    (ii) Use the clause at 252.246-7006, Warranty Tracking of Serialized Items, in the solicitation and contract; and

    (iii) Include the following warranty attachments, available at https://www.pdrep.csd.disa.mil/pdrep_files/other/wsr.htm, in the solicitation and contract and see 246.710-70:

    (A) Warranty Tracking Information.

    (B) Source of Repair Instructions.

    4. Revise section 246.710-70 to read as follows:
    246.710-70 Warranty attachments.

    Follow the procedures at PGI 246.710-70 regarding warranty attachments.

    PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 252.211-7003 [AMENDED] 5. Amend section 252.211-7003 by— a. Removing the clause date “(DEC 2013)” and adding “(DATE)” in its place; and b. In paragraph (a), in the definition of “Issuing agency,” removing “http://www.nen.nl/Normontwikkeling/Certificatieschemas-en-keurmerken/Schemabeheer/ISOIEC-15459.htm under `Register.' ” and adding “http://www.aimglobal.org/?Reg_Authority15459.” in its place. 6. Amend section 252.246-7005 by— a. In the introductory text, removing “246.710(3)(i)(A)” and adding “246.710(3)(i)” in its place; b. Removing the clause date “(JUN 2011)” and adding “(DATE)” in its place; and c. Revising paragraphs (a) and (b).

    The revisions read as follows:

    252.246-7005 Notice of Warranty Tracking of Serialized Items.

    (a) Definitions. Duration, enterprise, enterprise identifier, fixed expiration, item type, serialized item, starting event, unique item identifier, usage, warranty administrator, warranty guarantor, and warranty tracking are defined in the clause at 252.246-7006, Warranty Tracking of Serialized Items.

    (b) Reporting of data for warranty tracking and administration. (1) The Offeror shall provide the information required by the attachment entitled “Warranty Tracking Information” on each contract line item number, subline item number, or exhibit line item number for warranted items with its offer. Information required in the warranty attachment for each warranted item shall include such information as duration, fixed expiration, item type, starting event, usage, warranty administrator enterprise identifier, and warranty guarantor enterprise identifier.

    (2) The successful offeror will be required to provide the following information no later than when the warranted items are presented for receipt and/or acceptance, in accordance with the clause at 252.246-7006—

    (A) The unique item identifier for each warranted item required by the attachment entitled “Warranty Tracking Information;” and

    (B) All information required by the attachment entitled “Source of Repair Instructions” for each warranted item.

    (3) For additional information on warranty attachments, see the “Warranty and Source of Repair” training and “Warranty and Source of Repair Tracking User Guide” accessible on the Product Data Reporting and Evaluation Program (PDREP) Web site at https://www.pdrep.csd.disa.mil/pdrep_files/other/wsr.htm.

    (End of provision)
    7. Amend section 252.246-7006 by— a. In the introductory text, removing “246.710(3)(i)(B)” and adding “246.710(3)(ii)” in its place; b. Removing the clause date “(JUN 2011)” and adding “(DATE)” in its place; c. In paragraph (a)— i. In the definition of “Issuing agency,” removing “http://www.nen.nl/Normontwikkeling/Certificatieschemas-en-keurmerken/Schemabeheer/ISOIEC-15459.htm” and adding “http://www.aimglobal.org/?Reg_Authority15459” in its place. ii. In the definition of “Starting event,” adding “, such as first use or upon installation” after “warranty”; and d. Revising paragraph (b).

    The revision reads as follows:

    252.246-7006 Warranty Tracking of Serialized Items.

    (b) Reporting of data for warranty tracking and administration. (1) The Contractor shall provide the information required by the attachment entitled “Warranty Tracking Information” on each contract line item number, subline item number, or exhibit line item number for warranted items no later than the time of award. Information required in the warranty attachment shall include such information as duration, fixed expiration, item type, starting event, usage, warranty administrator enterprise identifier, and warranty guarantor enterprise identifier.

    (2) The Contractor shall provide the following information no later than when the warranted items are presented for receipt and/or acceptance—

    (A) The unique item identifier for each warranted item required by the attachment entitled “Warranty Tracking Information;” and

    (B) The warranty repair source information and instructions for each warranted item required by the attachment entitled “Source of Repair Instructions.”

    (3) The Contractor shall submit the data for warranty tracking to the Contracting Officer with a copy to the requiring activity and the Contracting Officer Representative.

    (4) For additional information on warranty attachments, see the “Warranty and Source of Repair” training and “Warranty and Source of Repair Tacking User Guide” accessible on the Product Data Reporting and Evaluation Program (PDREP) Web site at https://www.pdrep.csd.disa.mil/pdrep_files/other/wsr.htm.

    [FR Doc. 2015-24784 Filed 9-29-15; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket. No. FWS-R4-ES-2015-0144; 4500030113] RIN 1018-BA94 Endangered and Threatened Wildlife and Plants; Threatened Species Status for the Elfin-woods Warbler AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Proposed rule.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), propose to list the elfin-woods warbler (Setophaga angelae), a bird species in Puerto Rico, as a threatened species under the Endangered Species Act (Act). If we finalize this rule as proposed, it would extend the Act's protections to this species.

    DATES:

    We will accept comments received or postmarked on or before November 30, 2015. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on the closing date. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by November 16, 2015.

    ADDRESSES:

    You may submit comments by one of the following methods:

    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R4-ES-2015-0144, which is the docket number for this rulemaking. Click the Search button. Then, in the Search panel on the left side of the screen, under the Document Type heading, click on the Proposed Rules link to locate this document. You may submit a comment by clicking on “Comment Now!”

    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R4-ES-2015-0144; U.S. Fish and Wildlife Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.

    We request that you send comments only by the methods described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see Public Comments, below, for more information).

    FOR FURTHER INFORMATION CONTACT:

    Marelisa Rivera, Deputy Field Supervisor, U.S. Fish and Wildlife Service, Caribbean Ecological Services Field Office, P.O. Box 491, Road 301 Km. 5.1, Boquerón, PR 00622; telephone 787-851-7297; facsimile 787-851-7440. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

    SUPPLEMENTARY INFORMATION: Executive Summary

    Why we need to publish a rule. Under the Endangered Species Act (Act), if we determine that a species is an endangered or threatened species throughout all or a significant portion of its range, we are required to promptly publish a proposal in the Federal Register and make a determination on our proposal within 1 year. Listing a species as an endangered or threatened species can only be completed by issuing a rule.

    This rulemaking proposes the listing of the elfin-woods warbler (Setophaga angelae) as a threatened species. The elfin-woods warbler is a candidate species for which we have on file sufficient information on biological vulnerability and threats to support preparation of a listing proposal, but for which development of a listing rule has until now been precluded by other higher priority listing activities. We are also proposing a rule under section 4(d) of the Act to provide for conservation measures for the elfin-woods warbler.

    The basis for our action. Under the Act, we may determine that a species is a threatened species based on any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We propose to list this species, which is currently at risk throughout all of its range due to threats related to habitat modification on private lands under agricultural and other land use requiring vegetation clearance (Factor A). In addition, other natural or manmade factors, such as restricted distribution and lack of connectivity, genetic drift, hurricanes, and climate change, are considered threats (Factor E).

    We will seek peer review. We will seek comments from independent specialists to ensure that our determination is based on scientifically sound data, assumptions, and analyses. We will invite these peer reviewers to comment on this listing proposal.

    Information Requested Public Comments

    We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning:

    (1) The biology, range, and population trends of the elfin-woods warbler, including:

    (a) Habitat requirements for feeding, breeding, and sheltering;

    (b) Genetics and taxonomy;

    (c) Historical and current range, including distribution patterns;

    (d) Historical and current population levels, and current and projected trends (especially in El Yunque National Forest and Carite Commonwealth Forest); and

    (e) Past and ongoing conservation measures for the species, its habitat or both.

    (2) Factors that may affect the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors.

    (3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and existing regulations that may be addressing those threats.

    (4) Additional information concerning the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species.

    (5) The appropriateness and scope of the proposed 4(d) rule, including any other actions that should be considered for inclusion.

    Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.

    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)(1)(A) of the Act (16 U.S.C. 1531 et seq.) directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”

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

    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 or commercial information you include.

    Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Caribbean Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Because we will consider all comments and information we receive during the comment period, our final determination may differ from this proposal.

    Public Hearing

    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 FOR FURTHER INFORMATION CONTACT 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.

    Peer Review

    In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert opinions of four appropriate and independent specialists regarding this proposed rule. The purpose of peer review is to ensure that our listing determination is based on scientifically sound data, assumptions, and analyses.

    Previous Federal Action

    The elfin-woods warbler was identified as a Category 2 species in the candidate notice of review (CNOR) published in the Federal Register on December 30, 1982 (47 FR 58454). Category 2 species were defined as species for which we had information that proposed listing was possibly appropriate, but for which conclusive data on biological vulnerability and threats were not available to support a proposed rule at the time. The species remained a Category 2 in subsequent annual CNORs (50 FR 37958, September 18, 1985; 54 FR 554, January 6, 1989; 56 FR 58804, November 21, 1991; 59 FR 58982, November 15, 1994). The February 28, 1996, CNOR (61 FR 7596) redefined candidates to include only species for which we have information needed to propose them for listing; as a result, elfin-woods warbler was removed from the candidate list.

    On October 25, 1999, we published a CNOR in the Federal Register (64 FR 57535) again classifying the elfin-woods warbler as a candidate species. Candidates are those fish, wildlife, and plants for which we have on file sufficient information on biological vulnerability and threats to support preparation of a listing proposal, but for which development of a listing regulation is precluded by other higher priority listing activities. The elfin-woods warbler was added to the candidate list with a listing priority number (LPN) of 5, indicating that its threats were non-imminent, but high in magnitude. This listing priority system was developed to ensure that we have a rational system for allocating limited resources in a way that ensures those species in greatest need of protection are the first to receive such protection. The listing priority system considers magnitude of threat, immediacy of threat, and taxonomic distinctiveness in assigning species numerical listing priorities on a scale from 1 to 12. In general, a smaller LPN reflects a greater need for protection than a larger LPN. The elfin-woods warbler was included, and retained an LPN of 5, in our CNORs from 2001 through 2004 (66 FR 54808, October 30, 2001; 67 FR 40657, June 13, 2002; 69 FR 24876, May 4, 2004).

    On May 11, 2004, the Center for Biological Diversity (CBD) petitioned the Service to list the elfin-woods warbler as an endangered species under the Act (CBD 2004, pp. 34-38). The elfin-woods warbler was already considered a candidate species at the time the petition was received. Because the petition did not provide new information regarding the status of or threats to the species, the petition was addressed in the May 11, 2005 CNOR (70 FR 24870). An LPN of 5 was retained in the 2005 CNOR (70 FR 24870, May 11, 2005) and in subsequent CNORs through 2008 (71 FR 53756, September 12, 2006; 72 FR 69034, December 6, 2007; 73 FR 75176, December 10, 2008). The LPN was changed to 11 in the November 9, 2009, CNOR (74 FR 57804), reflecting that the magnitude of threats was moderate to low because the severity of threats to the species were not as strong as previously believed, and the threats were not currently occurring in most of the elfin-woods warbler's habitat; hence, the threats were non-imminent. The elfin-woods warbler retained an LPN of 11 in the 2010 through 2014 CNORs (75 FR 69222, November 10, 2010; 76 FR 66370, October 26, 2011; 77 FR 69994, November 21, 2012; 78 FR 70104, November 22, 2013; 79 FR 72450, December 5, 2014).

    The 2011 Multi-District Litigation (MDL) settlement agreement specified that the Service will systematically, over a period of 6 years, review and address the needs of 251 candidate species to determine if they should be added to the Federal Lists of Endangered and Threatened Wildlife and Plants. The elfin-woods warbler was on that list of candidate species. Therefore, the Service is making this proposed listing determination in order to comply with the conditions outlined in the MDL agreement.

    Background Species Information Species Description and Taxonomy

    The elfin-woods warbler was originally classified under the genus Dendroica, but is now recognized as Setophaga (Lovette et al. 2010, p. 765). Angela and Cameron Kepler discovered the species in 1971, in the Dwarf forest type at El Yunque National Forest (EYNF) (Kepler and Parkes 1972, p. 3-5). The bird is about 12.5 centimeters (cm) (5 inches (in)) in length (Raffaele 1998, p. 406). The adult's upper body is predominantly black and white, with a stripe above the eyes, and conspicuous white patches on the ear coverts and sides of the neck. The elfin-woods warbler is often mistaken for the black and white warbler (Mniotilta varia), but the elfin-woods warbler is distinguished by its incomplete white eye-ring and entirely black crown. Immature elfin-woods warblers are similar to adults, except that they are grayish-green on the back, and yellowish-green on the head and underparts (Raffaele 1989, p. 168). The bird's call comprises a series of short, rapidly uttered, unmusical notes in one pitch, increasing in volume and ending with a short series of distinct double notes (Curson et al. 1994, p. 156).

    Life History

    Little detailed information has been published on the life history of the elfin-woods warbler. Some authors noted that the elfin-woods warbler is an extremely active warbler, moving among the dense vines of forest strata with more foliage cover or smaller branch tips, foraging insects, usually at intermediate foliage heights of 3 to 15 meter (m) (10 to 50 feet (ft)) (Colón-Merced 2013, p. 2). Opportunistic observations indicate the elfin-woods warbler feeds on moths, dragonflies, and other types of insects; however, its specific diet remains unknown (Colón-Merced 2013, p. 2). Raffaele et al. (1998, p. 406) indicated that the breeding season of the species occurs from March to June. Delannoy (2009, p. 1) reported that four pairs banded between 2004 and 2008 remained together in their territories in the Maricao Commonwealth Forest (MCF), suggesting that the species is monogamous. In addition, he reported that the elfin-woods warbler maintained territorial defense throughout the year and documented that calling activity increases from January to April and declines considerably during the time pairs are incubating eggs or brooding nestlings. Arroyo-Vázquez (1992, p. 363) reported the first detailed observation of two nests found in March and April of 1990 in aerial leaf litter at heights between 1.3 to 7.6 m (4.3 to 25 ft) and documented a clutch size of two to three eggs. Also, he observed that the pair's cup nest was woven from rootlets and fibers obtained from tree ferns and lined with grass leaves and down feathers. Raffaele et al. (1998, p. 406) further described the nest of the elfin-woods warbler as a compact cup, usually close to the trunk and well-hidden among epiphytes of a small tree. Rodríguez-Mojica (2004, p. 22) reported the first nesting event inside a rotten tree stump of Palo Colorado (Cyrilla racemiflora) 7.0 m (23.3 ft) above ground in an abandoned camping area at the MCF. He described the nest structure as consisting of a tightly woven cup of fine plant fibers with dry leaves on its outside and noted that cavity-nesting is not common in warblers. Arroyo-Vázquez (1992, p. 363) and Rodríguez-Mojica (2004, p. 22) suggested that the species selected aerial leaf litter and cavity-nesting sites to avoid predation. Some authors have suggested that elfin-woods warbler nest predators may include the pearly-eyed thrasher (Margarops fuscatus), Puerto Rican tanager (Nesospingus speculiferus), Puerto Rican screech owls (Megascops nudipes), Puerto Rican boa (Chilabothrus inornatus, listed as Epicrates inornatus), Puerto Rican racer (Alsophis portoricensis), and feral cats (Felis catus) (Delannoy 2009, p. 2). Other potential predators of immature and adult individuals include the Indian mongoose (Herpestes auropunctatus) and black rat (Rattus rattus) (Arroyo-Vázquez 1992, p. 364).

    Historical and Current Distribution

    The elfin-woods warbler is endemic to the island of Puerto Rico and was initially thought to occur only in the Luquillo Mountains at EYNF in eastern Puerto Rico (Kepler and Parks 1972, pp. 5-6; Pérez-Rivera 1979, p. 58). During the early 1970s, the species was reported in the MCF in western Puerto Rico (Pérez-Rivera 1979, p. 58; Cruz and Delannoy 1984, p. 92). In addition, the elfin-woods warbler was reported in the Toro Negro Commonwealth Forest in the Cordillera Central (central mountain range) (Pérez-Rivera 1979, p.58), and in the area of Guavate in the Carite Commonwealth Forest in east-central Puerto Rico (Pérez-Rivera and Maldonado 1977, p. 134). More recently, Miranda-Castro et al. (2000, pp. 119-123) and Anadón-Irizarry (2006, p. 34) conducted elfin-woods warbler surveys in other forests of the Cordillera Central (i.e., Tres Picachos, Carite, Toro Negro, Susúa, and Guilarte Commonwealth Forests, and Bosque del Pueblo in Adjuntas), but did not detect the species.

    Between 2011 and 2013, the Service, in collaboration with the Puerto Rican Ornithological Society, Inc., and BirdLife International, conducted a study using a habitat suitability model and a single-season occupancy modeling approach to assess the current geographic distribution of the elfin-woods warbler. The project included surveys during the species breeding season (between January and July) within habitat currently occupied by the species in the MCF and predicted habitat within the Cordillera Central (Anadón-Irizarry 2013, p. 2). The predicted habitat included public and private lands within the municipalities of Jayuya, Ciales, Adjuntas, Ponce, Orocovis, and Juana Díaz. The species was detected only in the MCF and adjacent private lands (Service 2014, p. 12).

    The elfin-woods warbler is particularly difficult to survey because of its small size, its constant moving behavior, and the dense vegetation of areas where it is found (Raffaele 1989, p. 168). In fact, Kepler and Parkes (1972 pp. 5-6) attribute the belated discovery of elfin-woods warbler to the above factors and their similarity to the black and white warbler. Even the vocalization of the elfin-woods warbler can be easily mistaken with other species. Although the presence of the elfin-woods warbler in the forests of the Cordillera Central of Puerto Rico cannot be disregarded based on the previous facts, the available information suggests that the current distribution of the species is now restricted to two populations in (1) EYNF and (2) MCF and adjacent private lands (Anadón-Irizarry 2006, p. 5; Delannoy 2007, p. 4; González 2008, p. 19). The EYNF and the MCF are located about 150 kilometers (km) (93 miles (mi)) from each other (Arendt et al. 2013, p. 2). These habitats are considered essential to elfin-woods warbler abundance and are very important for maintaining healthy populations of the species (Delannoy 2007, p. 24) as they are the only currently know areas where the species still occurs. Although there is suitable habitat for the species between these two forests (Colón-Merced 2013, p.51), the probability of dispersal for the species is low because EYNF is isolated from the central mountain range of Puerto Rico. Urban areas around EYNF increased by more than 2,000 percent between 1936 and 1988, and continue to encroach on forested areas today (Thomlinson and Rivera 2000, p. 17). Between 1988 and 1993, urbanization around this forest increased by 31 percent and represented a 5 percent loss in vegetative cover, more than 80 percent of which was dense forest (Thomlinson and Rivera 2000, p. 17).

    Habitat

    El Yunque National Forest—EYNF is located in the Sierra de Luquillo in eastern Puerto Rico and covers 11,310 hectares (ha) (28,000 acres (ac)) of the island's area (Weaver 2012, p. 1). This forest was proclaimed as a Crown Reserve by Spain in 1876, and as a Forest Reserve by the U.S. Government since 1903. It is considered the oldest forest reserve and largest protected area in Puerto Rico, and is managed by the U.S. Forest Service (USFS). Elevations of this forest range from 100 to 1,075 m (328 to 3,526 ft) and temperatures change with altitude, ranging between 23.5 and 27 degrees Celsius (°C) (74 to 81 degrees Fahrenheit (°F)) at the base of the mountain to between 17 and 20 °C (63 to 68 °F) on the mountain peaks (García-Martinó et al. 1996, p. 414). Mean annual rainfall ranges from approximately 245 cm/year (96 in/year) at lower elevations to approximately 400 cm/year (157 in/year) at higher elevations (Brown et al. 1983, p. 11). The EYNF contains five of the six Holdridge Life Zones found in Puerto Rico (Ewel and Whitmore 1973, pp. 32-49). These five zones are the lower montane wet forest, lower montane rain forest, subtropical moist forest, subtropical wet forest, and subtropical rain forest. In 1951, Wadsworth recognized four major forest types at EYNF: Dwarf, Palo Colorado, Tabonuco, and Sierra Palm (Anadón-Irizarry 2006, p. 9).

    At EYNF, the elfin-woods warbler was originally discovered in the Dwarf forest (Kepler and Parkes 1972, pp. 3-5). This forest type falls within the lower montane rain forest life zone (Ewel and Whitmore 1973, p. 49) and occupies 368 ha (909 ac) of EYNF (Weaver 2012, p. 5). It is found on exposed peaks with short, stunted vegetation above 900 m (2,952 ft) elevation (Weaver 2012, p. 58). In general, the Dwarf forest is not well populated with birds (Snyder et al. 1987, p. 61).

    Later, the species was documented at lower elevations in the Palo Colorado, Tabonuco, and Sierra Palm forests (Wiley and Bauer 1985, pp. 12-18). The Palo Colorado forest occurs within the lower montane rain forest life zone, between approximately 600 and 900 m (1,968 and 2,952 ft) (Weaver 2012, p. 1). This forest type covers about 3,441 ha (8,502 ac) of the EYNF (Weaver 2012, p. 5). This forest is mainly composed of fast-growing trees with height not more than 24 m (78 ft) (Lugo 2005, p. 506).

    The Tabonuco forest is found between 150 and 600 m (492 and 1,968 ft) elevation, and occupies 5,663 ha (13,993 ac) of the EYNF (Weaver 2012, p. 5). This forest is dominated by the Tabonuco tree (Dacryodes excelsa), which grows primarily on the subtropical wet forest life zones (Ewel and Whitmore 1973, p. 32). The understory of this forest is sparsely vegetated, and the canopy is rich in aerial plants (e.g., bromeliads, orchids, vines, and arboreal ferns) (Ewel and Whitmore 1973, p. 32).

    The Sierra Palm forest (also known as palm breaks) may reach canopy heights of 15 m (50 ft) with 17 cm (7 in) average diameters at breast height (dbh) and grows mainly on steep slopes at approximately 450 m (1,476 ft) elevation, covering about 1,838 ha (4,541 ac) of the EYNF (Weaver 2012, pp. 5 and 56). The Sierra Palm forest occurs on steep windward slopes and poorly drained riparian areas (Lugo 2005, p. 496). This forest is dominated by the Sierra palm (Prestoea montana) and occurs within the subtropical rain forest life zone (Ewel and Whitmore 1973, p. 4).

    Maricao Commonwealth Forest and Adjacent Lands—The main population of the elfin-woods warbler in western Puerto Rico occurs within the MCF, located between the municipalities of Maricao, San Germán, Sabana Grande, and Mayagüez (Ricart-Pujals and Padrón-Vélez 2010, p. 1). This forest is currently administered by the Puerto Rico Department of Natural and Environmental Resources (PRDNER) and covers about 4,168 ha (10,543 ac) with elevations ranging between 150 and 875 m (492 and 2870 ft) above sea level. Annual average temperature is 21.7 °C (71 °F) and annual average rainfall is 233 cm/year (92 in/year) (Silander et al. 1986, p. 210). Three of the six life zones reported for Puerto Rico occur on the MCF: subtropical moist forest, subtropical wet forest, and lower montane wet forest (Ricart-Pujals and Padrón-Vélez 2010, p. 8). The habitats where the elfin-woods warbler has been found within the MCF include Podocarpus Forest, Exposed Woodland Forest, Timber Plantations, and Dry Slopes Forest.

    The Podocarpus Forest occupies only 80 ha (197 ac) of the MCF and is located on the slopes and highest peaks (600-900 m (1,968-2,952 ft)) within the lower montane wet forest life zone (Department of Natural Resources (DNR) 1976, p. 185). Podocarpus Forest is dominated by Podocarpus coriaceus trees and has closed canopies and well-developed understories composed of tree ferns (Cyathea spp.), Sierra palms, and vines (Tossas and Delannoy 2001, pp. 47-53; Anadón-Irizarry 2006, p. 53; González 2008, pp. 15-16).

    The Exposed Woodland Forest occupies 2,711 ha (6,700 ac) of the MCF and is found in valleys, slopes, and shallow soils with a more or less continuous canopy (González 2008, pp. 15-16). These forest associations are found at elevations ranging from 470 to 800 m (1,542 to 2,624 ft) within the subtropical wet forest life zone (DNR 1976, p. 185).

    Timber Plantations occupy approximately 1,111 ha (2,745 ac) of the MCF in elevations ranging from 630 to 840 m (2,066 to 2,755 ft) within the subtropical wet forest and the subtropical moist forest life zones (DNR 1976, p. 185). This habitat—dominated by the María trees (Calophyllum calaba), eucalyptus (Eucalyptus robusta), and Honduran pine (Pinus caribaea)—was planted in areas that were completely deforested for agriculture (Delannoy 2007, p. 9; González 2008 p. 5).

    Dry Slopes Forest occupies approximately 1,367.3 ha (3,377 ac) of the MCF in elevations ranging from 120 to 300 m (394 to 984 ft) within the subtropical moist forest life zone (DNR 1976, p. 185). This habitat is found in shallow and excessively drained serpentine-derived soils dominated by xerophytic vegetation, thin trees and a low open canopy. This forest type is more common in the southern and southeastern slopes of the MCF (DNR 1976, p. 185).

    Outside the MCF, the elfin-woods warbler has been detected within secondary forests and existing shade-grown coffee plantations (González 2008, pp. 15-16). Secondary forests are found at elevations ranging from 130 to 750 m (426 to 2,460 ft), and the shade-grown coffee plantations are found at elevations ranging from 300 to 600 m (984 to 1,968 ft) (Gonzalez 2008, p. 59; Puerto Rico Planning Board 2015). Also, the elfin-woods warbler has been documented at very low densities outside the MCF in pasturelands, Gallery forests, and rural residential areas, but not in sun-grown (unshaded) coffee plantations (González 2008, pp. 15-16). Young secondary forests developed as a result of abandonment of agriculture during the 20th century. These forests are less than 25 years old with an open canopy height of 12 to 15 m (40 to 50 ft) (González 2008, p. 6) and are found within the subtropical moist and subtropical wet forest life zones (DNR 1976, p. 185). Their understories are well-developed and dominated by grasses, vines, and other early-successional species (González 2008, p. 6). Mature secondary forests are over 25 years old and develop on humid to very humid, moderate to steep slopes. They are characterized by their closed canopies, reaching heights of 20 to 30 m (66 to 100 ft), and sparse to abundant understories (González 2008, p. 6). Some of these forests were used in the past for cultivation of shade-grown coffee and survived untouched because landowners abandoned agriculture activities (Delannoy 2007, p. 10). The shade-grown coffee plantations are covered with tall mature forests dominated mostly by guaba (Inga vera) and guaraguao (Guarea guidonia) trees. Found on moderate to steep, humid mountain sides, these trees reach heights of 15 to 20 m (50 to 66 ft) and their understories constantly develop without grasses (González 2008, p. 6). Shade-grown coffee plantations are stable agro-ecosystems that provide habitat, nesting, and feeding for many native, endemic, and migratory species. Some of the best examples of this habitat are found in north, northwest, and northeast MCF (Delannoy 2007, p. 10). Studies have shown that biodiversity of plants, insects, reptiles, birds, and some mammals are higher in shade-grown than in sun-grown coffee plantations (Borkhataria et al. 2012, p. 165).

    Carite Commonwealth Forest—The Carite Commonwealth Forest (CCF) is within the known historical range of the elfin-woods warbler; however, the species was last observed in this forest about 15 years ago (Pérez-Rivera 2014, pers. comm.). The CCF has been managed for conservation by PRDNER since 1975 (DNR 1976, p. 169). This forest covers about 2,709 ha (6,695 ac), and ranges between 620 and 900 m (2,034 and 2,952 ft) in elevation (DNR 1976, p. 169). The CCF contains four forest types: Dwarf, Palo Colorado, Plantations, and Secondary (Silander et al. 1986, p. 188). These forest types are similar to the forests utilized by elfin-woods warbler in EYNF and MCF.

    Although the elfin-woods warbler has not been recently observed in this forest (Anadón-Irizarry 2006, p. 54; Anadón-Irizarry 2014, pers. comm.), the habitat suitability model developed for the species (Colón-Merced 2013, p. 51) suggests CCF still provides suitable habitat for the species due to its similarity in elevation, climatic conditions, and vegetation associations with EYNF and MCF. The CCF's similarity to EYNF and MCF suggests that this forest could provide habitat for the expansion of the elfin-woods warbler's current range to maintain the species' historical geographical and ecological distribution.

    Population Status

    El Yunque National Forest—Kepler and Parkes (1972, p. 15) estimated the elfin-woods warbler population at fewer than 300 pairs occurring in 450 ha (1,111 acres) at EYNF. Waide (1995, p. 9) reported an estimated population of 138 pairs in 329 ha (812 ac) in the Dwarf forest at EYNF. According to Anadón-Irizarry (2006, p. 24), the species' mean abundance was highest (0.48 individuals (ind)/point count) in the Palo Colorado forest, slightly lower (0.42 ind/point count) in the Dwarf forest, lowest (0.01 ind/point count) in the Tabonuco forest, and none were recorded in Sierra Palm forest. Arendt et al. (2013, p. 8) conducted bird surveys approximately monthly from 1989 to 2006, and reported a decline of the elfin-woods warbler population in EYNF over that period of 17 years. The species showed a significant general decline from 0.2 ind/ha to 0.02 ind/ha in the Dwarf forest, and from 1 ind/ha to 0.2 ind/ha in the Palo Colorado forest (Arendt et al. 2013, p. 9).

    Maricao Commonwealth Forest and Adjacent Lands—Cruz and Delannoy (1984, p. 92) suggested that the elfin-woods warbler was not uniformly distributed throughout the MCF and that it was found in different habitats within three studied sites. Anadón-Irizarry (2006, p. 27) conducted a survey from 2003 to 2004, in 102.4 ha (253 ac) of MCF and recorded 778 elfin-woods warblers in 18 counts for an average of 0.42 ind/ha/count. González (2008, pp. 23-28) reported the most recent population estimate for the elfin-woods warbler at the MCF and adjacent areas. González (2008, p. 18) estimated 97.67 elfin-woods warbler individuals in an area of 203.2 ha (0.48 ind/ha) within the MCF. In areas adjacent to the MCF, he estimated 43.02 individuals in an area of 374.4 ha (0.11 ind/ha).

    Additionally, González (2008, p. 27) reported that the highest densities of elfin-woods warbler recorded per point-count stations in MCF were within the Podocarpus Forest (0.88 ind/ha). Moderate densities were recorded in Exposed Woodland (0.53 ind/ha), Timber Plantations (0.38 ind/ha), and Dry Slope Forest (0.06 ind/ha) (González 2008 p. 27). González (2008 p. 27) stated these results are similar to estimates obtained by previous studies in the same type of forests. In lands adjacent to the MCF, the shade-grown coffee plantations exhibited the highest elfin-woods warbler abundance (0.24 ind/ha) (González 2008, p. 24).

    Based on the studies mentioned above, in 2010, BirdLife International estimated the overall elfin-woods warbler population in Puerto Rico to be at least 1,800 mature individuals (Arendt et al. 2013, p. 2).

    Carite Commonwealth Forest—In 1977, Pérez-Rivera and Maldonado (1977, p. 134) reported the species for the first time in the CCF. Two years later, Pérez-Rivera (1979, pp. 5-8) indicated that the species was more common than was expected when discovered. However, he mentioned that because the species appeared to be specialized to certain types of habitats, any kind of habitat disturbance or modification would cause a rapid species decline (Pérez-Rivera 1979, p. 58). The species was later recorded by Pérez-Rivera during the 1980s and 1990s in the following areas: Cerro La Santa, Camino El Seis, first recreation area near the forest entrance, private land near Barrio Farallón, and Fincas Las 300 (Delannoy 2007, pp. 22-23). Based on Pérez-Rivera's observations within these areas, the species seemed to be an uncommon and rare in CCF (i.e., 1 or 2 sightings every 10 visits) (Delannoy 2007, pp. 22-23). The species was later detected occasionally by Pérez-Rivera within the same areas until it was last observed by him more than 15 years ago (Pérez-Rivera 2014, pers. comm.).

    The surveys conducted by Anadón-Irizarry between 2003 and 2004, and between 2012 and 2013, failed to detect the species within the CCF. The study conducted during the period of 2003-2004 (Anadón-Irizarry 2006, p. 54) included traditional areas previously searched by Pérez-Rivera, and the surveys were conducted along 5.0 km (3.1 mi) of existing trails. The most recent surveys, conducted between 2012 and 2013, avoided the use of existing trails and included nontraditional areas, but they also failed to detect the species (Anadón-Irizarry 2014, pers. comm.). However, during these surveys, the amount of surveyed area within nontraditional habitat was not significant (i.e., 15 survey stations).

    Although these studies failed to detect the species, Anadón-Irizarry (2006, p. 54; 2014, pers. comm.) suggested the possibility that the species is still present in isolated pockets of forest that were not searched during the studies (Delannoy 2007, p. 22). The apparent persistent and relatively sedentary behavior of this species to inhabit certain small and isolated pockets of the forest might have led these authors to suggest that it is possible that CCF may harbor undetected elfin-woods warblers (Anadón-Irizarry 2006, p. 54; Delannoy 2007, pp. 22-23; Pérez-Rivera 2014, pers. comm.). Anadón-Irizarry (2006, p. 54), Delannoy (2007, pp. 22-23), and Pérez-Rivera (2014, pers. comm.) have suggested that the species was extirpated from the traditional areas searched by them during the 1980s, 1990s, and between 2003 and 2004 due to habitat modification activities (i.e., transmission antenna development and road development) that occurred in those years. If this is the case, a comprehensive assessment of the status of this population will require extensive searches covering a much larger area into the fragmented landscape of the CCF (Delannoy 2007, pp. 22-23). Therefore, the Service has contracted for a survey to include traditional and nontraditional areas within and beyond EYNF's and CCF's boundaries. These surveys will extend from September 2015 to March 2016, and will at least double the number of survey stations previously surveyed within CCF and will also include suitable habitat identified by the habitat suitability model outside EYNF and CCF.

    Summary of Factors Affecting the Species

    Section 4 of the Act, and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, we may list a species based on:

    (A) The present or threatened destruction, modification, or curtailment of its habitat or range;

    (B) Overutilization for commercial, recreational, scientific, or educational purposes;

    (C) Disease or predation;

    (D) The inadequacy of existing regulatory mechanisms; or

    (E) Other natural or manmade factors affecting its continued existence.

    Listing actions may be warranted based on any of the above threat factors, singly or in combination.

    Factor A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range

    The majority of extant elfin-woods warbler populations are restricted to two disjunct primary habitats in montane forests at EYNF and at MCF and private lands adjacent to MCF. Although the elfin-woods warbler has not been recently observed in CCF, this forest and adjacent lands still contains suitable habitat for the species. The elfin-woods warbler needs suitable forested habitats for essential behaviors such as foraging, breeding, and sheltering (Anadón-Irizarry 2006, pp. 5-8).

    In the past, the majority of the forested areas in Puerto Rico, EYNF, MCF, and CCF were impacted by agricultural practices; extraction of timber for construction and charcoal (Dominguez-Cristobal 2000, pp. 370-373; Dominguez-Cristobal 2008, pp. 100-103); development of infrastructure for utilities and communications; and construction of roads, recreational facilities, and trails, negatively affecting elfin-woods warbler habitat (DNR 1976, p. 169; Waide 1995, p. 17; Delannoy 2007, p. 4; Anadón-Irizarry 2006, p. 28; Pérez-Rivera 2014, pers. comm.). Currently, each agency manages these forests for conservation purposes operating under its authorities and mandates to promote habitat conservation (see Factor D. The Inadequacy of Existing Regulatory Mechanisms, below); habitat modification pressures from agriculture practices and the development of new infrastructure within the forests are currently very low. However, typical forest management of existing disturbed areas (e.g., trail maintenance, road maintenance, transmission antenna maintenance, and recreational facility improvements) and research activities (e.g., species surveys, endangered species reintroductions) still occur within these forests. The maintenance performed on roads, trails, transmission antenna facilities, and recreational facilities is not presently affecting elfin-woods warbler habitat within these forests. When a management or research activity is conducted, both USFS and the PRDNER closely coordinate with the Service during design and planning stages. These planning efforts minimize possible adverse effects on the species and its habitat. However, in contrast, the expansion of existing facilities (i.e., transmission antennas, access roads, access gates, administration buildings, utilities) within the forests is still a possibility and may result in the degradation of suitable habitat of elfin-woods warbler.

    Although the threats to the species and its habitat have been minimized within the lands managed and administrated by USFS and PRDNER within EYNF, MCF, and CCF, respectively, the species is still also threatened with habitat destruction, fragmentation, and degradation in 15 percent of its suitable occupied habitat within private lands adjacent to MCF. The private lands adjacent to MCF are known to be susceptible to habitat modification caused by unsustainable agricultural practices and other land uses requiring vegetation clearance (e.g., deforestation, monoculture of minor fruits, livestock related activities, human-induced fires, residential use, road improvements). Although not known to be currently occupied, the areas outside EYNF and CCF are also vulnerable to these threats because they are not within the protected lands. In the Municipality of Maricao, the Puerto Rico Department of Agriculture (PRDA) has identified 301 properties (8,442 acres) with potential to be developed as agricultural lands for coffee and citrus plantations (Resolución Conjunta del Senado 2014, p. 2). Although the conversion of forested areas to sun-grown coffee plantations is still occurring on private lands adjacent to MCF, the magnitude of this activity is localized and at a lower level than it was in the past. However, PRDA has expressed their intentions to increase the acreages of coffee plantations in Puerto Rico to 16,000 acres by 2016 (PRDA 2015, no page number). PRDA's goal is to provide incentives to landowners (i.e., $1,300/acre) for the establishment of new planting areas of sun-grown or partially shaded coffee (i.e., 1,000 coffee trees per acre) (Regulation 6372, p. 3-6; Regulation Governing the Incentives Programs of the Coffee Production Industry in Puerto Rico). Some of these areas, previously used for agriculture, were abandoned and are currently forested. The majority of the sun-grown coffee plantations were converted several decades ago, resulting in the elimination of native forest, thus reducing the habitat value for wildlife, including the elfin-woods warbler (Delannoy 2007, p. 20). The most recent studies conducted in MCF and adjacent lands (i.e., Delannoy 2007, p. 15; González 2008, p. 59) did not detect elfin-woods warblers in sun-grown coffee plantations on privately owned lands adjacent to the forest. The establishment of a sun-grown coffee plantation requires the deforestation of the area, removing habitat that elfin-woods warblers are or could be using.

    The increase of urban development in private lands adjacent to EYNF and CCF has negatively affected elfin-woods warbler suitable habitat around these forests. Gould et al. (2007, pp. 29-31) suggested there is an increasing urbanization trend of the limited land area of eastern Puerto Rico where these forests are located. Urban development in this region increased more than 15 percent between 1991 and 2003 (Gould et al. 2007, pp. 29-31). Martinuzzi et al. (2007, pp. 294-296) reported that almost 52 percent of the island is classified under either Urban use (i.e., 16 percent; 142,562 ha) or Densely Populated Rural use (i.e., 36 percent; 320,219 ha) classes. The urban-use class enhances the contiguity between the compact urban areas across the island, and gives an accurate view of how an “urban ring” encircles interior mountainous and protected areas like EYNF and CCF (Martinuzzi et al. 2007, p. 294). The densely populated rural-use class surrounds the urban-use areas and represents most of the territory where human developments expand out from the urban centers following secondary routes (Martinuzzi et al. 2007, p. 294). Although the most evident land-use changes in the last 25 years have been the intensification of urbanization that surrounds these forests (Helmer 2004, pp. 33-35, Gould et al. 2007, pp. 29-31, Martinuzzi et al. 2007, p. 294), it is not known how much of these lands currently contain habitat suitable for elfin-woods warbler.

    Conservation Efforts To Reduce the Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range

    In 2014 the Service developed a candidate conservation agreement (CCA) with USFS and PRDNER to promote the conservation of the elfin-woods warbler. The purpose of the CCA is to implement measures to conserve, restore, and improve elfin-woods warbler habitat and populations within EYNF and MCF (Service 2014, p. 6). The CCA provides that PRDNER and USFS will promote, develop, and implement the best management practices to avoid any potential threat to suitable and occupied elfin-wood warbler habitat and populations. It also provides that both agencies will implement restoration and habitat enhancement efforts within degraded areas of EYNF and MCF. The agencies will also (1) determine the habitat use, movement, and activity patterns of the species; (2) design and establish long-term population monitoring programs; and (3) develop outreach and education programs to improve mechanisms to promote habitat conservation and restoration within private lands adjacent to both forests.

    Although the elfin-woods warbler also occurs on privately owned lands not covered by the CCA, these areas adjacent to MCF are part of a habitat restoration initiative in southwestern Puerto Rico implemented by the Service since 2010, through the Partners for Fish and Wildlife (PFW) and Coastal (CP) Programs. The PFW and CP are voluntary programs that provide technical and financial assistance to landowners to implement restoration and conservation practices on their lands for a particular amount of time. These programs promote the restoration of degraded habitat that was likely occupied by the species before the conversion to agricultural lands and that may be restored as suitable elfin-woods warbler habitat in the future. In some cases, occupied suitable habitat for the species is enhanced and protected through cooperative agreements with the private landowners.

    Between 2010 and 2014, a total of 522 ha (1,290 acres) of degraded tropical upland forest and 21 km (13 miles) of riparian buffers have been restored and conserved through these programs in collaboration with the Natural Resources Conservation Service (NRCS), Farm Service Agency (FSA), PRDNER, Envirosurvey Inc. (a local nongovernmental organization), and other partners. Although this initiative promotes the restoration and enhancement of degraded habitat adjacent to the MCF and may potentially provide suitable habitat for the elfin-woods warbler, challenges such as limited resources and uncertainty about land owner participation may affect the implementation of management practices that mitigate impacts of agricultural practices.

    Summary of Factor A

    The elfin-woods warbler's restricted distribution makes it vulnerable to habitat destruction and modification. The agricultural activities and development projects on private lands adjacent to EYNF, MCF, and CCF may result in the loss or fragmentation of the species' suitable habitat. However, the elfin-woods warbler has been reported on private lands only outside MCF; private lands adjacent to EYNF and CCF need to be appropriately surveyed. The majority of extant elfin-woods warbler populations occur in public lands managed for conservation purposes where activities that may affect the species or its habitat are regulated, and measures to minimize or avoid those impacts are being implemented based on management plans or agencies management mandates. Therefore, we believe that habitat curtailment or modification is a threat to the elfin-woods warbler.

    Factor B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes

    Based on the available information, this factor has not been documented as a threat to the elfin-woods warbler.

    Factor C. Disease or Predation

    Delannoy (2009, p. 2) indicated that Puerto Rican sharp-shinned hawk (Accipiter striatus venator) infrequently prey on elfin-woods warbler. Other potential elfin-woods warbler nest predators may include the pearly-eyed thrasher, Puerto Rican tanager, Puerto Rican screech owl, Puerto Rican boa, Puerto Rican racer, and feral cat (Delannoy 2009, p. 2). Additionally, Arroyo-Vázquez (1992, p. 364) noted that the Indian mongoose and black rat are potential egg and nestling predators. Nonetheless, we are not aware of any scientific or commercial information that predation of elfin-woods warblers is having an adverse effect on the species, and therefore we believe that predation is not a threat to the elfin-woods warbler. Similarly, we have no evidence of any disease affecting the species.

    Factor D. The Inadequacy of Existing Regulatory Mechanisms

    In 1999, the Commonwealth of Puerto Rico approved the Law No. 241−1999, known as the New Wildlife Law of Puerto Rico (Nueva Ley de Vida Silvestre de Puerto Rico). The purpose of this law is to, among other things, protect, conserve, and enhance both native and migratory wildlife species; declare as property of Puerto Rico all wildlife species within its jurisdiction; issue permits; regulate hunting activities; and regulate exotic species. In 2004, the Commonwealth of Puerto Rico approved the Regulation Governing the Management of Vulnerable and Endangered Species on the Commonwealth of Puerto Rico (Regulation 6766; Reglamento para Regir el Manejo de las Especies Vulnerables y en Peligro de Extinción en el Estado Libre Asociado de Puerto Rico). Regulation 6766 prohibits collecting, killing, or harming species listed under Territorial law, as well as possessing, transporting, or selling items derived from listed species, and requires authorization from the PRDNER Secretary for any action that may affect designated critical habitat of listed species under this regulation (Departamento de Recursos Naturales y Ambientales 2004, pp. 9, 18). In 2004, the Commonwealth of Puerto Rico included the elfin-woods warbler in Regulation 6766 as a “vulnerable species” (a species that, although is not listed as endangered or critically endangered, faces a high risk of extinction in a foreseeable future).

    In addition to laws that specifically protect the elfin-woods warbler, MCF and CCF are protected under Puerto Rico's Forests Law (Law No. 133-1975; Ley de Bosques de Puerto Rico), as amended in 2000, which prohibits causing damage to and collection of flora and fauna in public forests. Moreover, all Commonwealth forests are designated as Critical Wildlife Areas (CWA) by PRDNER. The CWA designation constitutes a special recognition by this agency with the purpose of providing information to other Commonwealth and Federal agencies about the conservation needs of these areas, and assisting permitting agencies in precluding negative impacts as a result of permit approvals or endorsements (PRDNER 2005, p. 6).

    The Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703-712) provides protection for the elfin-woods warbler, which is defined as a migratory bird under the MBTA. The MBTA makes it unlawful to pursue; hunt; take; capture; kill; attempt to take, capture, or kill; possess; offer for sale; sell; offer to barter; barter; offer to purchase; purchase; deliver for shipment; ship; export; import; cause to be shipped, exported, or imported; deliver for transportation; transport or cause to be transported; carry or cause to be carried; or receive for shipment, transportation, carriage, or export, any migratory bird, or any part, nest, or egg of such bird, or any product, whether or not manufactured, which consists of, or is comprised in whole or part, of any such bird, or any part, nest, or egg thereof. However, no provisions in the MBTA prevent habitat destruction unless direct mortality or destruction of active nests occurs.

    Finally, the elfin-woods warbler co-occurs with other species that are listed under the Act. In the EYNF, the species co-occurs with the Puerto Rican sharp-shinned hawk (Accipiter striatus venator), Puerto Rican boa, Puerto Rican broad-winged hawk (Buteo platypterus brunnescens), Puerto Rican parrot (Amazona vittata), and several federally listed plants: Styrax portoricensis, uvillo (Eugenia haematocarpa), Lepanthes eltoroensis, Pleodendron macranthum, capa rosa (Callicarpa ampla), Ternstroemia luquillensis, Ternstroemia subsessilis, and Ilex sintenisii. In the MCF, the species co-occurs with the Puerto Rican sharp-shinned hawk, Puerto Rican boa, and several federally listed plants: Cranichis ricartii, Gesneria pauciflora, palo de rosa (Ottoschulzia rhodoxylon), Ternstroemia luquillensis, higuero de sierra (Crescentia portoricensis), and Cordia bellonis. Because of the occurrence of these federally listed species within the same habitat where elfin-woods warblers occur, any Federal action, funding, or permit within these forests or in private lands adjacent to these forests that may affect these listed species requires a section 7 consultation under the Act. Therefore, the elfin-woods warbler may benefit from indirect protection of these listed species (i.e., implementation of habitat restoration practices and habitat protection).

    Based on the information currently available to us, the Federal and Commonwealth regulatory mechanisms are being implemented and are functioning as designed. Lack of enforcement of these laws and regulations has not been identified as having a negative impact to the species or exacerbating other negative effects to the species. Therefore, we do not find the existing regulations to be inadequate.

    Factor E. Other Natural or Manmade Factors Affecting Its Continued Existence Hurricanes and Climate Change

    The geographic location of islands in the Caribbean Sea makes them prone to hurricane impacts (Wiley and Wunderle 1993, p. 320). In fact, the frequency of hurricane occurrences is higher in the southeastern United States and the Caribbean than other regions of the world (Wiley and Wunderle 1993, p. 320). Hurricanes can have both direct and indirect effects on bird populations, which may determine the characteristics of local avifauna (Wauer and Wunderle 1992, p. 656; Wunderle et al. 1992, p. 323). Arendt et al. (2013, p. 2) suggested that catastrophic weather events such as hurricanes can negatively affect the elfin-woods warbler due to its restricted distribution and low number of individuals. Some species may cope with hurricane-induced changes by selecting different prey items, while others may switch their foraging behavior and locations (Wauer and Wunderle 1992, p. 657; Wunderle et al. 1992, pp. 323-326).

    The frequency of hurricane-induced damage equivalent to F3 (severe) on the Fujita scale (Fujita 1971) is at least three times greater in the northeastern quadrant of Puerto Rico, where EYNF and CCF are located, compared to the rest of the island (White et al. 2014, p. 30). In contrast, the western side of Puerto Rico, where MCF is located, is subject to different hurricane trajectories and risks than the eastern portion of the island (White et al. 2010, p. 16). For example, in 1998, Hurricane Georges struck MCF, which previously had been spared from hurricanes since 1932 (Tossas 2006, p. 81). Hence, studies of the effects of hurricanes on bird populations in Puerto Rico are limited to the northeastern region and little is known about how bird species are affected elsewhere on the island (Tossas 2006, p. 81).

    Delannoy (2007, p. 24) suggested that elfin-woods warbler populations at MCF appeared to be stable. However, studies conducted from 1989 to 2006 at EYNF documented a declining trend of the elfin-woods warbler population during the study period (Arendt et al. 2013, pp. 8-9). Arendt et al. (2013, p. 8) stated that this documented downward population trend could be related to intrinsic causes (e.g., physiological, genetic). Nonetheless, they further suggest that it is more likely that natural habitat conversion and degradation, resulting from cyclonic events, are playing an important role in the species' decline at EYNF. Direct effects of hurricanes on habitat include massive defoliation, snapped and wind-thrown trees, massive tree mortality, and landslides (Lugo 2008, p. 368). For example, Hurricane Hugo (1989) and Hurricane Georges (1998) caused extensive damage in EYNF, which damage may have adversely impacted the elfin-woods warbler's primary habitat (Arendt et al. 2013, pp. 8-9). Arroyo (1991, p. 55) noted that the species was not recorded during 1990 from areas it was reported from previously at EYNF. This forest was heavily damaged by Hurricane Hugo, with more than 80 percent of the forest completely defoliated (Boucher 1990, p. 164). In contrast, at the MCF, Arroyo (1991, pp. 55-56) recorded an apparent vertical migration pattern of the species during months of heaviest rains. Moreover, Tossas (2006, p. 84) found that the elfin-woods warbler was one of two species that recovered within a year to pre-hurricane population levels after Hurricane Georges. This finding suggested that warblers abandoned defoliated sites immediately after the hurricane and shifted to protected patches with adequate foraging substrate and prey until the defoliated sites recovered (Tossas 2006, p. 84). Arendt et al. (2013, p. 9) indicated that these contrasting findings may be the result of disproportionate damage caused by storms in the respective forests. Moreover, the landscape at EYNF is different from that of the MCF in that at EYNF there is no continuous forested vegetation beyond the forest boundaries mainly due to conversion of agricultural lands and lowland broadleaf forests to urbanized areas (Lugo et al. 2004, p. 29). Therefore, the probability of dispersion to undamaged areas within and outside EYNF would be reduced for the elfin-woods warbler depending on the damages to the vegetation. The lack of suitable habitat around the EYNF also reduces the probability of elfin-woods warbler re-colonization from the MCF, which is 150 km (93 mi) away (Arendt et al. 2013, p. 2).

    Anadón-Irizarry (2006, p. 54), Delannoy (2007, p. 24), and Anadón-Irizarry (2014, pers. comm.) have suggested the elfin-woods warbler no longer exists within CCF. Pérez-Rivera (2014, pers. comm.) has suggested that the habitat modification caused by Hurricane Hugo and Hurricane Georges at CCF may have had a negative effect on the elfin-woods warbler. However, he acknowledged that before concluding the species was extirpated from the forest due to these climatological events, a formal and extensive survey should be conducted to include nontraditional areas within and outside of CCF (Pérez-Rivera 2014, pers. comm.). He suggested hurricanes might be detrimental to low densities and habitat-specialized species, but at the same time might benefit insectivorous species like the elfin-woods warbler. In 1989, a month after Hurricane Hugo, Pérez-Rivera (1991, pp. 474-475) recorded the Antillean euphonia (Euphonia musica) shifting its feeding and foraging behavior in CCF as a result of the habitat disturbance following the hurricane. Some authors (i.e., Wauer and Wunderle 1992, p. 657; Wunderle et al. 1992, pp. 323-326) have suggested that the frequency of hurricanes in the Caribbean may be determining some of the characteristics of the local avifauna, such as the shifting into new habitats due to hurricane-induced changes.

    Hurricanes can have positive effects on forest and bird ecology by temporarily increasing forest productivity (Wiley and Wunderle 1993, p. 337), particularly for species with ample distribution (White et al. 2014, p. 31). However, the immediate negative effects of these powerful atmospheric events for a species with demographically vulnerable populations, such as the elfin-woods warbler, outweigh the benefits accrued via short-term primary productivity of vegetation (White et al. 2014, p. 31). This might explain the declining elfin-woods warbler population trend documented by Arendt et al. (2013, pp. 8-9) at EYNF.

    Studies predict an increase in hurricane intensity in the Atlantic, with higher wind speeds and greater amounts of precipitation, but a reduction in the overall number of storms (Jennings et al. 2014, p. 8). As mentioned above, hurricanes may result in direct negative effects to the species and its habitat.

    Based on the above information, it is possible that the elfin-woods warbler could experience local extinction with these catastrophic weather events. While the species appears to have the ability to temporarily move to undisturbed areas and survive in MCF, such dispersal ability has not been documented at EYNF. Having two geographically separate populations on both ends of Puerto Rico may benefit the elfin-woods warbler since, based on the history of hurricanes striking the Island, it is unlikely for both EYNF and MCF to be impacted by the same weather system at once. However, the fact that there are only two known populations left makes the species more vulnerable to extinction if one is lost due to a catastrophic weather event. It is important to note, however, that there are no specific studies corroborating hurricanes as a main cause of elfin-woods warbler population declines at EYNF and MCF, nor that they caused the apparent extirpation of the species from CCF.

    Regarding climate, general long-term changes have been observed, including changes in amount of precipitation, wind patterns, and extreme weather events (e.g., droughts, heavy precipitation, heat waves, and the intensity of tropical cyclones) (Intergovernmental Panel on Climate Change (IPCC) 2007, p. 30). For example, projected decreases in precipitation in the Caribbean suggest drier wet seasons, and even drier dry seasons (Jennings et al. 2014, p. 1).

    As previously mentioned, the elfin-woods warbler is currently known only from specific habitat types at EYNF and MCF, which makes the species susceptible to the effects of climate change. It has been stated that higher temperatures, changes in precipitation patterns, and any alteration in cloud cover will affect plant communities and ecosystem processes in EYNF (Lasso and Ackerman 2003, pp. 101-102). In fact, the distribution of tropical forest life zones in the Caribbean is expected to be altered due to both intensified extreme weather events and progressively drier summer months (Wunderle and Arendt 2011, p. 44). At EYNF, such alteration may allow low-elevation Tabonuco forest species to colonize areas currently occupied by Palo Colorado forest (Scatena and Lugo 1998, p. 196). Dwarf forests at EYNF also are very sensitive to climate change because of their occurrence in narrowly defined environmental conditions (Lasso and Ackerman 2003, p. 95). Dwarf forest epiphytes may experience moisture stress due to higher temperatures and less cloud cover with a rising cloud base, affecting epiphyte growth and flowering (Nadkarni and Solano 2002, p. 584). As previously mentioned, both the Palo Colorado and Dwarf forests have been reported to have the highest elfin-woods warbler mean abundance (Anadón-Irizarry 2006, p. 24). Although the available information predicting changes in habitat due to climate change pertains to EYNF, similar changes would be expected for the MCF and CCF, which lies within two of the same life zones as EYNF.

    As indicated above, such climate changes are likely to alter the structure and distribution of the habitat used by the elfin-woods warbler. According to Arendt et al. (2013, p. 9), approximately 50 percent of the Caribbean birds show medium to high vulnerability to climate change. Based on that information, species that are dependent on specific habitat types, and that have limited distribution or have become restricted in their range, like the elfin-woods warbler, will be most susceptible to the impacts of climate change. However, while continued change is expected, the magnitude and rate of that change is unknown in many cases. In tropical and subtropical forests, significant knowledge gaps exist in predicting the response of natural systems to climate change, and uncertainties exist with studies forecasting trends in climate (Jennings et al. 2014, p. 33). Moreover, regionally downscaled climate models projecting temperature and precipitation patterns at fine scales are not readily available for locations within the Caribbean region, including Puerto Rico (Jennings et al. 2014, p. 33). While existing large-scale global climate models are useful in determining potential future trends (Angeles et al. 2007, p. 556), the lack of fine-scale data in Puerto Rico's mountainous regions is especially troublesome, as variations in climate with elevation over short horizontal distances cannot be captured by existing climate models, especially in predictions of extreme events (Meehl et al. 2007, p. 477).

    Human-Induced Fires

    Fires are not part of the natural processes for subtropical and moist forests in Puerto Rico (Santiago-Garcia et al. 2008, p. 604). In fact, Méndez-Tejeda et al. (2015, p. 363) concluded that the majority of forests fires in Puerto Rico are produced by human actions. However, as annual rainfall decreases over time in the Caribbean region, longer periods of drought are expected in the future (Breshears et al. 2005, pp. 146-147; Larsen 2000, pp. 510-512). In 2000, Flannigan et al. (2000, pp. 225-226) projected an increase of the global fire occurrence over the next century due to climate change. In Puerto Rico, historical evidence suggests fire frequency is increasing (Burney et al. 1994, p. 277; Robbins et al. 2008, pp. 530-531). Moreover, the interactions between climate warming and drying, and increased human development, are considered to have the potential to increase the effects of fires (Robbins et al. 2008, pp. 530-531).

    In EYNF, CCF, and adjacent lands to these forests, fires are not considered common. The tropical rain and moist forest conditions of EYNF and CCF (i.e., average annual rainfall of 304.8 cm (120 in) or more) and the very high humidity during most of the year are not conditions conducive to fires as they are in the dry, temperate climates encountered in other regions. The last fire incident in EYNF, recorded in 1994, was categorized as a “minimal fire” that was quickly controlled by USFS staff (USFS 2015, no page number). In the CCF area, fires are considered human-induced and occur in a low frequency along the road PR-184 (Monsegur 2015, pers. comm.). Although the road-side fires are considered minimal, they have the potential to extend to forested lands within CCF and adjacent private lands affecting suitable elfin-woods warbler habitat.

    In the Maricao area (i.e., Municipalities of Sabana Grande and San Germán), fires occur more frequently on the southern dry slopes of MCF and adjacent private lands, particularly during the dry season (Avila 2014, pers. comm.). Human-induced fires modify the landscape and ecological conditions of the habitat by promoting growth of nonnative trees and grasses (Brandeis and Woodall 2008, p. 557). These landscape modifications may reduce the quality and quantity of potential elfin-woods warbler habitat. Moreover, these fires alter the habitat, decreasing the ability of the species to disperse to other forested habitats. Although the primary habitat for the species in MCF (i.e., Podocarpus forest) (González 2008, pp. 20-21) is not prone to fire disturbance because it is located on the highest peaks within the lower montane wet forest life zone, suitable habitat at lower elevations might be in danger if these fires extend to forested lands within the forest or private lands. Severe fires in moist tropical forests have the potential to alter microclimates, allowing atypical forest species to invade, increasing the chance of recurrent fires (Sherman et al. 2008, p. 536).

    Based on the above information, other natural or manmade factors, such as hurricanes, climate change, and human-induced fires, are considered threats to the elfin-woods warbler.

    Conservation Efforts To Reduce Other Natural or Manmade Factors Affecting the Continued Existence of the Species

    As discussed under Factor A above, a CCA was signed in 2014 by the Service, USFS, and PRDNER to implement strategic conservation actions. In the context of Factor E, these actions include the development and implementation of programmatic reforestation and habitat enhancement efforts within areas degraded by hurricanes to improve the recovery of the elfin-woods warbler within EYNF and MCF (Service 2014, pp. 18-19). Additionally, the CCA will help develop and design studies to gather information on the elfin-woods warbler (e.g., habitat needs, habitat use, movement and activity patterns, responses to biotic and abiotic factors, and genetic variation) in order to better design and implement conservation strategies for the recovery of the species.

    Summary of Factor E

    Based on the information available and limited distribution of the elfin-woods warbler, we believe that this species is currently threatened by natural or manmade factors such as hurricanes and human-induced fire. Climate change may exacerbate these threats by increasing intensity and frequency of hurricanes and environmental effects, although information is lacking on the specific extent of these effects. Thus, we consider Factor E to be a threat to this species.

    Proposed Determination

    We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to elfin-woods warbler. Current available information indicates that the elfin-woods warbler has a limited distribution, with only two known populations occurring within EYNF and MCF, including the private lands adjacent to MCF, and at least one extirpated population from CCF. As discussed in the Summary of Factors Affecting the Species section of this proposed rule, threats to the elfin-woods warbler include loss, fragmentation, and degradation of habitat on private lands adjacent to MCF (Factor A). Some of these lands are subjected to habitat modification caused by unsustainable agricultural practices (i.e., sun-grown coffee plantations), small residential development, and livestock related activities. Moreover, the increase of urban development on private lands adjacent to EYNF and CCF has also negatively affected suitable elfin-woods warbler habitat around these forests. The activities result in the elimination of native forest, thus reducing the suitable habitat available and the habitat value for the elfin-woods warbler.

    Other natural or manmade factors (i.e., hurricanes, climate change, human-induced fires; Factor E) also have been identified as threats to the species. Elfin-woods warblers could experience local extinction as a result of catastrophic weather events such as hurricanes. While the species appears to have the ability to temporarily migrate to undisturbed areas and survive in MCF, such dispersal ability has not been documented at EYNF. Having two known elfin-woods warbler populations that are geographically separate may benefit the species to some degree, as it is unlikely that the same hurricane would affect both EYNF and MCF. However, the fact that there are only two known remaining populations makes the species more vulnerable to extinction if one is lost due to a catastrophic weather event.

    Climate change also is expected to alter the structure and distribution of the habitat used by the elfin-woods warbler, which may be particularly susceptible because of the limited distribution and specific forest types used by the species. Available information indicates that while continued change is expected, the magnitude and rate of that change is currently unknown. Therefore, the immediate impact from climate change on the elfin-woods warbler is uncertain.

    Human-induced fires have been reported in the Maricao area mostly within the lower southern slopes of the MCF and adjacent private lands, particularly during the dry season, and in the CCF area in a low frequency along the road PR-184. These fires can modify the landscape and ecological conditions, and reduce the quality and quantity of potential elfin-woods warbler habitat. Habitat disturbance caused by human-induced fires may also affect the ability of the species to disperse to other forested habitats. However, in MCF, the areas that are more prone to human-induced fires are not the primary habitat for the species, which is the Podocarpus forest. This forest type is not prone to fire disturbance because it is located on highest peaks within the lower montane wet forest life zone. Although the primary habitat for the species in MCF, EYNF, and CCF is not prone to fire disturbance, potential suitable habitat at lower elevations might be in danger if these fires extend to forested lands within the forests or private lands.

    The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.” We find that the elfin-woods warbler is not presently in danger of extinction throughout its entire range based on the low to moderate severity and non-immediacy of threats currently impacting the species. The available information indicates that elfin-woods warbler populations appear to be stable in MCF and that there are no immediate threats precipitating a demographic decline of the elfin-woods warbler in that forest. In Maricao, the species has been reported adjacent to the Commonwealth forest in shade-grown coffee plantations, demonstrating that the species may tolerate some degree of habitat disturbance. At EYNF, the most current information reported a declining trend of the elfin-woods warbler population, mainly attributed to hurricanes striking that forest. However, there are no specific studies corroborating that hurricanes are in fact the main cause of elfin-woods warbler population declines at EYNF and other factors may be influencing the decline (e.g., population low densities and patchy spatial arrangement). Although the species appears to be stable at the MCF, it may be declining at EYNF and extirpated from CCF. The cumulative effects of habitat modification by human actions (e.g., unsustainable agricultural practices) and natural events such as hurricanes would make the two known populations more vulnerable to extinction due to their restricted distribution, limited population numbers, and specific ecological requirements. Therefore, on the basis of the best available scientific and commercial information, we propose listing the elfin-woods warbler as threatened in accordance with sections 3(20) and 4(a)(1) of the Act. We find that an endangered species status is not appropriate for elfin-woods warbler because the species is not currently in imminent danger of extinction.

    Under the Act and our implementing regulations, a species may warrant listing if it is endangered or threatened throughout all or a significant portion of its range. Because we have determined that elfin-woods warbler is threatened throughout all of its range, no portion of its range can be “significant” for purposes of the definitions of “endangered species” and “threatened species.” See the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37577; July 1, 2014).

    Available Conservation Measures

    Conservation measures provided to species listed as endangered or threatened under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, Tribal, and local agencies; private organizations; and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.

    The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.

    Recovery planning includes the development of a recovery outline shortly after a species is listed and preparation of a draft and final recovery plan. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. The plan may be revised to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of when a species may be ready for reclassification from endangered to threatened or for delisting and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. If this species is listed, the recovery outline, draft recovery plan, and the final recovery plan will be made available on our Web site (http://www.fws.gov/endangered), or from our Caribbean Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (e.g., restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands. If this species is listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the Commonwealth of Puerto Rico would be eligible for Federal funds to implement management actions that promote the protection or recovery of the elfin-woods warbler. Information on our grant programs that are available to aid species recovery can be found at: http://www.fws.gov/grants.

    Although the elfin-woods warbler is only proposed for listing as threatened under the Act at this time, please let us know if you are interested in participating in conservation efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for conservation planning purposes (see FOR FURTHER INFORMATION CONTACT).

    Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7 (a)(1) of the Act directs all Federal agencies to “utilize their authorities in furtherance of the purposes of the Act by carrying out programs for the conservation of” endangered and threatened species. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.

    Federal agency actions within the species' habitat that may require conference or consultation or both as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the USFS; issuance of section 404 Clean Water Act (33 U.S.C. 1251 et seq.) permits by the U.S. Army Corps of Engineers; and construction and maintenance of roads or highways by the Federal Highway Administration.

    Proposed 4(d) Rule

    Under section 4(d) of the Act, the Service has discretion to issue regulations that we find necessary and advisable to provide for the conservation of threatened wildlife. We may also prohibit by regulation, with respect to threatened wildlife, any act prohibited by section 9(a)(1) of the Act for endangered wildlife. 50 CFR 17.31(a) applies all the general prohibitions for endangered wildlife set forth at 50 CFR 17.21 to threatened wildlife; 50 CFR 17.31(c) states that whenever a 4(d) rule applies to a threatened species, the provisions of 17.31(a) do not apply to that species. Permit provisions for threatened species are set forth at 50 CFR 17.32.

    Some activities that would normally be prohibited under 50 CFR 17.31 and 17.32 will contribute to the conservation of the elfin-woods warbler because habitats within some of the physically degraded private lands adjacent to elfin-woods warbler existing populations must be improved before they are suitable for the species. Therefore, for the elfin-woods warbler, the Service has determined that species-specific exceptions authorized under section 4(d) of the Act may be appropriate to promote the conservation of this species. Like the proposed listing rule, this proposal will not be finalized until we have reviewed comments from the public and peer reviewers.

    As discussed above in the Summary of Factors Affecting the Species section of this proposed listing rule, threats to the species include loss, fragmentation, and degradation of habitat due to unsustainable agricultural practices and land use requiring vegetation clearance. Agricultural practices occurring on private lands adjacent to MCF, especially those involving habitat modification (e.g., deforestation and conversion of shade-grown coffee to sun-grown coffee plantations), can result in vegetation removal and habitat alteration, thereby degrading habitats used by elfin-woods warbler for feeding, sheltering, and reproduction.

    The private lands surrounding MCF are considered the most active coffee production lands in Puerto Rico. Sun-grown coffee plantations adjacent to MCF were converted several decades ago, resulting in the elimination of native forest overstory, reducing the habitat value for wildlife, including the elfin-woods warbler. Although the majority of the coffee-related agricultural lands were converted to sun-grown coffee plantations, several parcels of land surrounding MCF are currently part of a multi-agency habitat restoration initiative in southwestern Puerto Rico implemented by the Service and NRCS since 2010, through the PFW, CP, and U.S. Department of Agriculture Farm Bill Programs. Activities that improve or restore physical habitat quality, such as the conversion of sun-grown coffee to shade-grown coffee, reforestation with native trees, riparian buffering, and forested habitat enhancement (i.e., exotic species removal, and native tree planting), would have a positive effect on elfin-woods warbler populations and would provide an overall conservation benefit to the species. The NRCS conservation practices promoted under this initiative are the Multi-Story Cropping (Practice 379) and Tree/Shrub Establishment (Practice 612) (USFWS 2011). The Multi-Story Cropping practice promotes the establishment of stands of trees or shrubs that are managed as overstory with an understory of woody and/or non-woody plants that are grown for a variety of products. The purpose of this practice is to improve crop diversity by growing mixed but compatible crops having different heights in the same area. This will improve soil quality, reduce erosion, enhance degraded areas, and provide habitat for wildlife species such as the elfin-woods warbler. The Tree/Shrub Establishment Practice promotes the establishment of woody plants by planting seedlings or cuttings, direct seeding, or natural regeneration. The purpose is to promote forest products such as timber, wildlife habitat, long-term erosion control, and improvement of water quality, and to improve or restore natural diversity.

    Provisions of the Proposed 4(d) Rule

    Under this proposed 4(d) rule, all of the prohibitions set forth at 50 CFR 17.31 and 17.32 would apply to the elfin-woods warbler, except that incidental take caused by the following activities conducted within habitats currently occupied by the elfin-woods warbler on private, Commonwealth, and Federal lands would not be prohibited, provided those activities (1) abide by the conservation measures in the rule, and (2) are conducted in accordance with applicable Commonwealth, Federal, and local laws and regulations:

    (1) The conversion of sun-grown coffee to shade-grown coffee plantations by the restoration and maintenance (i.e., removal of invasive, exotic, and feral species; shade and coffee tree seasonal pruning; shade and coffee tree planting and replacement; coffee bean harvest by hands-on methods; and the use of standard pest control methods and fertilizers within the plantations) of shade-grown coffee plantations and native forests associated with this type of crop. To minimize disturbance to elfin-woods warbler, shade and coffee tree seasonal pruning must be conducted outside the peak of the elfin-woods warbler's breeding season (July 1 through February 28). The Service considers the use of pest control methods (e.g., pesticides, herbicides) and fertilizers “standard” when it is used only twice a year during the establishment period of shade and coffee trees (i.e., the first 2 years). During this period, the structure of the agroforestry system is not mature enough to sustain the occurrence of elfin-woods warblers within these areas.

    Once the shade-grown coffee system reaches its functionality and structure (i.e., 3 to 4 years), little or no chemical fertilizers, herbicides, or pesticides are required, their use would be restricted under the proposed 4(d) rule. This is the time period when the shade-grown coffee system is mature enough to support the presence of wildlife species. Researchers have found that the number of species of birds in coffee plantations with structurally and floristically diverse canopies is similar to the number of species in natural forest habitat and is higher than other agricultural landscapes without trees (Perfecto et al. 1996, pp. 603-605).

    The restoration of agricultural lands due to the planting of native trees to provide shade to coffee trees or by selective removal of exotic species creates physically stable and suitable habitats for the elfin-woods warbler. Moreover, the cultivation of shade-grown coffee has many other ecological and human-health benefits such as the reduction of soil erosion, moderation of soil temperatures, and reduced need for fertilizers and pesticides (Borkhataria et al. 2012, p.168). Therefore, restoration, conservation, and protection of shade-grown coffee plantations would provide suitable habitat for the feeding, sheltering, and reproduction activities of this species and may provide habitat to promote the elfin-woods warblers' dispersal and recolonization of lands adjacent to the existing populations.

    (2) Riparian buffer establishment through the planting of native vegetation and removal of exotic species may improve the habitat conditions of Gallery forests along the sub-watersheds associated with lands adjacent to the elfin-woods warbler's existing populations. Gallery forests serve as biological corridors that maintain connectivity between forested lands and associated agricultural lands, reducing the fragmentation in the landscape.

    (3) Reforestation and forested habitat enhancement projects within secondary forests (i.e., young and mature) that promote the establishment or improvement of habitat conditions for the species by the planting of native trees, selective removal of native and exotic trees, seasonal pruning of native and exotic trees, or a combination of these.

    The intent of these exceptions is to provide incentive for landowners to carry out these activities in a manner which we believe will provide benefits to the species such as (1) maintaining connectivity of suitable elfin-woods warbler habitats, allowing for dispersal between forested and agricultural lands; (2) minimizing habitat disturbance by conducting certain activities outside the peak of the elfin-woods warbler's breeding season (i.e., July 1 to February 28); (3) maximizing the amount of habitat that is available for the species; and (4) improving habitat quality. While these activities may cause some temporary disturbance to the elfin-woods warbler or its habitat, we do not expect these activities to adversely affect the species' conservation efforts. In fact, we expect they will have a net beneficial effect on the species.

    Based on the rationale above, the provisions included in this proposed rule authorized under section 4(d) of the Act are necessary and advisable to provide for the conservation of the elfin-woods warbler. Nothing in this proposed 4(d) rule would change in any way the recovery planning provisions of section 4(f) of the Act, the consultation requirements under section 7 of the Act, or the ability of the Service to enter into partnerships for the management and protection of the elfin-woods warbler.

    We may issue permits to carry out otherwise prohibited activities involving threatened wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.32. With regard to threatened wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, economic hardship, zoological exhibition, educational purposes, and for incidental take in connection with otherwise lawful activities. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

    It is our policy, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act (for this species, those section 9 prohibitions that would be adopted through the proposed 4(d) rule). The intent of this policy is to increase public awareness of the effect of a proposed listing on proposed and ongoing activities within the range of species proposed for listing. Based on the best available information, the following actions are unlikely to result in a violation of section 9, if these activities are carried out in accordance with existing regulations and permit requirements. This list is not comprehensive:

    (1) Activities authorized, funded, or carried out by Federal or Commonwealth agencies (e.g., expansion or construction of communication facilities; expansion of recreational facilities; pipeline construction; bridge construction; road rehabilitation and maintenance; expansion, construction, or maintenance of aqueduct facilities; habitat management; Federal and Commonwealth trust species reintroductions; trail maintenance; camping areas maintenance; research, repair, and restoration of landslides; etc.), when such activities are conducted in accordance with the consultation and planning requirements for listed species under section 7 of the Act; and

    (2) Agricultural and silviculture practices implemented within existing agricultural lands (i.e., degraded habitat not suitable for the species) other than sun to shade-grown coffee conversion and maintenance, including herbicide, pesticide, and fertilizer use outside of coffee plantations, which are carried out in accordance with any Commonwealth and Federal existing regulations, permit and label requirements, and best management practices.

    We believe the following activities may potentially result in a violation of section 9 the Act. This list is not comprehensive:

    (1) Unauthorized collecting or handling of the species;

    (2) Destruction/alteration/fragmentation of habitat essential to fulfilling the lifecycle of the species; and

    (3) Introduction of nonnative species that compete with or prey upon the elfin-woods warbler.

    Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Caribbean Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Critical Habitat

    Section 3(5)(A) of the Act defines critical habitat as (i) the specific areas within the geographical area occupied by the species, at the time it is listed . . . on which are found those physical or biological features (I) Essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed . . . upon a determination by the Secretary that such areas are essential for the conservation of the species. Section 3(3) of the Act (16 U.S.C. 1532(3)) defines the terms “conserve,” “conserving,” and “conservation” to mean to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter Act are no longer necessary.

    Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species. Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when one or both of the following situations exist:

    (1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or

    (2) Such designation of critical habitat would not be beneficial to the species.

    As discussed under Factor B above, there is currently no imminent threat of take attributed to collection or vandalism for this species, and identification and mapping of critical habitat is not expected to initiate any such threat. Therefore, in the absence of finding that the designation of critical habitat would increase threats to a species, if there are any benefits to a critical habitat designation, we must find that designation is prudent. Here, the potential benefits of designation include: (1) Triggering consultation under section 7 of the Act, in new areas for actions in which there may be a Federal nexus where it would not otherwise occur because, for example, it is unoccupied; (2) focusing conservation activities on the most essential features and areas; (3) providing educational benefits to State or county governments or private entities; and (4) reducing the potential for people to cause inadvertent harm to the species.

    Because we have determined that the designation of critical habitat will not likely increase the degree of threat to the species and may provide some measure of benefit, we determine that designation of critical habitat is prudent for the elfin-woods warbler.

    Our regulations (50 CFR 424.12(a)(2)) further state that critical habitat is not determinable when one or both of the following situations exists: (1) Information sufficient to perform required analysis of the impacts of the designation is lacking; or (2) the biological needs of the species are not sufficiently well known to permit identification of an area as critical habitat. On the basis of a review of available information, we find that critical habitat for elfin-woods warbler is not determinable because the specific information sufficient to perform the required analysis of the impacts of the designation is currently lacking.

    Required Determinations Clarity of the Rulemaking

    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 the ADDRESSES section. 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.

    National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act, need not be prepared in connection with listing a species as an endangered or threatened species under the Endangered Species Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

    References Cited

    A complete list of references cited in this rulemaking is available on the Internet at http://www.regulations.gov and upon request from the Caribbean Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Authors

    The primary authors of this proposed rule are the staff members of the Caribbean Ecological Services Field Office.

    List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.

    Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

    PART 17—[AMENDED] 1. The authority citation for part 17 continues to read as follows: Authority:

    16 U.S.C. 1361−1407; 16 U.S.C. 1531−1544; 4201−4245, unless otherwise noted.

    2. Amend § 17.11(h) by adding an entry for “Warbler, Elfin-woods” to the List of Endangered and Threatened Wildlife in alphabetical order under BIRDS to read as set forth below:
    § 17.11 Endangered and threatened wildlife.

    (h) * * *

    Species Common name Scientific name Historic range Vertebrate population where endangered or threatened Status When listed Critical
  • habitat
  • Special rules
    *         *         *         *         *         *         * Birds *         *         *         *         *         *         * Warbler, elfin-woods Setophaga angelae U.S.A. (PR) Entire T NA 17.41(e) *         *         *         *         *         *         *
    3. Amend § 17.41 by adding paragraph (e) to read as follows:
    § 17.41 Special rules—birds.

    (e) Elfin-woods warbler (Setophaga angelae). (1) Prohibitions. Except as noted in paragraph (e)(2) of this section, all prohibitions and provisions of 50 CFR 17.31 and 17.32 apply to the elfin-woods warbler.

    (2) Exemptions from prohibitions. Incidental take of the elfin-woods warbler will not be considered a violation of section 9 of the Act if the take results from any of the following when conducted within habitats currently occupied by elfin-woods warbler provided these activities abide by the conservation measures set forth in this paragraph and are conducted in accordance with applicable State, Federal, and local laws and regulations:

    (i) The conversion of sun-grown coffee to shade-grown coffee plantations by the restoration and maintenance (i.e., removal of invasive, exotic, and feral species; shade and coffee tree seasonal pruning; shade and coffee tree planting and replacement; coffee bean harvest by hands-on methods; and the use of standard pest control methods and fertilizers within the plantations) of shade-grown coffee plantations and native forests associated with this type of crop. To minimize disturbance to elfin-woods warbler, shade and coffee tree seasonal pruning must be conducted outside the peak of the elfin-woods warbler's breeding season (i.e., July through February). The Service considers the use of pest control methods (e.g., pesticides, herbicides) and fertilizers “standard” when it is used only twice a year during the establishment period of shade and coffee trees (i.e., the first 2 years). Once the shade-grown coffee system reaches its functionality and structure (i.e., 3 to 4 years), little or no chemical fertilizers, herbicides, or pesticides may be used.

    (ii) Riparian buffer establishment though the planting of native vegetation and selective removal of exotic species.

    (iii) Reforestation and forested habitat enhancement projects within secondary forests (i.e., young and mature) that promote the establishment or improvement of habitat conditions for the species by the planting of native trees, selective removal of native and exotic trees, seasonal pruning of native and exotic trees, or a combination of these.

    Dated: September 17, 2015. Stephen Guertin, Acting Director, U.S. Fish and Wildlife Service.
    [FR Doc. 2015-24775 Filed 9-29-15; 8:45 am] BILLING CODE 4310-55-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R3-ES-2015-0145;4500030113] RIN 1018-BA98 Endangered and Threatened Wildlife and Plants; Threatened Species Status for the Eastern Massasauga Rattlesnake AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Proposed rule.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), propose to list the eastern massasauga rattlesnake (Sistrurus catenatus), a rattlesnake species found in 10 States and 1 Canadian Province, as a threatened species under the Endangered Species Act (Act). If we finalize this rule as proposed, it would extend the Act's protections to this species. We have also determined that the designation of critical habitat for the eastern massasauga rattlesnake is not prudent.

    DATES:

    We will accept comments received or postmarked on or before November 30, 2015. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on the closing date. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by November 16, 2015.

    ADDRESSES:

    You may submit comments by one of the following methods:

    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R3-ES-2015-0145, which is the docket number for this rulemaking. Then click on the Search button. On the resulting page, in the Search panel on the left side of the screen, under the Document Type heading, click on the Proposed Rules link to locate this document. You may submit a comment by clicking on “Comment Now!”

    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R3-ES-2015-0145, U.S. Fish and Wildlife Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.

    We request that you send comments only by the methods described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see Public Comments, below, for more information).

    FOR FURTHER INFORMATION CONTACT:

    Louise Clemency, Field Supervisor, U.S. Fish and Wildlife Service, Chicago Ecological Services Field Office, 1250 S. Grove Ave., Suite 103, Barrington, IL 60010-5010; by telephone 847-381-2253. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

    SUPPLEMENTARY INFORMATION:

    Executive Summary

    Why we need to publish a rule. Under the Act, if a species is determined to be an endangered or threatened species throughout all or a significant portion of its range, we are required to promptly publish a proposal in the Federal Register and make a determination on our proposal within 1 year. Critical habitat shall be designated, to the maximum extent prudent and determinable, for any species determined to be an endangered or threatened species under the Act. Listing a species as an endangered or threatened species and designations and revisions of critical habitat can only be completed by issuing a rule. We have determined that designating critical habitat is not prudent for the eastern massasauga rattlesnake.

    This rule proposes the listing of the eastern massasauga rattlesnake as a threatened species. The eastern massasauga rattlesnake is a candidate species for which we have on file sufficient information on biological vulnerability and threats to support preparation of a listing proposal, but for which development of a listing rule has been precluded by other higher priority listing activities. This rule reassesses all available information regarding status of and threats to the eastern massasauga rattlesnake.

    The basis for our action. Under the Act, we can determine that a species is an endangered or threatened species based on any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. Although there are several factors that are affecting the species' status, the loss of habitat was historically, and continues to be, the primary threat, either through development or through changes in habitat structure due to vegetative succession.

    We will seek peer review. We will seek comments from independent specialists to ensure that our designation is based on scientifically sound data, assumptions, and analyses. We will invite these peer reviewers to comment on our listing proposal. Because we will consider all comments and information we receive during the comment period, our final determination may differ from this proposal.

    A Species Status Assessment (SSA) team prepared an SSA report for the eastern massasauga rattlesnake. The SSA team was composed of U.S. Fish and Wildlife Service biologists, in consultation with other species experts. The SSA represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the eastern massasauga rattlesnake. The SSA underwent independent peer review by 21 scientists with expertise in eastern massasauga rattlesnake biology, habitat management, and stressors (factors negatively affecting the species) to the species. The SSA and other materials relating to this proposal can be found on the Midwest Region Web site at http://www.fws.gov/midwest/Endangered/ and at http://www.regulations.gov under docket number FWS-R3-ES-2015-0145.

    Information Requested Public Comments

    We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning:

    (1) The eastern massasauga rattlesnake's biology, range, and population trends, including:

    (a) Biological or ecological requirements of the species, including habitat requirements for feeding, breeding, and sheltering;

    (b) Genetics and taxonomy;

    (c) Historical and current range, including distribution patterns;

    (d) Historical and current population levels, and current and projected trends; and

    (e) Past and ongoing conservation measures for the species or its habitat.

    (2) Factors that may affect the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors.

    (3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and existing regulations that may be addressing those threats.

    (4) Whether designating critical habitat is prudent for this species and, if so, the reasons why any habitat should or should not be determined to be critical habitat for the eastern massasauga rattlesnake as provided by section 4 of the Act, including physical or biological features within areas occupied or specific areas outside of the geographic area occupied that are essential for the conservation of the species.

    Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.

    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)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”

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

    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.

    Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Chicago Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Public Hearing

    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 (see DATES, above). Such requests must be sent to the address shown in the FOR FURTHER INFORMATION CONTACT 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.

    Peer Review

    In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert opinions of appropriate and independent specialists regarding this proposed rule. The purpose of peer review is to ensure that our listing determination is based on scientifically sound data, assumptions, and analyses. The peer reviewers have expertise in eastern massasauga rattlesnake biology, habitat management, climate change, and other stressors to the species. We previously conducted peer review on the SSA, which informs our determination as discussed below. We invite comment from the peer reviewers during this public comment period.

    Previous Federal Actions

    We identified the eastern massasauga rattlesnake as a Category 2 species in the December 30, 1982, Review of Vertebrate Wildlife for Listing as Endangered or Threatened Species (47 FR 58454). Category 2 candidates were defined as species for which we had information that proposed listing was possibly appropriate, but conclusive data on biological vulnerability and threats were not available to support a proposed rule at the time. The species remained so designated in subsequent candidate notices of review (CNORs) for animal species (50 FR 37958, September 18, 1985; 54 FR 554, January 6, 1989; 56 FR 58804, November 21, 1991; 59 FR 58982, November 15, 1994). In the February 28, 1996, CNOR (61 FR 7596), we discontinued the designation of Category 2 species as candidates; therefore, the eastern massasauga rattlesnake was no longer a candidate species.

    Subsequently, in 1999, the eastern massasauga rattlesnake was added to the candidate list (64 FR 57534; October 25, 1999) through the Service's internal candidate review process. Candidates are those fish, wildlife, and plants for which we have on file sufficient information on biological vulnerability and threats to support preparation of a listing proposal, but for which development of a listing regulation is precluded by other higher priority listing activities. The eastern massasauga rattlesnake was included in all of our subsequent CNORs (66 FR 54808, October 30, 2001; 67 FR 40657, June 13, 2002; 69 FR 24876, May 4, 2004; 70 FR 24870, May 11, 2005; 71 FR 53756, September 12, 2006; 72 FR 69034, December 6, 2007; 73 FR 75176, December 10, 2008; 74 FR 57804, November 9, 2009; 75 FR 69222, November 10, 2010; 76 FR 66370, October 26, 2011; 77 FR 69994, November 21, 2012; 78 FR 70104, November 22, 2013; 79 FR 72450, December 5, 2014). On May 11, 2004, we were petitioned to list the eastern massasauga rattlesnake, although no new information was provided in the petition. Because we had already found the species warranted listing through our internal candidate assessment process and it was already a candidate species, no further action was taken on the petition. The eastern massasauga rattlesnake has a listing priority number of 8, which reflects a species with threats that are imminent and of moderate to low magnitude.

    Background

    A thorough background and review of the ecology, life history, and taxonomy of the eastern massasauga rattlesnake can be found in the Species Status Assessment for the Eastern Massasauga Rattlesnake (Szymanski et al. 2015, entire) available at http://www.fws.gov/midwest/Endangered/ and at http://www.regulations.gov under Docket No. FWS-R3-ES-2015-0145. The eastern massasauga rattlesnake is a pitviper with a small (0.6 to 1 meter (2 to 3 feet)) but heavy body, heart-shaped head, and vertical pupils. As a pitviper, eastern massasaugas have an extrasensory “pit” located on each side of the head between the eyes and the nares (nostrils). Adult eastern massasaugas have gray or light brown coloration with large brown to black blotches encircled in lighter edges (these blotches are smaller on their sides). Tipped by gray-yellow keratinized (containing the fibrous protein called keratin) rattles, eastern massasauga tails have several dark brown rings. Younger snakes are distinguished from adults only by paler versions of the same markings and bright yellow tails that grow darker with age. This species can be distinguished from the closely related western massasauga rattlesnake (Sistrurus tergeminus) by the number of ventral (belly) scales, the ventral coloration and pattern, the number of and shape of dorsal blotches, and markings and patterns on the nape of the neck and head (Gloyd 1940, pp. 36, 38-40, 42-44, 46-49, 52-55; Evans and Gloyd 1948, pp. 3-6).

    First described by Rafinesque in 1818, the eastern massasauga rattlesnake is known by several locally used common names: Eastern massasauga rattlesnake, eastern massasauga prairie rattlesnake, spotted rattler, and swamp rattler (Glody 1940, p. 44; Minton 1972, p. 315). The eastern massasauga rattlesnake was previously recognized by the Service as a subspecies (Sistrurus catenatus catenatus) of a wider-ranging species (Conant and Collins 1998, pp. 231-232) (Sistrurus catenatus), but in 2011, was categorized as a distinct species based on published scientific information on the phylogenetic relationships of massasaugas (Kubatko et al. 2011, p. 13; Gibbs et al. 2011, pp. 433-439). The historical range documented for eastern massasauga rattlesnakes included western New York, western Pennsylvania, the lower peninsula and on Bois Blanc Island in Michigan, the northern two-thirds of Ohio and Indiana, the northern three-quarters of Illinois, the southern half of Wisconsin, extreme southeast Minnesota, east-central Missouri, the eastern third of Iowa, and far southwestern Ontario, Canada. Currently, the eastern massasauga rattlesnake's range still reflects this distribution, although the range is now more restricted than at the time the eastern massasauga rattlesnake was first identified as a candidate species in 1999, because populations in central and western Missouri have since been reclassified as western massasauga rattlesnakes (Kubatko et al. 2011, p. 404; Gibbs et al. 2011, pp. 433-439).

    Eastern massasauga rattlesnakes hibernate in the winter and are active in spring, summer, and fall. The type of habitat used during the active season generally consists of higher, drier habitats, open canopy wetlands, and adjacent upland areas (Sage 2005, p. 32; Lipps 2008, p. 1). Active season habitat use varies regionally (Reinert and Kodrich 1982, p. 169; Johnson et al 2000, p. 3), and individual snakes can be found in a wide variety of habitats, including old fields (Reinert and Kodrich 1982, p. 163; Mauger and Wilson 1999, p. 111), bogs, fens (Kingsbury et al 2003, p. 2; Marshall et al. 2006, p. 142), shrub swamps, wet meadows, marshes (Wright 1941, p. 660; Sage 2005, p. 32), moist grasslands, wet prairies (Siegel 1986, p. 334), sedge meadows, peatlands (Johnson and Leopold 1998, p. 84), forest edge, scrub shrub forest (DeGregorio et al. 2011, p. 378), floodplain forests (Moore and Gillingham 2006, p. 745), and coniferous forests (Harvey and Weatherhead 2006, p. 207). During the active season, snakes thermoregulate (regulate body temperature) through basking in order to perform physiological functions like shedding, digestion, movement, and gestation (process of carrying young in the uterus). Basking sites are generally open, sunny areas in higher and drier habitats than those used for hibernation.

    While there is regional variation, in general, after using higher, drier habitats during the active season, the eastern massasauga rattlesnake moves to lower, wet areas for overwintering or hibernation (Reinert and Kodrich 1982, pp. 164, 169; Johnson et al. 2000, p. 3; Harvey and Weatherhead 2006, p. 214; Mauger and Wilson 1999, p. 117). Hibernation sites provide insulated and moist subterranean spaces below the frost line where individuals can avoid freezing and dehydration (Sage 2005, p. 56). These hibernation sites can occur in wetland, wetland edges, wet prairie, closed canopy forests with mossy substrates (DeGregorio 2008, p. 20), wet grassland, and sedge meadow (Mauger and Wilson 1999, p. 116).

    The availability of retreat sites is important to the snake at all times of the year. Retreat sites are generally used by the snake to hide from potential predators, but are also important to gain shelter from extreme temperatures, because these sites are more thermally stable than surface habitat (Shoemaker 2007, pp. 9-10). Retreat sites can be hibernacula, rock crevices, hummocks, live or dead tree root systems, mammal holes, crayfish burrows, shrubs, boards, burn piles before burning, or any structure that a snake can crawl into or under.

    Adult eastern massasauga rattlesnakes forage by ambushing prey, which are primarily small mammals (voles (Microtus spp.), deer mice (Peromyscus spp.), and short-tailed shrew (Blarina spp.)), that vary according to whatever prey species is most readily available within the habitat. Juvenile eastern massasaugas also prey on small mammals, but feed occasionally on other species of snakes (e.g., brown snakes, Storeria dekayi). Neonates, born near the end of summer with a short active season before hibernation, feed mainly on snakes, perhaps due to the size of their mouth openings (VanDeWalle and VanDeWalle 2008, p. 358; Shepard et al. 2004, p. 365).

    Eastern massasauga rattlesnakes (both males and females) reach sexual maturity at roughly 2 years of age and are ovoviviparous (the females give birth to broods of live young) ranging from 3 to 20 in number, with an average brood size of 9 but varying throughout the range (Anton 2000, p. 248; Bielma 1973, p. 46; Aldridge et al. 2008, p. 404; Jellen 2005, p. 47). Both annual and biennial reproductive cycles have been reported (Reinert 1981, pp. 383-384; Johnson 1995, p. 109). Those individuals that do reproduce annually most likely mate in the spring and bear young in the late summer or autumn. Conversely, biennially reproductive females probably mate in the autumn and either store sperm until the following spring (Johnson 1992, p. 52) or suspend embryo development over winter and bear young the next summer (Prior 1991). Mating is most prevalent in the summer or early autumn and occasionally in spring (Aldridge and Duvall 2002, p. 6; Aldridge et al. 2008, p. 405; Jellen 2005, p. 41; Johnson 1995, p. 109; Johnson 2000, p. 189; Reinert 1981, pp. 383-384; Swanson 1933, p. 37). Male eastern massasaugas tend to occur in higher ratios than receptive females, because the most common female condition (biennial reproduction) essentially results in two female reproductive populations, whereas males can breed every year. Because of the higher ratio of males, males intensely compete for mates and face prolonged periods of mate searching, longer daily movements, and defensive female polygyny (having multiple mates) during the mating season (Jellen 2005, p. 9; Johnson 2000, p. 189).

    Summary of Biological Status and Threats

    The Act directs us to determine whether any species is an endangered species or a threatened species because of any factors affecting its continued existence. We completed a comprehensive assessment of the biological status of the eastern massasauga rattlesnake, and prepared the SSA report, which provides a thorough description of the species' overall viability. We define viability as the ability of the species to maintain multiple, self-sustaining populations across the full gradient of genetic and ecological diversity of the species. We used the conservation biology principles of resiliency, representation, and redundancy in our analysis. Briefly, resiliency is the ability of the species to withstand stochasticity; redundancy is the ability of the species to withstand catastrophic events; and representation is the ability of the species to adapt over time to long-term changes in the environment. In general, the more redundant, representative, and resilient a species is, the more likely it is to sustain populations over time, even under changing environmental conditions. Using these principles, we considered the eastern massasauga rattlesnake's needs at the individual, population, and species scales. We also identified the beneficial and risk factors influencing the species' viability. We considered the degree to which the species' ecological needs are met both currently and as can be reliably forecasted into the future, and assessed the consequences of any unmet needs as they relate to species viability. In this section, we summarize the conclusions of the SSA, which can be accessed at http://www.fws.gov/midwest/Endangered/ and at http://www.regulations.gov under Docket No. FWS-R3-ES-2015-0145.

    For survival and reproduction at the individual level, the eastern massasauga rattlesnake requires appropriate habitat, which varies depending on the season and its life stage (see Background section, above). During the winter (generally October through March), they occupy hibernacula, such as crayfish burrows. Intact hydrology at eastern massasauga rattlesnake sites is important in maintaining conditions, such as crayfish burrows with high enough water levels to support the survival of hibernating eastern massasauga rattlesnakes. During their active season (after they emerge from hibernacula), they require low canopy cover and sunny areas (intermixed with shaded areas) for thermoregulation (basking and retreat sites), abundant prey (foraging sites), and the ability to escape predators (retreat sites). Habitat structure, including early successional stage and low canopy cover, appears to be more important for eastern massasauga rattlesnake habitat than plant community composition or soil type. Maintaining such habitat structure may require periodic management of most habitat types occupied by the eastern massasauga rattlesnake.

    At the population level, the eastern massasauga rattlesnake requires sufficient population size, population growth, survivorship (the number of individuals that survive over time), recruitment (adding individuals to the population through birth or immigration), population structure (the number and age classes of both sexes), and size. Populations also require a sufficient quantity of high-quality microhabitats with intact hydrology and ecological processes that maintain suitable habitat, and connectivity among these microhabitats. In the SSA, a self-sustaining population of eastern massasauga rattlesnakes is defined as one that is demographically, genetically, and physiologically robust (a population with 50 or more adult females and a stable or increasing growth rate), with a high level of persistence (a probability of persistence greater than 0.9) given its habitat conditions and the risk or beneficial factors operating on it.

    We relied on a population-specific model developed by Faust et al. (2011, entire) (hereafter referred to as the Faust model) to assess the health of populations across the eastern massasauga rattlesnake's range. Faust and colleagues developed a generic, baseline model for a hypothetical, healthy (growing) eastern massasauga rattlesnake population. Using this baseline model and site-specific information, including population size estimate, risk factors operating at the site, and potential future management changes that might address those factors, the Faust model forecasted the future condition of 57 eastern massasauga rattlesnake populations over three different time spans (10, 25, and 50 years) (for more details on the Faust model, see pp. 4-6 in the SSA report). We extrapolated the Faust model results and supplemental information gathered since 2011 to forecast the future conditions of the other (non-modeled; n=331) eastern massasauga rattlesnake populations.

    At the species level, the eastern massasauga rattlesnake requires multiple (redundant), self-sustaining (resilient) populations distributed across areas of genetic and ecological diversity (representative). Using the literature on distribution of genetic diversity across the range of this species, we identified three geographic “analysis units” corresponding to “clumped” genetic variation patterns across the eastern massasauga rattlesnake populations (Figure 1). A reasonable conclusion from the composite of genetic studies that exist (Gibbs et al. 1997, entire; Andre 2003, entire; Chiucchi and Gibbs 2010, entire; Ray et al. 2013, entire) is that there are broad-scaled genetic differences across the range of the eastern massasauga rattlesnake, and within these broad units, there is genetic diversity among populations comprising the broad units. Thus, we assume these genetic variation patterns represent areas of unique adaptive diversity. We subsequently use these analysis units (eastern, central, and western) to structure our analysis of viability.

    EP30SE15.005 Species' Current Condition

    As a result of the risk factors acting on eastern massasauga rattlesnake populations, the resiliency of the eastern massasauga rattlesnake across its range and within each of the three analysis units has declined from its historically known condition. Rangewide, there are 581 known historical eastern massasauga rattlesnake populations, of which 267 are known to still be extant, 163 are likely extirpated or known extirpated, and 121 are of unknown status. For the purposes of our assessment, we considered all populations with extant or unknown status as currently extant (referred to as presumed extant, n=388). Of those 388 populations presumed extant, 40 percent are likely quasi-extirpated (i.e., have 25 or fewer adult females).

    The number of presumed extant populations has declined from the number that was known historically rangewide by 33 percent (and 31 percent of the presumed extant populations have unknown status). Of those populations presumed extant, 156 (40 percent) are presumed to be quasi-extirpated while 99 (26 percent) are presumed to be demographically, genetically, and physiologically robust (Table 1). Of these presumed demographically, genetically, and physiologically robust populations, 29 (7 percent) are presumed to have conditions suitable for maintaining populations over time (risk factors affecting the species at those populations are nonexistent or of low impact) and, thus, are self-sustaining. The greatest declines in resiliency occurred in the western analysis unit, where only 21 populations are presumed extant, and of these, only 1 is presumed to be self-sustaining. Although to a lesser degree, loss of resiliency has occurred in the central and eastern analysis units, where 22 and 6 populations, respectively, are presumed to be self-sustaining.

    Table 1—The Number of Populations by Status Rangewide [DGP = demographically, genetically, and physiologically] Status Number of populations rangewide Percentage of presumed
  • extant
  • populations
  • Presumed Extant 388 Quasi-extirpated 156 40 DGP robust (self-sustaining) 99 (29) 26 (7)

    The degree of representation, as measured by spatial extent of occurrence, across the range of the eastern massasauga rattlesnake, has declined as noted by the northeasterly contraction in the range and by the loss of area occupied within the analysis units (see pp. 52-55 in the SSA report). Overall, there has been more than a 46 percent reduction of extent of occurrence rangewide (Table 2). This loss has not been uniform, with the western analysis unit encompassing most of this decline (69 percent reduction in extent of occurrence in the western analysis unit). However, losses of 43 percent and 32 percent of the extent of occurrence in the central analysis unit and eastern analysis unit, respectively, are notable as well. The results are not a true measure of area occupied by the species, but rather a coarse evaluation to make relative comparison among years. The reasons for this are twofold: (1) The calculations are done at the county, rather than the population, level; and (2) if at least one population was projected to be extant, the entire county was included in the analysis, even if other populations in the county were projected to be extirpated. Assuming that loss of range equates to loss of adaptive diversity, the degree of representation of the eastern massasauga rattlesnake has declined since historical conditions.

    Table 2—The Percent Reduction in Extent of Occurrence From Historical to Present Day [WAU = western analysis unit, CAU = central analysis unit, EAU = eastern analysis unit] Analysis unit Percent reduction WAU 69 CAU 43 EAU 32 Rangewide 46

    The redundancy of the eastern massasauga rattlesnake has also declined since historical conditions. Potential catastrophic events relevant to eastern massasauga rattlesnake populations include disease, flooding, and drought. We were unable to find sufficient information on the likelihood of disease outbreaks, the factors that affect disease spread, and the magnitude of impact on eastern massasauga rattlesnake populations to assess the risk from a catastrophic disease outbreak. Similarly, we were unable to assess flooding as a catastrophic risk, but we did consider the impacts of flooding and disease as general factors affecting the species in our assessment. We assess the vulnerability of unit-wide extirpation due to varying drought intensities below. Extreme fluctuations in the water table may negatively affect body condition for the following active season, cause early emergence, or cause direct mortality (Harvey and Weatherhead 2006, p. 71; Smith 2009, pp. vii, 33, 38-39). Changes in water levels under certain circumstances can cause mortality to individuals, particularly during hibernation (Johnson et al. 2000, p. 26; Kingsbury 2002, p. 38) when the snakes are underwater. The water in the hibernacula protects the eastern massasauga rattlesnake from dehydration and freezing, and, therefore, dropping the levels in the winter leaves the snakes vulnerable to both (Kingsbury 2002, p. 38; Moore and Gillingham 2006, p. 750; Smith 2009, p. 5). Because individual eastern massasauga rattlesnakes often return to the same hibernacula year after year, dropping water levels in hibernacula could potentially decimate an entire population if the majority of individuals in that population hibernate in the same area.

    The Drought Monitor (a weekly map of drought conditions that is produced jointly by the National Oceanic and Atmospheric Administration, the U.S. Department of Agriculture, and the National Drought Mitigation Center (NDMC) at the University of Nebraska-Lincoln) classifies general drought areas by intensity, with D1 being the least intense drought and D4 being the most intense drought. For the eastern massasauga rattlesnake, the risk of unit-wide extirpation due to a catastrophic drought varies by analysis unit and by the level of drought considered. Experts believe drought intensities of magnitude D2 or higher are likely to make the species more vulnerable to overwinter mortality and cause catastrophic impacts to eastern massasauga rattlesnake populations. In the central and eastern analysis units, the annual frequency rate for a D3 or D4 drought is zero, so there is little to no risk of unit-wide extirpation regardless of how broadly dispersed the species is within the unit. In the eastern analysis unit, the annual frequency rate for a D2 drought is also zero. Portions of the central analysis unit are at risk of a D2-level catastrophic drought; populations in the southern portion of the central analysis unit and scattered portions in the north are at risk from such a drought. In the western analysis unit, the risk of unit-wide extirpation based on the frequency of a D3 drought is low, but the risk of losing clusters of populations within the western analysis unit is notable; 5 of the 8 population clusters are vulnerable to a catastrophic drought. The probability of unit-wide extirpation in the western analysis unit is notably higher with D2 frequency rates; 7 of the 8 clusters of populations are at risk of D2-level catastrophic drought. Thus, the probability of losing most populations within the western analysis unit due to a catastrophic drought is high.

    Assessment of Threats and Conservation Measures

    The most prominent risk factors affecting the eastern massasauga rattlesnake include habitat loss and fragmentation, especially through development and vegetative succession, road mortality, hydrologic alternation resulting in drought or flooding, persecution, collection, and mortality of individuals as a result of post-emergent (after hibernation) prescribed fire and mowing. Habitat loss includes direct habitat destruction of native land types (e.g., grassland, swamp, fen, bog, wet prairie, sedge meadow, marshland, peatland, floodplain forest, coniferous forest) due to conversion to agricultural land, development, and infrastructure associated with development (roads, bridges). Because eastern massasauga rattlesnake habitat varies seasonally and also varies over its range, the destruction of even a portion of a population's habitat (e.g., hibernacula or gestational sites) causes a negative effect to individual snakes, thus reducing the numbers of individuals in a population and, in turn, reducing the viability of that population. Habitat is also lost due to fragmentation, succession, exotic species invasion, dam construction, fire suppression, water level manipulation, and other incompatible habitat modifications (Jellen 2005, p. 33). These non-development-related habitat losses continue even in publicly held areas protected from development.

    Vegetative succession is a major contributor to habitat loss (Johnson and Breisch 1993, pp. 50-53; Reinert and Buskar 1992, pp. 56-58). The open vegetative structure, typical of eastern massasauga rattlesnake habitat, provides the desirable thermoregulatory areas, increases prey densities by enhancing the growth of sedges and grasses, and provides retreat sites. Degradation of eastern massasauga rattlesnake habitat typically happens through woody vegetation encroachment or the introduction of nonnative plant species. These events alter the structure of the habitat and make it unsuitable for the eastern massasauga rattlesnake by reducing and eventually eliminating thermoregulatory and retreat areas. Fire suppression has led to the widespread loss of open canopy habitats through succession (Kingsbury 2002, p. 37). Alteration in habitat structure and quality can also affect eastern massasauga rattlesnakes by reducing the forage for the species' prey base (Kingsbury 2002, p. 37).

    An effective tool for controlling vegetative succession is the use of prescribed fire, which kills or temporarily sets back the growth of woody vegetation, retards the growth of undesirable species, and stimulates the response of prairie species (Johnson et al. 2000, p. 25). Mowing and herbicide application are two additional strategies, often used in conjunction with prescribed burning, to control woody vegetation and invasive species encroachment. However, direct mortality of snakes can result from exposure to fire or mowers, if these activities occur when the snakes are out of their hibernacula (post-emergent fire) (Cross 2009, pp. 18, 19, 24; Cross et al. 2015, p. 355; Dreslik 2005, p. 180; Dreslik et al. 2011, p. 22; Durbian 2006, p. 333).

    Roads, bridges, and other structures constructed in eastern massasauga rattlesnake habitat fragment the snakes' habitat and impact the species both through direct mortality as snakes are killed trying to cross these structures (Shepard et al. 2008b, p. 6), as well as indirectly through the loss of access to habitat components necessary for the survival of the snakes.

    Because of the fear and negative perception of snakes, many people have a low interest in snakes or their conservation and consequently large numbers of snakes are deliberately killed (Whitaker and Shine 2000, p. 121; Alves et al. 2014, p. 2). Human-snake encounters frequently result in the death of the snake (Whitaker and Shine 2000, pp. 125-126). Given the species' site fidelity and ease of capture once located, the eastern massasauga rattlesnake is particularly susceptible to collection. Poaching and unauthorized collection of the eastern massasauga rattlesnake for the pet trade is a factor contributing to declines that has significant impact on this species (e.g., Jellen 2005, p. 11; Baily et al. 2011, p. 171).

    Assessing the occurrence of the above-mentioned risk factors, we found that 97 percent of the presumed extant eastern massasauga rattlesnake populations have at least one risk factor (with some degree of impact on the species) currently affecting the site. Unmanaged vegetative succession is the most commonly occurring risk factor, with 75 percent of sites being impacted by succession. Vegetative succession makes eastern massasauga rattlesnake habitat unsuitable by reducing or eliminating thermoregulatory and retreat areas. Post-emergent fire is the second most common risk factor (69 percent of sites), and fragmentation is the third most common factor (67 percent of sites). Some form of habitat loss or modification is occurring at 52 percent of the sites; 17 percent of these sites are at risk of total habitat loss (all habitat at the site being destroyed or becoming unusable by the species). Among the other risk factors considered, water fluctuation, collection or persecution, and road mortality occur at 38 percent, 35 percent, and 15 percent of the sites, respectively.

    We also considered the magnitude of impact of the various risk factors. The Faust model indicates that the risk factors most likely to push a population to quasi-extirpation within 25 years (high magnitude risk factors) are late-stage vegetative succession, high habitat fragmentation, moderate habitat fragmentation, total habitat loss, and moderate habitat loss or modification. Our analysis shows that 84 percent of eastern massasauga rattlesnake populations are impacted by at least one high magnitude risk factor, and 63 percent are affected by multiple high magnitude risk factors. These risk factors are chronic and are expected to continue with a similar magnitude of impact into the future, unless ameliorated by increased implementation of conservation actions. Furthermore, these multiple factors are not acting independently, but are acting together, which can result in cumulative effects that lower the overall viability of the species.

    In addition to the above risk factors, other factors may be affecting individuals. Disease (whether new or currently existing at low levels but increasing in prevalence) is another emerging and potentially catastrophic stressor to eastern massasauga rattlesnake populations. For example, snake fungal disease (SFD) is an emerging disease found in populations of wild snakes in the eastern and midwestern United States, and the eastern massasauga rattlesnake is one of the species that has recently been diagnosed with SFD (Sleeman 2013, p. 1; Allender et al. 2011, p. 2383). However, we do not have sufficient information on the emergence and future spread of SFD or other diseases to reliably model this stressor for forecasting future conditions for the rattlesnake. Our quantitative modeling analysis also does not consider two other prominent risk factors, road mortality and persecution, due to a lack of specific information on the magnitude of impacts from these factors. Additionally, this species is vulnerable to the effects of climate change through increasing intensity of winter droughts and increasing risk of summer floods, particularly in the southwest part of its range (Pomara et al., undated; Pomara et al. 2014, pp. 95-97). Thus, while we acknowledge and considered that disease, road mortality, persecution/collection, and climate changes are factors that affect the species, and which may increase or exacerbate existing threats in the future, our viability assessment does not include a quantitative analysis of these stressors.

    Of the 267 sites with extant eastern massasauga populations, 64 percent (171) occur on land (public and private) that is considered protected from development; development may result in loss or fragmentation of habitat. Signed candidate conservation agreements with assurances (CCAAs) with the Service exist for two of these populations. These CCAAs include actions to mediate the stressors acting upon the populations and provide management prescriptions to perpetuate eastern massasauga rattlesnakes on these sites. For example, at an additional 22 sites, habitat restoration or management, or both, is occurring. Information is not available for these sites to know if habitat management has mediated the current risk factors acting upon the populations; the Faust model, however, included these activities in the projections of trends, and, thus, our future condition analyses considered these activities and assumed that ongoing restoration would continue into the future. Lastly, another 18 populations have conservation plans in place. Although these plans are intended to manage for the eastern massasauga rattlesnake, sufficient site-specific information is not available to assess whether these restoration or management activities are currently ameliorating the stressors acting upon the population. Thus, we were unable to include the potential beneficial impacts into our quantitative analyses.

    Species' Projected Future Condition

    To assess the future resiliency, representation, and redundancy of the eastern massasauga rattlesnake, we used the Faust model results to predict the number of self-sustaining populations likely to persist over the next 10, 25, and 50 years, and extrapolated those proportions to the remaining presumed extant populations to forecast the number of self-sustaining populations likely to persist at the future time scales. We then predicted the change in representation and redundancy.

    The projected future resiliency (the number of self-sustaining populations) varies across the eastern massasauga rattlesnake's range. In the western analysis unit, 83 percent of the modeled populations are projected to have a declining trajectory and 94 percent of the populations a low probability of persistence (i.e., the probability of remaining above the quasi-extirpated threshold of 25 adult females; p(P)<0.90) by year 25, and, thus, the number of forecasted populations likely to be extant declines over time. By year 50, 17 of the 21 presumed extant populations are projected to be extirpated (i.e., no individuals remain; n=15) or quasi-extirpated (n=2), with only 1 population projected to be self-sustaining. The resiliency of the western analysis unit is forecasted to decline over time. The situation is similar in the central and eastern analysis units, but to a lesser degree. In the central analysis unit, 70 percent of the modeled populations are projected to have a declining trajectory and 78 percent a low probability of persistence, and thus, by year 50, 196 of the 294 presumed extant populations are projected to be extirpated (n=174) or quasi-extirpated (n=22), and 54 populations to be self-sustaining. In the eastern analysis unit, 83 percent of the modeled populations are projected to have a declining trajectory and 92 percent of the populations are projected to have a low probability of persistence, and, thus, by year 50, 61 of the 73 presumed extant populations are projected to be extirpated (n=55) or quasi-extirpated (n=6), and 6 to be self-sustaining. Rangewide, 61 (16 percent) of the 388 populations that are currently presumed to be extant will be self-sustaining by year 50.

    We calculated the future extent of occurrence (representation) for the 57 modeled populations (Faust model) and for the populations forecasted to persist at years 10, 25, and 50 by using the counties occupied by populations to evaluate the proportions of the range falling within each analysis unit and the change in spatial distribution within each analysis unit. Our results indicate that eastern massasauga rattlesnake populations are likely to persist in all three analysis units; however, the distribution of the range is predicted to contract northeasterly, and the geographic area occupied will decline within each analysis unit over time. The results project a 65 percent reduction of the area occupied by the eastern massasauga rattlesnake rangewide by year 50, with the western analysis unit comprising most of the decline (83 percent reduction within the unit). These projected declines in extent of occurrence across the species' range and within the analysis units suggest that loss of adaptive diversity is likely to occur.

    We assessed the ability of eastern massasauga rattlesnake populations to withstand catastrophic events (redundancy) by predicting the number of self-sustaining populations in each analysis unit and the spatial dispersion of those populations relative to future drought risk.

    The future redundancy (the number and spatial dispersion of self-sustaining populations) across the eastern massasauga rattlesnake's range varies. In the western analysis unit, the risk of analysis-unit-wide extirpations from either a D2 or D3 catastrophic drought is high, given the low number of populations forecasted to be extant. Coupling this with a likely concurrent decline in population clusters (reduced spatial dispersion), the risk of analysis-unit-wide extirpation is likely even higher. Thus, the level of redundancy in the western analysis unit is projected to decline into the future.

    Conversely, in the eastern analysis unit, there is little to no risk of a D2- or D3-level drought, and consequently the probability of unit-wide extirpation due to a catastrophic drought is very low. Thus, redundancy, from a catastrophic drought perspective, is not expected to decline over time in the eastern analysis unit.

    Similarly, in the central analysis unit, there is little to no risk of a D3 catastrophic drought. The southern and northern portions of the central analysis unit, however, are at risk of a D2-level catastrophic drought. Losses of populations in these areas may lead to portions of the central analysis unit being extirpated and will also increase the probability of analysis-unit-wide extirpation. However, the risk of analysis-unit-wide extirpation will likely remain low given the presumed persistence of multiple populations scattered throughout low drought risk areas. Thus, from a drought perspective, the level of redundancy is not likely to be noticeably reduced in the central analysis unit (see Figure 4.3 (p. 60) in the SSA report for a detailed map). A caveat to this conclusion, however, is that the forecasted decline in extent of occurrence suggests our data are too coarse to tease out whether the forecasted decline in populations will lead to substantial losses in spatial distribution, and, thus, the risk of analysis-unit-wide extirpation might be higher than predicted. Therefore, the future trend in the level of redundancy in the central analysis unit is less clear than for either the western analysis unit or the eastern analysis unit.

    Given the loss of populations to date, portions of the eastern massasauga rattlesnake's range are in imminent risk of extirpation in the near term. Specifically, our analysis suggests there is a high risk of extirpation of the western analysis unit and southern portions of the central and eastern analysis units within 10 to 25 years. Although self-sustaining populations are expected to persist, loss of populations within the central and eastern analysis units are expected to continue as well, and, thus, those populations are at risk of extirpation in the future. These losses have led to reductions in resiliency and redundancy across the range and may lead to irreplaceable loss of adaptive diversity across the range of the eastern massasauga rattlesnake, thereby leaving the eastern massasauga rattlesnake less able to adapt to a changing environment into the future. Thus, the viability of the eastern massasauga rattlesnake has and is projected to continue to decline over the next 50 years.

    The reader is directed to the SSA for a more detailed discussion of our evaluation of the biological status of the eastern massasauga rattlesnake and the influences that may affect its continued existence. Our conclusions are based upon the best available scientific and commercial data.

    Determination Standard for Review

    Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, we may list a species based on (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. Listing actions may be warranted based on any of the above threat factors, singly or in combination.

    Until recently, the Service has presented its evaluation of information under the five listing factors in an outline format, discussing all of the information relevant to any given factor and providing a factor-specific conclusion before moving to the next factor. However, the Act does not require findings under each of the factors, only an overall determination as to status (e.g., threatened, endangered, not warranted). Ongoing efforts to improve the efficiency and efficacy of the Service's implementation of the Act have led us to present this information in a different format that we believe leads to greater clarity in our understanding of the science, its uncertainties, and the application of our statutory framework to that science. Therefore, while the presentation of information in this rule differs from past practice, it differs in format only. We have evaluated the same body of information that we would have evaluated under the five listing factors outline format, we are applying the same information standard, and we are applying the same statutory framework in reaching our conclusions.

    Determination

    We have carefully assessed the best scientific and commercial data available regarding the past, present, and future threats to the eastern massasauga rattlesnake and how those threats are affecting the species now and into the future. The species faces an array of threats that have and will likely continue (often increasingly) to contribute to declines at all levels (individual, population, and species). The loss of habitat was historically, and continues to be, the threat with greatest impact to the species (Factor A), either through development or through changes in habitat structure due to vegetative succession. Disease, new or increasingly prevalent, is another emerging and potentially catastrophic threat to eastern massasauga rattlesnake populations (Factor C). As population sizes decrease, localized impacts, such as collection and persecution of individuals, also increases the risk of extinction (Factor B). These risk factors are chronic and are expected to continue with a similar magnitude of impact into the future. Additionally, this species is vulnerable to the effects of climate change through increasing intensity of winter droughts and increasing risk of summer floods (Factor E), particularly in the southwest part of its range (Pomera et al., undated; Pomera et al. 2014, pp. 95-97). Some conservation actions (e.g., management of invasive species and woody plant encroachment, timing prescribed fires to avoid the active season) are currently in place, which provide protection and enhancement to some eastern massasauga rattlesnake populations. However, our analysis projects that eastern massasauga rattlesnake populations will continue to decline even if current conservation measures are continued into the future. As a result of these factors, the numbers and health of eastern massasauga rattlesnake populations are anticipated to decline across the species' range, and particularly in the southwestern portions of the range, which have already experienced large losses relative to historical conditions. Further, the reductions in eastern massasauga rattlesnake population numbers, distribution, and health forecast in the SSA report represent the best case scenario for the species, and future outcomes may be worse than predicted. Because of the type of information available to us, the analysis assumes that threat magnitude and pervasiveness remains constant into the future, while it is more likely that the magnitude of threats will increase into the future throughout the range of the species, or that novel threats may arise. In addition, some currently identified threats are not included in the quantitative analysis (e.g., disease, road mortality, persecution/collection, and climate changes), because we lack specific, quantitative information on how these factors may affect the species in the future. These factors and their potential effects on the eastern massasauga rattlesnake were discussed and considered as part of the determination.

    The species' viability is also affected by losses of populations from historical portions of its range, which may have represented unique genetic and ecological diversity. The species is extirpated from Minnesota and Missouri, and many populations have been lost in the western part of the species' range. Rangewide, the extent of occurrence is predicted to decline by 65 percent by year 50. Actual losses in extent of occurrence will likely be greater than estimated because of the methodology used in our analysis, as discussed above.

    The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” A key statutory difference between an endangered species and a threatened species is the timing of when a species may be in danger of extinction, either now (endangered species) or in the foreseeable future (threatened species). Based on the biology of the eastern massasauga rattlesnake and the degree of uncertainty of future predictions, we find that the “foreseeable future” for the species is best defined as 50 years. Forecasting to 50 years, the current threats are still reliably foreseeable at the end of that time span based on models, available information on threats impacting the species, and other analyses; however, we cannot reasonably predict future conditions for the species beyond 50 years. Our uncertainty in forecasting the status of the species beyond 50 years is also increased by our methodology of extrapolating from a subset of modeled populations to all extant or potentially extant populations.

    We find that the eastern massasauga rattlesnake is likely to become endangered throughout its entire range within the foreseeable future based on the severity and pervasiveness of threats currently impacting the species. We find that the eastern massasauga rattlesnake is likely to be on the brink of extinction within the foreseeable future due to the projected loss of populations rangewide (loss of resiliency and redundancy) and the projected loss of its distribution within large portions of its range. This loss in distribution could represent a loss of genetic and ecological adaptive diversity, as well as a loss of populations from parts of the range that may provide future refugia in a changing climate. Furthermore, many remaining populations are currently experiencing high magnitude threats. Although these high magnitude threats are not currently pervasive rangewide, they are likely to become pervasive in the foreseeable future as they expand and impact additional populations throughout the species' range. Therefore, on the basis of the best available scientific and commercial data, we propose listing the eastern massasauga rattlesnake as a threatened species in accordance with sections 3(20) and 4(a)(1) of the Act.

    We find that an endangered species status is not appropriate for the eastern massasauga rattlesnake. In assessing whether the species is in danger of extinction, we used the plain language understanding of this phrase as meaning “presently in danger of extinction.” We considered whether extinction is a plausible condition as the result of the established, present condition of the eastern massasauga rattlesnake. Based on the species' present condition, we find that the species is not currently on the brink of extinction. The timeframe for conditions that render the species on the brink of extinction is beyond the present. While the magnitude of threats affecting populations is high, threats are not acting at all sites at a sufficient magnitude to result in the species presently being on the brink of extinction. Additionally, some robust populations still exist, and we anticipate they will remain self-sustaining.

    The SSA results represent the best-case scenario for this species. For example, the analysis treated populations of unknown status as if they were all extant, likely resulting in an overestimate of species' viability. Thus, we considered whether treating the populations with an “unknown” status as currently extant in the analysis had an effect on the status determination. We examined whether the number of self-sustaining populations would change significantly over time if we instead assumed that all populations with an “unknown” status were extirpated. The results are a more severe projected decline in eastern massasauga rattlesnake's status than our analysis projects when we assign the unknown status populations to the “extant” category, but not to the extent that we would determine the species to be currently in danger of extinction.

    Under the Act and our implementing regulations, a species may warrant listing if it is an endangered or threatened species throughout all or a significant portion of its range. Because we have determined that eastern massasauga rattlesnake is threatened throughout all of its range, no portion of its range can be “significant” for purposes of the definitions of “endangered species” and “threatened species.” See the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37578; July 1, 2014).

    Critical Habitat Prudency Determination Background

    Critical habitat is defined in section 3(5)(A) of the Act as: (i) The specific areas within the geographic area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (I) Essential to the conservation of the species and (II) that may require special management considerations or protection; and (ii) specific areas outside the geographic area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

    Conservation is defined in section 3(3) of the Act as the use of all methods and procedures that are necessary to bring any endangered or threatened species to the point at which listing under the Act is no longer necessary.

    Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, we designate critical habitat at the time the species is determined to be an endangered or threatened species. Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when one or both of the following circumstances exist: (1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or (2) such designation of critical habitat would not be beneficial to the species. We have determined that both circumstances apply to the eastern massasauga rattlesnake. This determination involves a weighing of the expected increase in threats associated with a critical habitat designation against the benefits gained by a critical habitat designation. An explanation of this “balancing” evaluation follows.

    Increased Threat to the Taxon by Designating Critical Habitat

    Poaching and unauthorized collection (Factor B) of the eastern massasauga rattlesnake for the pet trade is a factor contributing to declines, and remains a threat with significant impact to this species, commanding high black market value. For example, an investigation into reptile trafficking reports documented 35 eastern massasauga rattlesnakes (representing nearly one entire wild source population) collected in Canada and smuggled into the United States, most destined for the pet trade (Thomas 2010, unpaginated). Snakes in general are known to be feared and persecuted by people, and venomous species even more so (Ohman and Mineka 2003, p. 7; Whitaker and Shine 2000, p. 121). As a venomous snake, the eastern massasauga rattlesnake is no exception, with examples of roundups or bounties for them persisting through the mid-1900s (Bushey 1985, p. 10; Vogt 1981; Wheeling, IL, Historical Society Web site accessed 2015), and more recent examples of persecution in Pennsylvania (Jellen 2005, p. 11) and Michigan (Baily et al. 2011, p. 171). The process of designating critical habitat would increase human threats to the eastern massasauga rattlesnake by increasing the vulnerability of this species to unauthorized collection and trade through public disclosure of its locations. Designation of critical habitat requires the publication of maps and a specific narrative description of critical habitat in the Federal Register. The degree of detail in those maps and boundary descriptions is far greater than the general location descriptions provided in this proposal to list the species as a threatened species. Furthermore, a critical habitat designation normally results in the news media publishing articles in local newspapers and special interest Web sites, usually with maps of the critical habitat. We have determined that the publication of maps and descriptions outlining the locations of this species would further facilitate unauthorized collection and trade, as collectors would know the exact locations where eastern massasauga rattlesnakes occur. While eastern massasauga rattlesnakes are cryptic in coloration, they can still be collected in high numbers during certain parts of their active seasons (e.g., spring egress from hibernation or summer gestation). Also, individuals of this species are often slow moving and have small home ranges. Therefore, publishing specific location information would provide a high level of assurance that any person going to a specific location would be able to successfully locate and collect specimens, given the species' site fidelity and ease of capture once located. Due to the threat of unauthorized collection and trade, a number of biologists working for State and local conservation agencies that manage populations of eastern massasauga rattlesnakes have expressed to the Service serious concerns with publishing maps and boundary descriptions of occupied habitat areas that could be associated with critical habitat designation (Redmer 2015, pers. comm.). In addition, when providing us with data on the current status of populations across the range of the species, one State agency redacted site-specific information, while others who provided the information expressed strong concerns that we should not disclose sensitive locality information. We, therefore, find that designating critical habitat could negate the efforts of State and local conservation agencies to restrict access to location information that could significantly affect future efforts to control the threat of unauthorized collection and trade of eastern massasauga rattlesnakes.

    Benefits to the Species From Critical Habitat Designation

    Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out are not likely to destroy or adversely modify critical habitat. Under the statutory provisions of the Act, we determine destruction or adverse modification on the basis of whether, with implementation of the proposed Federal action, the affected critical habitat would remain functional (or retain those physical and biological features that relate to the ability of the area to periodically support the species) to serve its intended conservation role for the species. Critical habitat only provides protections where there is a Federal nexus, that is, those actions that come under the purview of section 7 of the Act. Critical habitat designation has no application to actions that do not have a Federal nexus. Section 7(a)(2) of the Act mandates that Federal agencies, in consultation with the Service, evaluate the effects of their proposed actions on any designated critical habitat. Similar to the Act's requirement that a Federal agency action not jeopardize the continued existence of listed species, Federal agencies have the responsibility not to implement actions that would destroy or adversely modify designated critical habitat. Critical habitat designation alone, however, does not require that a Federal action agency implement specific steps toward species recovery. Eastern massasauga rattlesnakes primarily occur on non-Federal lands. The eastern massasauga rattlesnake does occur on land managed by the Service (Wisconsin), National Park Service (Indiana), U.S. Army Corps of Engineers (Illinois and Wisconsin), and U.S. Forest Service (Michigan). We anticipate that some actions on non-Federal lands will have a Federal nexus (for example, requirement for a permit to discharge dredge and fill material from the U.S. Army Corps of Engineers) for an action that may adversely affect the eastern massasauga rattlesnake. There is also the potential that some proposed actions by the Federal agencies listed above may adversely affect the eastern massasauga rattlesnake. In those circumstances where it has been determined that a Federal action (including actions involving non-Federal lands) may affect the eastern massasauga rattlesnake, the action would be reviewed under section 7(a)(2) of the Act. We anticipate that the following Federal actions are some of the actions that could adversely affect the eastern massasauga rattlesnake: certain direct or indirect (e.g., funded through Federal grants) habitat management activities such as post-emergent mowing or prescribed fire, regional flood control activities, or discharging fill material (or associated activities) into jurisdictional waters of the United States. Under section 7(a)(2) of the Act, project impacts would be analyzed and the Service would determine if the Federal action would jeopardize the continued existence of the eastern massasauga rattlesnake. The designation of critical habitat would ensure that a Federal action would not result in the destruction or adverse modification of the designated critical habitat. Consultation with respect to critical habitat would provide additional protection to a species only if the agency action would result in the destruction or adverse modification of the critical habitat but would not jeopardize the continued existence of the species. If we list the species but do not designate critical habitat, areas that support the eastern massasauga rattlesnake would continue to be subject to conservation actions implemented under section 7(a)(1) of the Act and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as appropriate. If we list the species, Federal actions affecting the eastern massasauga rattlesnake even in the absence of designated critical habitat areas would still benefit from consultation pursuant to section 7(a)(2) of the Act and could still result in jeopardy findings.

    Another potential benefit to the eastern massasauga rattlesnake from designating critical habitat is that such a designation serves to educate landowners, State and local governments, and the public regarding the potential conservation value of an area. Generally, providing this information helps focus and promote conservation efforts by other parties by clearly delineating areas of high conservation value for the affected species. However, simply publicizing the proposed listing of the species also serves to notify and educate landowners, State and local governments, and the public regarding important conservation values. Furthermore, we have worked with State conservation agencies and the Association of Zoos and Aquariums (Eastern Massasauga Rattlesnake Species Survival Plan) to develop outreach and education materials that target a diverse audience, including public and private landowners, organizations, and the media. The eastern massasauga rattlesnake outreach actions implemented to date include producing and distributing brochures and informational Web sites, working with media outlets (newspaper and television) on eastern massasauga stories, and giving presentations to conservation agencies or the public. In addition, the Service provides a staff advisor to the Eastern Massasauga Rattlesnake Species Survival Plan, which provides a unique opportunity to help frame messaging about this species to many thousands of visitors to North American zoos. Due to the extensive outreach and conservation efforts already underway that benefit the eastern massasauga rattlesnake, we find that the designation of critical habitat would provide limited additional outreach value.

    Increased Threat to the Species Outweighs the Benefits of Critical Habitat Designation

    Upon reviewing the available information, we have determined that the designation of critical habitat would increase the threat to eastern massasauga rattlesnakes from persecution, unauthorized collection, and trade. We find that the risk of increasing this threat to a significant degree by publishing location information in a critical habitat designation outweighs the benefits of designating critical habitat. A limited number of U.S. species listed under the Act have commercial value in trade. The eastern massasauga rattlesnake is one of them. Due to the market demand and willingness of individuals to collect eastern massasauga rattlesnakes without authorization, and the willingness of others to kill them out of fear or wanton dislike, we have determined that any action that publicly discloses the location of eastern massasauga rattlesnakes (such as critical habitat) puts the species in further peril. Many populations of the eastern massasauga rattlesnake are small, and the life history of the species makes it vulnerable to additive loss of individuals (for example, loss of reproductive adults in numbers that would exceed those caused by predation and other non-catastrophic natural factors), requiring a focused and comprehensive approach to reducing threats. Several measures are currently being implemented to address the threat of persecution and unauthorized collection and trade of eastern massasauga rattlesnakes, and additional measures will be implemented if the species is listed under the Act. One of the basic measures to protect eastern massasauga rattlesnakes from unauthorized collection and trade is restricting access to information pertaining to the location of the species' populations. Publishing maps and narrative descriptions of eastern massasauga rattlesnake critical habitat would significantly affect our ability to reduce the threat of persecution, as well as unauthorized collection and trade. Therefore, based on our determination that critical habitat designation would increase the degree of threat to the eastern massasauga rattlesnake, and, at best, provide nominal benefits for this taxon, we find that the increased threat to the eastern massasauga rattlesnake from the designation of critical habitat significantly outweighs any benefit of designation.

    Summary of Prudency Determination

    We have determined that the designation of critical habitat would increase persecution, unauthorized collection, and trade threats to the eastern massasauga rattlesnake. The eastern massasauga rattlesnake is highly valued in the pet trade, and that value is likely to increase as the species becomes rarer, and as a venomous species, it also is the target of persecution. Critical habitat designation may provide some benefits to the conservation of the eastern massasauga rattlesnake, for example, by identifying areas important for conservation. We have determined, however, that the benefits of designating critical habitat for the eastern massasauga rattlesnake are minimal. We have concluded that, even if some benefit from designation may exist, the increased threat to the species from unauthorized collection and persecution outweighs any benefit to the species. A determination to not designate critical habitat also supports the measures taken by the States to control and restrict information on the locations of the eastern massasauga rattlesnake and to no longer make location and survey information readily available to the public. We have, therefore, determined in accordance with 50 CFR 424.12(a)(1) that it is not prudent to designate critical habitat for the eastern massasauga rattlesnake. However, we seek public comment on our determination that designation of critical habitat is not prudent (see ADDRESSES, above, for instructions on how to submit comments).

    Available Conservation Measures

    Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, Tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.

    The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.

    Recovery planning includes the development of a recovery outline concurrently or shortly after a species is listed and preparation of a draft and final recovery plan. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of when a species may be ready for downlisting or delisting, and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be available on our Web site (http://www.fws.gov/endangered), or from our Chicago Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (e.g., restoration of native vegetation) and management, research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands. If this species is listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the States of Illinois, Indiana, Iowa, Michigan, Minnesota, Missouri, New York, Ohio, Pennsylvania, and Wisconsin would be eligible for Federal funds to implement management actions that promote the protection or recovery of the eastern massasauga rattlesnake. Information on our grant programs that are available to aid species recovery can be found at: http://www.fws.gov/grants.

    Although the eastern massasauga rattlesnake is only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT).

    Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.

    Federal agency actions within the species' habitat that may require conference or consultation or both as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the Service (Upper Mississippi National Wildlife and Fish Refuge, Wisconsin), U.S. Forest Service (Huron-Manistee National Forest, Michigan), National Park Service (Indiana Dunes National Lakeshore, Indiana), or military lands administered by branches of the Department of Defense (Fort Grayling, Michigan); flood control projects (Lake Carlyle, Illinois) and issuance of section 404 Clean Water Act (33 U.S.C. 1251 et seq.) permits by the U.S. Army Corps of Engineers; construction and maintenance of roads or highways by the Federal Highway Administration; construction and maintenance of pipelines or rights-of-way for transmission of electricity, and other energy related projects permitted or administered by the Federal Energy Regulatory Commission.

    Under section 4(d) of the Act, the Service has discretion to issue regulations that we find necessary and advisable to provide for the conservation of threatened species. The Act and its implementing regulations set forth a series of general prohibitions and except