Federal Register Vol. 80, No.194,

The NRC's requirements, policies, and practices governing the PRM process have remained substantially unchanged since their initial issuance in 1979 (44 FR 61322; October 25, 1979). During the past 20 years, the NRC has received an average of nine PRMs per year and plans its budget and assigns resources based on this average. In recent years, however, the NRC has experienced a substantial increase in the number of PRMs submitted for consideration and docketed 25 PRMS in fiscal year (FY) 2011 alone. This increase in PRMs has presented a significant resource challenge to the NRC.

In a memorandum to the other Commissioners entitled, “Streamlining the NRR [Office of Nuclear Reactor Regulation] Rulemaking Process” (COMNJD-06-0004/COMEXM-06-0006), dated April 7, 2006 (ADAMS Accession No. ML060970295), then-Chairman Nils J. Diaz and then-Commissioner Edward McGaffigan, Jr., proposed that, because of the general increase in rulemaking activities, the NRC staff should streamline its rulemaking process by removing unnecessary constraints, while simultaneously enhancing the transparency of and public participation in the process. The memorandum also invited the development of additional mechanisms for “streamlining and increasing the transparency of the rulemaking process, thus allocating the appropriate level of resources for the most important rulemaking actions and ensuring that the staff's hands are not tied by perceived or real procedural prerequisites that are necessary for a given rulemaking.”

In a staff requirements memorandum (SRM) dated May 31, 2006 (ADAMS Accession No. ML061510316), responding to COMNJD-06-0004/COMEXM-06-0006, the Commission directed the NRC staff to undertake numerous measures to streamline the rulemaking process, including an evaluation of the overall effectiveness of the interoffice Rulemaking Process Improvement Implementation Plan (ADAMS Accession No. ML031360205), and to “further seek to identify any other potential options that could streamline the rulemaking process.” The Commission also instructed the NRC staff to identify other potential options that could streamline the rulemaking process for all program offices.

In response to the Commission's directives, the NRC staff provided its recommendations to the Commission in SECY-07-0134, “Evaluation of the Overall Effectiveness of the Rulemaking Process Improvement Implementation Plan,” dated August 10, 2007 (ADAMS Accession No. ML071780644). The NRC staff included in SECY-07-0134 a recommendation to review the NRC's PRM process with the objective to reduce the time needed to complete an action. The NRC staff also recommended in SECY-07-0134 that the NRC review the procedures used by other Federal agencies to process PRMs in order to identify best practices that could make the NRC's PRM process more timely and responsive, while also ensuring that PRMs are handled in a manner that is open, transparent, and compliant with the Administrative Procedure Act (APA), Title 5 of the United States Code (U.S.C.), Section 551 et seq. In an SRM responding to SECY-07-0134, dated October 25, 2007 (ADAMS Accession No. ML072980427), the Commission indicated support for the NRC staff's recommended review of the PRM process: “The Petition for Rulemaking process needs some increased attention and improvement. The staff's overall effort to improve the [PRM] process should focus on provisions that would make the NRC's process more efficient while improving the process' transparency and consistency.”

Concurrently, in an SRM responding to COMGBJ-07-0002, “Closing Out Task Re: Rulemaking on [part 51 of Title 10 of the Code of Federal Regulations (10 CFR)] Tables S-3 and S-4,” dated August 6, 2007 (ADAMS Accession No. ML072180094), the Commission directed the NRC staff to “consider developing a process for dispositioning a petition in a more effective and efficient manner so that existing petitions that are deemed old can be closed out in a more timely manner and prevent future petitions from remaining open for periods longer than necessary.”

In response to the Commission's directives, the NRC staff examined the regulations, policies, procedures, and practices that govern the NRC's PRM process, as well as the practices and processes used by several other Federal agencies to resolve PRMs.

Consequently, the NRC published a proposed rule to amend the PRM process in the Federal Register on May 3, 2013 (78 FR 25886). The public comment period for the proposed rule closed on July 17, 2013. This final rule has been informed by public comments and reflects the NRC's goal to make its PRM process more efficient and effective, while enhancing transparency and public understanding of the PRM process.

The administrative procedures that a Federal agency must follow with respect to PRMs are codified in the APA, 5 U.S.C. 553. Paragraph 553(e) provides that “[e]ach agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.” In addition, 5 U.S.C. 555(e) provides that “[p]rompt notice shall be given of the denial in whole or in part of a written application, petition, or other request of an interested person made in connection with any agency proceeding” and that “[e]xcept in affirming a prior denial or when the denial is self-explanatory, the notice shall be accompanied by a brief statement of the grounds for denial.” However, the APA does not provide further detail on how agencies should disposition a PRM or what constitutes “prompt” notice. A brief survey of other Federal agencies' practices showed that the NRC has a robust and active PRM program; most agencies do not include requirements in the CFR for processing PRMs.

The NRC's requirements governing the rulemaking process are set forth in 10 CFR part 2, “Agency Rules of Practice and Procedure,” subpart H, “Rulemaking.” In particular, 10 CFR 2.802, “Petition for rulemaking,” and 10 CFR 2.803, “Determination of petition,” establish the NRC's framework for disposition of a PRM concerning the NRC's regulations. The NRC's requirements for PRMs have remained substantially unchanged since their initial issuance in 1979, and the NRC's processes and procedures for PRMs historically have been established by and implemented through internal NRC policies and practices. To improve the PRM process, the NRC has reviewed both its regulatory framework associated with the PRM process and its internal policies, procedures, and practices.

This final rule clarifies and refines the NRC's long-standing practices for processing PRMs. The NRC believes that these amendments improve our current policies and practices for evaluating PRMs and communicating information on the status of PRMs and rulemaking activities to the petitioners and the public. By establishing a clearly defined administrative process to reflect agency action on a PRM, the NRC has enhanced the consistency, timeliness, and transparency of our actions and increased the efficient use of NRC resources.

A significant change in this final rule expands the consultation assistance that the NRC staff may provide to the petitioner. Currently, consultation on a PRM is limited to the pre-filing stage; the NRC has revised its requirements to allow petitioners to consult directly with the NRC staff before and after filing a PRM with the NRC and to clarify what consultation assistance the NRC is permitted to provide. This change provides an opportunity for additional interaction with the petitioner after filing and will increase communication on issues of concern to the petitioner and improve the transparency of the petition process.

This final rule also clarifies and expands the description of the kind of information that must be included in a petition. At times, a submitter may fail to include in the petition adequate information for the NRC to process the request, which creates the potential for processing delays and the need for the NRC to request additional information. In particular, this final rule adds a cross-reference to existing NRC requirements for the inclusion of an environmental report with those PRMs under 10 CFR 51.68, “Environmental report—rulemaking,” that seek exemption from licensing and regulatory requirements for authorizing general licenses for any equipment, device, commodity or other product containing byproduct material, source material or special nuclear material. This change increases the likelihood that the NRC will have complete information at the time a petition is filed, which will assist the NRC in processing the petition in a timely manner.

This final rule removes the implied and actual deadlines for docketing, for both the NRC and for the public. The NRC's internal goal to docket a new petition has not changed; the NRC will continue its current practice to docket a new petition within 30 days of receipt. However, based on the increased number and complexity of PRMs the NRC has been receiving, this final rule will not include this target so as to avoid setting unrealistic expectations in instances where NRC staff requires more than 30 days to deliberate and decide the appropriate course of action. The NRC staff may require more time to make initial decisions when a PRM includes complex issues or there are competing priorities.

This final rule also removes the deadline for a petitioner to resubmit a PRM returned by the NRC because it did not meet the NRC's docketing requirements. Formerly, the NRC would advise the petitioner when a PRM did not meet the docketing requirements and hold the PRM for 90 days to allow the petitioner to submit a revised petition, before formally rejecting the PRM. Under the docketing process in this final rule, the NRC will simply return the PRM to the petitioner with an explanation why the petition was not docketed, with no time period specified by which the PRM must be resubmitted. A resubmitted PRM will be considered by the NRC “without prejudice;” that is, the NRC will not consider the petition as having been previously denied on the merits solely because the initial submission was returned due to procedural deficiencies. This change clarifies that there is no deadline for resubmission of a PRM.

The NRC's proposed rule would have established two separate paths for obtaining suspension of an adjudication involving licensing proceedings (“adjudicatory licensing proceeding”), in order to provide clarity to the way in which a petitioner could request suspension. The NRC received several comments that, for a variety of reasons discussed later in this final rule, did not support the proposed revisions. After considering the comments on the proposed rule, the NRC has determined that there are a number of additional factors for the NRC to consider with respect to requests for suspension of adjudicatory proceedings based on PRMs. The NRC intends to gather additional stakeholder input on those factors before developing a final NRC provision on suspension requests; therefore, to facilitate timely adoption of the clarifications and process improvements presented in the proposed PRM rule, the NRC has decided to retain, in unchanged form, the suspension language formerly located in § 2.802(d); to re-designate it as § 2.802(e) in this final rule; and to evaluate these types of suspensions in a subsequent rulemaking. However, in response to public comments, the NRC's new title for this paragraph (the former paragraph (d) did not contain a title) indicates that the suspension is with respect to an “adjudication involving licensing.” Neither the addition of the title to this paragraph nor its re-designation from paragraph (d) to (e) of § 2.802 is intended to suggest any change in the applicable NRC law governing suspensions or the application of this provision to individual suspension requests in PRMs.

This final rule has been restructured slightly from the proposed rule; for clarity, all PRM provisions that address the requirements applicable to the petitioner are in one section (§ 2.802), and the NRC's actions on a PRM are in a separate section (§ 2.803). An overview of the revised docketing process follows, and a detailed discussion of all changes, including the reorganization of §§ 2.802 and 2.803 and conforming changes, is provided in Section IV, “Section-by-Section Analysis,” of this final rule.

This final rule codifies the NRC's historical PRM docketing review policy and practice of notifying the petitioner that the NRC has received the PRM, evaluating the PRM information according to specified docketing criteria, and posting the petition online. At its discretion, the NRC may request public comment on a docketed petition through a notice published in the Federal Register.

The NRC describes the process and criteria it uses to determine if a PRM may be docketed in § 2.803. In the proposed rule, the NRC referred to this step as “acceptance.” In this final rule, the NRC uses the term “docketing,” and no longer uses the term “acceptance.” The NRC is making this change to prevent any potential misunderstanding that “acceptance” means that the NRC has agreed with the substance of the PRM and has decided that a rule should be developed and adopted as suggested by the petitioner in the PRM. After the close of the public comment period on this proposed rule, the NRC noted an example of possible misunderstanding in connection with public media reports on the NRC's notice of docketing for PRM-51-31, “Environmental Impacts of Spent Fuel Storage During Reactor Operation” (79 FR 24595; May 1, 2014). The NRC recognizes that it uses the terms, “acceptance review” and “acceptance” to refer to the NRC's process for evaluating a license application to determine if it meets the NRC's minimum standards for docketing. The NRC's recent experience suggests that the general public may be misled by the use of the term, “acceptance,” in the context of PRMs. Accordingly, the NRC is not using this term in paragraphs (b) or (c) of § 2.803 in this final rule.

Section 2.803 of this final rule describes, without change from the proposed rule, the NRC's docketing review process for a PRM, including what actions the NRC will take if the NRC determines that the PRM does not meet the NRC's requirements for docketing. This section also contains the criteria that the NRC uses to determine whether a PRM may be docketed. These three criteria are: (1) The PRM includes the information required by § 2.802(c), (2) the regulatory changes requested in the PRM are within the legal authority of the NRC, and (3) the PRM raises a potentially valid issue that warrants further detailed consideration by the NRC. These criteria are intended to ensure that the NRC does not unnecessarily expend rulemaking resources on unsupported petitions, petitions that the NRC has no legal authority to address through rulemaking, or on matters that are already addressed in the NRC's regulations. Including these criteria in the final rule, which reflect the NRC's existing practice but were not expressly set forth in the former language of 10 CFR part 2, subpart H, is intended to increase public understanding of the factors that the NRC uses in deciding whether to docket a PRM.

The NRC's process for dispositioning a PRM historically had been a matter of internal policy. With this final rule, the NRC is including a description of the dispositioning process in its regulations in order to enhance the transparency of its PRM process. The considerations for resolving a PRM are based on the NRC's experience in processing PRMs, insights from the NRC's initiative to streamline its PRM process, and information from the NRC's review of other Federal agencies' PRM regulations and practices. The amendments to the PRM process will allow the NRC to examine the merits of a PRM, the immediacy of the concern, the availability of NRC resources, whether the NRC is already considering the issue in other NRC processes, the relative priority of the issue raised in the PRM, any public comment received (if comment is requested), and the NRC's past decisions and current policy on the issue raised in the PRM. A summary of the NRC's considerations for dispositioning PRMs follows.

Section 2.803 of this final rule outlines the process for administrative closure of a PRM docket, once the NRC has determined its course of action for the PRM. The requirements provide two outcomes, derived from the NRC's recent review of the PRM process, for closing a PRM docket once the NRC has determined its course of action: (1) Denial of the PRM in its entirety, indicating a determination not to pursue a rulemaking action to address the issues raised in the PRM (this will also constitute final “resolution” of the PRM), or (2) initiation of a rulemaking action addressing some or all the requested rule changes in the PRM. Initiation of a rulemaking action may take one of two forms: (1) Initiation of a new, “standalone” rulemaking focused on some or all of the matters raised in the PRM, or (2) integration of some or all of the matters raised in the PRM into an existing or planned rulemaking (including the early stages of an NRC effort to decide whether to pursue rulemaking, (e.g., when the NRC is considering whether to develop a regulatory basis or to issue an advance notice of proposed rulemaking)). The NRC will publish a Federal Register notice to inform the public of its determined course of action, which will enhance the transparency of the NRC's PRM process and better communicate the NRC's planned approach to addressing the PRM. Implementing this process will enhance the NRC's ability to close PRMs effectively and efficiently.

With either course of action, the PRM docket will be closed, although the PRM itself would not be completely and finally “resolved” until the NRC acts on the last remaining portion of the PRM's request. Final NRC action on the PRM (“resolution”) will be a final rule addressing all of the petitioner's requested changes, a final rule addressing some (but not all) of the petitioner's requested changes, or a notice published in the Federal Register of the NRC's decision not to address any of the petitioner's requested changes in a rulemaking action.

Paragraph (h)(2) of § 2.803 of this final rule explains how the NRC will notify the petitioner on the determination of the petition. The NRC sends the petitioner written notification and publishes a notice in the Federal Register, describing the NRC's determination to consider all or some of the issues in a rulemaking or to deny the petition. If the NRC closes a PRM docket under § 2.803(h)(2)(ii) but subsequently decides not to carry out the planned rulemaking to publication of a final rule, the NRC will notify the petitioner in writing of this decision and publish a notice in the Federal Register explaining the basis for its decision. These communications explain the basis for the NRC's decision not to carry out the planned rulemaking to publication and/or not to include the issues raised in the PRM in a rulemaking action.

Paragraph (i) of § 2.803 of this final rule addresses how a PRM ultimately is resolved and distinguishes final resolution of a PRM from administrative closure of a PRM docket, as described in § 2.803(h)(2). Resolution of one or more elements of a PRM occurs when the NRC publishes a Federal Register notice informing the public that any planned regulatory action related to one or more elements of the PRM has been concluded (i.e., the NRC may resolve an entire PRM, or parts of a PRM at different times). For rulemaking actions, resolution requires publication in the Federal Register of the final rule related to the PRM, which will include a discussion of how the published final rule addresses the issues raised in the PRM.

Also, § 2.803(i) notes that the NRC's denial of the PRM at any stage of the regulatory process or the petitioner's withdrawal of the PRM before the NRC has entered the rulemaking process will conclude all planned regulatory action related to the PRM. As applicable, the Federal Register notice resolving the PRM will include a discussion of the NRC's grounds for denial or information on the withdrawal that the petitioner submitted. This type of resolution represents final agency action on those elements of the PRM that are addressed in the Federal Register notice.

Finally, several amendments in this final rule reflect routine administrative updates to information such as instructions for submitting petitions and communicating with the NRC. In recent years, the NRC, like many Federal agencies, has been moving away from formal, printed publications and making greater use of its Web site and other online resources such as the Federal rulemaking Web site (www.regulations.gov) to provide the public with more timely information on agency actions. The NRC no longer publishes a semiannual summary of PRMs, so the final rule explains in detail the various methods the public may use to access online status updates and other information on NRC rulemakings and PRMs. In addition to making these procedural updates, the NRC is providing additional information on its Web site to assist members of the public interested in the NRC's PRM process.

The NRC received seven comment letters on the proposed rule from a member of the public, a public advocacy group, non-governmental organizations, and the nuclear industry.

The majority of the comments received were in favor of the goals of the proposed amendments to the PRM process. However, three nuclear industry commenters (Nuclear Energy Institute (NEI), AREVA NP Inc. (AREVA), and STARS Alliance LLC. (STARS)) opposed the proposed amendments to new paragraphs (b) and (e) of § 2.802 and new paragraphs (h) and (i) of § 2.803. One comment from the Executive Board of the Organization of Agreement States (OAS) recommended enhancements to the availability of information regarding PRM activities. Two comments from a member of the public and the public advocacy group Three Mile Island Alert (TMIA) were out-of-scope, as they did not address the merits of the proposed rule.

Information about obtaining the comments received on the proposed rule is available in Section XIV, “Availability of Documents,” of this final rule.

Comments are organized by topics included in the proposed rule, followed by the NRC's response.

1. Comment: The NRC should not adopt the changes in proposed § 2.802(e)(2) but should return to the language in current § 2.802(d) because the proposed changes would effectively allow PRM petitioners to “participate in licensing proceedings” without meeting standing and contention admissibility standards applicable to those proceedings. NEI, AREVA, STARS.

NRC Response: The NRC did not intend to allow persons requesting a suspension of an adjudication in a licensing proceeding (“adjudicatory licensing proceeding” in the proposed rule) to avoid having to meet applicable requirements for participating in the proceeding, such as the standing and contention admissibility standards for persons who wish to be a party (a person could also participate as an interested State, local government body, or Federally-recognized Indian tribe).

However, after further consideration of the comments, the NRC believes there are additional factors that the NRC must consider with respect to requests for suspension of adjudicatory proceedings based on PRMs. Stakeholder input on those factors would be desirable before developing a final NRC provision on these types of suspension requests.

Therefore, to facilitate the NRC's timely adoption of the clarifications and process improvements presented in the proposed PRM rule, the NRC has decided to retain, in unchanged form, the suspension language formerly located in § 2.802(d) and now re-designated as paragraph (e) of § 2.802 in this final rule. The NRC will evaluate these suspensions in a subsequent rulemaking. However, in response to the issues raised in the comment summary, the heading for § 2.802(e) states that the suspension is with respect to an “adjudication involving licensing.” Neither the addition of the heading to this paragraph nor its re-designation from paragraph (d) to (e) of § 2.802 is intended to suggest any change in the applicable NRC law governing suspensions or the application of this provision to individual suspension requests in PRMs.

2. Comment: The NRC should not adopt the changes in proposed § 2.802(e) but should return to the language in current § 2.802(d). The proposed rule appears to address extraordinary circumstances that occurred following the Fukushima accident, when petitions were filed with the NRC to initiate rulemaking to address safety issues associated with the accident or to suspend certain licensing proceedings because of issues related to the Fukushima accident.

The NRC has not explained why these petitions were problematic or why a rulemaking solution is needed, which itself has created separate problems. The Commission has inherent authority to take action in individual proceedings as necessary; in support of this comment, commenters cited the NRC's Policy Statement on the Conduct of Adjudications, 48 NRC 18 (1998). NEI, AREVA, STARS.

NRC Response: The NRC agrees. The origins of the proposed changes in § 2.802(d) were the NRC's procedural and administrative lessons-learned from dealing with the rulemaking and suspension petitions filed with the NRC after the Fukushima accident. The Commission agrees that it has inherent authority to take action in individual proceedings as it deems necessary, at any time, in response to a suspension request in whatever form.

However, upon consideration, the NRC believes a number of additional factors should be considered by the NRC before making changes to the suspension provision in former § 2.802(d). Stakeholder input on those factors is desirable in developing any final NRC provision on suspension requests. Accordingly, the NRC has decided to retain, in unchanged form, the suspension language formerly located in paragraph (d) and now re-designated as paragraph (e) of § 2.802 in this final rule. The re-designation of the suspension provision from paragraph (d) to paragraph (e) of § 2.802 is an administrative change intended to minimize the need for re-designations of paragraphs in future revisions to § 2.802. The NRC is not making changes to the legal requirements governing a PRM petitioner's request for suspension as a result of this re-designation.

1. Comment: The proposed revisions to § 2.803(h) and (i), creating a two-part process for closing a PRM, will confuse, rather than clarify, the agency's procedure for resolving PRMs. Final disposition of the PRM should occur either when the NRC denies the PRM, or when the NRC grants the PRM by initiating a rulemaking. There is no reason to withhold “final action” on a PRM, which has already effectively been granted, until resolution of the resultant rulemaking proceeding. The NRC's determination of whether to deny a PRM or initiate a rulemaking should result in the PRM's closure. At that point, a decision has been made on whether the issues raised in the PRM are worthy of further review or not. That decision is sufficient to close the PRM, even if the PRM's substantive request is still subject to deliberation through the rulemaking process. NEI, AREVA, STARS.

NRC Response: The NRC agrees with the commenters' assertion that the NRC's determination whether to deny a PRM or initiate rulemaking should result in the PRM's closure. The NRC also agrees with the commenters' assertion that the NRC's decision to deny (in full or part) a PRM constitutes “final agency action.”

However, an NRC decision closing a PRM docket on the basis of the NRC's intent to consider the PRM issues in a new or ongoing rulemaking is not the ultimate “resolution” of the PRM. An NRC decision closing a PRM docket and instituting rulemaking as proposed by the PRM would not constitute “final agency action,” inasmuch as the determination to consider the PRM issues in a rulemaking does not represent an NRC determination to propose or adopt a final regulation requested in the PRM (or alternatively, not to adopt a regulation as requested in the PRM). The proposed rule's new terminology was intended to distinguish between the NRC's procedures with respect to the closure of the PRM docket (“final disposition of the PRM”) versus the NRC's procedures for ultimate resolution of the rulemaking requests contained in the PRM.

The NRC recognizes that the statement of considerations for the proposed rule may not have been sufficiently clear in explaining the NRC's intent that the proposed revisions to § 2.802 are intended to (1) clearly indicate that the NRC may “dispose” of multiple requests for rulemaking in a PRM or portions of a request for rulemaking in a PRM, in two or more separate NRC actions, (2) reflect that there is no overall agency “resolution” of a PRM until there is final agency action on all of the rulemaking requests in the petition, and (3) use terms that clearly distinguish between the PRM docket (which is an NRC administrative process) and agency final action on the substantive rulemaking requests in the PRM.

This statement of considerations includes a more detailed explanation of these concepts in Section V, “Summary of the NRC's Revised Petition for Rulemaking Process,” which describes the PRM process and the rule terminology that applies to each stage and action of the PRM process. In addition, the NRC staff has developed a diagram entitled, “The Petition for Rulemaking Process” (Figure 1) (ADAMS Accession No. ML14259A474), which is available on the NRC's public Web site at http://www.nrc.gov/about-nrc/regulatory/rulemaking/petition-rule.html. This diagram is also reproduced in Section V. of this statement of considerations.

2. Comment: The commenters support the proposed rule language, which indicates that, if a PRM is “granted,” then the NRC will track the PRM through the rulemaking process. The commenters stated that the Federal Register notice for any resulting final rule should make clear its origin in (or relationship to) the previously “granted” PRM. The commenters also agreed that, if the NRC initiates a rulemaking in response to a PRM but terminates the rulemaking before publication of a final rule (either because of withdrawal by the petitioner or subsequent decision by the agency), then the NRC should publish a Federal Register notice providing a well-reasoned basis for its decision that is supported by the administrative record (e.g., a regulatory/technical basis or a proposed rule and response to public comments). NEI, AREVA, STARS.

NRC Response: The NRC agrees with the commenters' assertion that if a PRM is “granted,” then the NRC should track a PRM through the rulemaking process, as suggested by the proposed rule. No change was made to the final rule in response to this comment.

3. Comment: The Federal Register notice, which ensures that a PRM is administratively tracked throughout the rulemaking process, supports “closing” of a PRM upon the NRC's initial determination that the PRM should be denied or granted via initiation of a rulemaking. NEI, AREVA, STARS.

NRC Response: The NRC disagrees. The provisions in the proposed rule for “tracking” a PRM throughout the rulemaking process supported the “closing” of the PRM docket upon the NRC's initial determination that a PRM should be denied (in part), or granted. As discussed in response to an earlier comment, the final rule distinguishes between the closing of a PRM docket versus final agency action on all or a part of the substantive rulemaking requests in the PRM. Furthermore, this final rule clarifies that the NRC may “dispose of” and/or finally determine multiple requests for rulemakings in a PRM or portions of a request for rulemaking in a PRM, in two or more separate NRC actions. If there will be multiple NRC actions for a single PRM, the NRC must keep the PRM docket “open” until there is a final “determination” of the last remaining aspects of the rulemaking request in a PRM. At that point, the PRM docket may be closed as the NRC has completed its determination of how to “treat” the rulemaking requests. That “treatment” may be denial of that last remaining aspect (which would also “resolve” the PRM) or it may be a determination that the rulemaking request should be addressed in a rulemaking activity (either through a newly initiated rulemaking activity or included in an existing rulemaking). This determination, however, is not “resolution” of the PRM. Resolution only occurs when the agency either adopts a final rule as requested in the PRM, or declines to adopt a final rule as requested in the PRM.

Given the NRC's desire to have the flexibility to act on portions of rulemaking requests in a PRM, the NRC concludes that the PRM process must reflect procedures and terminology that clearly distinguish between NRC actions with respect to the PRM docket and NRC actions on the substance of the rulemaking. The commenter's proposal would, in the NRC's view, blur this distinction and would not facilitate clear understanding by all stakeholders on the NRC's PRM process. However, as discussed in response to Comment 1 of this section, the NRC has in this statement of considerations clarified the NRC's actions when making a determination on and resolving a PRM.

4. Comment: The NRC should not remove the language in § 2.802(f), which states that a determination of the adequacy of a PRM will ordinarily be made within 30 days of the NRC's receipt of the PRM. The use of the term “ordinarily” in the existing rule appears to provide the NRC with the same flexibility with respect to the 30-day target that the proposed rule states is the basis for the removal of the 30-day language. Therefore, given that the NRC apparently intends to continue its current practice of ordinarily issuing determinations within 30 days and the current rule language allows the NRC flexibility with respect to this timeframe, the rationale provided in the proposed rule does not support removal of the 30-day timeframe. Further, removing this timeframe from the rule increases regulatory uncertainty and decreases transparency, which is contrary to the purpose of this rulemaking. The rule should continue to provide petitioners with a reasonable degree of clarity with respect to the timeframes involved in the evaluation of PRMs. AREVA, NEI, STARS.

NRC Response: The NRC confirms the commenters' supposition that the NRC intends to continue its current practice to perform a docketing review and notify the petitioner in writing of the docketing of the PRM or the deficiencies found in the PRM within a 30-day period. However, the NRC disagrees with the commenter's recommendation to continue to include the 30-day timeframe. As the NRC stated in the proposed rule's statement of considerations, past experience has shown that lengthy and complex PRMs may require more than 30 days for a thorough docketing review. Furthermore, the number of lengthy and complex PRMs being received by the NRC each year is increasing. The NRC believes that including the 30-day timeframe in the final rule sets unrealistic expectations in instances where NRC staff requires more than 30 days to deliberate and decide the appropriate course of action.

No change was made to this final rule in response to these comments.

1. Comment: The NRC should publish a list of PRM activities and make it available in an easily identified location on the agency's Web site. The locations identified in proposed § 2.803(j)(1) and (3) are hard to find on the NRC's Web site and “may cause confusion to the public.” OAS.

NRC Response: The NRC agrees. The NRC's public Web site was modified to include a list of PRM activities in an easily identified location. The NRC Web site has a new Web page that lists all “open” petitions (http://www.nrc.gov/reading-rm/doc-collections/rulemaking-ruleforum/petitions-by-year/open-petitions-all-years.html). This Web page, which supplements the Web pages listed in new paragraphs (j)(1) and (3) of § 2.803, may be accessed from the Petition for Rulemaking Dockets Web site (http://www.nrc.gov/reading-rm/doc-collections/rulemaking-ruleforum/petitions-by-year.html). This list contains the year when a particular PRM was docketed, the Docket ID, the PRM docket number, and the title of all “open” petitions. The Docket IDs listed in the new Web page are linked to regulations.gov, which provides publicly available documents such as NRC-issued Federal Register notices, supporting documents, public comments, and other related documents. From this new Web page, the public can also subscribe to GovDelivery to receive notifications each time the Web page is updated. GovDelivery allows the NRC's Web site visitors to subscribe, via email, to agency social media content. Subscribers can customize their subscription list and choose settings for notification of added or changed information.

In addition, the NRC will continue publishing on the agency's Web site the Rulemaking Activities by Fiscal Year report, which includes descriptions of agency actions on PRMs. This report may be accessed from the Rulemaking Documents Web site at http://www.nrc.gov/about-nrc/regulatory/rulemaking.html.

No change was made to this final rule in response to these comments.

1. Comment: The commenter supports the NRC's proposed amendments to revise the PRM process. The commenter agrees that the proposed revisions would streamline the NRC rulemaking process, remove unnecessary constraints, enhance transparency, and clarify and improve communications with the petitioners who submit a PRM. Health Physics Society.

NRC Response: No response necessary.

No change was made to this final rule in response to these comments.

2. Comment: The commenter commends the NRC staff on its willingness to confer informally with PRM applicants.

NRC Response: No response necessary.

No change was made to this final rule in response to these comments.

1. Comment: The comment, “The NRC completely failed us (TMIA) at every level of the rulemaking process,” and an attachment, dated October 31, 2008, set forth the commenter's views as to the adequacy of the NRC's resolution of a PRM submitted by the commenter (PRM-73-11) and the commenter's views about the NRC's statements regarding public outreach at a public meeting. TMIA.

NRC Response: The NRC considers this comment to be out of the scope because it does not address the proposed requirements governing the PRM process changes in the proposed rule.

2. Comment: The comment describes the commenter's interactions with the NRC staff regarding concerns the commenter has raised related to the TMI accident and regarding upgrades to filters and vents at nuclear power plants. TMIA.

NRC Response: The NRC considers this comment to be out of the scope because it does not address the proposed requirements governing the PRM process changes in the proposed rule.

No change was made to this final rule in response to these comments.

The NRC is amending its regulations to streamline its process for addressing PRMs. Additionally, the NRC is amending its regulations in §§ 2.802, 2.803, and 2.811 to make miscellaneous corrections and conforming changes. These changes include the reorganization of §§ 2.802 and 2.803, the addition of paragraph headings, updates to the PRM filing process, and editorial changes to the language for clarity and consistency.

Paragraph (a) of § 2.802, which informs petitioners how to submit a PRM, is revised to clarify and update the PRM filing process. Paragraph (a) specifies the regulations subject to a PRM by indicating that the NRC's regulations are contained under chapter I of 10 CFR.

Paragraph (b) of § 2.802, which provides the process by which a prospective petitioner may consult with the NRC before filing a PRM, now permits consultation with the NRC both before and after filing a PRM.

Paragraph (b)(1)(i), which establishes that petitioners may consult with the NRC staff about the process of filing and responding to a PRM, now includes other stages of the PRM process during which consultation may occur. Paragraph (b)(1)(i) limits NRC staff consultation on a PRM to describing the process for filing, docketing, tracking, closing, amending, withdrawing, and resolving a PRM. These limitations are consistent with the existing limitations on NRC participation in the filing of PRMs.

New paragraph (b)(3) is added to clearly specify that the NRC staff will not advise a petitioner on whether a PRM should be amended or withdrawn.

Paragraph (c) of § 2.802, which generally describes the content requirements of a PRM, is restructured and revised. Paragraph (c)(1) establishes that a petitioner must clearly and concisely articulate in a PRM the information required under new paragraphs (c)(1)(i) through (c)(1)(viii). In paragraph (c)(1), the terms “clearly and concisely” are added to convey the NRC's expectation that PRMs be “clear” (i.e., do not contain ambiguous or confusing arguments, terminology, or phraseology) and “concise” (i.e., do not present the perceived problem or proposed solution with a description that is longer than necessary).

Paragraphs (c)(1)(i) through (c)(1)(viii) specify information that must be provided in each PRM. The former text of paragraph (c)(1), which required that a PRM set forth a general solution to a problem or specify the regulation that is to be revoked or amended, is revised and redesignated as new paragraph (c)(1)(v). The additional text under paragraphs (c)(1)(i) through (c)(1)(viii) describes the specific information required to be included in a PRM. Most of the requirements are similar to the information required in the existing rule, except that each topic is listed separately for increased clarity.

New paragraph (c)(1)(i) requires all petitioners to specify contact information—including a name, telephone number, mailing address, and email address (if available)—that the NRC may use to contact the petitioner. New paragraph (c)(1)(ii) specifies additional information for petitioners who are organizations or corporations to submit: The petitioner's organizational status, the petitioner's State of incorporation, the petitioner's registered agent, and the name and authority of the individual signing the PRM on behalf of the corporation or organization. By adding this paragraph, the NRC is reducing the likelihood of misleading the public about the organizational or corporate status and identity of a petitioner.

New paragraph (c)(1)(iii) includes information from existing paragraph (c)(3) and requires a petitioner to present the problem or issue that the petitioner believes the NRC should address through rulemaking. This added paragraph clarifies that a petitioner must specifically state the problem or issue that the requested rulemaking would address, including any specific circumstance in which the NRC's codified requirements are incorrect, incomplete, inadequate, or unnecessarily burdensome. Paragraph (c)(1)(iii) clarifies that the submittal of specific examples of incompleteness or unnecessary burden to support the petitioner's assertion that a problem or issue exists that the NRC should address through rulemaking would be of interest to the NRC when reviewing the PRM. Providing this information in the PRM will result in a clearer argument for the problems or issues being presented by a petitioner and will increase the efficiency of the NRC's review of the PRM.

New paragraph (c)(1)(iv) requires the petitioner to cite, enclose, or reference any publicly available data used to support the petitioner's assertion of a problem or issue. This requirement was in former paragraph (c)(3) but is now modified to add the phrase “Cite, enclose, or reference” to provide options to the petitioner for providing the supporting data. Paragraph (c)(1)(iv) specifies that the citations, enclosures, or references to technical, scientific, or other data must be submitted to support the petitioner's assertion that a problem or issue exists and that all submitted data must be publicly available; consequently the word “relevant” and the phrase “reasonably available to the petitioner” in former paragraph (c)(3) are removed.

New paragraph (c)(1)(v) includes information from former paragraph (c)(1) and requires a petitioner to present a proposed solution to the problems or issues identified in the PRM; this proposed solution may include revision or removal of specific regulations under 10 CFR chapter I. Rather than providing a “general solution” as required by the former paragraph (c)(1), paragraph (c)(1)(v) now requires a petitioner to present a “proposed solution” to clarify that the solution is only a proposal for the NRC to consider. Paragraph (c)(1)(v) also provides an example—including “specific regulations or regulatory language to add, amend, or delete in 10 CFR Chapter I”—to guide petitioners in preparing a proposed solution to the problem or issue identified in the PRM.

New paragraph (c)(1)(vi) requires a petitioner to provide an analysis, discussion, or argument linking the problem or issue identified in the PRM with the proposed solution. The requirement to provide supporting information was already included in former paragraph (c)(3). The requirement to explain through an analysis, discussion, or argument how the proposed solution would solve the problem or issue raised in the PRM is new.

New paragraph (c)(1)(vii) includes information from former paragraph (c)(1) and requires the petitioner to cite, enclose, or reference any other publicly available data or information that the petitioner deems necessary to support the proposed solution and otherwise prepare the PRM for the NRC's docketing review under § 2.803(b). Similar to paragraph (c)(1)(iv), the phrase “Cite, enclose, or reference” is added to provide options to the petitioner for providing the supporting data.

Text from former paragraph (c)(1) is revised and incorporated into new paragraph (c)(1)(v), as previously described. As a result, the former paragraph (c)(1) is removed.

Text from former paragraph (c)(2) is removed because it is generally incorporated into new paragraphs (c)(1)(i) through (c)(1)(iii), making the former paragraph (c)(2) unnecessary.

Text from former paragraph (c)(3), which required a petitioner to include various kinds of supporting information, is revised and incorporated into new paragraphs (c)(1)(iii), (c)(1)(iv), (c)(1)(vi), and (c)(1)(vii), as previously described. As a result, the former paragraph (c)(3) is removed.

In addition to the requirements in § 2.802(c)(1)(i)-(vii), new paragraph (c)(2) encourages the petitioner to consider the two other review criteria listed in new paragraph (b) of § 2.803 when preparing a PRM. The NRC does not intend to require specialized explanations that discourage potential petitioners from submitting PRMs. Paragraphs (c)(2)(i) and (ii) are intended to provide petitioners the opportunity to include information that will assist the NRC in its evaluation of the PRM under § 2.803(b). However, the NRC will not deny a petition solely on the basis that the petition did not provide information addressing paragraphs (c)(2)(i) and (ii).

New paragraph (c)(3) requires the PRM to designate a lead petitioner if the petition is signed by multiple petitioners. The NRC's former practice was to treat the first signature listed on a petition as that of the lead petitioner. New paragraph (c)(3) requires that a lead petitioner be designated in a PRM and codifies the NRC's practice of sending communications about the petition to the lead petitioner. New paragraph (c)(3) also alerts the public of the lead petitioner's responsibility to disseminate communications received from the NRC to all petitioners.

Paragraph (c)(1)(viii) adds a cross-reference to the environmental assessment requirements that apply to PRMs at 10 CFR 51.68.

Paragraph (d) of § 2.802 is reserved, and the subject matter addressed in former paragraph (d), on requests for suspension of adjudications involving licensing (“licensing proceedings” in former paragraph (d)), is addressed without substantive change in paragraph (e).

Paragraph (e) of § 2.802 describes how a PRM petitioner may request a suspension of an adjudication in a licensing proceeding in which the PRM petitioner is a “participant,” on the basis of the matters addressed in the petitioner's PRM. The re-designation of the suspension provision from paragraph (d) to paragraph (e) is an administrative change intended to minimize the need for re-designations of paragraphs in future revisions to § 2.802. The NRC is not making changes to the legal requirements governing a PRM petitioner's request for suspension as a result of this re-designation.

Former paragraphs (e), (f), and (g) in § 2.802 are moved to § 2.803.

New paragraph (f) of § 2.802, which discusses amendment or withdrawal of a PRM by a petitioner, is added to inform petitioners where and how to submit these filings and what information should be included.

Section 2.803 describes how the NRC will process, consider, and make a determination on a PRM.

New paragraph (a) of § 2.803 has no counterpart in the superseded version of § 2.803. New paragraph (a) of § 2.803 indicates that the NRC shall notify the petitioner that the NRC has received the PRM.

New paragraph (b) of § 2.803 addresses docketing review—a matter that was formerly addressed in the superseded version of § 2.802(f). Paragraph (b) differs from former § 2.802(f) by stating clearly that the NRC will deny the PRM if it does not include the information required by § 2.802(c). It also differs from former § 2.802(f) by adding two new docketing criteria. Under the new docketing review process, the NRC will determine not only if the rulemaking changes requested in the petition are within the legal authority of the NRC but also that the PRM raises a potentially valid issue that warrants further detailed consideration by the NRC (e.g., confirm that the NRC's regulations do not already provide what the PRM is requesting).

Paragraph (b) does not include the restriction in former § 2.802(f) limiting the docketing decision to the Executive Director for Operations, and is silent on which NRC official may make the docketing determination. Therefore, the Executive Director for Operations may delegate the docketing decision to the appropriate organizational level within the NRC staff.

Finally, paragraph (b) describes the process the NRC will use if the NRC determines that a PRM does not meet the requirements for docketing (i.e., an “insufficient” PRM). Paragraph (b) differs from former § 2.802(f) by removing a 90-day period for a petitioner to fix and resubmit an insufficient PRM, with the deficiencies corrected. Under paragraph (b) a deficient PRM may now be resubmitted, with deficiencies addressed, at any time without prejudice or time limitation.

New paragraph (c) of § 2.803 addresses docketing, which was addressed in former § 2.802(e). Paragraph (c)(1) lists three criteria, each of which must be met in order for the NRC to docket a PRM. That paragraph also expressly states that the NRC will assign a docket number to a PRM that is docketed. Paragraph (c)(2) describes how the NRC will make a docketed PRM available to the public, that is, by posting the document in ADAMS (the NRC's official records management system), on the NRC's public Web site, and on the Federal rulemaking Web site (regulations.gov); and by publishing a notice of docketing in the Federal Register.

New paragraph (d) of § 2.803 notifies the public that the NRC will send all communications to the lead petitioner identified in the petition, according to new paragraph § 2.802(c)(3), and that this communication will constitute notification to all petitioners. Therefore, any NRC obligation to inform a petitioner is satisfied when the NRC sends the required notification to the lead petitioner.

Newly designated paragraphs (e) through (f) of § 2.803 are marked “Reserved.”

New paragraph (g)(1) of § 2.803 incorporates information from former § 2.802(e) text pertaining to the NRC's discretion to request public comment on a docketed PRM. Information in the former § 2.802(e) that specified how a PRM may be published for public comment in the Federal Register is replaced by a concise statement specifying that the NRC, at its discretion, may solicit public comment on a docketed PRM.

When the NRC publishes a Federal Register notice (FRN) requesting public comment on a PRM, the NRC's current practice is to include standard language in the FRN cautioning the public not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. This new cautionary language is incorporated into this final rule. Paragraph (g)(2) includes this caveat so that affected stakeholders will be aware of this practice.

Paragraph (g)(3) denotes that no hearing will be held on a PRM unless the Commission determines to hold a hearing as a matter of its discretion. This rule of practice, formerly in § 2.803, is moved to paragraph 2.803(g)(3) and amended for clarity. The text “the Commission deems it advisable” is replaced with “the Commission determines to do so, at its discretion.” This amendment clarifies that the NRC has discretionary authority to hold a hearing on a docketed PRM.

Existing regulations in § 2.803 require the NRC to resolve PRMs by either issuing a notice of proposed rulemaking or denying the petition. New paragraph (h)(1) of § 2.803 codifies a nonexclusive list of the methods and criteria that the NRC may use to determine a course of action for a PRM. These methods and criteria include consideration of the issues raised in the PRM about its merits, the immediacy of an identified safety or security concern, the relative availability of resources, the relative issue priority compared to other NRC rulemaking activities, whether the NRC is already considering the issues in other NRC processes, the substance of public comments received, if requested, and the NRC's past decisions and current policy.

Paragraph (h)(1)(i) establishes that the NRC will determine whether a PRM will be granted based upon the merits of the PRM. For the purpose of this final rule, the term “merits” includes the completeness and technical accuracy of the documents, logic associated with the petitioner's desired rule change, and the appropriateness or worthiness of the desired change compared to the current regulatory structure (e.g., existing regulation, associated regulatory guidance, and inspection program guidance).

Paragraph (h)(1)(ii) states that the NRC may determine whether a PRM will be docketed based upon the immediacy of the safety or security concerns raised in the PRM. By adding this paragraph, the NRC intends to first determine whether immediate regulatory action (e.g., an order) is needed.

Paragraph (h)(1)(iii) states that the NRC may determine whether a PRM will be docketed based upon the availability of NRC resources and the priority of the issues raised in the PRM compared with other NRC rulemaking activities. By adding this paragraph, the NRC will establish that if immediate action is not necessary, the NRC will consider the availability of resources and compare the issues raised in the PRM to other NRC rulemaking issues to determine the PRM's priority relative to other rulemaking activities.

Paragraph (h)(1)(iv) states that the NRC may determine whether a PRM will be docketed based on whether the NRC is already considering the issues raised in the PRM in other NRC processes. The NRC has multiple processes for considering potential issues related to its mission: For example, the allegation process, formal and informal hearings, and Commission deliberation to determine appropriate action on issues not related to rulemaking. One resulting action could be to initiate a rulemaking, but the Commission has other options available, such as addressing the issue through an order, guidance, or an internal management directive. The NRC will use the most efficient process to resolve issues raised by a petitioner.

Paragraph (h)(1)(v) states that the NRC may determine a course of action on a PRM based on the substance of any public comments received, if public comments are requested. Although the NRC may decide not to request public comments on a PRM, if public comment is requested, the NRC will consider the information commenters provide when determining a course of action for a PRM.

Paragraph (h)(1)(vi) states that the NRC may determine what action will be taken on a PRM based on the NRC's past decisions and current policy related to the issues raised in the PRM. This paragraph will inform the public that the NRC could consider past Commission decisions when determining a course of action for a PRM.

Paragraph (h)(2) establishes a process for administrative closure of a PRM docket once the NRC has determined its course of action for the PRM using the methodology and criteria in paragraph (h)(1). Paragraph (h)(2) establishes that a PRM docket will be administratively closed when the NRC responds to the PRM by taking a regulatory action and publishing a document in the Federal Register that describes this action. New paragraphs (h)(2)(i) and (ii) provide two specific categories for administrative closure of a PRM docket. Paragraph (h)(2) states that the NRC will administratively close a PRM docket by taking a regulatory action in response to the PRM that establishes a course of action for the PRM. In this situation, the NRC will publish a notice in the Federal Register describing the determined regulatory action, including the related Docket ID, as applicable. Paragraph (h)(2)(i) explains that the NRC may administratively close a PRM docket by deciding not to undertake a rulemaking to address the issues that the PRM raised, effectively denying the PRM, and notifying the petitioner in writing why the PRM was denied. Paragraph (h)(2)(ii) explains that the NRC may administratively close a PRM docket by initiating a rulemaking action, such as addressing the PRM in an ongoing or planned rulemaking or initiating a new rulemaking activity. The NRC will inform the petitioner in writing of its determination and the associated Docket ID of the rulemaking action.

Paragraph (h)(2)(i) provides that the NRC may administratively close a PRM docket if the NRC decides not to engage in rulemaking to address the issues in the PRM. The NRC will publish a notice in the Federal Register informing the public that the petition has been denied and the grounds for the denial. This notice will address the petitioner's request and any public comments received by the NRC. The PRM docket will be closed by this method when the NRC concludes that rulemaking should not be conducted in response to the PRM. In certain cases, the NRC may deny some of the issues raised in a PRM but also decide to address the remaining issues by initiating a rulemaking action, as described in paragraph (h)(2)(ii). In these instances, the Federal Register notice will identify the rulemaking Docket ID for the related rulemaking.

With regard to new rulemakings, paragraph (h)(2)(ii) provides that the NRC may administratively close a PRM docket if the NRC decides to address the subject matter of the PRM in a new rulemaking. The NRC will publish a notice in the Federal Register explaining the NRC's decision to initiate the new rulemaking and informing the public of the Docket ID of the new rulemaking. The NRC will also add a description of the new rulemaking in the Government-wide Unified Agenda of Federal Regulatory and Deregulatory Actions (the Unified Agenda). The PRM docket will be closed by this method when the NRC determines that issues raised in the PRM merit consideration in a rulemaking and that there is currently no other rulemaking (ongoing or planned) into which the petitioner's requested rulemaking could be incorporated.

With regard to planned rulemakings, paragraph (h)(2)(ii) provides that a PRM docket may be administratively closed if the NRC is currently planning a rulemaking related to the subject of the PRM and the NRC decides to address the PRM in that planned rulemaking. The NRC will publish a notice in the Federal Register explaining the NRC's decision to address the PRM in a planned rulemaking and informing the public of the Docket ID of the planned rulemaking. A PRM docket will be closed by this method when the NRC determines that issues raised in the PRM merit consideration in a rulemaking and a planned rulemaking exists in which the issues raised in the PRM could be addressed.

With regard to ongoing rulemakings, paragraph (h)(2)(ii) provides that a PRM docket may be administratively closed if the NRC has a rulemaking in progress that is related to the issues raised in the PRM. The NRC will publish a notice in the Federal Register notifying the public that the subject of the PRM will be addressed as part of the ongoing rulemaking. The PRM docket will be closed by this method when the NRC determines that issues raised in the PRM merit consideration in a rulemaking and an ongoing rulemaking exists in which the issues in the PRM can be addressed.

The list of potential rulemaking actions in new paragraph (h)(2)(ii) is not intended to be exhaustive because the NRC may initiate other rulemaking actions, at its discretion, on issues raised in the PRM. For example, the NRC could extend the comment period for a proposed rule that addresses the subject matter of the PRM to allow it to be addressed in the ongoing rulemaking.

For all PRM dockets that are closed by initiating a rulemaking action, as described in paragraph (h)(2), the NRC will include supplementary information in the published proposed and final rule discussing how the NRC decided to address the issues raised in the PRM.

As further discussed in new paragraph (i)(2) of § 2.803, if the NRC closes a PRM docket under paragraph (h)(2)(ii) by initiating a rulemaking action, resolution will require the ultimate publication of a final rule discussing how the PRM is addressed in the published final rule. However, if later in the rulemaking process the NRC decides to terminate the associated rulemaking, termination of that rulemaking also constitutes denial of the PRM. The NRC will describe the agency's grounds for denial in a Federal Register notice, which will include the reason for the NRC's decision not to publish a final rule on the rulemaking associated with the PRM. The Federal Register notice also will address the issues raised in the PRM and significant public comments, if public comments were solicited. As with denials earlier in the PRM process, the NRC will notify the petitioner of the denial of the PRM.

Under the former text in § 2.803, the NRC was required to resolve PRMs either by addressing the PRM issues in a final rule or by denying the petition. New paragraph (i) of § 2.803, Petition for rulemaking resolution, expands and clarifies how a PRM is resolved. Resolution of a PRM requires the NRC to conclude all planned regulatory action on the issues presented by the PRM and to publish a Federal Register notice to inform the public that all planned regulatory action on the PRM is concluded. Resolution of a PRM may occur in whole or in part; however, complete resolution of a PRM does not occur until all PRM issues are addressed in final by the NRC. New paragraph (i) of § 2.803 describes three methods for resolving a PRM: (1) Publication of a final rule, (2) withdrawal of the PRM by the petitioner before the NRC has entered into the rulemaking process, or (3) denial of the PRM by the NRC at any stage of the process. For resolution of a PRM through publication of a final rule, the NRC will include a discussion in the SUPPLEMENTARY INFORMATION section of the published final rule of how the regulatory action addresses the issues raised by the petitioner. For resolution of a PRM through denial by the NRC at any stage of the regulatory process, the NRC will publish a Federal Register notice discussing the grounds for denial of the PRM. For resolution of a PRM through withdrawal by the petitioner, the NRC will publish a notice in the Federal Register to inform the public that the petitioner has withdrawn the docketed PRM. Although the NRC expects that withdrawal would occur infrequently, paragraph (i) explains the means for the NRC to resolve the petition and inform members of the public of the withdrawal and resolution of the PRM.

The former text in paragraph (g) of § 2.802 indicated that a semiannual summary of PRMs before the Commission will be publicly available for inspection and copying. This statement is removed from this final rule because the NRC no longer publishes this semiannual summary. Instead, members of the public can find updates on the status of PRMs by the means described in paragraph (j) of § 2.803.

New paragraph (j) of § 2.803 explains where the public can view the status of PRMs and adds the heading, Status of petitions for rulemakings and rulemakings, to indicate the subject of the paragraph. Paragraph (j)(1) provides the Web site addresses for the most current information on PRMs and on active rulemakings. Paragraph (j)(2) indicates that the NRC will provide a summary of planned and existing rulemakings in the Government-wide Unified Agenda. Paragraph (j)(3) explains that information on all docketed PRMs, rulemakings, and public comments is available online in ADAMS and in the Federal rulemaking Web site at http://www.regulations.gov.

As previously discussed, if the NRC closes a PRM docket by initiating a rulemaking action under new paragraph (h)(2)(ii) of § 2.803 but later determines that a final rule should not be published, the NRC will publish a notice in the Federal Register explaining the grounds for its denial of the PRM, including the reason for the NRC's decision not to issue a final rule. The notice will be added into the previously closed PRM docket, and the status of the PRM will be updated and made available to the public as described in paragraphs (j)(1) through (j)(3).

Paragraph (e), Pre-application consultation, of § 2.811 explains the pre-application consultation process for standard design certification applications and is revised by correcting references and updating the email address for pre-application consultation. Corrections to paragraph (e) consist of removing the references to “§ 2.802(a)(1)(i) through (iii)” and replacing them with “§ 2.802(b)(1),” with respect to the subject matters permitted for pre-application consultation, correcting the term “petitioner” to “applicant”; replacing the reference “§ 2.802(a)(2)” with “§ 2.802(b)(2),” regarding limitations on pre-application consultations; and removing the unnecessary capitalization of the word “before.” In addition, the email address for pre-application consultation is updated by replacing “[email protected]” with “[email protected].”

Any person may submit a PRM to the NRC, requesting that the NRC adopt a new regulation, amend (revise the language of) an existing regulation, or revoke (withdraw) an existing regulation. A “person” may be an individual or an entity such as an organization, company (corporation), a governmental body (e.g., a State or a municipality), or a Federally-recognized Indian tribe.

When a PRM is received by the NRC, the NRC acknowledges the receipt of the petition by sending correspondence to the petitioner informing the petitioner of the NRC's receipt. The NRC then assigns the PRM for consideration to the NRC technical staff.

If the PRM does not include the information required by § 2.802, or the information provided is insufficient for the NRC to docket the petition, then the NRC sends a letter to the petitioner explaining the reasons why the NRC cannot docket the petition and begin to consider the requests in the petition. The NRC identifies what information is not included in the petition, or why the information provided is insufficient, and includes a reference to the corresponding paragraph in § 2.802(c) requiring the information.

The petitioner may resubmit the petition, with deficiencies addressed, at any time without prejudice or time limitation. If the petitioner provides the requested information and the information provided is determined by the NRC to be complete and meet the requirements in § 2.802(c), then the NRC dockets the petition and publishes a notice in the Federal Register announcing that the NRC has docketed the petition. The notice may or may not include an opportunity for members of the public to provide comments. In general, the NRC determines whether to provide an opportunity for public comment based upon a balancing of several factors, including whether the NRC needs additional information to help resolve the petition. Finally, the notice explains how members of the public can stay informed regarding any future NRC action that addresses the issues raised in the PRM.

The NRC's resolution of a PRM may occur, in whole or in part, by one or more of the following actions: (1) The NRC decides to adopt a final rule addressing the problem raised in the PRM (“granting” the PRM); (2) the NRC decides not to adopt a new regulation or change an existing regulation as requested in the PRM (“denying” the PRM); or (3) the petitioner decides to withdraw the request before the NRC has entered the rulemaking process. Complete resolution of the PRM does not occur until all portions of the PRM are addressed by the NRC in one of the three ways previously described. It is possible that the petitioner's concerns may not be addressed exactly as requested in the PRM. In this situation, the NRC would consider the PRM to be “partially granted and partially denied,” and the statement of considerations will explain how the final rule addresses the problem raised in the PRM, but why the NRC decided to adopt a regulatory approach, which is different than that described in the PRM.

If the PRM is denied by the NRC, or if the petition is withdrawn by the petitioner, the NRC will publish a notice in the Federal Register stating the grounds for the denial or informing the public that the petitioner has withdrawn the petition.

The NRC staff has developed a diagram entitled, “The Petition for Rulemaking Process” (Figure 1) (ADAMS Accession No. ML14259A474), which provides a visual representation of the NRC's PRM process under §§ 2.802 and 2.803, as amended in this final rule. This diagram is also available as a separate document on the NRC's public Web site at http://www.nrc.gov/about-nrc/regulatory/rulemaking.html.

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it makes administrative changes to the descriptions of restricted areas R-3601A and R-3601B, Brookville, KS.

In August 1970, the FAA published a rule in the Federal Register (35 FR 10107, June 19, 1970) establishing the Brookville, KS, restricted areas R-3601A and R-3601B in support of U.S. Air Force (USAF) weapons delivery training requirements. The two restricted areas were originally established laterally adjacent to each other with different ceilings to be activated for use individually, as required. Then, in July 2007, the FAA published another rule in the Federal Register (72 FR 35917, July 2, 2007) that combined the restricted areas lateral boundaries, divided the combined areas vertically instead of laterally, and expanded the vertical limits to flight level 230 (FL230). The lower portion of the combined area (surface to but not including FL180) was re-designated as R-3601A and the upper portion (FL180 to FL230) as R-3601B. The new configuration supported USAF high altitude release bomb training requirements for fighter aircraft and new medium-to-high altitude release bomb training requirement for bombers.

When the restricted areas lateral boundaries were combined in 2007, the boundaries descriptions for R-3601A and R-3601B used the Missouri Pacific Railroad Track to identify a segment of the restricted area boundaries. The railroad track was removed years ago and portions of the railroad right-of-way is mostly obscured by trees or has been plowed under for agriculture. Satellite imagery was used to confirm that the railroad right-of-way is no longer clearly visible and is of little use to Visual Flight Rules (VFR) aircraft trying to navigate by ground reference in the Salina, KS, local area.

The FAA worked with the USAF to re-define the affected boundary segments using geographic (latitude/longitude) coordinates only. The new restricted area boundary descriptions overlay the boundaries previously identified by the visual landmarks that no longer exist. As a result of amending the restricted area boundaries, corresponding amendments to the Smoky and Smoky High MOAs boundaries are also necessary to retain shared boundary segments between the restricted areas and the MOAs.

Additionally, the R-3601A and R-3601B using agency information does not reflect the military service of the using agency listed. To correct this absence of information, the using agency information for the restricted areas is being updated. To ensure standard using agency information for the restricted areas and MOAs supporting the Smoky Hill Air National Guard Range, the Smoky and Smoky High MOAs using agency information is also being updated.

MOAs are established to separate or segregate non-hazardous military flight activities from aircraft operating in accordance with instrument flight rules (IFR), and to advise pilots flying under VFR where these activities are conducted. IFR aircraft may be routed through an active MOA only by agreement with the using agency and only when air traffic control can provide approved separation from the MOA activity. VFR pilots are not restricted from flying in an active MOA, but are advised to exercise caution while doing so. MOAs are nonregulatory airspace areas that are established or amended administratively and published in the National Flight Data Digest (NFDD) rather than through rulemaking procedures. When a nonrulemaking action is ancillary to a rulemaking action, FAA procedures allow for the nonrulemaking changes to be included in the rulemaking action. Since the Smoky and Smoky High MOAs amendments are ancillary to the R-3601A and R-3601B amendments being made, the MOA changes are addressed in this rule as well as being published in the NFDD.

The Smoky and Smoky High MOAs boundary descriptions are being amended to incorporate the geographic coordinates used in the R-3601A and R-3601B boundary descriptions to redefine the boundary segments previously defined by the Missouri Pacific Railroad Track. This amendment will ensure shared boundaries with the updated restricted area descriptions and prevent airspace conflict with any potential SUA overlap resulting from the redefined boundary segments. Also, the Smoky and Smoky High MOAs using agency information is being amended to match the associated restricted areas using agency amendments. The amended boundary descriptions and using agency information for the MOAs will be published in the NFDD; the rest of the MOAs legal descriptions remain unchanged.

This action amends 14 CFR part 73 by modifying restricted areas R-3601A and R-3601B Brookville, KS. The FAA is taking this action to accurately define the restricted area boundaries using geographic coordinates to overcome the loss of the visual landmark used previously and update the using agency information to include the military service. The following restricted areas boundary and using agency information is amended as indicated:

The R-3601A and R-3601B boundary segments previously described by the Missouri Pacific Railroad Track are redefined using the geographic coordinates, “lat. 38°39′45″ N., long. 97°46′01″ W.; to lat. 38°38′20″ N., long. 97°47′31″ W.”

The R-3601A and R-3601B using agency information is amended by prefacing the existing using agency with “U.S. Air Force.”

This change does not affect the boundaries, designated altitudes, activities conducted within the restricted areas or the actual physical location of the airspace; therefore, notice and public procedure under 5 U.S.C. 553(b) are unnecessary.

The corresponding restricted area boundary segment amendments noted above are also being made to the Smoky and Smoky High MOAs boundary information, as needed, to retain shared boundaries with R-3601A and R-3601B. And, the Smoky and Smoky High MOAs using agency information is amended to match the restricted areas using agency information. The amended Smoky and Smoky High MOAs boundary and using agency information changes addressed in this rule will be published in the NFDD as a separate action with a matching effective date.

This action does not affect the overall restricted area or MOA boundaries; designated altitudes; times of designation; or activities conducted within the restricted areas and MOAs.

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5d. This action is an administrative change to the technical description of the affected restricted areas and is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exists that warrant preparation of an environmental assessment.

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

Background

The Unverified List, found in Supplement No. 6 to Part 744 to the EAR, contains the names and addresses of foreign persons who are or have been parties to a transaction, as that term is described in § 748.5 of the EAR, involving the export, reexport, or transfer (in-country) of items subject to the EAR, and whose bona fides BIS has been unable to verify through an end-use check. BIS may add persons to the UVL when BIS or federal officials acting on BIS's behalf have been unable to verify a foreign person's bona fides (i.e., legitimacy and reliability relating to the end use and end user of items subject to the EAR) because an end-use check, such as a pre-license check (PLC) or a post-shipment verification (PSV), cannot be completed satisfactorily for such purposes for reasons outside the U.S. Government's control.

End-use checks cannot be completed for a number of reasons, including reasons unrelated to the cooperation of the foreign party subject to the end-use check. For example, BIS sometimes initiates end-use checks and cannot find a foreign party at the address indicated on export documents, and cannot locate the party by telephone or email. Additionally, BIS sometimes is unable to conduct end-use checks when host government agencies do not respond to requests to conduct end-use checks, are prevented from scheduling such checks by a party to the transaction other than the foreign party that is the proposed subject of the end-use check, or the parties refuse to schedule them in a timely manner. Under these circumstances, although BIS has an interest in informing the public of its inability to verify the foreign party's bona fides, there may not be sufficient information to add the foreign persons at issue to the Entity List under § 744.11 of the EAR (Criteria for revising the Entity List). In such circumstances, BIS may add the foreign persons to the UVL.

Furthermore, BIS sometimes conducts end-use checks but cannot verify the bona fides of a foreign party. For example, BIS may be unable to verify bona fides if, during the conduct of an end-use check, a recipient of items subject to the EAR is unable to produce those items for visual inspection or provide sufficient documentation or other evidence to confirm the disposition of those items. The inability of foreign persons subject to end-use checks to demonstrate their bona fides raises concerns about the suitability of such persons as participants in future exports, reexports, or transfers (in-country) and indicates a risk that items subject to the EAR may be diverted to prohibited end uses and/or end users. However, BIS may not have sufficient information to establish that such persons are involved in activities described in part 744 of the EAR, preventing the placement of the persons on the Entity List. In such circumstances, the foreign persons may be added to the Unverified List.

As provided in § 740.2(a)(17) of the EAR, the use of license exceptions for exports, reexports, and transfers (in-country) involving a party or parties to the transaction who are listed on the UVL is suspended. Additionally, under § 744.15(b) of the EAR, there is a requirement for exporters, reexporters, and transferors to obtain (and keep a record of) a UVL statement from a party or parties to the transaction who are listed on the UVL before proceeding with exports, reexports, and transfers (in-country) to such persons, when the exports, reexports and transfers (in-country) are not subject to a license requirement.

Requests for removal of a UVL entry must be made in accordance with § 744.15(d) of the EAR. Decisions regarding the removal or modification of UVL listings will be made by the Deputy Assistant Secretary for Export Enforcement, based on a demonstration by the listed person of its bona fides.

Among other things, this rule adds twelve (12) persons to the UVL by amending Supplement No. 6 to Part 744 of the EAR to include their names and addresses. BIS adds these persons in accordance with the criteria for revising the UVL set forth in § 744.15(c) of the EAR. The new entries consist of one person located in Canada, one person located in the Czech Republic, one person located in Georgia, four persons located in Hong Kong, and five persons located in the United Arab Emirates. Each listing is grouped within the UVL by country and accompanied by the party's name(s) in alphabetical order under the country, available alias(es) and address(es), as well as the Federal Register citation and the date the person was added to the UVL. The UVL is included in the Consolidated Screening List, available at www.export.gov.

This rule also adds new addresses for four current UVL persons in Hong Kong: (1) AST Technology Group (HK) Ltd.; (2) E-Chips Technology; (3) Ling Ao Electronic Technology Co. Ltd., a.k.a. Voyage Technology (HK) Co. Ltd.; and (4) Narpel Technology Co., Limited. BIS has determined that these persons are receiving U.S. exports at addresses other than those originally included in their UVL entries.

Lastly, this rule removes from the UVL two entries: One located in Hong Kong and one located in Pakistan.

The following entry (at three different locations) under the country heading Hong Kong is removed:

The following entry under the country heading Pakistan is removed:

These persons are removed from the UVL based on BIS's ability to confirm their bona fides through the successful completion of end-use checks. The removal of the above referenced persons from the UVL eliminates the restrictions against the use of license exceptions and the requirements specific to exports, reexports and transfers (in-country) not otherwise requiring a license to these persons, as described in § 744.15 of the EAR. However, the removal of these persons from the UVL does not remove other obligations under part 744 of the EAR or under other parts of the EAR. Neither the removal of persons from the UVL nor the removal of UVL-based restrictions and requirements relieves a person of the obligation to obtain a license if the person knows that an export or reexport of any item subject to the EAR is destined to an end user or end use set forth in part 744, other than § 744.15, of the EAR. Additionally, these removals do not relieve persons of their obligation to apply for export, reexport or in-country transfer licenses required by other provisions of the EAR. BIS strongly urges the use of Supplement No. 3 to part 732 of the EAR, “BIS's `Know Your Customer' Guidance and Red Flags,” when persons are involved in transactions that are subject to the EAR.

Shipments (1) removed from license exception eligibility or that are now subject to requirements in § 744.15 of the EAR as a result of this regulatory action,; (2) eligible for export, reexport, or transfer (in-country) without a license before this regulatory action; and (3) on dock for loading, on lighter, laden aboard an exporting carrier, or en route aboard a carrier to a port of export, on October 7, 2015, pursuant to actual orders, may proceed to that UVL listed person under the previous license exception eligibility or without a license so long as the items have been exported from the United States, reexported or transferred (in-country) before November 6, 2015. Any such items not actually exported, reexported or transferred (in-country) before midnight, on November 6, 2015, are subject to the requirements in § 744.15 of the EAR in accordance with this regulation.

Since August 21, 2001, the Export Administration Act of 1979, as amended, has been in lapse. However, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as amended by Executive Order 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013), and as extended by the Notice of August 7, 2015 (80 FR 48233 (Aug. 11, 2015) has continued the EAR in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.). BIS continues to carry out the provisions of the Export Administration Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222 as amended by Executive Order 13637.

1. Executive Orders 13563 and 12866 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). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under section 3(f) of Executive Order 12866.

2. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public comment and a delay in effective date are inapplicable to this rule—which is adding 12 persons, removing two persons, and updating the addresses of four other persons listed on the UVL—because this regulation involves military or foreign affairs under § 553(a)(1). BIS implements this rule to protect U.S. national security or foreign policy interests by requiring a license for items being exported, reexported, or transferred (in country) involving a party or parties to the transaction who are listed on the UVL. If this rule were delayed to allow for notice and comment and a delay in effective date, the entities being added to the UVL by this action and those entities operating at previously unlisted addresses would continue to be able to receive items without additional oversight by BIS and to conduct activities contrary to the national security or foreign policy interests of the United States. In addition, publishing a proposed rule would give these parties notice of the U.S. Government's intention to place them on the UVL, and create an incentive for these persons to accelerate receiving items subject to the EAR in furtherance of activities contrary to the national security or foreign policy interests of the United States, and/or take steps to set up additional aliases, change addresses, and other measures to try to limit the impact of the listing once a final rule is effective.

The Department finds there is good cause to waive the provisions of the Administrative Procedure Act requiring prior notice and the opportunity for public comment, under 5 U.S.C. 553(b)(B), and a thirty day delay of the effective date, under 5 U.S.C. 553(d)(3), to the provision of this rule removing two persons from the UVL because doing so is contrary to the public interest and unnecessary. The removals are being made following the completion of successful end-use checks. If the rule were to be delayed to allow for public comment, U.S. exporters may face unnecessary economic losses as they turn away potential sales because the customer remained a listed person on the UVL even after BIS was able to verify that entity's bona fides through an end-use check. By publishing without prior notice and comment, BIS allows the entity to receive U.S. exports as quickly as possible following their cooperation in a successful end-use check. By quickly removing entities from the UVL following the successful completion of an end-use check, BIS encourages other entities to cooperate in end-use checks requested by BIS. Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this rule.

Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are not applicable. Accordingly, no regulatory flexibility analysis is required and none has been prepared.

3. Notwithstanding any other provision of law, no person is required to respond to, nor is subject to a penalty for failure to comply with, a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This regulation involves collections previously approved by OMB under the following control numbers: 0694-0088, 0694-0122, 0694-0134, and 0694-0137. The addition, revision, and removal of individuals to the UVL do not change the collection of information requirements placed on the public by the UVL implementing regulations.

4. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.

Accordingly, part 744 of the Export Administration Regulations (15 CFR parts 730 to 774) is amended as follows:

On May 19, 2015, the National Marine Fisheries Service (NMFS) published a supplemental proposed rule in the Federal Register (80 FR 28572) to implement C-14-02, “Resolution (Amended) on the Establishment of a Vessel Monitoring System (VMS).” This Resolution was adopted by the Inter-American Tropical Tuna Convention (IATTC) at its 87th meeting in July 2014. The supplemental proposed rule revised a proposed rule (79 FR 7152) published on February 6, 2014 in the Federal Register.

The public comment period for the supplemental proposed rule was open until June 18, 2015, and NMFS accepted public comment at a hearing held at the NMFS West Coast Region (WCR) Long Beach office on June 9, 2015. The public comment period for the original proposed rule was open until March 10, 2014, and NMFS accepted public comment at a hearing held at the NMFS WCR Long Beach office on February 28, 2014.

The final rule is implemented under the authority of the Tuna Conventions Act (16 U.S.C. 951 et seq.), which directs the Secretary of Commerce, after approval by the Secretary of State, to promulgate regulations as may be necessary to implement resolutions adopted by the IATTC. This authority has been delegated to NMFS.

The supplemental proposed rule contained additional background information, including information on the IATTC, the international obligations of the United States as an IATTC member, and the need for regulations. The differences between this final rule and the supplemental proposed rule are explained below.

This final rule establishes requirements for any U.S. commercial fishing vessel that is 24 meters (78.74 feet) or more in overall length and engaging in fishing activities for tuna or tuna-like species in the Convention Area, and for which either of the following permits is required: Pacific highly migratory species permit under 50 CFR 660.707, or high seas fishing permit under 50 CFR 300.13. The Convention Area is bounded by the west coast of the Americas and on the north, south, and west respectively, by the 50° N. and 50° S. parallels, and the 150° W. meridian.

Commercial fishing vessels that are 24 meters or more in overall length are required to install, activate, carry, and operate VMS units (also known as “mobile transmitting units”). The VMS units and mobile communications service providers must be type-approved by NOAA for fisheries in the IATTC Convention Area. Information for current NOAA type-approved VMS units can be obtained from: NOAA, Office of Law Enforcement (OLE), 1315 East-West Hwy, Suite 3301, Silver Spring, MD 20910-3282; telephone at (888) 210-9288. Or, by contacting NOAA OLE VMS Helpdesk: Telephone: (888) 219-9228, ext. 2; email: [email protected]; or online by going to http://www.nmfs.noaa.gov/ole/about/our_programs/vessel_monitoring.html (click “approved VMS units”). The business hours of the NOAA OLE VMS Helpdesk are: Monday through Friday, except Federal holidays, 7 a.m. to 11 p.m., Eastern Time.

Federal funds may be available to vessel owners or operators for reimbursement for type-approved VMS units. The VMS units must be installed by a VMS dealer approved by a type-approved VMS unit manufacturer. To qualify for reimbursement, the VMS unit must be purchased and installed before December 1, 2015, and reimbursement must be requested no later than December 15, 2015. The availability of reimbursement funds for the cost of purchasing a VMS unit is not guaranteed; the funds are available on a first-come, first-served basis. Information on the VMS Reimbursement Program is available online at: http://www.psmfc.org/program/vessel-monitoring-system-reimbursement-program-vms?pid=17.

Compliance with the existing VMS requirements at 50 CFR parts 300, 660, or 665 would satisfy these new requirements relating to the installation, carrying, and operation of VMS units, provided that (1) the VMS unit and mobile communications service provider are type-approved by NOAA for fisheries in the Convention Area, (2) the VMS unit is operated continuously at all times while the vessel is at sea, unless the Assistant Director, NOAA Office of Law Enforcement, Pacific Islands Division (or designee) (AD) authorizes a VMS unit to be shut down, and (3) the requirements for the case of VMS unit failure are followed.

This final rule also updates: (1) The definition of “Convention Area,” and (2) the description of the purpose and scope of part 300, subpart C, § 300.20 of Title 50 of the Code of Federal Regulations (CFR).

NMFS received comments on both the original and supplemental proposed rules during the public comment periods. For the original proposed rule, four persons participated in the public hearing, one of whom also submitted written comments. NMFS also received a written comment from a commenter that did not attend the public hearing. NMFS received one written comment in response to the supplemental proposed rule and no persons participated in the public hearing.

Five of the six commenters expressed concern about the burden of operating the VMS units while participating in fisheries for species other than tuna. These same commenters raised questions and provided suggestions regarding the flexibility of the VMS requirements as they apply to vessels that participate in other fisheries. One commenter indicated support for the VMS requirements for tuna fisheries as a worthwhile method to enhance monitoring. Summaries of the comments received for both the supplemental and original proposed rules and NMFS' responses appear below.

Comment 1: The proposed rule allows a condition for shutting down the VMS unit after the end of the fishing season, but this condition is too strict and could negatively impact vessels which participate in other fisheries. This could be easily addressed by requiring the VMS unit be turned on only when that vessel will be targeting tuna or tuna-like species.

Response: NMFS believes that allowing more VMS on and off flexibility would weaken the effectiveness of using VMS position information to monitor the locations of vessels. Allowing VMS power-downs, aside from the in-port and after a fishing season exemptions provided in the rule, could also encourage non-compliance and compromise the integrity of the VMS. Lastly, additional fees are imposed on vessel owners and operators for shutting down VMS units as well as reactivating VMS units after they are shut down. For these reasons, NMFS believes that the benefits of requiring position reports everywhere at sea, aside from the exemptions provided in the rule, outweigh the burden.

Comment 2: The proposed rule would require that all vessels turn on VMS units when leaving port, regardless of whether a vessel plans to participate in tuna fisheries. There are a number of affected vessels that participate in fisheries other than tuna fisheries. Some of these vessels only opportunistically fish for tuna. For example, the coastal purse seine vessels that fish for tuna typically make infrequent trips (e.g., fewer than 3 trips a year) that are short in duration (e.g., fewer than 18 hours), and they do not fish for tuna in some years due to lack of availability in the U.S. exclusive economic zone, though they remain active in tuna fisheries.

Response: In addition to the rationale outlined in the response to Comment 1 above, the United States is obligated, as a member of the IATTC, to implement Resolution C-14-02, which calls for each IATTC Member to require that its commercial fishing vessels harvesting tuna or tuna-like species be equipped with VMS. Therefore, VMS requirements in this final rule apply to any U.S. commercial fishing vessel that is 24 meters or more in overall length and engaging in fishing activities for tuna or tuna-like species in the Convention Area, and for which either of the following permits is required: Pacific highly migratory species permit under 50 CFR 660.707, or high seas fishing permit under 50 CFR 300.13.

Since the original proposed rule stage, NMFS revised the VMS requirements to reduce the burden on vessels by allowing an additional option for a vessel owner or operator to shut down a VMS unit. If a vessel owner or operator receives verbal or written authorization by the AD, the VMS unit may be shut down, if, after the end of the fishing season, the vessel will no longer engage in fishing activities in the Convention Area for which either a Pacific highly migratory species permit or a high seas fishing permit is required.

Comment 3: VMS requirements for other U.S. fisheries enable vessels to call in to declare the type of fishing trip, which creates a VMS requirement on a trip-by-trip basis. Providing additional flexibility to vessels for trips in which they do not pursue any of the species for which the IATTC has established conservation and management measures could reduce administrative costs and the potential for unintended losses in fishing opportunity.

Response: NMFS does not agree that only requiring VMS operation when on specific trips for tuna or tuna-like species and providing declaration reports would provide an adequate monitoring system or reduce burden on vessel owners and operators. As described in responses to Comment 2, NMFS believes that allowing more VMS unit power-downs, aside from the in-port and after a fishing season exemptions as provided in the rule, could also encourage non-compliance and compromise the integrity of the VMS. In addition, there may be fees associated with shutting down and powering back on VMS units that could ultimately increase the cost burden on vessel owners and operators. Using a declaration system could also increase administrative burdens by increasing the number of activation and deactivation reports and approvals of requests from NOAA OLE.

NMFS notes that, since the original proposed rule, NOAA added an additional option for a vessel owner or operator to shut down a VMS unit. In this final rule, if a vessel owner or operator receives verbal or written authorization by the AD (or designee), the VMS unit may be shut down, if, after the end of the fishing season, the vessel will no longer engage in fishing activities in the Convention Area for which either a Pacific highly migratory species permit or a high seas fishing permit is required.

For these reasons, NMFS believes that the benefits of requiring position reports everywhere at sea, aside from the exceptions provided in the rule, outweigh any associated burden.

Comment 4: The commenter asked for clarification as to whether VMS requirements apply to vessels that did not fish for tuna in the last year.

Response: Regardless of whether the vessel fished for tuna or tuna-like species in the Convention Area in a previous calendar year or fishing season, the VMS requirements of the rule apply to any vessel engaging in fishing activities for tuna or tuna-like species in the Convention Area, and for which either a Pacific highly migratory species permit or high seas fishing permit is required.

Comment 5: The commenter requested clarification as to the confidentiality of the information collected under the VMS rule and asked if it could be utilized for any purposes by: State law enforcement, state fishery managers (e.g., for fisheries managed by the State), or Federal fishery managers and enforcement (e.g., for investigations or management decisions in fisheries other than tuna).

Response: Information collected under the VMS requirements of this rule will be handled in accordance with the Trade Secrets Act, 18 U.S.C. 1905, and NOAA Administrative Order 216-100 for confidential fisheries data. The vessel owner and operator must make the vessel's position data obtained from the VMS unit or other means immediately and always available for inspection by NOAA personnel, U.S. Coast Guard (USCG) personnel, and authorized officers. If the vessel owner or operator is under investigation, or an enforcement action has been initiated for violation of federal or state marine natural resource laws, then the VMS data can be used by fishery officials for the purpose of verifying information related to the investigation and as evidence of the violation.

Comment 6: The commenter asked for further clarification as to how the data collection for VMS works and how often the VMS data is being collected and about NMFS' ability to detect the location of a vessel outside of the hourly ping rates. Another commenter suggested that because of recent judicial rulings NMFS would be required to increase the VMS reporting interval to more than once per hour.

Response: The VMS data (or position reports) will be transmitted to NOAA-approved mobile communications service providers, which will then securely relay the data to the NOAA OLE, the USCG, and other entities that are authorized to receive and relay position reports. The frequency of reporting intervals required by NMFS in a fishery depends on the defined need of the monitoring program for that fishery. NMFS believes that an hourly reporting interval will be sufficient given the level of monitoring to be conducted under this rule. Generally, the vessel location is only transmitted to NOAA OLE with the position reports. However, during irregular events, such as loss of power to VMS units or if the vessel crosses a pre-set boundary line, the vessel location may also be transmitted to NOAA OLE.

No recent judicial rulings justify or require that NMFS increase the reporting interval of the VMS units covered by this final rule because of recent judicial rulings. If determined necessary for the needs of the monitoring program, NMFS could make a fleet-wide change to this reporting interval through the notice and comment rulemaking process. This rule sets up the reporting interval at once per hour, and maintains that rate for normal operations, and we will not change that default rate except through the notice and comment rulemaking process. However, NOAA maintains the ability to temporarily, and under special circumstances only, increase the reporting interval, to support active enforcement investigations of specific vessels. Under these circumstances NOAA would be responsible for the costs of the increased reporting interval.

Comment 7: The proposed rule states that a vessel cannot leave the port until receiving “verbal or written confirmation from the AD that proper transmissions are being received from the VMS unit.” The rule would not allow a vessel to turn the unit back on while away from port. For example, if a vessel is participating in a non-HMS, non-high seas fishery, and receives information that tuna or tuna-like species have appeared in catchable volume within the Convention Area, the vessel operator would have to return to port and receive written confirmation from the AD that the unit is transmitting. There is no guarantee that by the time the operator complies with the proposed rule's requirements, a catchable amount of fish will be within range. Neither the AD nor NOAA OLE's VMS Helpdesk are available 24-hours a day and are closed on weekends, thus it is likely a vessel operator will suffer economic harm as a result of the inability to turn on the VMS unit remotely. The commenter asked if there a system in place to generate the required confirmation during non-business hours.

Response: The referenced requirement applies in the case that the vessel owner and operator have chosen to shut down the VMS unit while at port or otherwise not at sea, or after the end of the fishing season. NMFS notes such power-up notifications from vessel owners or operators to the AD or the NOAA OLE's VMS Helpdesk may take place after office hours, although the AD acknowledgement of receipt will take place during business hours. The AD makes best efforts to minimize delays in its responses to vessel owners or operators. NMFS recognizes that the office hours of the AD do not always coincide with fishing operations, but notes that the owner and operator of a fishing vessel need not wait until immediately prior to the port departure time to turn on the VMS unit and submit the on/off report to NOAA.

As described in responses to Comments 2 and 3, NMFS revised the VMS requirements since the original proposed rule stage, to allow an additional condition to authorize a vessel owner or operator to shut down a VMS unit. If a vessel owner or operator receives verbal or written authorization by the AD, the VMS unit may be shut down if, after the end of the fishing season, the vessel will no longer engage in fishing activities in the Convention Area for which either a Pacific highly migratory species permit or a high seas fishing permit is required.

Comment 8: The commenter asked NMFS to clarify if emails need to be sent to NOAA OLE from port every night before turning the VMS unit off. The commenter also asked if these messages could be sent from a smart phone, or if a telephone call would be sufficient as opposed to written request.

Response: Vessel owners or operators are required to notify the AD or the NOAA OLE's VMS Helpdesk via facsimile, email, or web-form prior to shut-down of VMS units. The notification need not be at night, and need not be “every night.” Currently, voice calls from telephones are not an authorized communication method to notify the AD when shutting down the VMS unit because a written record of the request is needed to facilitate enforcement and compliance. The type-approved VMS units required by this final rule are capable of two-way communication, which includes the ability to send emails. Notices to the AD or NOAA OLE's VMS Helpdesk can also be sent by any device that is capable of these forms of communication, such as a smart phone.

Vessel owners and operators should also be aware of fees charged by communication service providers to shut down VMS units and to reactivate the VMS units after they are powered off.

In § 300.26(c)(5) and (d), under the heading, “Vessel monitoring system (VMS),” the references to “50 CFR 300.219, 50 CFR 660.712, or 50 CFR 665.19” have been replaced by “part 300 of this title, part 660 of this title, or part 665” to clarify that future VMS requirements that may be added to any section in those three parts would also be deemed to satisfy the VMS requirements under this rule. Also in § 300.26, paragraph (d) has been clarified to say that NOAA may pay for the VMS-associated costs for VMS carried and operated under part 300 of this title, part 660 of this title, or part 665 of this title, but only to the extent that the applicable regulations specify costs are the responsibility of NOAA.

In § 300.26, paragraph (c)(1) has been revised to clarify that “NOAA, the USCG, and other authorized entities are authorized to receive and relay transmissions from the VMS unit.” This revision was intended to clarify that the vessel owner and operator do not need to provide additional authorization to NOAA, the USCG, and other authorized entities. In § 300.26, paragraph (d) has been revised for consistency with the previously described change in paragraph (c)(1). Therefore, the following language was removed from the paragraph: “. . . the owner or operator has authorized NOAA to receive and relay transmissions from the VMS unit . . . .”

In § 300.26, paragraph (c)(1) was revised to clarify the that it is the responsibility of the vessel owner or operator to arrange for a NOAA-approved mobile communications service provider to receive and relay transmissions from the VMS unit to NOAA at a default reporting interval of at least once per hour. Therefore, the following language was removed from the paragraph “. . . the owner and operator must authorize NOAA to set up the reporting interval of the VMS unit as once per hour . . . .”

In § 300.26, paragraph (d) was revised to clarify that NOAA is responsible for the cost of any temporary increase in the default reporting interval to support active enforcement investigations of specific vessels.

In addition, throughout § 300.26, several references to “the SAC, or Special-Agent-In-Charge” have been replaced by “the AD, or Assistant Director” to reflect a change in title. AD means the Assistant Director, NOAA Office of Law Enforcement, Pacific Islands Division (or designee).

In § 300.26, paragraph (a)(2) has been revised to add “ext. 2” after the phone number for the NOAA Office of Law Enforcement's VMS Helpdesk.

The NMFS Assistant Administrator has determined that this final rule is consistent with the Tuna Conventions Act of 1950, as revised, and other applicable laws.

This action is categorically excluded from the requirement to prepare an environmental assessment in accordance with NOAA Administrative Order (NAO) 216-6. A memorandum for the file has been prepared that sets forth the decision to use a categorical exclusion and a copy of is available from NMFS (see ADDRESSES).

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

A Final Regulatory Flexibility Analysis (FRFA) was prepared. A copy of this analysis is available from NMFS (see ADDRESSES). The FRFA incorporates the Initial Regulatory Flexibility Analysis (IRFA), and a summary of the analyses completed to support the action is included directly below.

The analysis provided in the IRFA is not repeated here in its entirety. The need for, the reasons why action by the agency is being considered, and the objectives of the action are explained in the supplementary information above, as well as the preambles to the proposed rule and supplemental proposed rule and are not repeated here. Each vessel that is expected to be affected is considered a small business according to the Small Business Administration's revised size standards (79 FR 33647, July 12, 2014). The action is not expected to have a significant or disproportional economic impact on these small business entities.

As discussed in the preamble, the provisions in the rule would apply to commercial fishing vessels that are 24 meters or more in overall length and engaging in fishing activities for tuna or tuna-like species in the IATTC Convention Area, and for which either of the following permits is required: (1) Pacific highly migratory species permit under 50 CFR 660.707, or (2) high seas fishing permit under 50 CFR 300.13. To estimate affected entities, the number of vessels authorized to fish for highly migratory species in the EPO through highly migratory species and high seas fishing permits was considered a reasonable proxy. As of August 2015, approximately 15 vessels did not have VMS units installed and would be subject to the regulations in the final rule. Gear types for U.S. West Coast commercial vessels that would be impacted include purse seine and hook-and-line (i.e., bait and troll/jig).

No public comments specific to the IRFA were received and, therefore, no public comments are addressed in this FRFA. Certain comments with socio-economic implications are addressed in the comment and response section of the preamble, specifically, the response to Comments 1, 2, and 3. As described in responses to Comments 2 and 3, NMFS revised the VMS requirements since the original proposed rule stage. The requirements lessen the burden on fishermen.

Because the action will not have any significant impacts to small entities, there was no need to include additional alternatives that would minimize any disproportionate adverse economic burdens on a substantial number of small entities while achieving the objectives of the action.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a small entity compliance guide (the guide) was prepared. Copies of this final rule are available from the West Coast Region, and the guide will be sent to vessels that hold a Pacific highly migratory species permit and/or a high seas fishing permit for fisheries in the IATTC Convention Area. The guide and this final rule will be available upon request and on the West Coast Region Web site: http://www.westcoast.fisheries.noaa.gov/fisheries/migratory_species/highly_migratory_species_rules_req.html.

This rule contains a collection-of-information requirement subject to the Paperwork Reduction Act (PRA) and which has been approved by the Office of Management and Budget (OMB) under control number (0648-0690). Public reporting burden for VMS is estimated as an average per individual response for each requirement. The estimated time for initial VMS unit installation is 4 hours. The estimated time to maintain or repair a VMS unit is 1 hour annually. The estimated response time for respondents to prepare and submit activation reports is estimated to be 5 minutes per report. The estimated response time to prepare and submit each on/off report is also 5 minutes. These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see ADDRESSES) and by email to [email protected], or fax to (202) 395-5806. Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection-of-information subject to the requirements of the PRA, unless that collection-of-information displays a currently valid OMB control number. All currently approved NOAA collections of information may be viewed at: http://www.cio.noaa.gov/services_programs/prasubs.html.

For the reasons set out in the preamble, 15 CFR part 902 and 50 CFR part 300 are amended as follows:

Background

In 1996, the Commission issued a regulation finding that apprenticeship programs were covered by the Age Discrimination in Employment Act of 1967 (ADEA),1 with limited exceptions. One of those exceptions occurs when the EEOC exercises its authority under section 9 of the ADEA to establish reasonable exemptions from the Act's prohibitions on employment discrimination against individuals aged 40 or above.2 By regulation, the EEOC has approved one exemption for apprenticeship programs created under the Manpower Development and Training Act of 1962 or the Economic Opportunity Act of 1964,3 and has outlined procedures for stakeholders to request other exemptions from EEOC.4 The apprenticeship program regulation cross-referenced these agency procedures on how to request an ADEA Section 9 exemption, citing 29 CFR 1627.15.

When the EEOC most recently exercised its exemption authority on an unrelated matter, in 2007, it also moved the procedures for requesting an exemption to a new section—29 CFR 1625.30. However, the Commission neglected to update the cross-reference in the apprenticeship program regulation to reflect this change. The regulation originally cross-referenced in the apprenticeship program regulation, 29 CFR 1627.15, no longer exists. Therefore, the EEOC replaces the now incorrect reference in 29 CFR 1625.21 with language reflecting the new citation for the agency's procedures for requesting an administrative exemption from ADEA prohibitions—29 CFR 1625.30.

Although the EEOC's rulemakings on apprenticeship programs and administrative exemptions are not currently a priority for regulatory review, the Commission is taking this action, consistent with the EEOC Plan for Retrospective Analysis of Existing Rules,5 based on stakeholder input and efforts to enhance clarity in the EEOC's regulations.6

Infrastructure requirements for SIPs are provided in section 110(a)(1) and (2) of the CAA. Section 110(a)(2) lists the specific infrastructure elements that a SIP must contain or satisfy. The elements that are the subject of this action are described in detail in our notice of proposed rulemaking (NPR) published on July 15, 2015 (80 FR 41450).

The NPR proposed approval of North Dakota's submissions with respect to the following CAA section 110(a)(2) infrastructure elements for the 2008 ozone, 2008 Pb, and 2010 NO2 NAAQS: (A), (B), (C) with respect to minor NSR and PSD requirements, (D)(i)(II) elements 3 and 4, (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M); and D(i)(I) elements 1 and 2 for the 2008 Pb and 2010 NO2 NAAQS. The NPR also proposed approval of element 4 of CAA section 110(a)(2)(D)(i)(II) for the 2006 fine particulate matter (PM2.5) NAAQS. EPA will act separately on infrastructure element (D)(i)(I), interstate transport elements 1 and 2 for the 2008 ozone NAAQS. The reasons for our approvals are provided in detail in the NPR.

No comments were received on our July 15, 2015 NPR.

EPA is approving the following infrastructure elements for the 2008 ozone, 2008 Pb, and 2010 NO2 NAAQS: CAA 110(a)(2) (A), (B), (C) with respect to minor NSR and PSD requirements, (D)(i)(II) elements 3 and 4, (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). EPA is approving element 4 of 110(a)(2)(D)(i)(II) for the 2006 PM2.5 NAAQS. Finally, EPA is approving D(i)(I) elements 1 and 2 for the 2008 Pb and 2010 NO2 NAAQS. EPA will act separately on infrastructure element (D)(i)(I), interstate transport elements 1 and 2 for the 2008 ozone NAAQS.1

Under the CAA, 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 CAA. Accordingly, this action merely approves relevant state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, Oct. 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, Aug. 10, 1999);

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

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

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

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action 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. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 7, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2).)

40 CFR part 52 is amended to read as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

Organization of this document. The following outline is provided to aid in locating information in this preamble.

In section 169A(a)(1) of the 1977 Amendments to the Clean Air Act (CAA), Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas 1 which impairment results from manmade air pollution.” Congress added section 169B to the CAA in 1990 to address regional haze issues. EPA promulgated a rule to address regional haze on July 1, 1999 (64 FR 35714), the Regional Haze Rule. The Regional Haze Rule revised the existing visibility regulations to integrate into the regulation provisions addressing regional haze impairment and established a comprehensive visibility protection program for Class I areas.

On May 22, 2012, EPA approved Rhode Island's initial Regional Haze plan into the SIP. See 77 FR 30214. As part of the Rhode Island Regional Haze Plan, the Rhode Island Department of Environmental Management (RI DEM) stated that it intended to adopt low-sulfur fuel oil requirements.2 As discussed in our proposed approval of Rhode Island's Regional Haze Plan, although we encouraged Rhode Island to pursue its stated intention of adopting a low-sulfur fuel oil strategy, this measure was not considered a necessary requirement in order to approve Rhode Island's Regional Haze SIP for the first implementation period. See 77 FR 11798; February 28, 2012.

On June 26, 2014, with supplemental submittals on March 25, 2015 and August 28, 2015, the RI DEM submitted a SIP revision to EPA. This SIP revision includes Rhode Island's revised Air Pollution Control Regulation No. 8, “Sulfur Content of Fuels,” (excluding Section 8.7 “Fuel Supply Shortages” which was not submitted by the State) effective on June 24, 2014. The amended regulation lowers the allowable limits for the sulfur content of petroleum-based distillate and residual fuel oils and removes some outdated provisions. The outdated provisions pertained to emissions bubbling at facilities, conversion and conservation incentives for fuel switching, and twenty-four hour averaging for demonstrating compliance for coal burning devices. The outdated provisions are described in more detail in the next section.

RI DEM Regulation No. 8, “Sulfur Content of Fuels,” was previously approved into the Rhode Island SIP on January 8, 1986. See 51 FR 755. The SIP-approved rule states that “no person shall store for sale, offer for sale, sell or deliver for use in Rhode Island and no person shall use or store high sulfur fuel.” High sulfur fuel oil is defined in the regulation to be “any fuel except fuel oil containing more than 0.55 pounds of sulfur per million Btu (British thermal unit) heat release potential or fuel oil containing more than 1.0 percent sulfur by weight.”

The revised rule, effective June 24, 2014, states that no person shall store for sale, offer for sale, sell or deliver for use in Rhode Island and no person shall use any fuel oil having a sulfur content in excess of that in the following table:

These sulfur content emission limits are more stringent than the previously required 1% limit. In addition, the revised rule maintains the previously SIP-approved requirement that no person shall store for sale, offer for sale, sell or deliver for use in Rhode Island any solid fossil fuel containing more than 0.55 pounds of sulfur per million Btu heat release potential.

An exemption from the requirements of Regulation No. 8 extends to fuel used in combination with an approved stack cleaning process provided that the emissions from the stack are no greater than if the applicable sulfur content fuel were used, fuel used for fuel blending with ultra-low sulfur fuel to meet the applicable standard, and fuel oil which met the applicable requirements when received for storage in Rhode Island.

In addition, the revised rule does not include three flexibilities allowed in the previously SIP-approved rule. Specifically, the following sections are not included in the revised rule: (1) “Emission Bubbling,” whereby a facility with more than one fuel burning device could propose to meet total emission control requirements for a given pollutant through a mix of different control technologies; (2) “Conversion and Conservation Incentive,” which allowed the continued use of high sulfur fuel, for up to 30 months, for select facilities, so that monies saved from the price differential between high sulfur fuel and low sulfur fuel could be used to finance the necessary modifications or installation of pollution control needed to meet the low sulfur limits; and (3) “Sulfur Variability in Coal,” which established a 24-hour averaging period for demonstrating compliance.

The Clean Air Act (CAA) section 110(l) provides that EPA shall not approve any implementation plan revision if it would interfere with any applicable requirement concerning attainment and reasonable progress, or any other applicable requirement of the CAA, i.e. demonstrate anti-backsliding. As noted above, the revised rule contains more stringent emission limits than the SIP-approved rule and does not include some of the flexibilities allowed by the SIP-approved rule. Therefore, the anti-backsliding requirements of section 110(l) have been met.

EPA has determined that the approval of Rhode Island's revised Regulation No. 8, effective June 24, 2014, as submitted by the State, will strengthen the Rhode Island SIP. Therefore, EPA is approving Rhode Island's June 26, 2014, with supplemental submittals on March 25, 2015 and August 28, 2015, SIP revision.

EPA is approving, and incorporating into the Rhode Island SIP, Rhode Island's revised Air Pollution Control Regulation No. 8 “Sulfur Content of Fuels,” (excluding Section 8.7 “Fuel Supply Shortages” which was not submitted by the State) effective in the State of Rhode Island on June 26, 2014.

The EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should relevant adverse comments be filed. This rule will be effective December 7, 2015 without further notice unless the Agency receives relevant adverse comments by November 6, 2015.

If the EPA receives such comments, then EPA will publish a notice withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on the proposed rule. All parties interested in commenting on the proposed rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on December 7, 2015 and no further action will be taken on the proposed rule.

If the EPA receives such comments, then EPA will publish a notice withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on the proposed rule. All parties interested in commenting on the proposed rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on December 7, 2015 and no further action will be taken on the proposed rule. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the Rhode Island's Air Pollution Control Regulation No. 8, “Sulfur Content of Fuels,” excluding Section 8.7 “Fuel Supply Shortages,” as described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

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

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• 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, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

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

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action 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. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 7, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of this Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:

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).

You may access a frequently updated electronic version of 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.

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-2015-0395 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 December 7, 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-2015-0395, 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.

In the Federal Register of July 17, 2015 (80 FR 42462) (FRL-9929-13), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the receipt of a pesticide petition (PP IN-10818) filed by Itaconix Corporation, 2 Marin Way, Stratham, NH 03885. The petition requested that 40 CFR 180.960 be amended by establishing an exemption from the requirement of a tolerance for residues of butanedioic acid, 2-methylene-, homopolymer, sodium salt; CAS Reg. No. 26099-89-8. That document included a summary of the petition prepared by the petitioner and solicited comments on the petitioner's request. The Agency did not receive any comments.

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(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 use 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 an exemption from the requirement of 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 . . .” and specifies factors EPA is to consider in establishing an exemption.

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be shown that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

Consistent with FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information 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 the case of certain chemical substances that are defined as polymers, the Agency has established a set of criteria to identify categories of polymers expected to present minimal or no risk. The definition of a polymer is given in 40 CFR 723.250(b) and the exclusion criteria for identifying these low-risk polymers are described in 40 CFR 723.250(d). Butanedioic acid, 2-methylene-, homopolymer, sodium salt conforms to the definition of a polymer given in 40 CFR 723.250(b) and meets the following criteria that are used to identify low-risk polymers.

1. The polymer is not a cationic polymer nor is it reasonably anticipated to become a cationic polymer in a natural aquatic environment.

2. The polymer does contain as an integral part of its composition the atomic elements carbon, hydrogen, and oxygen.

3. The polymer does not contain as an integral part of its composition, except as impurities, any element other than those listed in 40 CFR 723.250(d)(2)(ii).

4. The polymer is neither designed nor can it be reasonably anticipated to substantially degrade, decompose, or depolymerize.

5. The polymer is manufactured or imported from monomers and/or reactants that are already included on the TSCA Chemical Substance Inventory or manufactured under an applicable TSCA section 5 exemption.

6. The polymer is not a water absorbing polymer with a number average molecular weight (MW) greater than or equal to 10,000 daltons.

Additionally, the polymer also meets as required the following exemption criteria specified in 40 CFR 723.250(e).

7. The polymer's number average MW of 3936 is greater than 1,000 and less than 10,000 daltons. The polymer contains less than 10% oligomeric material below MW 500 and less than 25% oligomeric material below MW 1,000, and the polymer does not contain any reactive functional groups.

Thus, butanedioic acid, 2-methylene-, homopolymer, sodium salt meets the criteria for a polymer to be considered low risk under 40 CFR 723.250. Based on its conformance to the criteria in this unit, no mammalian toxicity is anticipated from dietary, inhalation, or dermal exposure to butanedioic acid, 2-methylene-, homopolymer, sodium salt.

For the purposes of assessing potential exposure under this exemption, EPA considered that butanedioic acid, 2-methylene-, homopolymer, sodium salt could be present in all raw and processed agricultural commodities and drinking water, and that non-occupational non-dietary exposure was possible. The number average MW of butanedioic acid, 2-methylene-, homopolymer, sodium salt is 3936 daltons. Generally, a polymer of this size would be poorly absorbed through the intact gastrointestinal tract or through intact human skin. Since butanedioic acid, 2-methylene-, homopolymer, sodium salt conform to the criteria that identify a low-risk polymer, there are no concerns for risks associated with any potential exposure scenarios that are reasonably foreseeable. The Agency has determined that a tolerance is not necessary to protect the public health.

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 butanedioic acid, 2-methylene-, homopolymer, sodium salt to share a common mechanism of toxicity with any other substances, and butanedioic acid, 2-methylene-, homopolymer, sodium salt does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that butanedioic acid, 2-methylene-, homopolymer, sodium salt 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.

Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold 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 data base unless EPA concludes that a different margin of safety will be safe for infants and children. Due to the expected low toxicity of butanedioic acid, 2-methylene-, homopolymer, sodium salt, EPA has not used a safety factor analysis to assess the risk. For the same reasons the additional tenfold safety factor is unnecessary.

Based on the conformance to the criteria used to identify a low-risk polymer, EPA concludes that there is a reasonable certainty of no harm to the U.S. population, including infants and children, from aggregate exposure to residues of butanedioic acid, 2-methylene-, homopolymer, sodium salt.

Not Available.

An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.

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 butanedioic acid, 2-methylene-, homopolymer, sodium salt.

Accordingly, EPA finds that exempting residues of butanedioic acid, 2-methylene-, homopolymer, sodium salt from the requirement of a tolerance will be safe.

This action establishes a tolerance 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).

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).

Therefore, 40 CFR chapter I is amended as follows:

This is a summary of the Commission's Order on Reconsideration in PS Docket No. 13-75 and PS Docket No. 11-60, released on July 30, 2015. The full text of this document is available for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 12th Street SW., Washington, DC 20554, or online at https://www.fcc.gov/document/911-reliability-certification-order-reconsideration.

1. In December 2013, the Commission adopted rules requiring 911 communications providers to take reasonable measures to provide reliable service, as evidenced by an annual certification.1 Covered entities must certify whether they have implemented specified best practices or reasonable alternative measures with respect to critical 911 circuit diversity, central office backup power, and diverse network monitoring. These rules responded to significant, but avoidable, vulnerabilities in 911 network architecture, maintenance, and operation revealed during a June 2012 derecho storm that left 3.6 million people in six states without 911 service for several hours to several days. In light of these preventable failures, the Commission determined that the discharge of its statutory responsibility for promoting the safety of life and property no longer justifies relying solely on the implementation of key best practices on a voluntary basis. The Commission added, however, that its adoption of a mandatory certification process seeks to maximize flexibility and account for differences in network architectures without sacrificing 911 service reliability.

2. In this Order on Reconsideration, the Commission revises its rules to clarify certain 911 reliability certification requirements in response to a “Motion for Clarification or, in the Alternative, Petition for Partial Reconsideration” filed by Intrado, Inc.2 In so doing, we rely on two guiding principles from the 911 Reliability Order. First, ensuring reliability of 911 service is a critical aspect of our statutory mandate to act for the purpose of promoting safety of life and property. Second, while all Americans have an expectation of reliable 911 service, appropriate actions to improve and maintain reliability may vary by service provider and location.

3. Specifically, we clarify that under section 12.4 of the Commission's rules, Covered 911 Service Providers may implement and certify an alternative measure for any of the specific certification elements, as long as they provide an explanation of how such alternative measures are reasonably sufficient to mitigate the risk of failure. We believe that this should include an explanation of how the alternative will mitigate such risk at least to a comparable extent as the measures specified in our rules. While it may be possible that an alternative measure that cannot be shown to be comparable in reducing the risk of failure could be deemed reasonably sufficient in a particular case, a provider advancing such an alternative measure will face a heavy burden in demonstrating why comparability cannot be achieved, how the risk of failure has been reduced, and why, given the level to which the risk has been reduced, the measure taken to achieve this result should be regarded as reasonably sufficient to address the vulnerabilities at issue. Accordingly, we revise our rules to eliminate ambiguities arising from the instructions in sections 12.4(c)(1)(ii) and 12.4(c)(3)(ii) for making the alternative certification for the circuit auditing and network monitoring requirements, respectively.

4. The 911 Reliability Order adopted section 12.4 of our rules, which defines the scope of Covered 911 Service Providers and sets forth the elements for an annual certification requirement with respect to circuit auditing, backup power, and network monitoring. As pertinent here, under the circuit auditing portion of the certification, the elements specified by the rules require Covered 911 Service Providers to certify annually whether they have (1) audited the physical diversity of critical 911 circuits or equivalent data paths to any public safety answering point (PSAP) served, (2) tagged such circuits to reduce the probability of inadvertent loss of diversity between audits, and (3) eliminated all single points of failure in critical 911 circuits or equivalent data paths serving each PSAP. If a Covered 911 Service Provider has not implemented the third element (i.e., the elimination of all single points of failure), it must certify whether it has taken alternative measures to mitigate the risk of critical 911 circuits that are not physically diverse or is taking steps to remediate any issues that it has identified with respect to 911 service to the PSAP. Respondents also may certify that the circuit auditing requirement is not applicable because they do not operate any critical 911 circuits. The network monitoring portion of the overarching certification requirement contains a similar approach with respect to its elements (i.e., conducting audits of aggregation points for gathering network monitoring data, conducting audits of monitoring links, and implementing physically diverse aggregation points and links). The backup power portion of the certification—which is not at issue here—requires Covered 911 Service Providers to indicate whether they provide at least 24 hours of backup power at any central office that directly serves a PSAP or at least 72 hours at any central office that hosts a selective router, and whether they have implemented certain design and testing procedures for backup power equipment.

5. The elements that comprise these certification requirements are designed to reinforce the core responsibility imposed by section 12.4(b) of our rules, which is to take reasonable measures to provide reliable 911 service with respect to circuit diversity, central-office backup power, and diverse network monitoring. Section 12.4(b) provides, however, that “[i]f a Covered 911 Service Provider cannot certify that it has performed a given element, the Commission may determine that such provider nevertheless satisfies the requirements of this subsection (b) based upon a showing in accordance with subsection (c) that it is taking alternative measures with respect to that element that are reasonably sufficient to mitigate the risk of failure, or that one or more certification elements are not applicable to its network.” The Commission intended this certification approach to be more flexible than uniform standards, while providing assurance to PSAPs and the public that known vulnerabilities in 911 networks will be identified and corrected promptly.

6. The Intrado Petition seeks clarification or reconsideration of certification requirements under sections 12.4(c)(1) and 12.4(c)(3) to the extent that they would require all Covered 911 Service Providers to audit and tag 911 circuits, and audit network monitoring links, without the option of certifying reasonable alternative measures in lieu thereof. Intrado, which provides services such as call routing and location information over an Internet protocol (IP)-based network, argues that “[a]uditing and tagging are concepts derived from the traditional 911 architecture of the [incumbent local exchange carriers (ILECs)], where the ILEC 911 service provider presumably controls the physical path of the circuit from the selective router to the serving wire center and knows whether it is diverse at any given moment.” Intrado's network, by contrast, “disperses critical functions into geographically diverse and redundant locations and uses dual paths and different network providers to transmit its Critical 911 Circuits.”

7. Intrado observes that the structure and numbering of section 12.4(c) can be interpreted to require that all Covered 911 Service Providers must audit and tag critical 911 circuits and audit network monitoring links, and may rely on alternative measures only with respect to eliminating single points of failure in those facilities. Read in isolation, certain statements in the 911 Reliability Order may also suggest that the option of certifying alternative measures applies only to remedial actions—i.e., how to cure an absence of complete physical diversity identified through audits and tagging. Intrado argues that this interpretation would appear inconsistent with section 12.4(b), which provides that if a Covered 911 Service Provider “cannot certify that it has performed a given element,” it may nevertheless satisfy the “reasonable measures” requirement through a certification of alternative measures.

8. Intrado argues that two issues may prevent it and other IP-based providers from being able to audit and certify the precise path of their circuits or equivalent data paths for 911 call traffic at any given time. First, “the underlying carriers could conflate their respective physical paths so that they are combined on one of their networks or on the network of a third-party carrier for one or more segments,” in which case “Intrado has no way of ensuring that the underlying provider informs Intrado if such conflation occurs.” Second, “a significant portion of Intrado's facilities rely on multiprotocol label switching (MPLS) technology, which does not permit the underlying provider—let alone Intrado—to track its circuit path at any given moment.”

9. Intrado cites the apparent conflict between sections 12.4(b) and 12.4(c) as a basis for requesting clarification of those rules such that “[p]roviders may take reasonable alternative measures to meet the Commission's standards in lieu of implementing any of the best practices adopted by the Order.” It adds that “[t]his would include confirming that Providers may take reasonable alternative measures instead of conducting Diversity Audits, tagging Critical 911 Circuits, or auditing Monitoring Links.” Intrado argues that “a narrow interpretation of the rules could require Providers to focus on form over substance and divert resources away from implementing innovative alternative measures that improve network reliability to focus on complying with a `one-size-fits-all' certification obligation.”

10. In response, the Commission received one comment and one reply comment, both in support of Intrado's position. Texas 911 Entities “support[s] the Commission . . . providing additional clarification or interpretation regarding the Order in the context of more modern 9-1-1 network designs,” including MPLS networks and situations “where the network provided by a subcontractor or commercial vendor may be one component of a larger governmental entity solution.” AT&T “fully supports the Intrado Petition as a broad request for clarification and reconsideration of the 911 Reliability Order and accompanying proposed rules” but argues that any relief should extend to “all Covered 911 Service Providers,” not just to IP-based providers similarly situated to Intrado.

11. We first clarify that the certification framework adopted in the 911 Reliability Order was intended to allow flexibility for all Covered 911 Service Providers to rely on reasonable alternative measures in lieu of any given element of the certification set forth in section 12.4(c). The overarching purpose of the certification, including the attestation of a responsible corporate officer, is to hold service providers accountable for decisions affecting 911 reliability. We agree with Intrado that “[t]he Commission did not intend the certification process to be prescriptive, but adopted a certification mechanism that provides Covered 911 Service Providers with flexibility and a means of demonstrating that they are taking reasonable measures to ensure the reliability of their 911 service.” Inflexible insistence on specified actions as part of each certification despite technical considerations that show those actions may not be appropriate in all cases would undermine this principle of flexibility without advancing the Commission's goal of improving 911 reliability.

12. Moreover, flexibility is essential to support and encourage the transition to NG911. In the 911 Reliability Order, the Commission stated that “we intend today's rules to apply to current 911 networks, as well as NG911 networks to the extent they provide functionally equivalent capabilities to PSAPs.” At that time, the Commission was “not persuaded that NG911 technologies have evolved to the point that reliability certification rules should apply to entities beyond those that offer core services functionally equivalent to current 911 and E911 capabilities” but it noted that it may “revisit this distinction in the future as technology evolves.” Accordingly, the 911 Reliability Order contemplated a review of the certification rules in five years, noting that such a review should “include consideration of whether [the rules] should be revised or expanded to cover new best practices or additional entities that provide NG911 capabilities, or in light of our understanding about how NG911 networks may differ from legacy 911 service.”

13. Events since the adoption of the 911 Reliability Order have underscored that the NG911 transition is well underway in many parts of the Nation.3 In recognition of this transition, the Commission intended its 911 reliability rules to be technology-neutral and made clear that functionally equivalent 911 capabilities should be treated consistently for purposes of the certification. We reaffirm that principle here. Accordingly, we do not intend to create disparate certification standards for IP-based providers, or to discourage the implementation of NG911 by imposing certification requirements that would not be appropriate for IP-based networks. Rather, we clarify that the certification framework adopted in the 911 Reliability Order allows flexibility for all Covered 911 Service Providers—legacy and IP-based—to certify reasonable alternative measures to mitigate the risk of failure in lieu of specified certification elements, and we amend our rules to eliminate any ambiguity on this point. In keeping with the Commission's statement in the 911 Reliability Order that reliability certification requirements should be “consistent with current best practices but also flexible enough to account for differences in 911 and NG911 networks,” we believe that our implementation of the certification should be guided by these same principles.

14. To be clear, this flexibility is limited by the substantive standard in Section 12.4(b) of requiring “reasonable measures” to provide reliable 911 service, and is not an invitation for any Covered 911 Service Provider to avoid certification obligations. As provided in the 911 Reliability Order, if a Covered 911 Service Provider certifies that it has taken alternative measures to mitigate the risk of failure, or that a certification element is not applicable to its network, its certification is subject to a more detailed Bureau review. If the Bureau's review indicates that a provider's alternative measures are not reasonably sufficient to ensure reliable 911 service, the Bureau should first engage with the provider and other interested stakeholders (e.g., affected PSAPs) to address any shortcomings. To the extent that such a collaborative process does not yield satisfactory results, the Bureau may order remedial action consistent with its delegated authority. We intend this process to allow flexibility to employ alternative—but reliable—network designs and technologies, not to create an exception that would swallow the rule.

15. We clarify that Covered 911 Service Providers responding to the circuit auditing portion of the certification under section 12.4(c)(1) may certify their implementation of reasonable alternative measures in lieu of auditing and tagging critical 911 circuits, provided that they include an explanation of such alternative measures and why they are reasonable under the circumstances. Accordingly, we amend section 12.4(c)(1)(ii) to make clear that this option applies to all of the elements of section 12.4(c)(1)(i) and not just subsection 12.4(c)(1)(i)(C).

16. The circuit auditing requirement adopted in the 911 Reliability Order was based upon a CSRIC best practice urging network operators to “periodically audit the physical and logical diversity called for by network design of their network segment(s) and take appropriate measures as needed.” As Intrado argues, however, appropriate measures to preserve physical and logical diversity may differ between circuit-switched time division multiplexing (TDM) and IP-based networks because IP-based routing and, in the event of an outage, re-routing can occur dynamically over many possible paths. Further, as the Texas 911 Entities observe, “the ability of an underlying MPLS technology provider to track its circuit paths at any given moment may not be technically feasible, or what the Commission intended in the context of that technology.” As discussed above, the certification process is intended to be flexible to account for these types of technical considerations and to allow for alternative measures where appropriate. Our assessment of whether such measures are reasonably sufficient to mitigate the risk of failure may be informed by, but not limited to, the question whether the measures specified in our rules are technically feasible.

17. As the Intrado Petition acknowledges, the option to certify alternative measures allows the Commission to “maintain oversight because Providers would still be required to disclose to the agency what steps were taken to accomplish these reliability goals.” Such information will help demonstrate whether the alternative measures chosen by the Covered 911 Service Provider constitute a reasonable approach for addressing the risks that the circuit auditing and tagging elements are designed to ameliorate. While technical infeasibility is not a prerequisite to the use of alternative measures, explanations of alternative measures with respect to circuit audits and tagging should nevertheless include an assessment of the technical feasibility of circuit audits and tagging in light of the respondent's network architecture. We also expect such explanations to describe affirmative steps in lieu of audits and tagging to mitigate the risk of a service disruption due to a lack of physical diversity; we will not consider it sufficient or reasonable to respond that no circuit diversity measures are necessary under the circumstances. Technology transitions have already resulted in a variety of hybrid 911 network architectures in which some functions are provided over legacy TDM circuits and others are provided over IP-based infrastructure. In such cases, our rules as revised will permit the provider to certify reasonable alternative measures with respect to either portion of the network.

18. The Intrado Petition also reflects a shift in 911 network architecture from facilities owned and operated by a single provider to a combination of network transport and data processing elements that may be provided by multiple entities. Intrado states that “in contrast to legacy ILEC providers that own and control the transport facilities over which 911 calls and data are transported, Intrado procures transport services for the delivery of 911 calls and for ALI/ANI from third party transport providers.” Our rules as revised in this Order on Reconsideration will account for such arrangements while preserving accountability for reliable service. The 911 Reliability Order briefly addressed auditing of critical 911 circuits leased from third parties, stating that “[i]n cases where a party provides 911 services directly to a PSAP (pursuant to contract or tariff) over leased facilities, the auditing obligation would apply to that party, and not to the facilities lessor.” The Commission also suggested that Covered 911 Service Providers could contract with facilities lessors, if necessary, to audit and tag leased circuits, but that the entity providing 911 service under a direct contractual relationship with each PSAP would remain responsible for certifying compliance with those requirements. We reaffirm those principles here, but clarify that Covered 911 Service Providers (i.e., the entities with direct contractual relationships with PSAPs) that rely on such contracts may implement and certify reasonable alternative measures as set forth above. We emphasize, however, that the contracting out of certain functions, or the determination of a PSAP to contract with more than one entity for various aspects of 911 service, does not absolve individual entities of their respective obligations for reliable 911 service. While respondents may certify reasonable alternative measures to mitigate the risk of failure due to insufficient physical diversity of leased circuits, we will not consider it reasonable or sufficient to indicate that such circuits are not a Covered 911 Service Provider's responsibility because they belong to a third party.

19. Where Covered 911 Service Providers are leasing or subcontracting for critical 911 circuits, the Commission's assessment of whether alternative measures in lieu of circuit audits or tagging are reasonable under the circumstances will be informed, in part, by certification responses identifying the parties involved, as well as details about the contractual provisions—or lack thereof—governing such relationships. For example, do IP-based Covered 911 Service Providers increase the diversity of their networks by dividing traffic among two different MPLS service providers? In cases where a PSAP depends on IP network access for its 911 services, Covered 911 Service Providers might also promote reliability of each PSAP's IP network access by ordering redundant access for the PSAP from multiple providers (such as ILEC, cable, and wireless providers). In addition, for cases where MPLS is used to provide 911 services, MPLS service level agreements, reliability objectives, and remedies specified for failure to meet such requirements and/or objectives may also ensure accountability for reliable service. We will expect Covered 911 Service Providers that provide critical 911 circuits to PSAPs in partnership with other service providers or that share responsibility for circuit diversity with another service provider to include a description of such arrangements and the identity of such third parties as part of their explanation of alternative measures. Descriptions of alternative measures may also include references to any services provided under contract where circuit diversity is not expressly defined, but is instead achieved through a service level agreement providing comparable assurances of resiliency. These and other affirmative steps, in lieu of circuit audits and tagging, may demonstrate reasonable measures to provide reliable service, depending on individual circumstances, while improving the Commission's situational awareness regarding NG911 deployment and resiliency. Explanations submitted through the annual certification process will have the added benefit of providing the Commission with up-to-date, empirical information about the transition to NG911 throughout the Nation.

20. Finally, and for the reasons discussed above, we clarify that Covered 911 Service Providers responding to the network monitoring portion of the certification under section 12.4(c)(3) may certify their implementation of reasonable alternative measures in lieu of conducting diversity audits of monitoring links and aggregation points for network monitoring data, provided that they include an explanation of such alternative measures and why they are reasonable under the circumstances. Accordingly, we amend the text of section 12.4(c)(3)(ii) to make clear that this option applies to all of the elements of section 12.4(c)(3)(i) and not just subsection 12.4(c)(3)(i)(C).

21. Intrado argues that “[b]ased on the text of the [911 Reliability Order], it appears that the Commission intended to permit Providers either to implement . . . best practices or take reasonable alternative measures with respect to . . . network monitoring elements, just as Providers may do for backup power.” We agree. As the Commission observed in the 911 Reliability Order, “it is a sound engineering practice to design network monitoring architectures with visibility into the network through physically diverse aggregation points and monitoring links interconnecting to [network operations centers (NOCs)] to help avoid single points of failure.” This requirement was based, however, on a CSRIC best practice recommending more generally that network operators “should monitor their network to enable quick response to network issues.” Intrado argues that “it would be exceedingly difficult and may not be possible in all cases” for an IP-based service provider to “audit its Monitoring Links as those functions are defined in the Commission's rules” without the option of certifying reasonable alternative measures. At least one other commenter in the 911 reliability proceeding indicated plans to route network monitoring traffic on a more resilient IP-enabled network, suggesting that many of the same technical limitations on circuit auditing discussed above with respect to critical 911 circuits may also extend to network monitoring facilities. We therefore amend our rules to clarify that the certification framework allows flexibility for Covered 911 Service Providers to implement and certify alternative measures, as long as they demonstrate that those alternative measures are reasonably sufficient under the circumstances to mitigate the risk of a network monitoring failure as set forth above.

22. This document contains a non-substantive and non-material modification of information collection requirements that were previously reviewed and approved by the Office of Management and Budget (OMB) under OMB Control No. 3060-1202. In addition, we note that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we previously sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees.

23. In this present document, we have assessed the effects of various requirements adopted in the 911 Reliability Order and clarified the effect of certain recordkeeping, retention, and reporting requirements for Covered 911 Service Providers. We find that these actions are in the public interest because they reduce the burdens of these recordkeeping, retention, and reporting requirements without undermining the goals and objectives behind the requirements. The amendments we adopt today will reduce the burden on businesses with fewer than 25 employees.

24. As required by the Regulatory Flexibility Act of 1980 (RFA), the Commission has prepared the following Supplemental Final Regulatory Flexibility Analysis (FRFA) relating to this Order on Reconsideration. As discussed in the initial FRFA in this proceeding, the Commission sought comment on alternatives for small entities including: (1) The establishment of different compliance and reporting requirements; (2) clarification, consolidation, or simplification of compliance or reporting requirements for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. As the Commission stated in the FRFA, “[w]hile we acknowledge that small or rural service providers may have limited resources or operate in remote areas, 911 is no less a critical public service in any part of the nation, and we decline to establish two tiers of 911 reliability based on economics or geography.” Accordingly, we intend our 911 reliability certification requirements—including the clarifications set forth in this Order on Reconsideration—to apply to all Covered 911 Service Providers without exceptions based on size or location, and we also decline to create a specific waiver procedure for entities to seek exemption from the rules.

25. That said, the Commission's certification approach to 911 reliability continues to “allow[ ] flexibility for small or rural providers to comply with our rules in the manner most appropriate for their networks, and certain requirements will, by their nature, only apply to larger providers.” In contrast to more prescriptive reliability requirements, the option to certify reasonable alternative measures in lieu of specified best practices minimizes regulatory burdens on small entities by recognizing a variety of acceptable approaches to providing reliable 911 service. If anything, the clarifications provided above offer additional flexibility to small entities by making clear that they may certify reasonable alternative measures in lieu of circuit audits and tagging depending on their individual circumstances and network architecture. Thus, the rules as clarified in this Order on Reconsideration continue to take into account the unique interests of small entities as required by the RFA.

26. The Commission will send a copy of this Order on Reconsideration to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

27. Accordingly, it is ordered, pursuant to sections 1, 4(i), 4(j), 4(o), 201(b), 214(d), 218, 251(e)(3), 301, 303(b), 303(g), 303(r), 307, 309(a), 316, 332, 403, 405, 615a-1, and 615c of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i)-(j) & (o), 201(b), 214(d), 218, 251(e)(3), 301, 303(b), 303(g), 303(r), 307, 309(a), 316, 332, 403, 405, 615a-1, and 615c, and sections 1.108 and 1.429 of the Commission's rules, 47 CFR 1.1, 1.429, that this Order on Reconsideration is adopted.

28. It is further ordered that Part 12 of the Commission's rules, 47 CFR part 12, is amended as set forth in the Appendix, and that such rule amendments shall be effective 30 days after publication in the Federal Register.

29. It is further ordered that the Motion for Clarification or, in the Alternative, Petition for Partial Reconsideration of Intrado, Inc., is granted to the extent described herein.

30. It is further ordered that the Commission shall send a copy of this Order on Reconsideration to Congress and to the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

31. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Order on Reconsideration, including the Supplemental Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 12 as follows:

I. Background

The revision to this rule is part of NASA's retrospective plan under Executive Order (EO) 13563 completed in August 2011. NASA published a proposed rule in the Federal Register at 80 FR 26519 on May 8, 2015, to amend the NASA FAR Supplement (NFS) to remove 1846.370, NASA contract clauses, and the related clause at 1852.246-70, Mission Critical Space System Personnel Reliability Program. Additionally, Subpart 1823.5, Drug-Free Workplace, and the associated clause at 1852.223-74, Drug- and Alcohol-Free Workforce are amended to make revisions related to the removal of the Mission Critical Space System Personnel Reliability Program and also to clarify and update the clause and its prescription. One respondent submitted public comments on the proposed rule.

NASA has reviewed the public comment submitted in the development of the final rule. A discussion of the comments and the changes made as a result of those comments is provided, as follows:

There is one minor change made in the final rule in response to the public comment received.

One respondent submitted five comments.

Comment: The respondent found the policy on the use of a controlled substance to be extremely limited and with additional monitoring requirements to ensure proper monitoring or assignment to a less critical position during the term of usage.

Response: The policy on the use of a controlled substance has not been changed in this rule. It permits the use of such substances when a doctor prescribes their use or for other uses authorized by law.

Comment: The respondent recommended referencing Appendix C, in addition to Appendices A and B of NASA Procedural Requirements (NPR) 3792.1, NASA's Plan for a Drug Free Workplace, for use as a guide for contractors to use when determining if an employee is in a sensitive position and subject to drug and alcohol testing. Appendix C of the Procedural Requirements provides the most detailed guidance, and should be included in the revised section. Additionally, the respondent stated that contractors should be required to follow the NPR and not use the NPR as guidance only.

Response: NASA agrees the policy should have referenced Appendix C, NASA Guidelines for Determining Testing Designated Positions (TDPs) Subject to Random Drug Testing, of NPR 3792.1. To avoid future errors when the NPR is updated resulting in changes to specific appendices, 1852.223-74 Drug- and alcohol-free workforce, paragraph (b)(2), is revised to generically reference the guidance on designating TDP contained in the NPR rather than referencing a specific appendix. While the guidance on designating TDP is helpful information for contractors, the NPR is a NASA-internal policy, which applies only to NASA civil servants. Therefore, contractors must make TDP determinations for their employees as part of complying with the requirements set forth in NFS 1852.223-17.

Comment: The respondent recommended that the list of substances tested for be updated a minimum of every six months or as necessary.

Response: The NASA drug testing program in this rule follows the “Mandatory Guidelines for Federal Workplace Drug Testing Programs” published by the Department of Health and Human Services, 73 FR 71858, and the procedures in 49 CFR part 40, “Procedures for Transportation Workplace Drug and Alcohol Testing Programs.” These regulations list which substances will be tested for. Changes to these regulations are outside the scope of this rule.

Comment: The respondent recommends a variety of changes to the post-accident drug testing requirements of the rule, including expanding it to when there is any injury or property damage over $500; requiring the contractor always submit post-accident drug test results and requiring identification of the individual tested to the Government. Additionally, the respondent recommends hair follicle testing in lieu of urine testing.

Response: NASA does not concur with these recommended changes. The requirements for post-accident drug testing in the rule were thoughtfully considered to balance the seriousness of the accident, the contributing factors, the privacy of individuals tested, and the burden to contractors in conducting drug tests. The method of testing, i.e., hair follicle versus urine, is determined by the Department of Health and Human Services and Department of Transportation regulations referenced previously.

Comment: The respondent recommends that the rule include a requirement for a drug-free workplace policy with the following components: A written policy, access to employee assistance, employee education, supervisor training, and drug testing.

Response: This rule sets forth NASA's contractor drug testing policy, based on Department of Health and Human Services and Department of Transportation regulations referenced previously. The other elements listed are required under the Federal Acquisition Regulation clause at 52.223-6, Drug-Free Workplace.

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 rule is not a significant regulatory action under section 6(b) of Executive Order 12866. This rule is not a major rule under 5 U.S.C. 804.

NASA has prepared a Final Regulatory Flexibility Analysis consistent with the Regulatory Flexibility Act (FRFA), 5 U.S.C. 601, et seq. The FRFA is summarized as follows:

This rule is necessary to amend the NASA FAR Supplement (NFS) to remove requirements related to the Mission Critical Space System Personnel Reliability Program, which was discontinued effective April 8, 2014. The NFS contained a clause at 1852.246-70, Mission Critical Space System Personnel Reliability Program, which implemented the requirements of the Program on NASA contracts involving critical positions designated in accordance with 14 CFR 1214.5, Mission Critical Space System Personnel Reliability Program. With the discontinuance of the Program, the clause is no longer necessary and is removed.

Removal of the NFS clause at 1852.246-70 necessitated changes to the prescription at NFS 1823.570-2, Contract clause and to the clause at 1852.223-74, Drug- and Alcohol-Free Workforce. The NFS clause at 1852.223-74 directed the inclusion of the Drug- and Alcohol-Free Workforce clause at 1852.223-74 in all solicitations and contracts containing the clause at 1852.246-70, Mission Critical Space Systems Personnel Reliability Program. Because NASA's contractor drug and alcohol testing requirements are based on the statutory requirements of the Civil Space Employee Testing Act of 1991, Public Law 102-195, sec. 21, 105 Stat. 1616 to 1619, the terms “mission critical space systems” and “mission critical positions/duties,” used in the Act, and previously used in the Program, were carried over to the drug and alcohol testing clause as a point of reference for defining contract personnel and contract functions which come under the civil space employee testing requirements. Other revisions to correct and clarify the requirements in 1852.223-74, Drug- and Alcohol-Free Workforce, include—

• Moving the guidance on the use of a controlled substance from the definition to a separate paragraph;

• Referencing NASA Procedural Requirements (NPR) 3792.1, NASA's Plan for a Drug Free Workplace, on “Testing Designated Positions” (TDPs) for federal employees, as a guide for contractors to use when designating “sensitive” positions;

• Updating outdated references to the Mandatory Guidelines for Federal Workplace Drug Testing Programs, published by the Department of Health and Human Services and Department of Transportation's procedures at 49 CFR part 40 and updating the list of drugs required to be tested in accordance with the Mandatory Guidelines for Federal Workplace Drug Testing Programs; and

• Clarifying that post-accident testing is required when the contractor determines the employee's actions are reasonably suspected of having caused or contributed to an accident resulting in death or personal injury requiring immediate hospitalization or damage to Government or private property estimated to exceed $20,000 and that the contracting officer may request the results of this post-accident testing.

The rule does not change the application of the clause at 1852.223-74, Drug- and Alcohol-Free Workforce. This proposed rule imposes no new reporting requirements.

This rule does not duplicate, overlap, or conflict with any other Federal rules. No alternatives were identified that would meet the objectives of the rule. Excluding small business concerns that may be subject to the rule would not be in the best interest of the small business concerns or the Government, because drug and alcohol testing of contractors performing functions related to mission critical space systems is statutorily mandated and is necessary in order to protect human life and the nation's civil space assets.

The final rule does not contain 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).

Accordingly, 48 CFR parts 1823, 1846, and 1852 are amended as follows:

The theft prevention standard (49 CFR part 541) applies to (1) all passenger car lines; (2) all multipurpose passenger vehicle (MPV) lines with a gross vehicle weight rating (GVWR) of 6,000 pounds or less; (3) low-theft light-duty truck (LDT) lines with a GVWR of 6,000 pounds or less that have major parts that are interchangeable with a majority of the covered major parts of passenger car or MPV lines; and (4) high-theft LDT lines with a GVWR of 6,000 pounds or less.

The purpose of the theft prevention standard is to reduce the incidence of motor vehicle theft by facilitating the tracing and recovery of parts from stolen vehicles. The standard seeks to facilitate such tracing by requiring that vehicle identification numbers (VINs), VIN derivative numbers, or other symbols be placed on major component vehicle parts. The theft prevention standard requires motor vehicle manufacturers to inscribe or affix VINs onto covered original equipment major component parts, and to inscribe or affix a symbol identifying the manufacturer and a common symbol identifying the replacement component parts for those original equipment parts, on all vehicle lines subject to the requirements of the standard.

Section 33104(d) provides that once a line has become subject to the theft prevention standard, the line remains subject to the requirements of the standard unless it is exempted under § 33106. Section 33106 provides that a manufacturer may petition annually to have one vehicle line exempted from the requirements of § 33104, if the line is equipped with an antitheft device meeting certain conditions as standard equipment. The exemption is granted if NHTSA determines that the antitheft device is likely to be as effective as compliance with the theft prevention standard in reducing and deterring motor vehicle thefts.

The agency annually publishes the names of those LDT lines that have been determined to be high theft pursuant to 49 CFR part 541, those LDT lines that have been determined to have major parts that are interchangeable with a majority of the covered major parts of passenger car or MPV lines and those vehicle lines that are exempted from the theft prevention standard under section 33104. Appendix A to Part 541 identifies those LDT lines that are or will be subject to the theft prevention standard beginning in a given model year. Appendix A-I to Part 541 identifies those vehicle lines that are or have been exempted from the theft prevention standard.

For MY 2016, there are no new LDT lines that will be subject to the theft prevention standard in accordance with the procedures published in 49 CFR part 542. Therefore, Appendix A does not need to be amended.

For MY 2016, the list of lines that have been exempted by the agency from the parts-marking requirements of Part 541 is amended to include ten vehicle lines newly exempted in full. The ten exempted vehicle lines are the BMW X1(MPV), Lincoln MKX, Chevrolet Spark, Honda CRV, Jaguar XF, Maserati Ghibli, Mazda CX-3, Mercedes-Benz smart Line Chassis, Toyota Sienna and the Audi TT.

When publishing the August 11, 2014 final rule (See 79 FR 46715), the agency erroneously omitted the Chrysler 200 vehicle line from the Appendix A-I listing of ten vehicles that were exempted from the parts marking requirements for MY 2015. This notice corrects that error.

We note that the agency also removes from the list being published in the Federal Register each year certain vehicles lines that have been discontinued more than 5 years ago. Therefore, the agency is removing the Chevrolet Cobalt, Mercury Sable, Taurus X, Pontiac G6, Saturn Aura, Kia Amanti, Lexus SC and the Suzuki XL-7 vehicle lines from the Appendix A-I listing. The agency will continue to maintain a comprehensive database of all exemptions on our Web site. However, we believe that re-publishing a list containing vehicle lines that have not been in production for a considerable period of time is unnecessary.

The vehicle lines listed as being exempt from the standard have previously been exempted in accordance with the procedures of 49 CFR part 543 and 49 U.S.C., 33106. Therefore, NHTSA finds for good cause that notice and opportunity for comment on these listings are unnecessary. Further, public comment on the listing of selections and exemptions is not contemplated by 49 U.S.C. Chapter 331. For the same reasons, since this revised listing only informs the public of previous agency actions and does not impose additional obligations on any party, NHTSA finds for good cause that the amendment made by this notice should be effective as soon as it is published in the Federal Register.

A. Executive Order 12866, Executive Order 13563 and the Department of Transportation's regulatory policies provide for making determinations on whether a regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and to the requirements of the Executive Orders. The Order defines a “significant regulatory action” as one that is likely to result in a rule that may:

(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 the Executive Order.

This final rule was not reviewed under Executive Order 12866. It is not significant within the meaning of the DOT Regulatory Policies and Procedures. It will not impose any new burdens on vehicle manufacturers. This document informs the public of previously granted exemptions. Since the only purpose of this final rule is to inform the public of previous actions taken by the agency no new costs or burdens will result.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) requires agencies to evaluate the potential effects of their rules on small businesses, small organizations and small governmental jurisdictions. I have considered the effects of this rulemaking action under the Regulatory Flexibility Act and certify that it would not have a significant economic impact on a substantial number of small entities. As noted above, the effect of this final rule is only to inform the public of agency's previous actions.

NHTSA has analyzed this final rule for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this action will not have any significant impact on the quality of the human environment as it merely informs the public about previous agency actions. Accordingly, no environmental assessment is required.

The agency has analyzed this rulemaking in accordance with the principles and criteria contained in Executive Order 13132 and has determined that it does not have sufficient federal implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. As discussed above, this final rule only provides better information to the public about previous agency actions.

The Unfunded Mandates Reform Act of 1995 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 more than $100 million annually ($120.7 million as adjusted annually for inflation with base year of 1995). The assessment may be combined with other assessments, as it is here.

This final rule will not result in expenditures by State, local or tribal governments or automobile manufacturers and/or their suppliers of more than $120.7 million annually. This document informs the public of previously granted exemptions. Since the only purpose of this final rule is to inform the public of previous actions taken by the agency, no new costs or burdens will result.

Pursuant to Executive Order 12988, “Civil Justice Reform,” 1 the agency has considered whether this final rule has any retroactive effect. We conclude that it would not have such an effect as it only informs the public of previous agency actions. In accordance with section 33118 when the Theft Prevention Standard is in effect, a State or political subdivision of a State may not have a different motor vehicle theft prevention standard for a motor vehicle or major replacement part. 49 U.S.C. 33117 provides that judicial review of this rule may be obtained pursuant to 49 U.S.C. 32909. Section 32909 does not require submission of a petition for reconsideration or other administrative proceedings before parties may file suit in court.

The Department of Transportation has not submitted an information collection request to OMB for review and clearance under the Paperwork reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35). This rule does not impose any new information collection requirements on manufacturers.

In consideration of the foregoing, 49 CFR part 541 is amended as follows:

Background

On July 15, 2013, we received a petition from WildEarth Guardians to list 81 marine species as threatened or endangered under the Endangered Species Act (ESA). We found that the petitioned actions may be warranted for 27 of the 81 species and announced the initiation of status reviews for each of the 27 species (78 FR 63941, October 25, 2013; 78 FR 66675, November 6, 2013; 78 FR 69376, November 19, 2013; 79 FR 9880, February 21, 2014; and 79 FR 10104, February 24, 2014). On December 16, 2014, we published a proposed rule to list the dusky sea snake (Aipysurus fuscus) and three foreign corals (Cantharellus noumeae, Siderastrea glynni, and Tubastraea floreana) as endangered species, and we proposed to list the Banggai cardinalfish (Pterapogon kauderni) and Harrisson's dogfish (Centrophorus harrissoni) as threatened species (79 FR 74953). We requested public comment on information in the status reviews and proposed rule, and the comment period was open through February 17, 2015. This final rule provides a discussion of the information we received during the public comment period and our final determination on the petition to list the three foreign corals (Cantharellus noumeae, Siderastrea glynni, and Tubastraea floreana) and the dusky sea snake (Aipysurus fuscus) under the ESA. Our final determinations for the other species proposed for listing in the December 16, 2014, proposed rule (79 FR 74953; Banggai cardinalfish (Pterapogon kauderni) and Harrisson's dogfish (Centrophorus harrissoni)) will be made in a subsequent rule. The status of the findings and relevant Federal Register notices for those and the other 21 species can be found on our Web site at http://www.nmfs.noaa.gov/pr/species/petition81.htm.

We are responsible for determining whether species are threatened or endangered under the ESA (16 U.S.C. 1531 et seq.). To make this determination, we consider first whether a group of organisms constitutes a “species” under the ESA, then whether the status of the species qualifies it for listing as either threatened or endangered. Section 3 of the ESA defines a “species” to include “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.”

Section 3 of the ESA defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range” and a threatened species as one “which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” We interpret an “endangered species” to be one that is presently in danger of extinction. A “threatened species,” on the other hand, is not presently in danger of extinction, but is likely to become so in the foreseeable future (that is, at a later time). In other words, the primary statutory difference between a threatened and endangered species is the timing of when a species may be in danger of extinction, either presently (endangered) or in the foreseeable future (threatened).

Section 4(a)(1) of the ESA requires us to determine whether any species is endangered or threatened due to any one or a combination of the following five threat factors: The present or threatened destruction, modification, or curtailment of its habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms; or other natural or manmade factors affecting its continued existence. We are also required to make listing determinations based solely on the best scientific and commercial data available, after conducting a review of the species' status and after taking into account efforts being made by any state or foreign nation to protect the species.

In making a listing determination, we first determine whether a petitioned species meets the ESA definition of a “species.” Next, using the best available information gathered during the status review for the species, we complete a status and extinction risk assessment. In assessing extinction risk for these four species, we considered the demographic viability factors developed by McElhany et al. (2000) and the risk matrix approach developed by Wainwright and Kope (1999) to organize and summarize extinction risk considerations. The approach of considering demographic risk factors to help frame the consideration of extinction risk has been used in many of our status reviews, including for Pacific salmonids, Pacific hake, walleye pollock, Pacific cod, Puget Sound rockfishes, Pacific herring, scalloped hammerhead sharks, and black abalone (see http://www.nmfs.noaa.gov/pr/species/ for links to these reviews). In this approach, the collective condition of individual populations is considered at the species level according to four demographic viability factors: Abundance, growth rate/productivity, spatial structure/connectivity, and diversity. These viability factors reflect concepts that are well-founded in conservation biology and that individually and collectively provide strong indicators of extinction risk.

We then assess efforts being made to protect the species, to determine if these conservation efforts are adequate to mitigate the existing threats. Section 4(b)(1)(A) of the ESA requires the Secretary, when making a listing determination for a species, to take into consideration those efforts, if any, being made by any State or foreign nation to protect the species.

In response to our request for comments on the proposed rule, we received three comments on the three foreign corals, and the Australian Government Department of the Environment submitted a letter neither supporting nor opposing our proposed listing of the dusky sea snake. The letter stated that the dusky sea snake is listed under Australia's Environment Protection and Biodiversity Conservation Act, and thus it is currently illegal to kill, injure, take or trade dusky sea snakes. Because this information was acknowledged and considered in our status review, this information did not affect the proposal to list the species as endangered under the ESA. Three parties commented on the three corals.

Comment 1: One commenter suggested active outside involvement in the recovery of the species, including partnerships with reef aquarists.

Response: We agree with the commenter that partnerships enhance recovery of listed species and that reef aquarists are a potential partner. We will look for opportunities to partner with parties interested in the recovery of these species.

Comment 2: One commenter focused on the threat of carbon dioxide emissions and climate change. They claimed we, and the Departments of Commerce and Interior, should develop a National Climate Recovery Plan to protect a wide variety of resources and that we should define adverse modification under section 7 of the ESA for these proposed species. This commenter also requested we designate critical habitat for these species and suggested we alter our conclusion to say with certainty that each of the three coral species is definitively threatened by climate change, ocean warming, and sea level rise, and alter our discussion of regulatory mechanisms and the effects of listing as a result.

Response: We note that action to develop a National Climate Recovery Plan is not part of the determination for listing that is the subject of this action and thus cannot be considered further here. As we noted in the proposed rule, we cannot designate critical habitat for these species, as their range is entirely outside U.S. jurisdiction and we have no evidence that unoccupied areas within our jurisdiction are necessary for the conservation of any of the species. Because we cannot designate critical habitat for these species, we have no reason to define adverse modification of critical habitat under Section 7 of the ESA for these corals. The commenter provided no species-specific information on climate change-related threats, so we cannot change our conclusion that habitat modification resulting from climate change is a potential threat to all three species of coral. Similarly, based on the same lack of new species-specific information, we cannot change our discussion of the adequacy of regulatory mechanisms to address these threats or the likely effects of listing.

Comment 3: A researcher provided information on studies of the symbiotic Symbodinium algae residing in five specimens of Siderastrea glynni. This researcher claims to have identified two symbiont species in S. glynni, Symbodinium goreauii and Symbodinium trenchii. The researcher believes there is evidence that the Symbodinium trenchii occurring in S. glynni is of Caribbean origin and suggests this provides evidence that S. glynni is from an introduction of Siderastrea siderea to the eastern Pacific and is not some kind of separate rare endemic species.

Response: We understand that Symbodinium trenchii and Symbodinium goreauii also occur in other regions of the Pacific as symbionts with other coral species. We are also aware that the strain of Symbodinium trenchii occurring in S. glynni also occurs in Caribbean corals, including species of Siderastrea (Pettay et al., 2015). According to Guzman (personal communication (the person who described S. glynni)), the research for the original description of S. glynni found that the species was more closely related to a fossil species from Baja California, Mexico than to the Caribbean S. siderea. If S. glynni has a long history in the eastern Pacific as some of the data suggest (Forsman et al., 2005), it could have been the source of, or another host for, the strain of Symbodinium trenchii that recently entered the Caribbean Sea. Alternatively, a Caribbean Siderastrea siderea could have recently invaded the eastern Pacific through the Panama Canal after the evolution of the Caribbean strain of Symbodinium trenchii. Under this scenario then, S. glynni would not be a unique species (Forsman et al., 2005). The direction and timing of movement of the strain of Symbodinium trenchii that occurs in S. glynni across the Isthmus of Panama between the Caribbean Sea and the eastern Pacific Ocean is thus uncertain, and the data on these symbionts may not be adequate to definitely distinguish among the competing hypotheses for the origin and taxonomy of S. glynni. Guzman (personal communication) is skeptical that the symbiont data provided by the commenter provides definitive evidence regarding the taxonomic status of the species. We agree, and thus decline to alter the existing published taxonomy of the species.

Status reviews for the petitioned species addressed in this finding were conducted by NMFS staff. Separate draft status reviews were completed for dusky sea snake (Manning, 2014), and the three foreign corals (Meadows, 2014). In order to complete the status reviews, we compiled information on the species' biology, ecology, life history, threats, and conservation status from information contained in the petition, our files, a comprehensive literature search, and consultation with experts. We also considered information submitted by the public and peer reviewers. Prior to publication of the proposed rule, all status reviews were subjected to peer review. Peer reviewer comments are available at http://www.cio.noaa.gov/services_programs/prplans/PRsummaries.html.

The status review reports provide a thorough discussion of life history, demographic risks, and threats to the particular species. We considered all identified threats, both individually and cumulatively, to determine whether the species responds in a way that causes actual impacts at the species level. The collective condition of individual populations was also considered at the species level, according to the four demographic viability factors discussed above.

The proposed rule (79 FR 74953, December 16, 2014) summarizes general background information on the species' natural history, range, reproduction, population structure, distribution and abundance; none of which has changed since the proposed rule. All of that information is incorporated herein by reference.

Based on the best available scientific and commercial information described above and in the status review reports, we have determined that the dusky sea snake (Aipysurus fuscus) and the three foreign corals (Cantharellus noumeae, Siderastrea glynni, and Tubastraea floreana) are taxonomically-distinct species and therefore meet the definition of “species” pursuant to section 3 of the ESA and are eligible for listing under the ESA.

Next we consider whether any one or a combination of the five threat factors specified in section 4(a)(1) of the ESA contribute to the extinction risk of these species. None of the information we received from public comment on the proposed rule affected any of our discussion or conclusions regarding any of the section 4(a)(1) factors or their interactions for these species, so we incorporate the discussion of these factors from the proposed rule (79 FR 74953, December 16, 2014) by reference herein.

None of the information we received from public comment on the proposed rule affected our extinction risk evaluations of these four species. As such, our evaluations for these species remain the same as in the status review reports and the discussion in the proposed rule (79 FR 74953, December 16, 2014), and that discussion is incorporated herein by reference.

Finally, we considered conservation efforts to protect each species and evaluated whether these conservation efforts are adequate to mitigate the existing threats to the point where extinction risk is significantly lowered and the species' status is improved. None of the information we received from public comment on the proposed rule affected any of our discussion or conclusions regarding conservation efforts to protect the dusky sea snake or the three foreign coral species, so we incorporate the discussion of these efforts from the proposed rule (79 FR 74953, December 16, 2014) by reference herein.

We have reviewed the best available scientific and commercial information, including the petition, the information in the status review reports, public comment, and the comments of peer reviewers. Based on the best available information, we find that the dusky sea snake (Aipysurus fuscus) and the three foreign corals (Cantharellus noumeae, Siderastrea glynni, and Tubastraea floreana) are in danger of extinction throughout all of their ranges. We assessed the ESA section 4(a)(1) factors and demographic risk factors and conclude that the dusky sea snake is at very low and declining abundance, has a very restricted range and a presumed low rate of dispersal, and is experiencing high rates of hybridization throughout its range. We also conclude that Cantharellus noumeae has a small, restricted range, likely low growth rate and genetic diversity, and may be threatened by development, water pollution, sedimentation, heavy metals, and potential illegal activities. Siderastrea glynni is affected by the lack of known populations in the wild, a small captive population in a single location, likely low growth rates and genetic diversity, and potential increased threats from El Niño, climate change, disease, habitat degradation and other development (should the species be reintroduced to Panama). Tubastraea floreana is affected by a small, restricted range, documented declines, likely low levels of genetic diversity, and threats from El Niño, climate change, development, and illegal activities. After considering efforts being made to protect each of these species, we could not conclude that the existing or proposed conservation efforts would alter the extinction risk for any of these species. Therefore, we are listing each of these species as endangered.

Conservation measures provided for species listed as endangered or threatened under the ESA include recovery actions (16 U.S.C. 1533(f)); Federal agency requirements to consult with NMFS under section 7 of the ESA to ensure their actions do not jeopardize the species or result in adverse modification or destruction of critical habitat should it be designated (16 U.S.C. 1536); designation of critical habitat if prudent and determinable (16 U.S.C. 1533(a)(3)(A)); and prohibitions on taking (16 U.S.C. 1538). In addition, recognition of the species' plight through listing promotes conservation actions by Federal and state agencies, foreign entities, private groups, and individuals. Because the ranges of these four species are entirely outside U.S. jurisdiction, the main effects of these endangered listings are prohibitions on export and import.

Section 7(a)(2) (16 U.S.C. 1536(a)(2)) of the ESA and NMFS/USFWS regulations require Federal agencies to consult with us to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of listed species or destroy or adversely modify critical habitat. It is unlikely that the listing of these species under the ESA will increase the number of section 7 consultations, because these species occur entirely outside of the United States and are unlikely to be affected by Federal actions.

Critical habitat is defined in section 3 of the ESA (16 U.S.C. 1532(5)) as: (1) The specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the ESA, on which are found those physical or biological features (a) essential to the conservation of the species and (b) that may require special management considerations or protection; and (2) specific areas outside the geographical 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. Section 4(a)(3)(A) of the ESA (16 U.S.C. 1533(a)(3)(A)) requires that, to the extent prudent and determinable, critical habitat be designated concurrently with the listing of a species. However, critical habitat shall not be designated in foreign countries or other areas outside U.S. jurisdiction (50 CFR 424.12(h)).

The best available scientific and commercial data as discussed above identify the geographical areas occupied by Aipysurus fuscus, Cantharellus noumeae, Siderastrea glynni, and Tubastraea floreana as being entirely outside U.S. jurisdiction, so we cannot designate occupied critical habitat for these species. We can designate critical habitat in areas in the United States currently unoccupied by the species, if the area(s) are determined by the Secretary to be essential for the conservation of the species. Based on the best available information, we have not identified unoccupied area(s) in U.S. water that are currently essential to the conservation of any of these four species. Therefore, based on the available information, we do not designate critical habitat for Aipysurus fuscus, Cantharellus noumeae, Siderastrea glynni, or Tubastraea floreana.

On July 1, 1994, NMFS and FWS published a policy (59 FR 34272) that requires us to identify, to the maximum extent practicable at the time a species is listed, those activities that would or would not likely constitute a violation of section 9 of the ESA. Because we are listing the dusky sea snake and the three foreign corals as endangered, all of the prohibitions of section 9(a)(1) of the ESA will apply to these species. These include prohibitions against the import, export, use in foreign commerce, or “take” of the species. These prohibitions apply to all persons subject to the jurisdiction of the United States, including in the United States, its territorial sea, or on the high seas. Take is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” The intent of this policy is to increase public awareness of the effects of this listing on proposed and ongoing activities within the species' ranges. Activities that we believe could (subject to the exemptions set forth in 16 U.S.C. 1539) result in a violation of section 9 prohibitions for these species include, but are not limited to, the following:

(1) Possessing, delivering, transporting, or shipping any individual or part (dead or alive) taken in violation of section 9(a)(1);

(2) Delivering, receiving, carrying, transporting, or shipping in interstate or foreign commerce any individual or part, in the course of a commercial activity;

(3) Selling or offering for sale in interstate or foreign commerce any individual or part;

(4) Importing or exporting any individual or part;

(5) Releasing captive animals into the wild without a permit issued under section 10(a)(1)(A). Although animals held non-commercially in captivity at the time of listing are exempt from the prohibitions of import and export, the individual animals are considered listed and afforded most of the protections of the ESA, including most importantly, the prohibition against injuring or killing. Release of a captive animal has the potential to injure or kill the animal. Of an even greater conservation concern, the release of a captive animal has the potential to affect wild populations through introduction of diseases or inappropriate genetic mixing; and

(6) Harming captive animals by, among other things, injuring or killing a captive animal, through experimental or potentially injurious care or conducting research or sexual breeding activities on captive animals, outside the bounds of normal animal husbandry practices. Captive sexual breeding of corals is considered potentially injurious. Furthermore, the production of coral progeny has conservation implications (both positive and negative) for wild populations. Experimental or potentially injurious care or procedures and research or sexual breeding activities of corals or dusky sea snake may, depending on the circumstances, be authorized under an ESA section 10(a)(1)(A) permit for scientific research or the enhancement of the propagation or survival of the species.

Although the determination of whether any given activity constitutes a violation is fact dependent, we consider the following actions, depending on the circumstances, as being unlikely to violate the prohibitions in ESA section 9:

(1) Take authorized by, and carried out in accordance with the terms and conditions of, an ESA section 10(a)(1)(A) permit issued by NMFS for purposes of scientific research or the enhancement of the propagation or survival of the species;

(2) Continued possession of parts that were in possession at the time of listing. Such parts may be non-commercially exported or imported; however the importer or exporter must be able to provide evidence to show that the parts meet the criteria of ESA section 9(b)(1) (i.e., held in a controlled environment at the time of listing, in a non-commercial activity);

(3) Continued possession of live corals or dusky sea snakes that were in captivity or in a controlled environment (e.g., in aquaria) at the time of this listing, so long as the prohibitions under ESA section 9(a)(1) are not violated. Facilities must provide evidence that the animals were in captivity or in a controlled environment prior to listing. We suggest such facilities submit information to us on the animals in their possession (e.g., size, age, description of animals, and the source and date of acquisition) to establish their claim of possession (see For Further Information Contact); and

(4) Provision of care for live corals or dusky sea snakes that were in captivity at the time of listing. These individuals are still protected under the ESA and may not be killed or injured, or otherwise harmed, and, therefore, must receive proper care. Normal care of captive animals necessarily entails handling or other manipulation of the animals, and we do not consider such activities to constitute take or harassment of the animals so long as adequate care, including veterinary care, when such practices, procedures, or provisions are not likely to result in injury, is provided.

Section 11(f) of the ESA gives NMFS authority to promulgate regulations that may be appropriate to enforce the ESA. NMFS may promulgate future regulations, including to regulate holding of these species, if necessary. NMFS will provide the public with the opportunity to comment on future proposed regulations.

We revise and add table subheadings in the Code of Federal Regulations to accommodate these new listings in our list of endangered species at 50 CFR 224.101 and revisions to the table subheadings for our list of threatened species at 50 CFR 223.102. We add the subheading “Corals” to our table at 50 CFR 224.101. This subheading has already been added to our table at 50 CFR 223.102 in a previous rulemaking (79 FR 20802; April 14, 2014). We are revising the subheading of “Sea Turtles” in the endangered species table at 50 CFR 224.101 and the threatened species table at 50 CFR 223.102 by changing the subheading to “Reptiles.” This new subheading will encompass all currently listed sea turtles as well as other marine reptiles like the dusky sea snake. These revisions and addition are not substantive changes, but having these headings will help the public identify and locate species of interest in a more efficient manner.

A complete list of the references used in this final rule is available upon request (see ADDRESSES).

The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the information that may be considered when assessing species for listing. Based on this limitation of criteria for a listing decision and the opinion in Pacific Legal Foundation v. Andrus, 675 F. 2d 825 (6th Cir. 1981), NMFS has concluded that ESA listing actions are not subject to the environmental assessment requirements of the National Environmental Policy Act (NEPA) (See NOAA Administrative Order 216-6).

As noted in the Conference Report on the 1982 amendments to the ESA, economic impacts cannot be considered when assessing the status of a species. Therefore, the economic analysis requirements of the Regulatory Flexibility Act are not applicable to the listing process. In addition, this final rule is exempt from review under Executive Order 12866. This final rule does not contain a collection-of-information requirement for the purposes of the Paperwork Reduction Act.

In accordance with E.O. 13132, we determined that this final rule does not have significant Federalism effects and that a Federalism assessment is not required.

For the reasons set out in the preamble, 50 CFR parts 223 and 224 are amended as follows:

On July 17, 2015, NMFS published a final rule in the Federal Register (80 FR 42423) to implement provisions for Amendment 8, that expands portions of the northern and western boundaries of the Oculina Bank HAPC and allows transit through the Oculina Bank HAPC by fishing vessels with rock shrimp onboard; modifies vessel monitoring systems (VMS) requirements for rock shrimp fishermen transiting through the Oculina Bank HAPC; expands a portion of the western boundary of the Stetson Reefs, Savannah and East Florida Lithotherms, and Miami Terrace Deepwater Coral HAPC (Stetson-Miami Terrace CHAPC), including modifications to shrimp access area 1; and expands a portion of the northern boundary of the Cape Lookout CHAPC. The purpose of the final rule is to increase protection for deepwater coral based on new information for deepwater coral resources in the South Atlantic. The final rule was effective August 17, 2015.

The regulatory text in the Amendment 8 final rule in § 622.224(b)(1) contains three waypoints that were incorrectly listed for describing the Oculina Bank HAPC. These waypoints were correctly identified in Amendment 8 but were incorrectly converted to the coordinate format used for the proposed and final rules for Amendment 8. The incorrect waypoints are the origin point and points 7 and 8 for the Oculina Bank HAPC.

Additionally, the proposed and final rules for Amendment 8 incorrectly described the gear stowage provisions for vessels transiting the Oculina Bank HAPC with rock shrimp onboard. The regulatory text in the Amendment 8 final rule in § 622.224(b)(1)(i)(C) states that appropriate stowage for shrimp trawl fishing gear includes the trawl doors and nets being out of the water and onboard the vessel deck or below deck. However, as described in the Amendment 8, the correct gear stowage for the trawl doors and nets is to have the doors and nets out of the water. Requiring the trawl doors and nets to be on deck was contrary to the intent of the South Atlantic Fishery Management Council (Council) and not consistent with Amendment 8.

This notification corrects the table in § 622.224(b)(1) with the correct coordinates and corrects the gear stowage language in § 622.224(b)(1)(i)(C) by incorporating the necessary language from Amendment 8 back into the regulations.

As published, the final rule for Amendment 8, published on July 17, 2015 (80 FR 42423), incorrectly listed three waypoints for the Oculina Bank HAPC and incorrectly described gear stowage language for vessels transiting the area. Coordinates are added to § 622.224(b)(1) and language is revised in § 622.224(b)(1)(i)(C) to correct these errors.

The Regional Administrator, Southeast Region, NMFS has determined that this correcting amendment is necessary for the conservation and management of South Atlantic coral resources and is consistent with Amendment 8, the FMP, the Magnuson-Stevens Fishery Conservation and Management Act, and other applicable law.

This correcting amendment has been determined to be not significant under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator for Fisheries, NOAA, finds good cause to waive prior notice and opportunity for additional public comment for this action because it would be impracticable and contrary to the public interest. This correcting amendment corrects the positions for the Oculina Bank HAPC and the associated gear stowage provisions that were incorrectly described in the final rule. Providing prior notice and opportunity for public comment is contrary to the public interest because not correcting the waypoints will cause confusion among the affected fishers and will not properly protect the Oculina Bank HAPC. With regard to the gear stowage requirements, not correcting these regulations will require fishers to comply with gear stowage methods that are not those recommended by the Council. The Council developed the gear stowage requirements in coordination with the affected fishers and these stowage requirements represent a safer approach for these fishers given the offshore conditions they may encounter. It would be impracticable to subject this action to notice and comment because the provisions of Amendment 8 are currently in effect and any delay in implementation of this rule would further any confusion that exists on the location of the waypoints and the gear stowage requirements.

For the same reasons, the Assistant Administrator also finds good cause, pursuant to 5 U.S.C. 553(d), to waive the 30-day delay in effective date for this correcting amendment. If this rule is not implemented immediately, it would cause confusion among the affected fishers of the location of the waypoints for Oculina Bank HAPC, would result in inadequate protection of the Oculina Bank HAPC, and require fishers to comply with gear stowage methods that were not recommended by the Council.

Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are inapplicable. Accordingly, no Regulatory Flexibility Analysis is required and none has been prepared.

Accordingly, 50 CFR part 622 is corrected by making the following correcting amendments:

Atlantic HMS are managed under the dual authority of the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq., (Magnuson-Stevens Act) and the Atlantic Tunas Convention Act, 16 U.S.C. 971 et seq., (ATCA). The authority to issue regulations under the Magnuson-Stevens Act and ATCA has been delegated from the Secretary of Commerce to the NOAA Assistant Administrator for Fisheries (AA). On May 28, 1999, NMFS published in the Federal Register (64 FR 29090) regulations implementing the Fishery Management Plan (FMP) for Atlantic Tunas, Swordfish, and Sharks (1999 FMP). On October 2, 2006, NMFS published in the Federal Register (71 FR 58058) regulations implementing the 2006 Consolidated HMS FMP, which details the management measures for Atlantic HMS fisheries. The implementing regulations for Atlantic HMS are at 50 CFR part 635.

The regulations at 50 CFR part 635 contain cross-references to several restricted fishing areas described in 50 CFR part 622. The cross-references in 50 CFR part 635 ensure consistency with the regulations at 50 CFR part 622 to protect certain reef species and/or habitat managed by the Caribbean and Gulf of Mexico Fishery Management Councils. With the reorganization of the 50 CFR part 635 regulations due to the final rule for Amendment 7 to the 2006 Consolidated HMS FMP (79 FR 71509, December 2, 2014), the cross-references to the Tortugas marine reserve habitat area of particular concern (HAPC), the Mutton snapper spawning aggregation area (SAA), the Red hind SAA, and the Grammanik Bank closed areas were mistakenly overwritten. This technical amendment corrects the cross-references in the HMS regulations.

A longstanding statutory limit on the length of gillnet gear (see 16 U.S.C. 1857(1)(M)) was erroneously removed from the regulations in 2012. This technical amendment re-inserts the language to the regulations to ensure consistency with the statutory requirements.

The regulatory end date of the Spring Gulf of Mexico gear restricted areas in § 635.21(c)(2)(vi) was mistakenly written as “May 30” when it should be on the last day of the month, “May 31.” This technical amendment changes the date to be consistent with the original analyses, outreach, and supporting documents of this regulation and to meet management goals appropriately. As the correct date was analyzed as part of the preferred alternative in the Final Environmental Impact Statement for Amendment 7 to the 2006 Consolidated HMS FMP, this modification to the regulations should not be unexpected and will not have any impacts beyond those already considered.

Currently, the regulations in § 635.21(a)(3)(i) cross-reference § 622.34(a)(3) only. This final action corrects the cross-reference by adding a cross-reference to § 622.74(c), which is missing, in order to properly include and specify the boundaries of the “Tortugas marine reserve HAPC.”

Currently, the regulatory end date of the Spring Gulf of Mexico gear restricted areas in § 635.21(c)(2)(vi) is written as “May 30.” This final rule corrects the date and changes it to “May 31.”

Currently, the regulations at § 635.21(d)(1)(ii) contain a cross-reference to areas designated at § 622.33(a)(1) through (3) to indicate the Mutton snapper spawning aggregation area (SAA), the Red hind SAA, and the Grammanik Bank closed area. This final action corrects the cross-reference in § 635.21(d)(1)(ii) by changing it from § 622.33(a)(1) through (3) to § 622.435(a)(2)(i) through (iii).

Currently, the regulations at § 635.21(g) do not contain the statutorily-required regulatory limits on the length of gillnet for persons fishing for sharks. This final rule inserts the language that was removed regarding the length restriction of gillnets into the regulations at § 635.21(g)(4) into the regulations.

The AA has determined that this final rule is necessary for the conservation and management of U.S. fisheries and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act, the 2006 Consolidated Atlantic HMS FMP and its amendments, and ATCA.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment are unnecessary and contrary to the public interest. This final rule adds only corrective, non-substantive changes to correct cross-references, re-inserts language, and corrects dates to HMS regulations and is solely administrative in nature. These changes should not be unexpected. None of these changes will have a substantive impact beyond those already considered in previous supporting documents. There is also good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date. The basis for this waiver is that it not a substantive rule but, rather, corrects cross-references, re-inserts regulatory language, and corrects a mistaken date in HMS regulations. Furthermore, failure to implement this rule immediately would cause continued confusion among the regulated community.

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

Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are inapplicable.

NMFS has determined that fishing activities conducted pursuant to this rule will not affect endangered and/or threatened species or critical habitat listed under the Endangered Species Act, or marine mammals protected by the Marine Mammal Protection Act because the action will not result in any change or increase in fishing activity, and is solely administrative in nature.

For the reasons set out in the preamble, 50 CFR part 635 is amended as follows:

Background

The Scallop State Waters Exemption Program specifies that a state with a scallop fishery may be eligible for state waters exemptions if it has a scallop conservation program that does not jeopardize the biomass and fishing mortality and effort limit objectives of the Scallop FMP. Under the Program, if NMFS determines that a state is eligible, federally permitted scallop vessels fishing in state waters may be exempted from specific Federal scallop regulations. One of these exemptions enables some scallop vessels to continue to fish in state waters within the Northern Gulf of Maine (NGOM) management area once the Federal NGOM total allowable catch (TAC) is reached. Any state interested in applying for this exemption must identify the scallop-permitted vessels that would be subject to the exemption (i.e., limited access, limited access general category (LAGC) individual fishing quota, LAGC incidental, or LAGC NGOM). No vessel is permitted to fish for scallops in the Federal portion of the NGOM once the TAC is harvested. We provided a broader description of the Scallop State Waters Exemption Program in the preamble of the proposed rule (80 FR 46531; August 5, 2015) for this action and are not repeating that information here.

NMFS received a request from Maine to expand its current exemptions to allow federally NGOM-permitted vessels with Maine state-waters permits to fish in the Maine state-waters portion of the NGOM management area once we project the Federal NGOM TAC to be fully harvested. This provision allows those vessels to continue to fish in state waters along with state permitted vessels that do not have Federal permits. Although the 70,000-lb (31,751-kg) NGOM Federal TAC has never been exceeded since the NGOM management area was created in 2008, there is now a higher potential that the TAC will be reached because scallop effort has increased in the NGOM in recent years as the stock has improved, particularly in state waters. Without this exemption, federally permitted vessels are unable to participate in Maine's state water fishery if the Federal NGOM TAC is reached; state-only permitted scallop vessels are able to continue to fish in state waters after the Federal closure.

Based on the information Maine submitted regarding its scallop conservation program, as outlined in the preamble to the proposed rule, and considering comments received during the public comment period, NMFS determines that the state qualifies for the NGOM state waters exemption under the Scallop FMP. Maine's scallop fishery restrictions are as restrictive as Federal scallop fishing regulations and this exemption will not jeopardize the biomass and fishing mortality and effort limit objectives of the FMP. Allowing for this NGOM exemption will have no impact on the effectiveness of Federal management measures for the scallop fishery overall or within the NGOM management area because the NGOM Federal TAC is set based only on the portion of the resource in Federal waters.

This exemption applies only to vessels with Federal NGOM permits. All other federally permitted scallop vessel categories are prohibited from retaining, possessing, and landing scallops from within the NGOM management area, in both Federal and state waters, once the NGOM hard TAC is fully harvested.

NMFS received two comment letters in response to the proposed rule, one from from the Maine Department of Marine Resources and the other from a member of the general public. We provide responses below to the issues these commenters raised.

Comment 1: The Maine Department of Marine Resources stated its support of NMFS issuing this exemption and provided information on the current scallop regulations in its waters.

Response: NMFS is satisfied that Maine meets the criteria for this NGOM exemption and thanks Maine for submitting the necessary information to make this determination.

Comment 2: One individual was against issuing Maine this exemption, generally stating that overfishing is substantial. The commenter provided no other rationale to deny the permit.

Response: There is no evidence in the record to support the claim that the scallop stock is not in a stable condition. The most recent stock assessment (July 2013) concluded that scallop resource is not overfished and overfishing is not occurring. As we discuss in the preambles to both the proposed and final rules, allowing for this NGOM exemption will not jeopardize the effectiveness of Federal management measures for the scallop fishery overall or within the NGOM management area because the NGOM Federal TAC is set based only on the portion of the resource in Federal waters.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with the FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

The Office of Management and Budget (OMB) has determined that this rule is not significant according to Executive Order (E.O.) 12866.

This final rule does not contain policies with federalism or “takings” implications, as those terms are defined in E.O. 13132 and E.O. 12630, respectively.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.

For the reasons set out in the preamble, 50 CFR part 648 is amended as follows: