Federal Register Vol. 80, No.220,

This rule is issued under Marketing Agreement and Order No. 906, as amended (7 CFR part 906), regulating the handling of oranges and grapefruit grown in the Lower Rio Grande Valley in Texas, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Orders 12866, 13563, and 13175.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, orange and grapefruit handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable oranges and grapefruit beginning August, 1, 2015, and continue until amended, suspended, or terminated.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule decreases the assessment rate established for the Committee for the 2015-16 and subsequent fiscal periods from $0.11 to $0.08 per 7/10-bushel carton or equivalent of oranges and grapefruit handled.

The Texas orange and grapefruit marketing order provides authority for the Committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are producers and handlers of Texas oranges and grapefruit. They are familiar with the Committee's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

For the 2014-15 and subsequent fiscal periods, the Committee recommended, and USDA approved, an assessment rate that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other information available to USDA.

The Committee met on June 24, 2015, and unanimously recommended 2015-16 expenditures of $701,148 and an assessment rate of $0.08 per 7/10-bushel carton or equivalent of oranges and grapefruit. In comparison, last year's budgeted expenditures were $809,500. The assessment rate of $0.08 is $0.03 lower than the rate currently in effect. The recommended 2015-16 expenditures include decreases in educational outreach and compliance, which were reduced by approximately $100,000. The Committee considered proposed expenses and recommended decreasing the assessment rate to more closely align assessment income to the lower budget.

The major expenditures recommended by the Committee for the 2015-16 year include $600,248 for the Mexican fruit fly control program, $77,200 for management and compliance, and $23,700 for operating expenses. Budgeted expenses for these items in 2014-15 were $503,000, $175,000, and $21,500, respectively.

The assessment rate recommended by the Committee was derived by dividing anticipated expenses by expected shipments of Texas oranges and grapefruit. Orange and grapefruit shipments for the 2015-16 year are estimated at 8 million 7/10-bushel cartons or equivalent, which should provide $640,000 in assessment income. Income derived from handler assessments, along with interest income and funds from the Committee's authorized reserve, will be adequate to cover budgeted expenses. Income in the reserve (currently around $230,000) will be kept within the maximum permitted by the order (approximately one fiscal period's expenses as stated in § 906.35).

The assessment rate established in this rule will continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other available information.

Although this assessment rate is effective for an indefinite period, the Committee will continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Committee's 2015-16 budget and those for subsequent fiscal periods will be reviewed and, as appropriate, approved by USDA.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 170 producers of oranges and grapefruit in the production area and 13 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration as those having annual receipts less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $7,000,000 (13 CFR 121.201).

According to Committee data and information from the National Agricultural Statistics Service, the weighted average grower price for Texas citrus during the 2013-14 season was around $13.89 per box and total shipments were near 7.4 million boxes. Using the weighted average price and shipment information, and assuming a normal distribution, the majority of growers would have annual receipts of less than $750,000. In addition, based on available information, the majority of handlers have annual receipts of less than $7,000,000 and could be considered small businesses under SBA's definition. Thus, the majority of Texas citrus producers and handlers may be classified as small entities.

This rule decreases the assessment rate established for the Committee and collected from handlers for the 2015-16 and subsequent fiscal periods from $0.11 to $0.08 per 7/10-bushel carton or equivalent of Texas citrus. The Committee unanimously recommended 2015-16 expenditures of $701,148 and an assessment rate of $0.08 per 7/10-bushel carton or equivalent handled. The assessment rate of $0.08 is $0.03 lower than the 2014-2015 rate. The quantity of assessable oranges and grapefruit for the 2015-16 fiscal period is estimated at 8 million 7/10-bushel cartons or equivalent. Thus, the $0.08 rate should provide $640,000 in assessment income. Income derived from handler assessments along with interest income and funds from Committee's authorized reserve, will be adequate to cover budgeted expenses.

The major expenditures recommended by the Committee for the 2015-16 year include $600,248 for the Mexican fruit fly control program, $77,200 for management and compliance, and $23,700 for operating expenses. Budgeted expenses for these items in 2014-15 were $503,000, $175,000, and $21,500, respectively.

The recommended 2015-16 expenditures include decreases in the amount budgeted for educational outreach and compliance. The Committee considered proposed expenses and recommended decreasing the assessment rate to more closely align assessment income to the lower budget.

Prior to arriving at this budget and assessment rate, the Committee considered information from various sources, such as the Committee's Budget and Personnel Committee and the Market Development Committee. Alternative expenditure levels were discussed by these groups, based upon the relative value of various activities to the Texas citrus industry. Based on estimated shipments, the recommended assessment rate of $0.08 should provide $640,000 in assessment income. The Committee determined that the assessment revenue, along with funds from reserves and interest income, would be adequate to cover budgeted expenses for the 2015-16 fiscal period.

A review of historical information and preliminary information pertaining to the upcoming fiscal period indicates that the average grower price for the 2015-16 season could be around $13.00 per 7/10-bushel carton or equivalent of oranges and grapefruit. Therefore, the estimated assessment revenue for the 2015-16 fiscal period, as a percentage of total grower revenue would be around 0.6 percent.

This action decreases the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and decreasing the assessment rate reduces the burden on handlers.

The Committee's meeting was widely publicized throughout the Texas citrus industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the June 24, 2015, meeting was a public meeting. All entities, both large and small, were able to express views on this issue. Interested persons are invited to submit comments on this interim rule, including the regulatory and informational impacts of this action on small businesses.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0189 Generic Fruit Crops. No changes in those requirements are necessary as a result of this action. Should any changes become necessary, they would be submitted to OMB for approval.

This action imposes no additional reporting or recordkeeping requirements on either small or large Texas orange and grapefruit handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/MarketingOrdersSmallBusinessGuide. Any questions about the compliance guide should be sent to Jeffrey Smutny at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant material presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect, and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) The 2015-16 fiscal period began on August, 1, 2015, and the marketing order requires that the rate of assessment for each fiscal period apply to all assessable oranges and grapefruit handled during such fiscal period; (2) this action decreases the assessment rate for assessable oranges and grapefruit grown in Texas beginning with the 2015-16 fiscal period; (3) handlers are aware of this action which was recommended by the Committee at a public meeting and is similar to other assessment rate actions issued in past years; and (4) this interim rule provides a 60-day comment period, and all comments timely received will be considered prior to finalization of this rule.

For the reasons set forth in the preamble, 7 CFR part 906 is amended as follows:

The Board is correcting errors in and deleting certain expired transitional requirements from the final rule that was published in the Federal Register on October 11, 2013 (78 FR 62018). These revisions will remove text or footnotes in 12 CFR parts 208 and 225 describing certain transitional requirements that have expired, correct citations in 12 CFR 217.2 and 12 CFR 217.202(b)(10), and remove and replace a wrongly duplicated paragraph in 12 CFR 217.300(c)(3). The Board is also correcting a typographical error in the final rule that was published in the Federal Register on October 27, 2014 (79 FR 64025), which caused the unintended deletion of § 252.153(e)(2)-(5).

For the reasons set forth in the preamble, chapter II of title 12 of the Code of Federal Regulations is amended as follows:

This amendment to part 95 of the Federal Aviation Regulations (14 CFR part 95) amends, suspends, or revokes IFR altitudes governing the operation of all aircraft in flight over a specified route or any portion of that route, as well as the changeover points (COPs) for Federal airways, jet routes, or direct routes as prescribed in part 95.

The specified IFR altitudes, when used in conjunction with the prescribed changeover points for those routes, ensure navigation aid coverage that is adequate for safe flight operations and free of frequency interference. The reasons and circumstances that create the need for this amendment involve matters of flight safety and operational efficiency in the National Airspace System, are related to published aeronautical charts that are essential to the user, and provide for the safe and efficient use of the navigable airspace. In addition, those various reasons or circumstances require making this amendment effective before the next scheduled charting and publication date of the flight information to assure its timely availability to the user. The effective date of this amendment reflects those considerations. In view of the close and immediate relationship between these regulatory changes and safety in air commerce, I find that notice and public procedure before adopting this amendment are impracticable and contrary to the public interest and that good cause exists for making the amendment effective in less than 30 days.

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 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. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me by the Administrator, part 95 of the Federal Aviation Regulations (14 CFR part 95) is amended as follows effective at 0901 UTC, December 10, 2015.

On August 26, 2015, the Bureau of Industry and Security (BIS) published the final rule “Export Administration Regulations: Removal of Special Comprehensive License Provisions” (80 FR 51725), effective September 25, 2015. In that rule, BIS amended the Export Administration Regulations (EAR) by removing the Special Comprehensive License (SCL) provisions and made conforming amendments.

The August 26 rule included amendatory instructions to revise or remove certain Collection numbers in Supplement No. 1 to part 730 (Information Collection Requirements Under the Paperwork Reduction Act: OMB Control Numbers). However, the amendatory instruction erroneously identified Collection number “0607-0152” as Collection number “0694-0152,” and as a result, the entry for Collection number 0607-0152 was not amended. In this final rule, BIS amends the Supplement by revising Collection number “0607-0152” to remove references to “§§ 752.7(b) and 752.15(a)” under the “Reference in the EAR” Column as originally intended. This correction will ensure the accurate and complete implementation of the purposes of the August 26, 2015 final rule: To remove all the SCL provisions and related provisions from the EAR.

Although the Export Administration Act expired on August 20, 2001, 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 (August 11, 2015), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act. 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, reducing costs, harmonizing rules, and promoting flexibility. This rule has been determined to be a not significant regulatory action for purposes of Executive Order 12866.

2. This rule does not contain an information collection subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). 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.

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

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking and the opportunity for public participation are waived for good cause because they are unnecessary and contrary to the public interest. (See 5 U.S.C. 553(b)(B)). The changes contained in this rule are technical corrections of a previously published final rule. This rule is necessary to prevent confusion caused by the continued inclusion in Supplement No. 1 to part 730 of references to the sections of the EAR that were removed by the August 26, 2015 rule. Collection number, “0607-0152,” needs to be revised for purposes of removing all the SCL provisions from the EAR. Therefore, this change is essential to ensure the accurate and complete implementation of the changes intended by the August 26, 2015 final rule.

The provision of the Administrative Procedure Act (5 U.S.C. 553) requiring a 30-day delay in effectiveness is also waived for good cause. (5 U.S.C. 553(d)(3)). The correction contained in this final rule is merely a technical correction necessitated by a typographical error in a previously published rule, for which a notice, comment and delay were completed. The revisions made in this rule are technical corrections which should be in place as soon as possible to avoid confusion caused by the incorrect inclusion of references to sections of the EAR removed by the August 26, 2015 rule in OMB Collection number 0607-0152 in Supplement No. 1 to part 730. This change is necessary to ensure immediate, accurate and complete implementation of the purposes of the August 26, 2015 final rule.

Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under the Administrative Procedure Act or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. Therefore, this regulation is issued in final form.

For the reasons stated in the preamble, part 730 of the Export Administration Regulations (15 CFR parts 730-774) is amended as follows:

Background

BIS established the ECCN 0Y521 series to identify items that warrant control on the CCL but are not yet identified in an existing ECCN (77 FR 22191, April 13, 2012). Items are added to the ECCN 0Y521 series by the Department of Commerce, with the concurrence of the Departments of Defense and State, upon a determination that an item should be controlled because it provides at least a significant military or intelligence advantage to the United States or because foreign policy reasons justify such control. The ECCN 0Y521 series is a temporary holding classification with a limitation that while an item is temporarily classified under ECCN 0Y521, the U.S. Government works to adopt a control through the relevant multilateral regime(s), to determine an appropriate longer-term control over the item, or that the item does not warrant control on the CCL.

Items classified under ECCN 0Y521, including the item identified in this interim final rule as an 0C521 item, remain so-classified for one year from the date a final rule identifying the item is published in the Federal Register amending the EAR, unless the item is re-classified under a different ECCN, under an EAR99 designation, or the 0Y521 classification is extended. During this time, the U.S. Government determines whether it is appropriate to submit a proposed control to the applicable export control regime (e.g., the Wassenaar Arrangement) for potential multilateral control, with the understanding that multilateral controls are preferable when practical. An item's ECCN 0Y521 classification may be extended for two one-year periods to provide time for the U.S. Government and multilateral regime(s) to reach agreement on controls for the item, and provided that the U.S. Government has submitted a proposal to obtain multilateral controls over the item. Further extension beyond three years may occur only if the Under Secretary for Industry and Security makes a determination that such extension is in the national security or foreign policy interests of the United States. An extension or re-extension, including a determination by the Under Secretary for Industry and Security, will be published in the Federal Register.

The license requirements and policies for the ECCN 0Y521 series appear in § 742.6(a)(7) of the EAR. ECCN 0Y521 items are subject to a nearly worldwide license requirement (i.e., for every country except Canada) with a case-by-case license review policy, through regional stability (RS Column 1) controls. The description and status of ECCN 0Y521 items appear in Supplement No. 5 to part 774 of the EAR, along with any item-specific license exceptions, where applicable. Unless otherwise indicated, License Exception GOV is the only license exception available and is applicable to all ECCN 0Y521 series items, including those items identified in this document, if the item is within the scope of § 740.11(b)(2)(ii) (Exports, reexports, and transfers (in-country) made by or consigned to a department or agency of the U.S. Government), as provided in § 740.2(a)(14).

In this rule, BIS amends the EAR to make the specified XBS Epoxy System subject to the EAR and impose a license requirement on the item. This item is being added to the 0Y521 series pursuant to a determination by the Department of Commerce, with the concurrence of the Departments of State and Defense, that the item should be controlled because it provides a significant military or intelligence advantage to the United States or because foreign policy reasons justify such controls. The specified XBS Epoxy System is classified under ECCN 0C521 No. 1. The control, which appears in the table found in Supplement No. 5 to part 774 of the EAR, covers an Epoxy system designed to obfuscate critical technology components against X-ray and terahertz microscopy imaging attempts.

License applications for this item may be submitted through SNAP-R in accordance with § 748.6 of the EAR. Exporters are directed to include detailed descriptions and technical specifications with the license application, and identify the item as 0C521.

In this rule, BIS also removes references to aircraft wing folding systems “software” and related “technology” listed, prior to this rule, as entries No. 3 0D521 and No. 2 0E521, respectively, in Supplement No. 5 to part 774. The references to these items are obsolete because, in accordance with procedure established in the April 13, 2012, final rule, the U.S. Government adopted a control through the relevant multilateral regime(s), which determined an appropriate longer-term control over the item. The wing fold system “software” is now controlled by ECCN 9D001, and the “technology” is controlled by ECCN 9E003.j on the CCL. A final rule published in the Federal Register May 21, 2015 (80 FR 29431), and which went into effect the same day, implemented the 2014 Wassenaar Plenary Agreements by establishing new controls on the items, rendering their 0Y521 status obsolete. BIS is not soliciting public comments on the removal provisions.

The rule is being issued in interim final form because while the government believes that it is in the national security interests of the United States to immediately implement these controls, it also wants to provide the interested public with an opportunity to comment on the new controls of the XBS Epoxy System. Comments may be submitted in accordance with the DATES and ADDRESSES sections of this rule.

Although the Export Administration Act expired on August 20, 2001, 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 (August 11, 2015), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act. 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, distribute 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 been determined to be not significant for purposes of Executive Order 12866.

2. 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 OMB control number. This rule affects two approved collections: (1) The Simplified Network Application Processing + System (control number 0694-0088), which carries a burden hour estimate of 43.8 minutes, including the time necessary to submit license applications, among other things, as well as miscellaneous and other recordkeeping activities that account for 12 minutes per submission; and (2) License Exceptions and Exclusions (0694-0137). With these initial 0Y521 series items, BIS does not believe that this rule will materially increase the number of submissions under these collections.

3. This rule does not contain policies with Federalism implications as that term is defined under E.O. 13132.

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring prior notice, the opportunity for public comment and a delay in effective date are inapplicable because this regulation involves a military or foreign affairs function of the United States (See 5 U.S.C. 553(a)(1)). BIS, with the concurrence of the U.S. Departments of Defense and State, is implementing this rule because the item identified for the ECCN 0Y521 series in this rule provide a significant military or intelligence advantage to the United States. Immediate imposition of a license requirement is necessary to effect the national security and foreign policy goals of this rule. Immediate implementation will allow BIS to prevent exports of these items to users and for uses that pose a national security threat to the United States or its allies. If BIS delayed this rule to allow for prior notice and opportunity for public comment, the resulting delay in implementation would afford an opportunity for the export of these items to users and uses that pose such a national security threat, thereby undermining the purpose of the rule. In addition, if parties receive notice of the U.S. Government's intention to control these items under 0Y521 once a final rule was published, they might have an incentive to either accelerate orders of these items or attempt to have the items exported prior to the imposition of the control. In addition, prior notice and opportunity for public comment is unnecessary for the amendment to remove references to wing folding technology and software. The removal of the references updates Supplement No. 5 to part 774 and ensures that it accurately reflects the legal status of those items now classified under other ECCNs under the EAR. This amendment also serves to avoid confusing readers about the items' current status.

Further, BIS finds good cause to waive the 30-day delay in effectiveness under 5 U.S.C. 553(d)(3). Immediate implementation of these changes will allow BIS to prevent exports of these items to users and for uses that pose a national security threat to the United States or its allies. If BIS delayed this rule to allow for a 30-day delay in effectiveness, the resulting delay in implementation would afford an opportunity for the export of these items to users and uses that pose such a national security threat, thereby undermining the purpose of the rule. BIS also finds good cause to waive the 30-delay in effectiveness for the implementation of the amendment to remove items because the amendment will assist in clarifying the current status of the wing folding technology and software, eliminating any possible confusion. Furthermore, the amendment is not a substantive change. 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. Although notice and opportunity for comment are not required, BIS is issuing this rule as an interim final rule with a request for comments. All comments must be in writing and submitted via one or more of the methods listed under the ADDRESSES caption to this document. All comments (including any personal identifiable information) will be available for public inspection and copying. Those wishing to comment anonymously may do so by submitting their comment via regulations.gov and leaving the fields for identifying information blank.

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

FDA is correcting the preamble to the September 24, 2015 (80 FR 57531), final rule entitled, “National Environmental Policy Act; Environmental Assessments for Tobacco Products; Categorical Exclusions.” The document published with three technical errors in reference numbers cited in the document. This document corrects those errors. We are correcting reference 2 and adding new reference 3. We are also placing a corrected copy of the rule in the docket.

In FR Doc. 2015-24219, appearing on page 57531 in the Federal Register of Thursday, September 24, 2015 (80 FR 57531), FDA is making the following corrections:

1. On page 57533, in the second column, under the Response for Comment 1, add “(Ref. 3)” at the end of the second sentence.

2. On page 57535, in the first column, under section IX, “2. Statement of RADM David Ashley, Ph.D. and Hoshing Chang, Ph.D., ‘Impact of Tobacco Products on the Environment.’ ” is corrected to read “2. ‘Final Regulatory Impact Analysis,’ Food and Drug Administration, available at http://www.fda.gov/AboutFDA/ReportsManualsForms/Reports/EconomicAnalyses/default.htm.’

3. On page 57535, in the first column, under section IX, add “3. Statement of RADM David Ashley, Ph.D. and Hoshing Chang, Ph.D., ‘Impact of Tobacco Products on the Environment.’

This document contains amendments to the Income Tax Regulations (26 CFR part 1) under sections 411(a)(13) and 411(b)(5) of the Internal Revenue Code (Code).

Generally, a defined benefit pension plan must satisfy the minimum vesting standards of section 411(a) and the accrual requirements of section 411(b) in order to be qualified under section 401(a) of the Code. Sections 411(a)(13) and 411(b)(5), which modify the minimum vesting standards of section 411(a) and the accrual requirements of section 411(b), were added to the Code by section 701(b) of the Pension Protection Act of 2006, Public Law 109-280 (120 Stat. 780 (2006)) (PPA '06). Sections 411(a)(13) and 411(b)(5) and certain related effective date provisions were subsequently amended by the Worker, Retiree, and Employer Recovery Act of 2008, Public Law 110-458 (122 Stat. 5092 (2008)) (WRERA '08).

Under section 411(b)(5)(B)(i), a statutory hybrid plan is treated as failing to satisfy the requirements of section 411(b)(1)(H) (which provides that the rate of an employee's benefit accrual must not be reduced because of the attainment of any age) if the terms of the plan provide any interest credit (or an equivalent amount) for any plan year at a rate that is in excess of a market rate of return. Section 411(b)(5)(B)(i) is generally effective for plan years beginning after December 31, 2007.

Section 411(d)(6) provides generally that a plan does not satisfy section 411 if an amendment to the plan decreases a participant's accrued benefit. For this purpose, a plan amendment that has the effect of eliminating or reducing an early retirement benefit or a retirement-type subsidy or eliminating an optional form of benefit with respect to benefits attributable to service before the amendment is treated as reducing accrued benefits.

Sections 204(b)(5)(B)(i) and 204(g) of the Employee Retirement Income Security Act of 1974, Public Law 93-406 (88 Stat. 829 (1974)), as amended (ERISA), contain rules that are parallel to sections 411(b)(5)(B)(i) and 411(d)(6), respectively. Under section 101 of Reorganization Plan No. 4 of 1978 (43 FR 47713), the Secretary of the Treasury has interpretive jurisdiction over the subject matter addressed in these final regulations for purposes of ERISA, as well as the Code. Thus, these final regulations apply for purposes of sections 411(b)(5)(B)(i) and 411(d)(6) of the Code, as well as for purposes of sections 204(b)(5)(B)(i) and 204(g) of ERISA.

Section 1.411(d)-4, A-2(b)(1), of the Income Tax Regulations provides, in part, that the Commissioner may, consistent with the provisions of § 1.411(d)-4, provide for the elimination or reduction of section 411(d)(6) protected benefits that have already accrued to the extent that such elimination or reduction is necessary to permit compliance with other requirements of section 401(a). The Commissioner may exercise this authority only through the publication of revenue rulings, notices, and other documents of general applicability.

Section 1.411(d)-4, A-2(b)(2)(i), provides that a plan may be amended to eliminate or reduce a section 411(d)(6) protected benefit, within the meaning of § 1.411(d)-4, A-1, if the following three requirements are met: The amendment constitutes timely compliance with a change in law affecting plan qualification; there is an exercise of section 7805(b) relief by the Commissioner; and the elimination or reduction of the section 411(d)(6) protected benefit is made only to the extent necessary to enable the plan to continue to satisfy the requirements for qualified plans.

Final regulations (TD 9505) (2010 final hybrid plan regulations) were published by the Treasury Department and the IRS in the Federal Register on October 19, 2010 (75 FR 64123). Additional final regulations (TD 9693) (2014 final hybrid plan regulations) were published by the Treasury Department and the IRS in the Federal Register on September 19, 2014 (79 FR 56442) (collectively, the 2010 and 2014 final hybrid plan regulations are referred to herein as the final hybrid plan regulations). The final hybrid plan regulations provide, effective for plan years that begin on or after January 1, 2016, a list of interest crediting rates and combinations of rates that satisfy the requirement of section 411(b)(5)(B)(i) that a plan not provide an effective rate of return in excess of a market rate of return, while not permitting other rates. The provisions that provide for a list of rates are set forth at § 1.411(b)(5)-1(d)(1)(iii), (d)(1)(vi), and (d)(6)(i).

Interest crediting rates can be broadly characterized as either investment-based rates or rates that are not investment-based rates. An investment-based rate is a rate of return provided by actual investments, taking into account the return attributable to any change in the value of the underlying investments. A rate of return that is based on the rate of return for an index that measures the change in the value of investments can also be considered to be an investment-based rate. Rates that are not investment-based rates are either fixed rates of interest or bond-based rates (such as yields to maturity of bonds).

Section 1.411(b)(5)-1(d)(3) and (d)(4) sets forth permitted rates that are not investment-based rates, such as the third segment rate described in section 417(e)(3)(D) or 430(h)(2)(C)(iii), the yield on 30-year Treasury Constant Maturities, and a fixed 6 percent rate of interest. Section 1.411(b)(5)-1(d)(5) sets forth permitted investment-based rates, such as the rate of return on certain regulated investment companies (RICs), as defined in section 851, and the rate of return on plan assets. As provided in § 1.411(b)(5)-1(d)(6), certain annual (or more frequent) floors are permitted in combination with the bond-based rates and cumulative floors (in excess of the cumulative zero floor required under section 411(b)(5)(i)(II)) are permitted in combination with either the bond-based rates or the investment-based rates.

Section 1.411(b)(5)-1(e)(3) provides that the right to future interest credits determined in the manner specified under the plan and not conditioned on future service is a factor that is used to determine the participant's accrued benefit for purposes of section 411(d)(6). Accordingly, section 411(d)(6) protection applies not only to interest credits that have already been credited but also to future interest credits that are not conditioned on future service.

Proposed hybrid plan transition regulations (REG-111839-13) (2014 proposed regulations) were published by the Treasury Department and the IRS in the Federal Register on September 19, 2014 (79 FR 56305). The 2014 proposed regulations would permit an amendment to change the interest crediting rate under a hybrid plan from a rate not on the list to a rate on the list of interest crediting rates and combinations of rates that satisfy the requirement of section 411(b)(5)(B)(i) for plan years that begin on or after January 1, 2016.

Written comments in response to the 2014 proposed regulations were received, and a public hearing was held on January 9, 2015. After consideration of the comments received, the provisions in the 2014 proposed regulations are adopted by this Treasury decision, subject to a number of changes that are summarized in this preamble.

A number of commenters requested that the regulations provide for sufficient time for plan sponsors to implement amendments pursuant to these regulations to change a plan's interest crediting rate to a permissible rate. In addition, these commenters pointed out that these amendments are often interrelated with amendments required to comply with the 2014 final hybrid plan regulations, and that plan sponsors often consider and implement all of the required amendments at the same time. In response to these comments, these final regulations delay the applicability date of certain provisions under sections 411(a)(13) and 411(b)(5) in the final hybrid plan regulations, including those provisions that provide a list of interest crediting rates and combinations of rates that satisfy the requirement of section 411(b)(5)(B)(i) that the plan not provide an effective rate of return in excess of a market rate of return. Under these regulations, these provisions are generally effective for plan years that begin on or after January 1, 2017.

Prior to the first day of the first plan year that begins on or after January 1, 2017, a plan that uses an interest crediting rate that is not permitted under the final hybrid plan regulations must be amended to change to an interest crediting rate that is permitted under those regulations. Although a plan is permitted to be amended to change the interest crediting rate with respect to benefits that have not yet accrued, an amendment that reduces the interest crediting rate with respect to benefits that have already accrued would ordinarily be impermissible under section 411(d)(6).

In order to resolve the conflict between the market rate of return rules of section 411(b)(5)(B)(i) and the anti-cutback rules of section 411(d)(6), these regulations permit a plan with a noncompliant interest crediting rate to be amended with respect to benefits that have already accrued so that its interest crediting rate complies with the market rate of return rules. If the applicable requirements of these regulations are satisfied, such an amendment is permitted with respect to benefits that have already accrued, but only with respect to interest credits that are credited for interest crediting periods that begin on or after the later of the effective date of the amendment or the date the amendment is adopted (the applicable amendment date within the meaning of § 1.411(d)-3(g)(4)).1 To qualify for this treatment, the amendment must be adopted prior to and effective no later than the applicability date of the regulatory market rate of return rules (generally, the first day of the first plan year that begins on or after January 1, 2017, with a delayed applicability date for collectively bargained plans).

Like the 2014 proposed regulations, these regulations permit amendments that bring the plan into compliance by changing the specific feature that causes the plan's interest crediting rate to be noncompliant, while not changing other features of the existing rate. If the noncompliant interest crediting rate has more than one noncompliant feature, then each noncompliant feature must be addressed separately in the prescribed manner. Examples are included to illustrate the application of these rules.

The standard in these final regulations for resolving this conflict between section 411(d)(6) and section 411(b)(5)(B)(i) is generally comparable to the standard under the rules of § 1.411(d)-4, A-2(b)(1) and (b)(2)(i) with respect to the Commissioner's exercise of authority to resolve a conflict between section 411(d)(6) and another qualification requirement under section 401(a). The Treasury Department and the IRS believe this approach is the most appropriate manner to resolve the conflict between the market rate of return rules of section 411(b)(5)(B)(i) and the anti-cutback rules of section 411(d)(6).2

If a noncompliant rate involves one or more variable rates or a variable rate together with a fixed rate, it is not always readily apparent which specific feature or component rate causes the rate to be noncompliant. In addition, if either the existing rate or any of the potential corrections involves variable components, it is impossible to determine with certainty at the time of amendment the single amendment that in all cases that will result in the least reduction to the participant's accrued benefit as of the participant's annuity starting date. Thus, in response to a number of comments on the 2014 proposed regulations that more flexibility to amend noncompliant features be provided, the final regulations in many cases permit a plan sponsor to choose one of two or more alternative amendments in order to bring a plan into compliance.

A number of commenters specifically requested that the rules in the transition regulations permit any noncompliant bond-based rate to be capped at the third segment rate. The Treasury Department and the IRS agree that this is an appropriate approach. Accordingly, an additional option has been added in each case involving bond-based rates so that any noncompliant variable rate that is not an investment-based rate (including the greater of two or more non-investment based variable rates) may be capped at the third segment rate. If this approach is used, the third segment rate cap would have to satisfy the rules that apply to the use of the third segment rate as an interest crediting rate. Thus, the cap could be any of the third segment rates that may be used as an interest crediting rate and the cap would have to use a permissible lookback month and stability period. Note, however, that if any noncompliant composite rate is limited so that it does not exceed a third segment rate cap, that limit would also apply with respect to any annual fixed minimum rate that is part of the noncompliant composite rate. Therefore, the annual interest crediting rate (taking into account the cap) could be lower than the otherwise applicable fixed minimum rate.3

A special rule has been added to the regulations to clarify that an amendment to correct a noncompliant feature that provides for a greater interest crediting rate than the specific amendment set forth in the regulations also does not violate section 411(d)(6). Thus, for example, in any case in which it is permissible to address a noncompliant rate by capping the rate at the third segment rate, it would also be permissible to address the noncompliant rate simply by switching to the third segment rate. Similarly, an amendment to switch to the third segment rate together with a permitted fixed minimum rate would be permissible.

These final regulations also provide flexibility with respect to noncompliant investment-based rates. In particular, if a plan credits interest using a noncompliant investment-based rate and there is no permitted investment-based rate with similar risk and return characteristics as the plan's impermissible rate, then, as an alternative to the specified corrective amendment that was in the proposed regulations, an amendment to switch to the third segment rate with a 4 percent fixed minimum rate is permitted. The regulations also clarify the specified corrective amendment that was in the proposed regulations by providing that it is permissible in such a case to switch to a permitted investment-based rate that is otherwise similar to the plan's impermissible investment-based rate but without the risk and return characteristics of the impermissible rate that caused it to be impermissible (generally requiring the use of a rate that is less volatile than the plan's impermissible investment-based rate but is otherwise similar to that rate).

The preamble to the 2014 final hybrid plan regulations contained a discussion of statutory hybrid plans that permit participants to choose from among a menu of hypothetical investment options. Because of the significant concerns relating to the use of these plan designs, the Treasury Department and the IRS continue to study the issues raised in the preamble to the 2014 final hybrid plan regulations related to these plans, and it is possible that the Treasury Department and the IRS will conclude that such plan designs are not permitted. Nevertheless, the Treasury Department and the IRS understand that some of these plans contain one or more hypothetical investment options that provide for a rate of return that is not permitted under the final hybrid plan regulations. A special rule is included in these regulations in order to address the noncompliance that results from the availability of at least one hypothetical investment option that provides for an impermissible rate of return. This special rule provides that the rules of these final regulations may be applied separately to correct each impermissible hypothetical investment option. Alternatively, with respect to such a plan that permitted a participant to choose an interest crediting rate from among a menu of hypothetical investment options on September 18, 2014, pursuant to plan provisions that were adopted on or before September 18, 2014, this special rule provides that the entire menu of investment options may be treated as an impermissible investment-based rate for which there is no permitted investment-based rate with similar risk and return characteristics (so that the rule of § 1.411(b)(5)-1(e)(3)(vi)(C)(7) does not apply). As a result, plans described in the preceding sentence may be amended to eliminate a participant's ability to choose an interest crediting rate from among a menu of hypothetical investment options in accordance with § 1.411(b)(5)-1(e)(3)(vi)(C)(9). The inclusion of this special rule with respect to plan designs that permit participant direction of interest crediting rates is merely intended to address the noncompliance that results from the availability of a hypothetical investment option that provides for an impermissible rate of return, and should not be construed to create any inference as to the permissibility of these plan designs in general.

The preamble to the 2014 proposed regulations specifically requested comments as to an amendment to bring a plan into compliance if the plan credits interest using a composite rate that is an investment-based rate of return with an impermissible annual (or more frequent) fixed or variable rate. Many commenters requested flexibility to choose among options in such a case because there is no single correction that is the best correction for all cases. The Treasury Department and the IRS agree that, for this type of interest crediting rate, no single correction method is the most appropriate method for all cases. Therefore, the final regulations provide that it is permissible either to eliminate the fixed minimum rate (or any variable non-investment based rate) and eliminate any reduction to the investment-based rate, or to switch to the third segment rate (preserving any fixed minimum rate to the maximum extent permitted).

In response to comments inquiring about the treatment of plans that provide for a cumulative floor (such as, for example, in order to comply with section 411(d)(6) in connection with a prior amendment to change the plan's interest crediting rate on accrued pay credits), the regulations provide for a special rule that applies with respect to a participant under a plan that takes into account a minimum rate of return that applies less frequently than annually or that determines the participant's benefit as of the annuity starting date as the benefit provided by the greatest of two or more account balances and that minimum rate or benefit based on two or more account balances does not satisfy the market rate of return rules. If this rule applies, the plan must be amended to provide that the benefit for a participant is based solely on the benefit (and the associated interest crediting rate with respect to that benefit) that is greatest for that participant as of the applicable amendment date for the amendment adopted pursuant to these regulations. In addition, the plan must be further amended pursuant to the other rules in these regulations if the remaining interest crediting rate does not satisfy the market rate of return rules.

In response to comments as to the permissibility of rounding interest crediting rates and the need for the regulations to provide section 411(d)(6) relief for plans that use an impermissible rounding rule, the regulations provide for a rounding rule and also provide for section 411(d)(6) relief for transitional amendments to comply with this rounding rule. Under the rounding rule, a plan is not treated as failing to meet the requirement that a plan not credit interest at a rate that exceeds a market rate of return merely because the plan determines interest credits for an interest crediting period by rounding the calculated interest rate or rate of return. Under this rule, an annual rate may be rounded to the nearest multiple of 25 basis points (or a smaller rounding interval). If a plan provides for the crediting of interest more frequently than annually, then the rounding interval must not exceed a pro-rata portion of 25 basis points. Notwithstanding the preceding sentence, a plan is permitted to round to the nearest basis point regardless of the length of the interest crediting period.

Several commenters identified the need for section 411(d)(6) relief for plans that provide for rules that apply upon plan termination that do not comply with the plan termination rules in the final hybrid plan regulations. In response to these comments, the regulations provide for section 411(d)(6) relief for transitional amendments made to enable a plan to comply with the plan termination rules in the final hybrid plan regulations.

In response to the comment request included in the 2014 proposed regulations with respect to all aspects of those proposed rules, the Department of Treasury and the IRS received a number of comments with respect to provisions of the 2014 final hybrid plan regulations instead of the 2014 proposed regulations. These final regulations delay the applicability date of certain provisions in the 2014 final hybrid plan regulations (and provide for a special delayed applicability date for collectively bargained plans), but do not otherwise address comments on provisions of the 2014 final hybrid plan regulations.4

These regulations generally apply to plan amendments made on or after September 18, 2014 (or an earlier date as elected by the taxpayer), and they do not apply for amendments made on or after the first day of the first plan year that begins on or after January 1, 2017. However, for collectively bargained plans, these regulations continue to apply for amendments made before the first day of the first plan year that begins on or after January 1, 2019, unless the last collective bargaining agreement ratified on or before November 13, 2015 expires before January 1, 2019, in which case these regulations cease to apply to amendments made on or after the first day of the first plan year that begins on or after the later of the date on which the last applicable collective bargaining agreement expires or January 1, 2017.

Certain IRS regulations, including this one, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory impact assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because these regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, the notice of proposed rulemaking preceding these regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

The principal authors of these regulations are Neil S. Sandhu and Linda S.F. Marshall, Office of Associate Chief Counsel (Tax Exempt and Government Entities). However, other personnel from the IRS and the Treasury Department participated in the development of these regulations.

Accordingly, 26 CFR part 1 is amended as follows:

I. Table of Abbreviations COTP Captain of the Port DHS Department of Homeland Security E.O. Executive Order NAD 83 North American Datum of 1983 II. Background Information and Regulatory History

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency, for good cause, finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable. The Coast Guard received notification of the unknown substance emanating from an unknown vessel on the evening of October 23, 2015. Thus, waiting for a notice and comment period to run would inhibit the Coast Guard from protecting the public and vessels from the possible hazards associated with this unknown substance.

Under 5 U.S.C. 553(d)(3), The Coast Guard finds that good cause exists for making this temporary rule effective less than 30 days after publication in the Federal Register. For the same reasons discussed in the preceding paragraph, waiting for a 30 day notice period to run would be impracticable and contrary to the public interest.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231, 33 CFR 1.05-1 and 160.5; and Department of Homeland Security Delegation No. 0170.1. The Captain of the Port Detroit (COTP) has determined that a temporary safety zone is necessary to ensure the safety of vessels from the unknown hazards associated with this substance. Such hazards include the possibility of an inhalation hazard that may cause death or serious bodily harm.

Establishing a safety zone to control vessel movements around the location of the unknown substance will help ensure the safety of persons and property during assessment and response activities and help minimize the associated risks. Therefore, this rule will remain in place for the time stated herein but will be canceled if response activities cease before 24 November 2015.

This rule establishes a safety zone from 2 p.m. on October 25, 2015 until 8 p.m. on November 24, 2015. The safety zone will encompass all U.S. navigable waters of Lake Erie within a 1000 foot radius of 41°38′21″ N., 82°29′35″ W. (NAD 83).

Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the COTP or a designated representative. Vessel operators must contact the COTP or his on-scene representative to obtain permission to transit through this safety zone. The COTP or his on-scene representative may be contacted via VHF Channel 16.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and executive orders.

This rule is not a significant regulatory action under section 3(f) of E.O. 12866, Regulatory Planning and Review, as supplemented by E.O. 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of E.O. 12866 or under section 1 of E.O. 13563. The Office of Management and Budget has not reviewed it under those Orders.

We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small and enforced for a relatively short duration, and it is designed to minimize the impact on navigation. Moreover, under certain conditions, vessels may still transit through the safety zone when permitted by the COTP.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in designated portions of Lake Erie from 2 p.m. on October 25, 2015 until 8 p.m. on November 24, 2015.

This safety zone will not have a significant economic impact on a substantial number of small entities for the reasons cited in the Regulatory Planning and Review section. Additionally, before the enforcement of the zone, Coast Guard Sector Detroit will issue a local Broadcast Notice to Mariners so vessel owners and operators can plan accordingly.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them. If this rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above. The Coast Guard will not retaliate against entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under E.O. 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

Also, this rule does not have tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a safety zone and is therefore categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

This rule will not cause a taking of private property or otherwise have taking implications under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This action is not a “significant energy action” under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

Throughout this document, the terms “we,” “us,” and “our” refer to the EPA.

On September 2, 2015 (80 FR 53086), we proposed this action and provided for a 30-day comment period. On that same date, we issued a direct final rule (80 FR 53001) taking final action effective November 2, 2015 but indicated that, if we received adverse comments by the end of the comment period, we would publish a withdrawal of the direct final rule in the Federal Register prior to the effective date informing the public that the direct final rule will not take effect.

We received timely adverse comments, and on October 27, 2015 (80 FR 65660), we withdrew the direct final rule. In today's action, we provide our responses to the public comments and take final action based on the proposal published on September 2, 2015.

In our September 2, 2015 proposed rule (80 FR 53086), we directed commenters to the direct final rule for a detailed rationale for the proposed approval of the SIP revision. As such, the following paragraphs summarize the background information and evaluation included in the direct final rule also published on September 2, 2015 (80 FR 53001).

Under the Clean Air Act (CAA or “Act”), the EPA has promulgated national ambient air quality standards (NAAQS or “standards”) for certain pervasive air pollutants. The NAAQS are concentration levels the attainment and maintenance of which EPA has determined to be requisite to protect public health (i.e., the “primary” NAAQS) and welfare (i.e., the “secondary” NAAQS). Under the CAA, states are required to develop and submit plans, referred to as state implementation plans (SIPs) to implement, maintain, and enforce the NAAQS.1

Ozone is one of the air pollutants for which the EPA has established NAAQS.2 The original NAAQS for ozone was 0.12 parts per million (ppm), 1-hour average (“1-hour ozone standard”).3 In 1997, we revised the ozone NAAQS, setting it at 0.08 ppm averaged over an 8-hour timeframe (referred to herein as the “1997 8-hour ozone standard”) (62 FR 33856, July 18, 1997), and in 2008, we lowered the 8-hour ozone standard to 0.075 ppm (“2008 8-hour ozone standard”) (73 FR 16436, March 27, 2008). The 1-hour ozone standard and the 1997 8-hour ozone standard have now been revoked. See 69 FR 23951 (April 30, 2004) and 80 FR 12264 (March 6, 2015). Since publication of the direct final rule, the EPA has lowered the ozone standard further, to a level of 0.070 ppm, eight-hour average (“2015 8-hour ozone standard”). 80 FR 65292 (October 26, 2015).

Under the CAA, the EPA is also responsible for designating areas of the country as attainment, nonattainment, or unclassifiable for the various NAAQS. We classified the “Phoenix metropolitan area,” defined by the Maricopa Association of Governments' (MAGs') urban planning area boundary (but later revised to exclude the Gila River Indian Community, as a “Moderate,” and later “Serious,” nonattainment area for the 1-hour ozone standard. We have designated a larger geographic area, referred to as the “Phoenix-Mesa” area,4 as a “Marginal” nonattainment area for the 1997 8-hour ozone standard and 2008 8-hour ozone standard. While we have redesignated the Phoenix metropolitan area, and the Phoenix-Mesa area as “attainment,” for the 1-hour and 1997 8-hour ozone standards, respectively, the Phoenix-Mesa area remains “Marginal” nonattainment for the 2008 ozone standard. More recently, we proposed to reclassify the Phoenix-Mesa area as “Moderate” ozone nonattainment for the 2008 8-hour ozone standard based on ambient data showing that the area did not attain the standard by the applicable attainment date (i.e., July 20, 2015) for such areas. 80 FR 51992 (August 27, 2015). The EPA has not yet issued area designations for the 2015 8-hour ozone standard.

States with “nonattainment” areas are required to submit revisions to their SIPs that include a control strategy necessary to demonstrate how the area will attain the NAAQS. As “Moderate,” and later “Serious,” nonattainment for the 1-hour ozone standard, the State of Arizona was required under CAA section 182(b)(3) to submit a SIP revision that requires the use of “Stage II” vapor recovery systems at gasoline dispensing facilities (GDFs) located within the Phoenix metropolitan area.5 In response to this requirement, the State of Arizona promulgated and submitted certain statutes and regulations that require use of Stage II vapor recovery systems in the Phoenix metropolitan area, and later extended the requirements to a larger geographic area referred to as “Area A.” 6 The EPA approved the state's Stage-II-related statutes and regulations as a revision to the Arizona SIP. See 59 FR 54521 (November 1, 1994) and 77 FR 35279 (June 13, 2012).

The 1990 amended CAA anticipates that, over time, Stage II vapor recovery requirements at GDFs would be replaced by “onboard refueling vapor recovery” (ORVR) systems that the EPA was to establish for new motor vehicles under CAA section 202(a)(6). ORVR consists of an activated carbon canister installed in a motor vehicle. The carbon canister captures gasoline vapors during refueling. There the vapors are captured by the activated carbon in the canister. When the engine is started, the vapors are drawn off of the activated carbon and into the engine where they are burned as fuel. In 1994, the EPA promulgated its ORVR standards,7 with a minimum 95% vapor capture efficiency, which fully applied to all new light duty vehicles by 2000. The ORVR requirements were phased in to apply to heavier classes of vehicles as well—reaching full effect for all new vehicles with a gross vehicle weight rating of up to 10,000 pounds by 2006.

Recognizing that, over time, the number of vehicles with ORVR as a percentage of the overall motor vehicle fleet would increase with the turnover of older models not equipped with ORVR with newer models equipped with ORVR, CAA section 202(a)(6) permits the EPA to promulgate a determination that ORVR is in “widespread use” throughout the motor vehicle fleet and to revise or waive Stage II vapor recovery requirements for Serious, Severe and Extreme ozone nonattainment areas. The EPA made the determination that ORVR systems are in “widespread use” in the nation's motor vehicle fleet in 2012. 77 FR 28772, May 16, 2012; and 40 CFR 51.126. In the wake of the EPA's “widespread use” determination, states, such as Arizona, that were required to implement Stage II vapor recovery programs under CAA section 182(b)(3) are now permitted to remove the requirement from their SIPs under certain circumstances.

On August 7, 2012, the EPA released its “Guidance on Removing Stage II Gasoline Vapor Control Programs from State Implementation Plans and Assessing Comparable Measures” 8 (“Stage II Guidance”) to aid in the development of SIP revisions to remove Stage II controls from GDFs. The EPA's Stage II Guidance projects that, by 2015, over 84% of all the gasoline dispensed in the nation will be dispensed to ORVR-equipped motor vehicles.9 As such, Stage II and ORVR have become largely redundant technologies, and Stage II control systems are achieving an ever-declining emissions benefit as more ORVR-equipped vehicle continue to enter the on-road motor vehicle fleet. In addition, the EPA's Stage II Guidance recognizes that, in areas where certain types of vacuum-assist Stage II control systems are used, the limited compatibility between ORVR and some configurations of this Stage II hardware may ultimately result in an area-wide emissions disbenefit. The disbenefit can result when the Stage II controls pull air into the underground tank instead of gasoline vapors when both vacuum-assist Stage II controls and ORVR are active during refueling. This increases the pressure in the underground tank and can cause venting of excess emissions into the air. The Phoenix-Mesa ozone nonattainment area is an area where the vast majority of Stage II systems that have been installed use vacuum assist technologies.10

In light of EPA's national “widespread use” determination allowing states to revise their SIPs to remove Stage II vapor recovery requirements and the potential for a disbenefit from continuation of the Stage II vapor recovery program, MAG developed emissions estimates based on information from the EPA's Stage II guidance and based on Phoenix-area-specific motor vehicle fleet data to determine the impact of continuation of the program and the impact of the phased removal of Stage II vapor recovery in the Phoenix-Mesa area. The emissions estimates demonstrated that the emissions reduction benefit from the Stage II vapor recovery program would continue to provide marginal but diminishing emissions reductions through 2017 and that the disbenefit from continuation of the Stage II vapor recovery program would begin in 2018 and increase in the years thereafter. See table 1 on page 53005 of the direct final rule.

In response to these findings, the Arizona Legislature adopted changes in the specific statutory provisions establishing the Stage II vapor recovery program to eliminate the requirement to install Stage II equipment at new GDFs and to provide for a phased decommissioning process to remove Stage II equipment at existing GDFs beginning in October 2016 and ending in September 2018.11

Subsequent to legislative action, on September 2, 2014, ADEQ submitted a SIP revision, titled “MAG State Implementation Plan Revision for the Removal of Stage II Vapor Recovery Controls in the Maricopa Eight-Hour Ozone Nonattainment Area” (“Stage II Vapor Recovery SIP Revision” or “SIP Revision”), including the statutory revisions and related emissions impact documentation.

After review of the SIP Revision, on September 2, 2015 (80 FR 53086), the EPA proposed approval based on the following conclusions:

• ADEQ has met the procedural requirements for SIP revisions under section 110(l);

• Pursuant to the EPA's determination of “widespread use” (of ORVR systems in the motor vehicle fleet), states are allowed to rescind Stage II vapor recovery control requirements in their SIPs if doing so is consistent with the general SIP revision requirements of CAA section 110(l) and section 193;

• CAA section 193 does not apply to this particular SIP revision because the Stage II vapor recovery controls were not in effect prior to the 1990 CAA Amendments;

• MAG's year-by-year estimates of areawide VOC emissions with and without the SIP Revision reflect reasonable methods and assumptions, and provide a reasonable basis upon which to evaluate the ozone impacts of the SIP Revision;

• MAG's emissions estimates conclude that the temporary emissions increases due to the SIP Revision (relative to the scenario in which Stage II requirements remain fully implemented) will occur during years 2014 through 2017 and will range from 0.015 metric tons per day (mtpd) to 0.031 mtpd, and that beginning in 2018 and increasing in magnitude thereafter, the SIP Revision will result in fewer VOC emissions than would otherwise have occurred if Stage II requirements were to remain fully implemented in the Phoenix-Mesa area (due to the incompatibility of ORVR-equipped vehicles and vacuum-assist Stage II technologies);

• The temporary increases in VOC emissions during years 2014 through 2017 due to the SIP Revision would represent an approximate 0.002 percent to 0.005 percent increase in the overall VOC emissions inventory in the Phoenix-Mesa area; 12 and

• The SIP Revision would not interfere with reasonable further progress or attainment of the ozone NAAQS for the purposes of CAA section 110(l) because: (1) The increases in VOC emissions from 2014 through 2017 would have negligible impacts on ozone concentrations in the area; (2) the schedule for the phase-out of Stage II controls under the SIP Revision will maintain most of the emissions reductions benefits associated with Stage II control through 2017; (3) the scheduled phase-out will reduce the emissions increase (due to ORVR and Stage II incompatibilities) that would otherwise be expected in 2018 but would not entirely avoid an emissions increase in that year because some existing GDFs will not yet have removed Stage II controls by the beginning of the 2018 ozone season; and (4) the phase-out of Stage II controls by the end of the 2018 ozone season will support longer-term regional efforts to attain or maintain the ozone standards in the Phoenix-Mesa area.

For further information about the SIP Revision and our corresponding evaluation, please see the direct final rule (80 FR 53001, September 2, 2015).

In response to September 2, 2015 proposed rule, we received four comments. In the following paragraphs, we provide our responses to these comments.

Comment #1: While supportive of our proposed action, a commenter suggests that the EPA eliminate the Arizona vehicle inspection and maintenance (VEI) program as well.

Response #1: The State of Arizona's VEI program is an approved element of the Arizona SIP. A state may submit revisions to its SIP, but such revisions do not become effective until the EPA approves them under section 110(k) of the CAA. No VEI SIP revision submittal is pending at this time. If the State of Arizona were to submit a revision to the SIP-approved VEI program, or rescission of the program, the EPA is authorized to approve such a revision only if such revision were consistent with all CAA requirements such as section 110(l), which prohibits the EPA from approving a SIP revision if the revision would interfere with any applicable requirement concerning reasonable further progress towards, and attainment of, the NAAQS.

Comment #2: A commenter was not opposed to the removal of Stage II vapor recovery equipment at GDFs so long as the fuel pump dispensing nozzle is properly covered to capture vapors during refueling.

Response #2: We disagree that such covers are necessary to capture vapors during refueling with ORVR-equipped motor vehicles. While Stage II vapor recovery systems rely upon a rubber boot around the nozzle to create a seal between the nozzle and the vehicle, ORVR prevents vapors from escaping during refueling by employing a seal in the fill pipe. In most instances, these seals are created by the incoming gasoline backing slightly near the bottom of the fill pipe. When the engine is started, the vapors are purged from the activated carbon canister and into the engine where they are burned as fuel. See 77 FR 28772 at 28774 (May 16, 2012). Because ORVR uses a seal within the fill pipe of the vehicle, a rubber boot or cover is not required to prevent vapors from escaping during refueling.

Comment #3: A commenter objects to our proposal, and asks the EPA to reconsider its proposed approval of the SIP revision, contending that the revision will cause adverse effects particularly in the summer months. This commenter also questions whether there would be any benefit from the revision and asks the EPA to identify to whom the revision applies.

Response #3: We recognize that the Stage II vapor recovery controls have provided significant reductions of VOC emissions in the Phoenix-Mesa area since they were implemented in the mid-1990s. These controls have done so by taking the vapors normally emitted directly into the atmosphere when pumping gas and recycling them back into the underground fuel storage tank, preventing them from polluting the air. However, as discussed in more detail in the direct final rule at 80 FR 53002 and 52003 (September 2, 2015), the 1990 amended CAA anticipated that, over time, Stage II vapor recovery requirements at gasoline stations would be replaced by ORVR systems installed on motor vehicles, and authorized the EPA to revise or waive Stage II vapor recovery requirements for ozone nonattainment areas, including such areas as the Phoenix-Mesa area, once the EPA determines that ORVR is in “widespread use” throughout the motor vehicle fleet. The EPA published its “widespread use” determination in 2012 at 77 FR 28772 (May 16, 2012), and as a result, the Stage II vapor recovery controls are no longer required in ozone nonattainment areas.

Moreover, as described further in our direct final rule at 53004, with certain types of vacuum-assist Stage II control systems, the limited compatibility between ORVR and some configurations of this Stage II hardware may ultimately result in an area-wide emissions disbenefit. This is because the Stage II controls pull air into the underground tank instead of gasoline vapors when both vacuum-assist Stage II control and ORVR are active during refueling, increasing the pressure in the underground tank and causing venting of excess emission into the air. The Phoenix-Mesa ozone nonattainament area is an area where the vast majority of Stage II systems that have been installed use vacuum assist technologies, and MAG has estimated that 2018 is the first year in which the disbenefit from implementation of Stage II controls would occur if Stage II control requirements were to remain in place given the motor vehicle fleet in the Phoenix-Mesa area. The disbenefit (i.e., the increase in emissions if Stage II control were to be retained) grows quickly after that year as shown in table 1 of our direct final rule at 53005.

Thus, from the perspective of summertime ozone conditions in the Phoenix-Mesa area, the issue is not whether to remove the Stage II vapor recovery equipment but when and how. The state has submitted a SIP revision that eliminates the requirement for installation of Stage II vapor recovery equipment at new GDFs, and that establishes a phased decommissioning process to remove Stage II controls at existing GDFs over a two-year period beginning October 1, 2016 and ending September 30, 2018. As explained on page 53003 of the direct final rule, the two-year period for decommissioning is based on the expectation of the Arizona Department of Weights and Measures of the time necessary to safely decommission Stage II controls at the over 1,000 existing GDFs in the Phoenix-Mesa area. Decommissioning is expected to be spread evenly over each of the 24 months from October 2016 through September 2018 and to occur for existing GDFs during the month when the annual scheduled Stage II control test would have occurred.

We believe that the two-year decommissioning process established by the state minimizes the temporary adverse effect of increased VOC emissions (i.e., from foregone emissions reductions from elimination of the Stage II requirement at new GDFs and the phase-out of Stage II equipment at existing GDFs) while avoiding the longer-term adverse impact due to the disbenefit associated with retaining the Stage II vapor recovery controls. As noted on page 53005 of the direct final rule, the temporary adverse effect during years 2014 through 2017 would represent an approximate 0.002 percent to 0.005 percent increase in the overall VOC emission inventory in the Phoenix-Mesa area. Based on the small magnitude of this impact, its temporary nature, and the avoidance of the long-term disbenefit, we have concluded that the SIP revision would not interfere with attainment or maintenance of the ozone NAAQS in the Phoenix-Mesa area.

Comment #4: A commenter objects to our proposal, stating that it does not take into account those individuals who are chemically sensitive to vapors and would be harmed if the SIP revision were to be approved. This commenter also noted that there are communities where most of the drivers operate older vehicles and that those living in such areas would be at higher risk than those in areas where the vehicle models are newer, and suggested that the EPA defer the approval of the Stage II vapor recovery phase-out for a couple of years to allow for a greater percentage of ORVR-equipped vehicles to replace the older vehicles without ORVR.

Response #4: The commenter is correct that, in reviewing the Stage II SIP Revision, the EPA did not take into account the particular sensitivities of individuals to gasoline vapors or the percentage of ORVR-equipped vehicles refueling at individual GDFs in the Phoenix-Mesa area. Our role in a reviewing SIP revision is to approve state choices, provided that they meet the criteria of the CAA. None of the applicable CAA criteria calls for evaluating the sensitivities of individuals to gasoline vapors nor do the criteria require a GDF-specific ORVR evaluation.

Rather, as described on pages 53004 and 53004 of the direct final rule, we evaluated the SIP revision for compliance with CAA section 110(l), which prohibits the EPA from approving a SIP revision if that revision would interfere with any applicable requirement concerning reasonable further progress towards, or attainment of, any of the NAAQS, or any applicable requirement of the CAA. In this instance, because the Stage II SIP revision would affect VOC emissions, and because VOC is a precursor to ozone, we focused on ozone NAAQS impacts. Ozone is a regional pollutant and thus our evaluation of the SIP revision is appropriately based on area-wide VOC emissions estimates and considers those emissions in the context of regional, not local, ozone concentrations.

Lastly, deferral by the EPA of action on the Stage II SIP revision is not appropriate because CAA section 110(k)(2) establishes a deadline of at most 18 months from the date a SIP revision is submitted for the EPA to take final action. Moreover, we have concluded that the two-year decommissioning process established by the state would minimize the temporary adverse impact on regional VOC emissions while avoiding the longer term disbenefit associated with implementation of Stage II vapor recovery controls at GDFs in the Phoenix-Mesa area. Deferral by the state of the two-year decommissioning process would be less advantageous from a regional ozone perspective because it would only serve to lengthen the period in which the area would experience the disbenefit from Stage II vapor recovery due to the increasing percentage of motor vehicles with ORVR and accompanying incompatibilities with the Stage II vapor recovery equipment.

Under CAA section 110(k) and for the reasons set forth in our September 2, 2015 direct final rule and summarized above, the EPA is taking final action to approve the Stage II Vapor Recovery SIP Revision submitted by ADEQ on September 2, 2014 to provide for the phased removal of “Stage II” vapor recovery equipment at GDFs in the Phoenix-Mesa area. Specifically, the EPA is approving a SIP revision that eliminates the requirement to install and operate such equipment at new GDFs, and that provides for the phased removal of such equipment at existing GDFs from October 2016 through September 2018.

The EPA is approving this SIP revision because Stage II vapor recovery controls are no longer a SIP requirement under CAA section 182(b)(3) due to EPA's “widespread use determination” for ORVR. Additionally, we are approving this SIP revision because the temporary incremental increase in VOC emissions from 2014 through 2017 would not interfere with reasonable further progress toward, or attainment of, any of the NAAQS, and because this SIP revision avoids the longer-term VOC emissions increases associated with continued implementation of Stage II controls in the Phoenix-Mesa area. As part of this final action, the EPA is approving the specific statutory provisions that provide for the phase-out of Stage II controls in Area A, i.e., sections 5 through 8, and 10 through 12 of House Bill 2128, amending ARS sections 41-2131, 41-2132, 41-2133 and adding section 41-2135.13

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 certain sections of House Bill 2128 amending various sections of the Arizona Revised Statutes related to stage II vapor recovery systems in Area A, effective April 22, 2014, 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 Order 12866 (58 FR 51735, October 4, 1993);

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

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

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

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

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

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

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

• does not provide the 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 the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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. The 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 January 15, 2016. 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 section 307(b)(2)).

Chapter I, title 40 of the Code of Federal Regulations is amended as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This SUPPLEMENTARY INFORMATION section is arranged as follows:

Section 111(d) of the Act requires that EPA develop regulations providing that states must submit to EPA plans establishing standards of performance for certain existing sources of pollutants when a standard of performance would apply to the existing source if it were a new source, and if the pollutants are noncriteria pollutants (i.e., pollutants for which there is no national ambient air quality standard) and are not on a list published under section 108 of the Act or emitted from a source category regulated under section 112 of the Act. Section 129 of the Act and 40 CFR part 60, subpart B apply the section 111(d) requirements to existing solid waste combustors, including SSIs and SMWCs, and provide that EPA should include, as part of the performance standards, emissions guidelines (EGs) that include the plan elements required by section 129.

EPA promulgated new source performance standards and EGs for SMWCs on December 6, 2000, (64 FR 76349, 65 FR 76377). The standards and EGs are codified at 40 CFR part 60, subparts AAAA and BBBB, respectively. Thus, states were required to develop plans for existing SMWCs, pursuant to sections 111(d) and 129 of the Act and 40 CFR part 60, subpart B.

EPA promulgated new source performance standards and EGs for SSIs on March 21, 2011, (76 FR 15372). The standards and EGs are codified at 40 CFR part 60, subparts LLLL and MMMM, respectively. Thus, states were required to develop plans for existing SSIs, pursuant to sections 111(d) and 129 of the Act and 40 CFR part 60, subpart B.

A SMWC unit is defined in 40 CFR 60.1550, as any device that has the capacity to combust at least 35 tons per day of municipal solid waste but no more than 250 tons per day of municipal solid waste or refuse derived fuel. The designated facilities to which the EGs apply are existing SMWC units that commenced construction on or before August 30, 1999.

A SSI unit is defined in 40 CFR 60.5250 as any device that combusts sewage sludge for the purpose of reducing the volume of the sewage sludge by removing combustible matter. The designated facilities to which the EGs apply are existing SSI units that commenced construction on or before October 14, 2010. 40 CFR 60.5060.

Under section 129(b)(2) of the Act and the EGs at 40 CFR part 60, subpart MMMM, States with SSIs must submit to EPA plans that implement the EGs. The plans, which must be at least as protective as the EGs, become Federally enforceable when EPA approves them. 42 U.S.C. 7411(d)(2). If the state fails to submit a satisfactory plan, the Administrator must promulgate a Federal plan for implementation and enforcement. Id.

40 CFR part 60, subpart B contains general provisions applicable to the adoption and submittal of state plans for subject facilities under sections 111(d) and 129 (111(d)/129 plan). 40 CFR part 62, subpart A provides the procedural framework for the submission of the plans. However, 40 CFR 60.23(b) and 62.06 provide that, if there are no existing sources of the designated pollutant in a state, the state may submit a letter of certification to that effect (i.e., a negative declaration) in lieu of a plan. The negative declaration exempts the state from the provisions of 40 CFR part 60, subpart B that require the submittal of a 111(d)/129 plan.

On September 21, 2015, MDEQ submitted its SSI State Plan. The State's final rule became effective on May 20, 2015. The public hearing for the State Plan was on August 19, 2015. The plan includes State rule R 336.1972, “Emission standards for existing sewage sludge incineration units,” and R 336.1902 “Adoption of standards by reference,” which contain emission standards for existing SSI.

On July 27, 2015, MDEQ submitted its SMWC negative declaration, in which it certifies that there are no SMWC units currently operating in Michigan.

The State SSI plan submittal is based on the Federal SSI EGs. As set forth in section 129 of the Act and in 40 CFR part 60, subparts B and MMMM, the State Plan addresses the nine minimum required elements, as follows:

1. An inventory of affected SSI units, including those that have ceased operation but have not been dismantled. Michigan has provided this along with the shutdown notices for four facilities and the operating permits for the remaining three affected facilities in Michigan.

2. An inventory of the emissions from affected SSI units. Michigan has provided this.

3. Compliance schedules for each affected SSI unit. Michigan has provided a compliance schedule with a compliance date of March 21, 2016.

4. Emission limits, emission standards, operator training and qualification requirements and operating limits for affected SSI units that are at least as protective as the EGs. Michigan has provided this.

5. Performance testing, recordkeeping and reporting and requirements. Michigan has provided this.

6. Certification that the hearing on the state plan was held, a list of witnesses and their organizational affiliations, if any, appearing at the hearing, and a brief written summary of each presentation or written submission. Michigan has provided the required certification and other information, including a summary of the one comment it received.

7. A provision for State progress reports to EPA. Michigan has stated that it will submit an annual report that will include updates to the inventory, removing sources that have shut down, adding any new sources, and identifying any sources that have met increments of progress. The annual report will also include any enforcement activities initiated against designated facilities and submission of technical reports on all performance testing on designated facilities, including updated emissions inventories.

8. Identification of enforceable state mechanisms that the State selected for implementing the EGs. Michigan has provided a detailed list which identified the enforceable mechanisms.

9. A demonstration of the State's legal authority to carry out the SSI State Plan. Michigan has provided a detailed list which demonstrated that it has such legal authority. This includes the legal authority to incorporate by reference federal emission guidelines provisions, as confirmed by a Michigan Attorney General's Opinion letter dated May 27, 2015.

EPA evaluated the SSI State Plan and related information submitted by Michigan for consistency with the Act, EPA regulations and policy. For the reasons discussed above, EPA has determined that the State Plan meets all applicable requirements and, therefore, is approvable.

EPA is approving the State Plan which Michigan submitted on September 21, 2015, for the control of emissions from existing SSI sources in the State. EPA is also providing the public with notice of, and amending 40 CFR part 62 to reflect, EPA's receipt of Michigan's negative declaration for SMWC facilities.

The EPA Administrator continues to retain authority for several tasks, as provided in 40 CFR 60.5050 and as stated in the cover letter of the State Plan.

EPA is publishing this approval action without prior proposal because the Agency views this as a non-controversial action 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 State Plan in the event adverse written comments are filed. This rule will be effective January 15, 2016 without further notice unless we receive relevant adverse written comments by December 16, 2015. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. We will then address all public comments received in a subsequent final rule based on the proposed action. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule, and if that provision can 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. If we do not receive any comments, this action will be effective January 15, 2016.

This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and therefore is not subject to review by the Office of Management and Budget under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011). For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and merely notifies the public of EPA receipt of a negative declaration from an air pollution control agency without any existing SMWC units in its state. This action imposes no requirements beyond those imposed by the state. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it 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). This rule 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). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard.

In reviewing section 111(d)/129 plan submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Act. With regard to negative declarations for designated facilities received by EPA from states, EPA's role is to notify the public of the receipt of such negative declarations and revise 40 CFR part 62 accordingly. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a section 111(d)/129 plan submission or negative declaration for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a section 111(d)/129 plan or negative declaration submission, to use VCS in place of a section 111(d)/129 plan or negative declaration submission that otherwise satisfies the provisions of the Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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 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 rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Under Section 307(b)(1) of the Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 15, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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 approving Michigan's section 111(d)/129 plan for SSI sources or negative declaration for SMWC units may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

40 CFR part 62 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-2015-0421 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 January 15, 2016. 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-2015-0421, 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 August 26, 2015 (80 FR 51759) (FRL-9931-74), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the receipt of a pesticide petition (PP IN-10807) filed by Lamberti USA, Incorporated, 161 Washington Street Eight Tower Bridge, Suite 1000 Conshohocken, PA 19428. The petition requested that 40 CFR 180.960 be amended by establishing an exemption from the requirement of a tolerance for residues of tamarind seed gum, 2-hydroxypropyl ether polymers (CAS Reg. No. 68551-04-2). 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). Tamarind seed gum, 2-hydroxypropyl ether polymers 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.

7. The polymer does not contain certain perfluoroalkyl moieties consisting of a CF3- or longer chain length as specified in 40 CFR 723.250(d)(6).

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

8. The polymer's minimum number average MW is greater than or equal to 10,000 daltons. The polymer contains less than 2% oligomeric material below MW 500 and less than 5% oligomeric material below MW 1,000.

Thus, tamarind seed gum, 2-hydroxypropyl ether polymer 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 tamarind seed gum, 2-hydroxypropyl ether polymer.

For the purposes of assessing potential exposure under this exemption, EPA considered that tamarind seed gum, 2-hydroxypropyl ether polymer 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 tamarind seed gum, 2-hydroxypropyl ether polymer is 10,000 daltons. Generally, a polymer of this size would be poorly absorbed through the intact gastrointestinal tract or through intact human skin. Since tamarind seed gum, 2-hydroxypropyl ether polymer 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 tamarind seed gum, 2-hydroxypropyl ether polymer to share a common mechanism of toxicity with any other substances, and tamarind seed gum, 2-hydroxypropyl ether polymer does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that tamarind seed gum, 2-hydroxypropyl ether polymer 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 tamarind seed gum, 2-hydroxypropyl ether polymer, 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 tamarind seed gum, 2-hydroxypropyl ether polymer.

There are no existing tolerance exemptions for tamarind seed gum, 2-hydroxypropyl ether polymer.

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 tamarind seed gum, 2-hydroxypropyl ether polymer.

Accordingly, EPA finds that exempting residues of tamarind seed gum, 2-hydroxypropyl ether polymer 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:

Background Previous Federal Action

On September 23, 2014, the Service published a proposed rule (79 FR 56686) to remove the Delmarva Peninsula fox squirrel, commonly called and hereafter referred to as the Delmarva fox squirrel (DFS), from the List of Endangered and Threatened Wildlife (List). In the proposed rule, we solicited information and comments from the public and scientific experts for 60 days, ending November 24, 2014. Later in this document, we discuss comments we received. For more information on previous Federal actions concerning the Delmarva fox squirrel, refer to the proposed rule available at http://www.regulations.gov under Docket No. FWS-R5-ES-2014-0021.

The Delmarva fox squirrel (Sciurus niger cinereus), a subspecies of the eastern fox squirrel (Sciurus niger) found only on the Delmarva Peninsula, is located between the Chesapeake Bay and the Atlantic Ocean in portions of Maryland, Delaware, and Virginia. The DFS is a large, silver-gray tree squirrel with white underparts and a wide tail. It inhabits mature forests of mixed hardwoods and pines within the agricultural landscapes of the Delmarva Peninsula and is not typically found in suburban settings. The DFS is also associated with forests that have a relatively open understory (Dueser et al. 1988, entire; Dueser 2000, entire) or where understory shrubs are clumped, leaving other open spaces (Morris 2006, p. 37). While these squirrels need mature forest for both feeding and denning, they can travel and forage in other areas, including clearcuts, young forests, and agricultural fields.

As a member of the Order Rodentia, the DFS has a life history with good potential for population increase. For example, females breed at 1 year of age, litter sizes range from two to four young, some females have potential for two litters in 1 year, and lifespans can reach 6 to 7 years in the wild. Den sites are frequently found in tree cavities, but leaf nests may also be used. Home ranges of the DFS vary considerably but are typically 12 to 16 hectares (ha) (30 to 40 acres (ac)), and individual home ranges overlap (Flyger and Smith 1980; entire, Paglione 1996; entire, Pednault-Willett 2002, p. 109). Densities range from 0.36 to 1.29 DFS per ha (0.15 to 0.5 DFS per ac), averaging 0.82 DFS per ha (0.33 DFS per ac) (Paglione 1996, p. 28; Pednault-Willett 2002, pp. 85-104).

Historically, this subspecies had a patchy distribution throughout most of the Delmarva Peninsula and into southern Pennsylvania, but by the time of its listing in 1967 (32 FR 4001; March 11, 1967), remnant populations occurred in only four Maryland counties (Taylor 1976, entire); this range contraction was most likely caused by land use changes and hunting. When the subspecies was listed, its distribution had been reduced to only 10 percent of the Delmarva Peninsula. After listing, the hunting season for this subspecies was closed, and recovery efforts focused on expanding the squirrel's distribution through translocations. In addition, new populations have been discovered since the time of listing (particularly since more intensive search efforts were initiated), and there are now many more areas of forest known to be occupied by the DFS.

The squirrel's current occupied range is defined as the area within 4.8 kilometers (km) (3 miles (mi)) of credible DFS sightings. As of the 2012 status review for the DFS, this covered 28 percent of the Delmarva Peninsula, including 10 of the 14 peninsular counties (8 counties in Maryland and 1 each in Delaware and Virginia) and 54,543 ha (134,778 ac) of occupied forest (USFWS 2012, based on 2010 data). Since that time, new sightings have continued to occur and an updated overview of its range as of 2013 is provided below in Table 1. An additional population discovered in Worcester County, Maryland, is the first population found there that was not a result of a translocation. Figure 1 shows range changes between the time of the 1993 recovery plan and the present decade.

We have not made any substantive changes in this final rule based on the comments that we received during the public comment period on the September 23, 2014, proposed rule (79 FR 56686), but we have added or corrected text to clarify the information that was presented. This information and other clarifications have been incorporated into this final rule as discussed below in Summary of Comments and Recommendations.

In the proposed rule published on September 23, 2014 (79 FR 56686), we requested that all interested parties submit written comments on the proposal by November 24, 2014. We also solicited peer review of the scientific basis for the proposal (see Peer Review Comments, below), and contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. Newspaper notices inviting general public comment were published in the Baltimore Sun, placed on Service Web sites, and advertised by other online media outlets (e.g., http://www.wboc.com/story/26574688/maryland-state-officials-set-to-discuss-delmarva-peninsula-fox-squirrel). We did not receive any requests for a public hearing.

During the public comment period for the proposed rule, we received a total of 129 comment letters. Of these, 74 provided substantive comments that we address below, including one letter from the State of Maryland and comments from two peer reviewers. Both peer reviewers asked for additional detail on the life history of this subspecies, which we have provided in the supplemental documents that can be found at http://www.regulations.gov under Docket No. FWS-R5-ES-2014-0021. All substantive information provided during the review period either has been incorporated directly into this final determination or into the supplemental documents, or is addressed below.

(1) Comment: The State of Maryland's Department of Natural Resources (DNR) was supportive of the proposed rule and concurred with our findings. The DNR added that it would continue to provide protection to the DFS under the authority of Maryland's Nongame and Endangered Species Conservation Act, although likely not at the endangered level. The DNR also stated that the post-delisting monitoring plan proposed by the Service was adequate to document expansion or contraction of the range of the DFS and that the agency would participate in the monitoring effort.

Our Response: We are in agreement with the DNR and appreciate its commitment to continued conservation.

(2) Comment: Several commenters expressed concern that the DFS would be hunted after delisting, and that populations would then decline and might require relisting.

Our Response: As explained in the proposed rule and supplementary documents (see Post-delisting Monitoring Plan, appendices D through F), after delisting, the State of Maryland intends to keep the DFS on the State list of endangered and threatened species as a Species of Conservation Concern; this status does not allow a hunting season. This intention is reinforced by the State of Maryland's comment letter reiterating that the subspecies will remain State-listed as described above.

The State of Delaware also intends to keep this subspecies on its State list of endangered and threatened species, and no hunting of the DFS will be allowed after delisting. The State has written a management plan for the DFS (DNREC 2014) that calls for adding two additional DFS populations in the State, likely through translocations.

In the State of Virginia, all DFSs are currently on the Chincoteague National Wildlife Refuge, where they will not be hunted. The State has evaluated locations for potential translocations of DFSs in the future, but any future translocated populations are not expected to be subject to hunting. Enhancement of DFS populations in Virginia would be primarily aimed at restoring the native fauna of Virginia.

(3) Comment: Several commenters stated that the occupancy of 28 percent of the historical range was insufficient to warrant delisting.

Our Response: The Act is legislation intended to prevent extinction of native species and does not describe recovery in terms of the proportion of a historical range that is occupied by a species. We do take into account in our listing and delisting determinations the effects that loss of historical range may have on the current and future viability of a species. As explained in our significant portion of the range (SPR) final policy (79 FR 37578; July 1, 2014), we have concluded that this consideration is sufficient to account for the effects of loss of historical range when evaluating the current status of a species. The purposes of the Act, stated in section 2, are to provide a means to conserve the ecosystems upon which endangered species and threatened species depend and to provide a program for the conservation of endangered species and threatened species. The Act itself does not contain the phrase “historical range,” nor does it ever allude to restoration throughout the entire historical range as a conservation purpose.

Some concerns about the current range of the DFS likely stem from a frequently quoted reason for listing, “the species was listed because it declined to 10 percent of its historical range” (USFWS 1993, p. 1). However, the substantial population decline as evidenced by that range decline is the actual reason for the listing. In 1944, the DFS was found in seven counties (Dozier and Hall 1944), but by 1967, it was known to occur in only four counties; thus, the decline would have been apparent and reasonably concerning to many biologists at the time of listing.

(4) Comment: Several commenters stated that the total number of animals in the rangewide population did not appear to be large enough to warrant delisting and expressed a concern that the population would decline again after delisting.

Our Response: As described in the proposed rule, the best estimate of the rangewide number of the DFS at the time of the 2012 status review was 22,368 (USFWS 2012, p. 20), which we can approximate as 20,000. However, the critical question with regard to the listing status of the subspecies is not a specified number of individuals; rather, it is the level of extinction risk, indicating whether the subspecies meets the definition of endangered or threatened. To address this question, we conducted a population viability analysis (PVA) for the DFS (Hilderbrand et al. 2007, entire), which enabled us to evaluate how the foreseeable threats may affect the probability of extinction of DFS subpopulations (USFWS 2012, pp. 18-21, 23-44).

The Hilderbrand et al. (2007) PVA model indicates that a population of 130 animals would have a 95 percent chance of persisting for 100 years. This threshold, also called a minimum viable population (MVP), provides a useful benchmark of extinction risk. It should not be mistaken for a recovery goal but is, rather, a population size with an associated extinction risk based on the life history of the DFS before assessing additional threats. This PVA includes variations in adult and juvenile survival, the number of young produced per year, and variability in environmental effects.

Using this model, we estimate that the known occupied forest within the range of the DFS contains a total population that is 171 times the MVP and that, even under the worst-case scenarios for threats, including inundation of areas up to 0.6 meters (m) (2 feet (ft)) above sea level due to sea level rise, we would still have a total population that is 145 times the MVP. Further, our analysis indicates that the rangewide population would comprise at least 15 subpopulations broadly distributed across the Delmarva Peninsula. After considering the conservation imperatives of habitat availability, habitat connectivity, population resiliency and redundancy, and genetic and/or ecological representation, we concluded that the risk of extinction is low, even under a worst-case scenario, and that the current population is sufficiently abundant and well distributed to withstand foreseeable threats.

(5) Comment: Several commenters stated that sea level rise was a great concern, and that threats from climate change and sea level rise have not been eliminated.

Our Response: We agree that climate change and sea level rise trends are continuing; nonetheless, the pertinent question is whether these factors are likely to threaten the DFS with extinction or with endangerment in the foreseeable future. We analyzed the impact of sea level rise and associated habitat loss on the DFS using a worst-case scenario of 0.6 m (2 ft) of inundation within 40 years. As stated in our response to Comment 4, we evaluated this factor along with a number of other factors with the potential to affect the long-term viability of DFS subpopulations (noting that various conditions can occur on the landscape and threaten some species and not others depending on the abundance, distribution, and life history of the species). After considering habitat availability and connectivity, as well as population resiliency, redundancy, and representation, we conclude that the risk of extinction is low even under the worst-case sea level rise scenario (see Summary of Factors Affecting the Species, Factor A), given projected population levels and distribution, and the ability of the DFS to colonize unoccupied habitat as described in the September 23, 2014, proposed rule (79 FR 56686) and 2012 status review (USFWS 2012).

(6) Comment: One commenter expressed two concerns regarding DFS movements in response to sea-level rise: First, during sea level rise, individual animals would not be able to move inland because DFSs prefer moving on the ground and would be unable to move across habitat that became flooded. Second, with the occurrence of sea-level rise and the associated loss of habitat, populations would not be able to shift inland over time.

Our Response: DFSs have always been abundant in southern Dorchester County, where forests are frequently flooded in the spring and are often exposed to high tidal surges. Further, DFSs have been observed moving across marshlands to other woodlands (L. Miranda 2010 and C. Keller pers. comm. 2009) and moving through flooded woodlands on logs and hummocks as well as through the trees (C. Bocetti pers. comm. 2015). In these same areas, marked animals have been documented to move 4 km (2.5 mi) and return within a season, despite intervening streams and associated marshlands 100 m (328 ft) wide or greater (C. Bocetti pers. comm. 2015). Typical home ranges are about 16.2 ha (40 ac) in size and generally include forested wetlands, indicating that DFSs already inhabit forests that experience periodic flooding.

Sea level rise is likely to result in more frequent flooding and storm and tidal surges, with gradual deterioration of habitat at the shoreline edges. It is therefore likely that individual animals will need to shift their home range inland and that the overall population will shift inland as well. The ability of DFSs to shift their home ranges in response to habitat change has already been demonstrated as individual animals moved to new areas following clearcuts in portions of their home ranges (Paglione 1996); we note that clearcutting is a more rapid and dramatic habitat alteration than would be expected from flooding or storm surges.

In terms of available habitat for the DFS to move into following storm events and/or sea level rise, we evaluated the rangewide availability and connectivity of forest patches in the 2012 status review (USFWS 2012) by mapping the connectivity of forest patches relative to dispersal of DFS subpopulations (USFWS 2012, figures 9 and 10). After quantitative analysis of habitat that could be lost due to sea level rise and development (USFWS 2012, table 7), we concluded that even if all potentially affected habitat was lost immediately, remaining DFS populations would still be sufficiently abundant and well distributed to alleviate the risk of extinction.

With regard to the connectivity needed to allow DFSs to move to more upland habitats, we recognize that sea-level rise can widen rivers and increase obstacles to DFS movement, especially from west to east in southern Dorchester County. However, even with maximum projected inundation, DFSs could disperse from southern Dorchester without crossing streams. In addition, southern Dorchester County would still contain about 2,400 to 3,200 ha (6,000 to 8,000 ac) of suitable occupied habitat, supporting at least six times the MVP. Given this, we predict long-term population viability in these areas of Dorchester County.

(7) Comment: One commenter stated that the DFS should not be delisted because it has not met all of the recovery criteria contained in the most recent DFS recovery plan (USFWS 1993). In particular, the commenter contended that our analysis of recovery criterion 6 does not adequately support our conclusion that this criterion has been met.

Our Response: We will respond first to the issue of whether recovery criteria must be met in order to delist a species, and second to the issue of whether criterion 6 has been met.

Notwithstanding our conclusion that the recovery criteria for the DFS, as required under section 4(f) of the Act, have been met, this is not the requisite analysis for determining the appropriate listing status of the species. Rather, listing determinations must be made in accordance with sections 4(a)(1) and 4(b) of the Act. Section 4(a)(1) requires that the Secretary determine whether a species is endangered or threatened because of one or more of five threat factors, while section 4(b) requires that the determination be made “solely on the basis of the best scientific and commercial data available.” Thus, any determination to delist a species must be based on the best information available at the time of the determination and the results of the five-factor analysis, notwithstanding any information in the recovery plan.

Although meeting recovery criteria is not essential for determining a species' listing status, our most recent status review (USFWS 2012) led us to the conclusion that all recovery criteria for the DFS, including criterion 6, have been met. Criterion 6 states that “mechanisms that ensure perpetuation of suitable habitat at a level sufficient to allow for desired distribution [must be] in place and implemented within all counties in which the species occurs.” Our analysis showed that there are many State and Federal laws and land protection programs in place that actively protect land at the present time and will continue to do so into the future. A detailed table and map of the land protected by these programs in each county is provided for each county in the 2012 status review (USFWS 2012, table 5 and figure 7). These protective mechanisms are also presented in our analysis of Factor D (USFWS 2012, pp. 38-39), with a detailed description of each program provided in appendix D of the same document. These data clearly portray the adequacy of these regulatory mechanisms.

(8) Comment: One commenter stated we had not adequately addressed the future of the translocated population of the DFS at Chincoteague National Wildlife Refuge (NWR) due to the projections in sea level rise.

Our Response: We agree with the commenter that this coastal population of the DFS, inhabiting Assateague Island, a barrier island, is vulnerable to reduced habitat and isolation from sea level rise, and we discussed this situation in the September 23, 2014, proposed rule (79 FR 56686). We also discuss it below, under Factor A: Loss of forest habitat from sea level rise, where we note that although the island's beaches, marshes, and shorelines are vulnerable to sea level rise, most of the forest habitat occupied by the DFS is above the 0.6 m (2 ft) inundation worst-case scenario. Even so, Refuge managers are aware of the risks of sea level rise and are actively exploring management responses to this factor. As stated in the proposed rule: “Sea level rise is expected to cause severe losses to beach and tidal flat habitat but currently upland habitat would only be reduced by 4 to 8 percent (National Wildlife Federation 2008, p. 69). [Chincoteague's] Comprehensive Conservation Plan [CCP] commits to continued forest management to maintain suitable habitat for Delmarva fox squirrels and continued monitoring of Delmarva fox squirrel populations.” The draft CCP is available at: http://www.fws.gov/nwrs/threecolumn.aspx?id=2147550165.

We consider it highly likely that a DFS population will persist on Chincoteague NWR for the foreseeable future, although there may be a shift in the habitats that are occupied. Nonetheless, even if the Chincoteague population were to be lost, this would not cause a rangewide risk of extinction (USFWS 2012, table 7).

(9) Comment: One commenter stated, “In its 2007 and 2012 status reviews, the Service concluded that these recovery criteria were not based on the best available science and did not represent the most up-to-date information on the biology of the DFS. And the Service also concluded in these status reviews that the recovery criteria did not specifically address all of the five threat-based listing factors.”

Our Response: The commenter may be referring to sections 2.2.2.1 and 2.2.2.2 of the referenced status reviews (USFWS 2007, p. 3; USFWS 2012, p. 5):

“2.2.2.1 Do the recovery criteria reflect the best available and most up-to-date information on the biology of the species and its habitat? No. More recent information on the squirrel's distribution, subpopulation delineation, and population persistence is not reflected in the 1993 recovery criteria. Nonetheless, these criteria continue to act as generally appropriate measures of recovery.

2.2.2.2 Are all of the relevant listing factors addressed in the recovery criteria? No. None of the recovery criteria specifically addresses any of the five listing factors, although habitat-related threats are alluded to. The criteria evaluate the biological status of the species.”

These statements are intended to convey that although new information had become available since 1993, the recovery criteria were still considered adequate for assessing DFS recovery progress. With regard to criteria addressing the five listing factors, the lack of specific threats-based criteria is typical of recovery plans at that time and does not preclude a separate five-factor analysis (see Comment 7, above). Significantly, since the two status reviews analyze both the recovery criteria and the five listing factors, each review constitutes a complete assessment of the status of the species (USFWS 2007; USFWS 2012). Overall, the two status reviews and the September 23, 2014, proposed rule (79 FR 56686) are based on the best available information on the biology of the DFS and the threats to its long-term viability.

(10) Comment: One commenter noted that the population data in the 2012 status review were the same as those in the 2007 review and suggested that this showed there was no increase in the population or range between those two time periods. The commenter further suggested that there was a decrease in DFS-occupied forest between 2007 and 2012. The commenter stated that despite the information for the two status reviews being essentially the same, different conclusions were reached.

Our Response: It is not clear how the commenter's interpretation of the data in the two reviews was made. Both the September 23, 2014, proposed rule (79 FR 56686 Table 1) and the 2012 status review (Chart 2) clearly show an increase in the area of occupied forest from 51,975 ha (128,434 ac) in 2005, to 54,543 ha (134,778 ac) by 2010; a map illustrating the changes in the range between the two reviews is also provided (USFWS 2012, figure 3). Since 2010, we have continued to document new areas of occupied forest and provide an updated number of 55,589 ha (137,363 ac) as of 2013 (79 FR 56686, September 23, 2014, Table 1).

The rangewide population estimates in the 2007 and 2012 reviews differ only slightly (19,265 versus 22,368 animals, respectively), but as described in the 2012 review, the two estimates were based on different survey methods. Light detection and ranging (LiDAR) data, which allow us to distinguish between mature forests and other forested areas, were not available for the 2007 status review. We were able to use a more refined and conservative approach in the 2012 review and estimated the rangewide population using only occupied mature forest. Both estimates are intended to provide a general measure of the rangewide population size (USFWS 2007, p. 8; USFWS 2012 p. 20).

It should also be noted that in the 2007 review, we concluded that DFS recovery was imminent. We indicated that a final listing recommendation was pending while we obtained and analyzed LiDAR data, and that, if new information continued to support our finding that DFS habitat availability and connectivity were likely to persist over the foreseeable future, we would recommend initiation of delisting when the LiDAR analysis was completed (USFWS 2007, p. 27).

(11) Comment: One commenter was concerned because 9 of 22 subpopulations (40 percent) appear to be vulnerable to extirpation.

Our Response: This concern does not take into account the relative size of these subpopulations. As described in the 2012 status review (USFWS 2012, p. 42, figure 5 and table 7), there is a higher vulnerability to extirpation for 9 smaller subpopulations, but the vast majority (95 percent) of DFSs occurs in 11 large, secure subpopulations. This provides a solid indication of continued persistence and growth of the rangewide population. Most of the smaller populations originated as translocations, which have become well established and have contributed to the expanded distribution of the subspecies. Further, as shown by the 2007 population viability analysis (Hilderbrand et. al 2007), if one or more small populations blink out, the rangewide population is still not vulnerable to extinction; even accounting for all projected losses from sea level rise and development, the rangewide population will still be 145 times the MVP, indicating long-term viability.

In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinion from five independent scientists with expertise that included familiarity with the DFS and its habitat, biological needs, and threats. We received responses from two of the peer reviewers.

We reviewed comments received from the peer reviewers for substantive issues and new information regarding the status of the DFS. The peer reviewers generally concurred with our methods and conclusions and considered the scientific information to be correct and the analyses to be sound. However, both reviewers identified parts of the document that could be strengthened. Peer reviewer comments are addressed below and incorporated as appropriate into the final rule or supplemental documents, available at http://www.regulations.gov under Docket No. FWS-R5-ES-2014-0021.

(12) Peer Review Comment: Both reviewers asked for more detail to be provided on life history of the subspecies.

Our Response: We have added more life-history information in a supplemental document for the final rule, particularly life history related to reproduction, litter size, and survival. The supplemental document is available at http://www.regulations.gov under Docket No. FWS-R5-ES-2014-0021.

(13) Peer Review Comment: One reviewer asked for clarification on the length of time that agreements preventing development on private lands would continue.

Our Response: The private lands we consider protected from development have easements that extend in perpetuity, and this has been added to the text of this rule.

(14) Peer Review Comment: Both reviewers thought that the rate of future development might be underestimated and suggested possibly using zoning or projected road development as additional sources of information.

Our Response: We consider the analysis of future development conducted by the Maryland Department of Planning to be the best available source of information on development trends insofar as this office has both the responsibility for tracking such information and the requisite expertise to make trend projections. The September 23, 2014, proposed rule (79 FR 56686) and 2012 status review (USFWS 2012) used data from Maryland's 2008 planning report (Maryland Department of Planning 2008a), as this was the most current information at the time; the same trends and areas of expected development are also mapped in a more recent planning document (Maryland Department of Planning 2011a). The data continue to show that the eastern shore of Maryland is far more rural, with less development and more protected lands, than elsewhere in Maryland. Thus, the most recent information continues to support the past and future trends used in our previous analysis.

Consideration of zoning was not included in our analysis specifically because zoning restrictions can be changed, making projections based on this source of information less certain. Further, we took a cautious approach in considering future development by projecting complete loss of any DFS-occupied habitat within a “Smart Growth” area that was not otherwise protected. (“Smart Growth” is a theory of land development that concentrates new development and redevelopment in areas that have existing or planned infrastructure to avoid sprawl.) Currently, DFSs inhabit blocks of forest within the Smart Growth areas of both Cambridge and Easton in Maryland. Although limited monitoring shows that DFSs have been persisting in these woodlands over many years and may be able to continue doing so in the future, our analysis assumes loss based on lack of ensured habitat protection.

(15) Peer Review Comment: One peer review comment referred to the possibility of residential development causing problems because of the presence of free-ranging dogs that may pursue the DFS.

Our Response: We agree that this can be a problem in some situations, and although all counties within the current range of the DFS have regulations that require dogs to be on a leash, at heel, or directly beside the owner, enforcing these regulations can be difficult. Further, as noted in the status review (USFWS 2012, p. 27), the presence of dogs may be one reason DFSs do not inhabit residential developments. Despite these concerns, we do not consider free-roaming dogs to be a threat that would result in population-level effects, either individually or in combination with other possible risks, to this subspecies, as effects are highly localized and regulations do exist to enable management of this issue.

(16) Peer Review Comment: Both peer reviewers raised a concern regarding the commitment to monitoring of the DFS after delisting and questioned whether there would be long-term funds, time, and available personnel to carry out the monitoring work described in the post-delisting monitoring plan.

Our Response: We agree that sustaining monitoring efforts can be challenging and subject to competing priorities. Nonetheless, we have designed the post-delisting monitoring strategy to fit into current work plans and are seeking additional ways in which this effort can be incorporated into other monitoring work conducted by the States. For example, the hunt clubs leasing the Maryland State Chesapeake Forest lands are now asked to report sightings or camera shots which have already provided DFS records, and we are working with the States on other opportunities to invite hunters to report DFS sightings. We also anticipate that DFS-occupied sites managed by conservation groups will be monitored as part of their management efforts; sightings of DFSs are often reported by those who live or work on these properties. Overall, recording these sightings will enhance our ability to conduct widespread monitoring of the DFS.

Section 4(f) of the Act directs us to develop and implement recovery plans for the conservation and survival of endangered and threatened species unless we determine that such a plan will not promote the conservation of the species. Recovery plans are not regulatory documents and are instead intended to establish goals for long-term conservation of a listed species; define criteria that are designed to indicate when the threats facing a species have been removed or reduced to such an extent that the species may no longer need the protections of the Act; and provide guidance to our Federal, State, and other governmental and nongovernmental partners on methods to minimize threats to listed species. There are many paths to accomplishing recovery of a species, and recovery may be achieved without all criteria being fully met. For example, one or more criteria may have been exceeded while other criteria may not have been accomplished, yet the Service may judge that, overall, the threats have been minimized sufficiently, and that the species is robust enough to reclassify or delist the species. In other cases, recovery opportunities may have been recognized that were not known at the time the recovery plan was finalized. These opportunities may be used instead of methods identified in the recovery plan.

Likewise, information on the species that was not known at the time of the recovery plan may become available. The new information may change the extent that criteria need to be met for recognizing recovery of the species. Recovery of species is a dynamic process requiring adaptive management that may, or may not, fully follow the guidance provided in a recovery plan.

Despite the guidance provided by recovery plans, determinations to remove species from the List must be made in accordance with sections 4(a)(1) and 4(b) of the Act. Section 4(a)(1) requires that the Secretary determine if a species is endangered or threatened because of one or more of five threat factors. Section 4(b) of the Act requires that the determination be made “solely on the basis of the best scientific and commercial data available.”

Although recovery criteria, as mentioned above, help guide recovery efforts and should always be consulted when considering a change in the status of a listed species, the ultimate determination of whether to reclassify or delist a species must be made in accordance with statutory standards, and recovery criteria can neither substitute for nor pre-empt section 4(a)(1) requirements. Ultimately, a decision to remove a species from the List is made when the best available data show that the species is no longer an endangered species or a threatened species, regardless of how closely this information conforms to the information and criteria in the recovery plan.

The most recent DFS recovery plan was approved by the Service on June 8, 1993 (USFWS 1993, entire), and updated on October 31, 2003 (USFWS 2003, entire). The plan states that “the long-range objective of the DFS recovery program is to restore this endangered species to a secure status within its former range.” The plan provides three criteria for reclassifying the DFS from endangered to threatened status. It then provides four additional criteria to be considered in conjunction with the first three for delisting the DFS.

A discussion of the extent to which each recovery criterion has been met is provided in the proposed rule (79 FR 56686; September 23, 2014). This discussion is summarized below.

Criterion 1: Ecological requirements and distribution within the remaining natural range are understood sufficiently to permit effective management. A considerable body of new information has been amassed regarding the DFS' distribution and ecological requirements, and we thus conclude that this recovery criterion has been met. The six key contributions to our understanding of the DFS are summarized below.

(1) DFS range and distribution: The geographic information system (GIS) maintained for the DFS documents a significant increase in the area occupied by the DFS since the 1993 recovery plan was issued (see Figure 1, above). Records of DFS sightings by knowledgeable observers and, in particular, the use of trap and camera surveys have greatly improved our ability to determine which forest tracts are occupied by the DFS and monitor continued presence.

(2) Population persistence: Persistence of DFS populations over the recovery period has been evaluated through comparison of occupancy over time, including a survey conducted in 1971 and repeated in 2001, and a second analysis comparing occupancy from 1990 through 2010 (Table 2). These studies are summarized in the proposed rule (79 FR 56686; September 23, 2014) and status review (USFWS 2012, pp. 15-17).

As indicated in Table 2, DFSs continued to persist in the vast majority of woodlots where they were known to occur in 1990, and their presence was newly documented in an additional 13,042 ha (32,227 ac) in all three States through 2010 (USFWS 2012, p. 8). Although some of these discoveries are likely to be occurrences that were previously present but undetected, anecdotal information indicates that several new localities represent true range expansion (see, for example, USFWS 2012, figure 4). Using the 2010 figures for occupied forest in all three States, as well as maps of mature forest and density estimates of the DFS available from various studies, we estimate that the total population of the DFS is now about 20,000 animals across an expanded range (USFWS 2012, p. 21).

(3) Population viability: A DFS population viability analysis (PVA) developed by Hilderbrand et al. (2007, entire) modeled the extinction probabilities of different-sized populations and determined that a population with 65 females, or 130 animals total, had a 95 percent chance of persisting for 100 years. This value, also called a minimum viable population (MVP), was used to gauge extinction risk by projecting how many populations of this size are likely to remain present in a given portion of the current DFS range (USFWS 2012, pp. 18-20; also see Public Comments, above).

The PVA also estimated that 75 percent of a given DFS population would have the ability to disperse to areas within 4 km (2.5 mi) (Hilderbrand et al. 2007, p. 73), and thus animals in forested tracts within this distance would be likely to interbreed; these interbreeding groups are defined as subpopulations. The analysis indicated that approximately 85 percent of DFSs are found in four large, narrowly separated subpopulations that could expand to become even more connected. Each of these subpopulations contains populations estimated to be several times the MVP minimum and have a high likelihood of population persistence. Overall, the rangewide population, estimated at between 17,000 and 20,000 animals, contains more than 100 times the MVP.

(4) Effects of timber harvest: Two major studies of the effects of timber harvest on the DFS (Paglione 1996, entire; Bocetti and Pattee 2003, entire) suggest that the subspecies is fairly tolerant of timber harvest, although specific impacts depend on the size, location, and landscape context of the harvest. Small clearcuts within a surrounding forest showed relatively little impact on the DFS, with individual squirrels shifting their home ranges into adjacent habitat, whereas harvest of more isolated forest peninsulas forced DFSs to move greater distances (Paglione 1996). Findings from the long-term Bocetti and Pattee (2003) study lead to the general conclusion that the DFS can tolerate timber harvests and can continue to occupy forested mosaics of mature and regenerating stands. In addition, both studies suggest that the DFS has high site fidelity and tends to shift home ranges rather than abandon a site in response to disturbance.

(5) Habitat availability: An analysis of LiDAR data provided by the State of Maryland enabled an inventory of mature forest suitable for the DFS throughout most of the squirrel's range (USFWS 2012, Appendix E). As of 2004, LiDAR mapping had identified 175,656 ha (434,056 ac) of mature forest in the eight Maryland counties occupied by DFSs (55 percent of all forest was considered mature), with 17 percent currently occupied and thus over 80 percent of mature forest available for expansion (USFWS 2012, table 4).

Although the amount and location of mature forest will change over time with timber harvest and forest growth, these data provide good baseline information about the availability and distribution of suitable habitat. Mature forest is often found in riparian zones (USFWS 2012, figure 8) that can provide connected habitat for DFS dispersal and colonization of new areas. LiDAR mapping also showed large tracts of mature forest distributed in upland areas throughout the Maryland portion of the subspecies' range. Given that most DFS populations occur in Maryland and, further, that unoccupied but suitable habitat is found both along the coast and inland elsewhere on the Delmarva Peninsula, we can infer from this habitat inventory that there is ample unoccupied mature forest to enable further expansion of the DFS' rangewide population.

(6) Habitat connectivity: Lookingbill et al. (2010, entire) conducted a GIS analysis of the connectivity between 400-ha (175-ac) forest patches on the Delmarva Peninsula (although the DFS is not a forest interior obligate and does not require forest blocks this large). Study results show high connectivity of forest blocks in the southern Maryland portion of the squirrel's range, indicating few obstacles to DFS dispersal throughout this area. Two major forest corridors were identified for DFS dispersal out of Dorchester County, Maryland, one of which is already occupied by the DFS (a third dispersal corridor not identified by the model is also DFS-occupied). Observations of DFS movement through a wide range of habitats, in conjunction with the results of this connectivity model and the map of LiDAR-defined mature forests, indicate that there is sufficient habitat availability and connectivity for further DFS range expansion.

Criterion 2: Benchmark populations are shown to be stable or expanding based on at least 5 years of data. Criterion 2 was intended to measure overall DFS population trends using monitoring data from seven benchmark populations. Although a slightly different set of eight benchmark sites was ultimately monitored, analysis of the resulting data (Dueser 1999, entire) showed that the benchmark sites were stable over a 5- to 7-year period, and benchmark monitoring was concluded.

We also have collected data to better understand rangewide population trends. The distribution data that document an expanded range and population persistence within that range as described under criterion 1, above, are much better indicators of DFS recovery. Although DFS populations in isolated areas (such as on small islands) are vulnerable to extirpation, all available population data for the DFS indicate that the range has expanded and populations are persisting within the range, and that this recovery criterion has been met.

Criterion 3: Ten translocated colonies are successfully established throughout the historical range. This criterion requires that at least 10 new DFS colonies must show evidence of presence for at least 5 to 8 years after release, demonstrating the ability of the DFS to colonize new sites, whether naturally or through management.

Post-release trapping results (Therres and Willey 2002, entire), along with more recent trapping and camera surveys, indicate continued presence of 11 of 16 translocated colonies (69 percent) for more than 20 years (USFWS 2012, table 1, p. 83). Further, in several of these areas, DFSs have dispersed well beyond the initial release site.

This success rate is higher than is typically found for similar translocation efforts for other endangered species (see Fischer and Lindenmayer 2000, p. 5), although the success rate is generally higher for mammals and wild source populations (Wolf et al. 1996, p. 1146). Further, despite some initial concerns about the genetic diversity of the translocated populations, subsequent analysis indicated that their genetic diversity was comparable to that of their source populations (Lance et al. 2003, entire). These data indicate that this criterion has been met.

Criterion 4: Five additional (post-1990) colonies are established outside of the remaining natural range. Criterion 4 requires discovery or establishment of colonies outside the range known at the time of the 1993 recovery plan, thus addressing the threat of range contraction and providing for additional population redundancy as one component of long-term species viability.

By 2007, eight new populations had been identified that did not result from translocations (USFWS 2007, figure 2), expanding the range toward the east. Notably, a colony discovered in Sussex County, Delaware, represents the first population found in that State since the time of listing that was not a result of a translocation. Since 2007, additional occupied forest has been discovered between some of these new populations, thus improving their long-term likelihood of survival (USFWS 2012, figure 3). We therefore conclude that this recovery criterion has been met.

Criterion 5: Periodic monitoring shows that translocated populations have persisted over the recovery period. Criterion 5 requires the continued presence of at least 80 percent of translocated populations, with at least 75 percent of these populations shown to be stable or improving. All successfully established translocated populations have persisted over the full period of recovery and have either become more abundant on their release sites or have expanded or shifted into new areas, as shown by trapping efforts (Therres and Willey 2002, entire), and, more recently, both trapping and/or camera surveys (USFWS 2012, table 1). Overall, the continued presence and growth of DFS populations at translocation sites show that this recovery criterion has been met.

Criterion 6: Mechanisms that ensure perpetuation of suitable habitat at a level sufficient to allow for desired distribution are in place and implemented within all counties in which the species occurs. Several well-established programs protect DFS habitat from development in perpetuity (Rural Legacy, Maryland Environmental Trust, Maryland Agricultural Programs, etc.). These programs, along with State and Federal ownership, protect an estimated 15,994 ha (39,524 ac; 29 percent) of DFS-occupied forest throughout the subspecies' current range (USFWS 2012, table 3). In addition, several State laws and regulatory programs will continue to protect forest habitat (USFWS 2012, appendix D). In Delaware and Virginia, the DFS occurs primarily on Federal and State land; the sole Virginia population was established on Chincoteague NWR and is completely protected from residential development or commercial timber harvest. Overall, we conclude that this recovery criterion has been met.

Criterion 7: Mechanisms are in place and implemented to ensure protection of new populations, to allow for expansion, and to provide inter-population corridors to permit gene flow among populations. As discussed under recovery criterion 1, LiDAR data indicate that mature forest blocks connected by riparian corridors are scattered throughout the Delmarva Peninsula. Further, Lookingbill et al. (2010, entire) indicate that these connected blocks constitute a good network of forest to allow for dispersing DFSs. Given ample opportunities for dispersal, and the fact that many of these corridors are protected by State regulatory mechanisms (as discussed under The Inadequacy of Existing Regulatory Mechanisms, below), we conclude this recovery criterion has been met.

Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for listing species, reclassifying species, or removing species from listed status. “Species” is defined in section 3 of the Act as any species or subspecies of fish or wildlife or plants, and any distinct vertebrate population segment of fish or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). A species may be determined to be an endangered or threatened species based on one or more factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.

We must consider these same factors in delisting a species, and we must show that the best available scientific and commercial data indicate that the species is neither endangered nor threatened because: (1) It is extinct; (2) it has recovered and is no longer endangered or threatened (as is the case with the DFS); and/or (3) the original scientific data used at the time of listing classification were in error (50 CFR 424.11(d)). Determining whether a species is recovered requires evaluation of both the threats currently facing the species and the threats that are reasonably likely to affect the species in the foreseeable future following delisting and removal or reduction of the Act's protections.

A species is endangered for purposes of the Act if it is in danger of extinction throughout all or a significant portion of its range (SPR) and is threatened if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range. The word “range” in these definitions refers to the range in which the species currently exists. Although the term “foreseeable future” is left undefined, for the purposes of this rule, we regard foreseeable future as the extent to which, given available data, we can reasonably anticipate events or effects, or extrapolate threat trends, such that reliable predictions can be made concerning the future status of the DFS. In conducting this analysis, our general approach was to review past threat trends and the DFS' response, followed by a prediction of future trends. With some exceptions, we used a time frame of approximately 40 years for both past and future trend analyses; this time period also allowed use of available data to make more reliable projections despite the inherent uncertainties attached to predicting the future.

In the following five-factor analysis, we evaluate the status of the DFS throughout its entire range. We then address the question of whether the DFS is endangered or threatened in any significant portion of its range. Note that information discussed in detail in the September 23, 2014, proposed rule (79 FR 56686) and/or the 2012 status review (USFWS 2012, pp. 26-44) is summarized for each factor below.

Here we considered habitat changes caused by residential development, sea level rise, and commercial timber harvest, as well as the habitat-related effects on DFS population and rangewide viability, with the exception of development or timber harvest effects on the population on Chincoteague NWR, as it is completely protected from these activities; we did, however, address the impact of sea level rise on this population.

The Delmarva Peninsula is basically a rural landscape, but the human population has increased since the DFS was listed, as shown by Maryland Department of Planning data discussed in the September 23, 2014, proposed rule (79 FR 56686) (see Maryland Department of Planning 2008a, 2008b, and 2011b). Despite the past—and continuing—growth, the majority of the Delmarva Peninsula's land base remains rural, with approximately 47 percent agricultural land, 36 percent forest, 9 percent wetlands, and only 7 percent developed land (USFWS 2012, table 2).

Further, since listing, a variety of State laws and programs have been put in place to counteract the rate of development across the State (USFWS 2012, appendix D), including the Maryland Forest Conservation Act and Maryland Critical Area Law. In addition, the Maryland Environmental Trust, Maryland Agricultural Land Protection Fund, and Maryland Rural Legacy Program used easements to permanently protect about 3,642 ha per year (9,000 ac per year) of private lands between 2000 and 2008, enhancing protection of DFS habitat (USFWS 2012, chart 4).

Overall, approximately 30 percent of DFS-occupied forest lands, widely distributed across the subspecies' range, is protected from development (USFWS 2012, table 5). Additional acres of protected forest outside the current range of the DFS provide areas for further expansion (USFWS 2012, figure 7). Overall, the 15,995 ha (39,524 ac) of occupied forest protected from development could support a DFS population 45 times the MVP (based on Hilderbrand et al. 2007, entire). However, because 70 percent of DFS-occupied forest occurs on private land that remains legally unprotected from development, future losses from development are likely.

We assessed the potential threat of DFS habitat loss stemming from future development by overlaying the acres of existing occupied forest with areas projected to be lost to development, including: (1) Smart Growth areas (excluding the acres that are protected by easement), (2) areas where development projects are already planned, and (3) areas that are projected to be lost by 2030 if Smart Growth policies are not implemented (USFWS 2012, figure 11). Overall, 3 percent (2,283 ha or 5,643 ac) of the forest area currently occupied by the DFS is anticipated to be lost to development by 2030. This relatively low rate of projected loss can be attributed to the likelihood that most future development on the Delmarva Peninsula will occur outside the current range of the DFS. Future development within the current range is expected to primarily affect two small, isolated DFS subpopulations where extirpation is already probable. Together these subpopulations constitute less than 0.5 percent of the total viable population; thus, their loss would have a negligible effect on the rangewide extinction risk for the DFS. Although information on development projections past 2030 is not available at this time, we consider it likely that development on the Delmarva Peninsula will continue to be concentrated near large towns outside the range of the DFS, with some scattered development within the subspecies' range.

Conversely, we also anticipate continued expansion of DFS populations, including expansion onto Chesapeake Forest lands (which are now owned and managed by the State of Maryland), noting that some occupancy on these lands has already occurred. The anticipated discovery of additional occupied forest areas may further offset projected loss of occupied forest due to development, resulting in little change to the overall area of the distribution. Discovery of additional occupied forest has occurred at the rate of 763 ha per year (1,887 ac per year) over the past 10 years. Even if we discover new occupied forest at half that rate, the anticipated net loss of occupied habitat from development would be offset by known occupied habitat in 6 years. With the continued protection of forest lands provided by State laws and programs, we do not expect habitat loss from development to substantially elevate the risk of the DFS' extinction.

The Delmarva Peninsula is a low-lying landform, and sea level rise in the Chesapeake Bay can flood and kill shoreline forests that provide habitat for the DFS. However, the DFS does not occur exclusively in coastal habitats, which moderates its vulnerability to this threat, and GIS analysis indicates that over 80 percent of the current range would remain even after a projected inundation of coastal areas by 0.61 m (2 ft); see the discussion below.

Regarding sea level rise in the past, the forces of land subsidence and sea level rise have resulted in a long history of island loss and formation in the Chesapeake Bay. In the last century, these forces combined to produce a relative sea level rise in the Chesapeake Bay region of approximately 0.3 m (1 ft) per 100 years (National Wildlife Federation 2008, p. 2).

Loss of some forest areas in southern Dorchester County, Maryland, is already apparent at the lowest elevations where trees have been killed by saltwater intrusion from recent hurricanes. Although we cannot precisely estimate how much occupied habitat has been lost in the past 40 years, LiDAR analysis of forest height and canopy cover has identified at least 68 ha (170 ac) at the edge of coastal marshes that are now standing dead trees.

Hurricanes contribute to forest loss as sea levels rise, with saltwater moving farther into forested areas during associated storm surges. However, hurricanes and intense storms have always been part of the weather in this region, and there is no evidence that they pose a problem per se for the DFS. For instance, in October 2012, cameras placed in woods to monitor DFSs near the Atlantic coast recorded DFSs onsite after superstorm Sandy passed through, indicating survival through the storm. Although direct loss of trees used by the DFS may have occurred in the past, the major effect of hurricanes has been the additional push of saltwater into more upland areas, killing coastal forest trees.

In terms of future effects of sea level rise and climate change, sea level rise in the Chesapeake Bay is certain to continue, and the rate of change is likely to be even higher than in the past (National Wildlife Federation 2008, pp. 16-17; Sallenger et al. 2012, entire; Boesch et al. 2013, entire). To determine the extent of DFS-occupied forest that may be lost through the combined effects of sea level rise and subsidence (i.e., relative sea level rise), we used a 0.61-m (2-ft) inundation scenario. A rise in sea level of this magnitude is predicted to occur by about 2050 under a worst-case scenario (Boesch et al. 2013, p. 15).

Our GIS analysis, in which we overlaid this inundation scenario with DFS-occupied forest, indicated that the most severe effects of sea level rise on the DFS by 2050 will be seen in the southwestern portion of Dorchester County, Maryland (USFWS 2012, figure 12). Here, 9,332 ha (23,060 ac) of currently occupied forest would either be lost or remain only on isolated islands (USFWS 2012, figure 12). In addition, 4,409 ha (10,897 ac) of habitat along the remaining southern edge of the county would eventually deteriorate, causing DFSs to move inland. The ability of DFSs to move into connected habitat likely reduces the effects on this subspecies due to forest losses at the coastal marsh fringe; we nonetheless recognize this as habitat loss. Other projected forest losses include scattered patches throughout the range, including some losses in the range of the Chincoteague population (USFWS 2012, figure 12).

Even if the predicted habitat losses from sea level rise in southwestern Dorchester County were to occur immediately, the area's remaining 23,632 ha (58,398 ac) of occupied habitat would continue to support a highly abundant DFS population with a negligible risk of extinction. Moreover, the habitat in the northeastern portion of this area is connected to existing occupied forest farther inland (USFWS 2012, figure 9) into which DFSs could move. In particular, a large tract of State-owned forest that will soon become sufficiently mature to allow for DFS expansion connects the Dorchester DFS subpopulation to forest tracts in Caroline and Sussex Counties (USFWS 2012, figure 10). Although sea level rise may cause streams and rivers to widen and pose more of a barrier in the future, forested corridors will still be available to provide DFSs with access to habitat in the inland portions of Dorchester County.

Given our current understanding of DFS habitat use, dispersal, and population dynamics, the expected DFS response to deterioration of coastal woodlands from sea level rise is the gradual movement of some DFSs to more inland areas. The DFS is known to travel across areas of marsh and can move at least 40 to 50 m (131 to 164 ft) between forested islands and may also move across frozen marsh in the winter. We acknowledge that despite the squirrel's ability to move, isolation and loss of some individuals is likely to occur. Nonetheless, we conclude that habitat loss due to sea level rise will not be a limiting factor to the future viability of this subspecies.

The 0.61-m (2-ft) inundation scenario does not play out the same in parts of the range outside southwestern Dorchester County. In the series of small peninsulas in northwestern Dorchester County called the “neck region,” this scenario results in shrinkage of available habitat but does not create islands, and leaves habitat for the DFS to move into (USFWS 2012, figure 12). This is also the case in other portions of the squirrel's range near the Chesapeake Bay and the Atlantic Coast. Some additional small areas of occupied habitat may be lost, but the gradual loss can be accommodated by shifts in DFS home ranges to adjacent but currently unoccupied habitat.

The most coastal population of the DFS is a translocated population introduced in 1968 to Chincoteague NWR, a barrier island in Virginia that could be severely affected by sea level rise (National Wildlife Federation 2008, p. 69). The refuge's draft Comprehensive Conservation Plan (available at http://www.fws.gov/nwrs/threecolumn.aspx?id=2147550165) addresses this issue, and the refuge may consider future land acquisitions on the Delmarva Peninsula mainland. Chincoteague NWR will continue to manage for the DFS into the future whether or not the subspecies remains listed. In addition, translocations of DFSs to areas outside refuge boundaries at some point in the future are possible.

It is not clear how climate change effects may alter the nature of the forests of the Delmarva Peninsula. However, as the DFS occurs in pine, hardwood, and mixed hardwood forests, with a preference for mixed forests with diverse tree species, any effects on the species composition of these forests are unlikely to become a significant threat for the squirrel.

Overall, DFS distribution has increased in the past 40 years even with some sea level rise occurring. In the next 40 years under a worst-case scenario, we predict some deterioration of forests in certain areas along the Chesapeake Bay and the Atlantic Coast (USFWS 2012, figure 12), but we also anticipate population expansion and shifts in DFS home ranges into suitable but currently unoccupied habitat available in the interior of the Delmarva Peninsula. Although some concern has been expressed about the likelihood of such expansion (e.g., by the Center for Biological Diversity 2013), the analysis of habitat suitability, connectivity, and the range expansion documented in the last 15 years provides a rational basis for this expectation. Thus, available data indicate that loss of habitat due to climate change and sea level rise does not pose an extinction risk to the DFS.

Having determined that neither development nor sea level alone threatens the DFS with rangewide extinction, we conducted a spatial analysis to examine how these most pervasive stressors might interact (USFWS 2012, figure 5 and table 7).

As of 2010, 54,429 ha (134,496 ac) of habitat supported 22 DFS subpopulations, (USFWS 2012, table 7), and 95 percent of the occupied forest contains the 11 largest subpopulations, which are highly likely to remain demographically viable. Even with projected losses from both development and sea level rise, and not accounting for potential discovery of additional occupied habitat, over 95 percent of the DFS-occupied forest would continue to support these most viable subpopulations. Thus, the combined effects of these threats do not pose an extinction risk to the DFS.

Unlike development and sea level rise, timber harvest does not result in permanent loss of habitat. Further, as noted under Recovery Criteria, above, DFSs are resilient to timber harvests when there is adjacent habitat into which they can move. Thus, the major habitat concerns related to timber harvests are (1) the prevalence of short-rotation timber harvests, where trees are harvested before they mature enough to become DFS habitat; and (2) harvest rates that exceed growth rates and result in a continual decline of mature forest.

Short-rotation pine forestry involves harvesting stands at approximately 25 years of age for pulp and other fiber products, precluding their suitability as DFS habitat. In the past, two large corporations managed for short-rotation pine on the Delmarva Peninsula; however, these industries have effectively left the Peninsula. In 1999, the State of Maryland acquired 23,471 ha (58,000 ac) of these lands, collectively administered as the Chesapeake Forest Lands and comprising scattered parcels throughout the southern four Maryland counties (USFWS 2012, figure 13). Another 4,202 ha (10,384 ac) of forest land previously owned and managed for short-rotation pine are now owned by the State of Delaware. All these lands will now be protected from development and managed for sustainable sawtimber harvest and wildlife habitat objectives. Moreover, DFS management has been integrated into the Sustainable Forest Management Plan for Chesapeake Forest Lands prepared by Maryland's Department of Natural Resources (Maryland DNR 2013, pp. 92-96), which identifies a total of 17,618 ha (43,535 ac) as DFS Core Areas and DFS Future Core Areas. Overall, these land acquisitions represent a future of protected forest areas managed for sawtimber where the DFS can survive and grow in numbers, substantially removing the threat posed by short-rotation pine management on the lower Delmarva Peninsula.

Harvest rate estimates for both the 2007 and 2012 status review (USFWS 2007, pp. 17-20; USFWS 2012, table 6) indicated that harvests in more recent years have been substantially less than in previous years (generally prior to 2005) (USFWS 2012, table 6). For instance, in the four southern Maryland counties, the average annual harvest dropped from approximately 1,050 ha (2,594 ac) prior to 2005, to approximately 303 ha (749 ac) since then. The average size of harvested stands in these counties has also decreased, from an average of 22 ha (54 ac) to an average of 15 ha (36 ac). This is also the case in Delaware; in Sussex County, the annual harvest rate in the last 4 years was half of what was generally harvested between 1998 and 2005, with the same holding true for the size of individual harvest areas.

Among other reasons for these reductions, economic pressures have resulted in the closure of several sawmills on the Delmarva Peninsula. The market for timber has declined dramatically, with low prices acting as a disincentive to harvesting. As discussed below, reduced harvest levels are likely to continue in the future.

Although it is very difficult to predict future market forces, trends in fragmentation and parcelization in the Chesapeake Bay region (Sprague et al. 2006, pp. 22-24) suggest that future timber harvests might remain smaller in size and occur less frequently. Parcelization is the subdivision of large blocks of land into multiple ownerships, with a consequent tendency to shift from forest management to management for aesthetics and wildlife values. In Maryland, 45 percent of woodland owners own less than 20 ha (50 ac) of woods (U.S. Department of Agriculture, 2012). Given general sizes of timber harvests, these woodlands may be too small for future harvests and are more likely to be managed for aesthetics and wildlife.

This ownership pattern also reflects the gentrification of the eastern shore of Maryland, with landowners becoming less likely to be farmers or foresters and more likely to be commuters or retirees who do not use their properties for income. This trend is expected to continue into the future (see http://www.mdp.state.md.us/msdc/S3_Projection.shtml), with a concomitant reduction in total acres harvested.

Overall, the forest land transfers in Maryland and Delaware, in conjunction with available data on harvest rates across the range of the squirrel, suggest that timber harvest does not pose an extinction risk for the DFS.

The current range of the DFS spans coastal and interior areas of the Delmarva Peninsula where DFSs inhabit diverse wetland and upland forest types, suggesting that DFS populations will continue to remain resilient to a variety of habitat-related effects. Further, the distribution of these habitats provides for redundancy of populations, which reduces the risk of catastrophic loss. We recognize that habitat losses may occur in some areas, primarily from residential development and sea level rise, but we expect the DFS population to remain at or above recovered levels, and, moreover, we do not expect such habitat losses to prevent overall expansion of the range in the future.

Overhunting has been posited as a factor in the original decline of this subspecies. Squirrel hunting was common in the early and middle decades of the 20th century, and hunting of the DFS in small, isolated woodlots or narrow riparian corridors could have resulted in local extirpations. Taylor (1976, p. 51) noted that the DFS remained present on large agricultural estates where hunting was not allowed, suggesting that these areas may have provided a network of refugia for the DFS.

By 1972, hunting of DFS was banned through state regulations. Removal of hunting pressure may have been one factor in the renewed population growth and expansion of the squirrel's range to its current extent. Coincidentally, squirrel hunting has declined in popularity in recent decades; nationwide, squirrel hunting declined by about 40 percent between 1991 and 2001, and by an additional 20% between 2001 and 2011 (DOI 1991 p. 70; DOI 2001, p. 57; DOI 2011, p. 60). Recent records of squirrel hunters specifically are not available for Maryland but the number of small game hunters in Maryland (pursuing squirrels, rabbits and/or quail) declined from 64,000 to 35,000 between 1991 and 2011 (DOI 1991, p. 113; DOI 2011, p. 102). Hunting gray squirrels will continue to some extent, and though some hunters may mistake DFS for gray squirrels, this is likely a rare situation that has not prevented the DFS from expanding over the last 40 years.

Regarding hunting in the future, discussions with our State partners indicate that DFS management after delisting would be conducted very cautiously and that a hunting season would not be initiated in the immediate future. We recognize that a restricted hunt could be conducted at sites where DFSs are abundant without causing a population decline, and that State management agencies have the capability to implement careful hunting restrictions and population management; the reopening of the black bear (Ursus americanus) hunt in Maryland is a good example of a carefully and successfully managed hunt (Maryland Department of Natural Resources 2012, entire).

We nonetheless foresee only limited individual interest in reinitiating a DFS hunt, coupled with strong public attitudes against hunting DFSs and, more generally, recreational hunting (Duda and Jones 2008, p. 183). Given public sentiment, the declining interest in squirrel hunting, and the restrictions that we expect would be imposed on a renewed hunting program, hunting is highly unlikely to pose an extinction risk to the DFS in the foreseeable future.

Each of these types of threat is summarized below.

Reports of disease in the DFS are uncommon. Although other subspecies of eastern fox squirrels are known to carry diseases such as mange and rabies, there is no documentation of these diseases in the DFS, and there is no evidence or suspicion of disease-related declines in any local population (USFWS 2012, pp. 37-38).

Although the advent of white-nose syndrome affecting bats (Blehert et al. 2009, entire) and chytrid fungus affecting amphibians (Daszak et al. 1999, entire) demonstrates the uncertainty surrounding novel disease events, the life-history traits of the DFS tend to make them less susceptible to these types of epizootics. Delmarva fox squirrels do not congregate in large numbers where disease can easily spread through a population. Further, the DFS is patchily distributed across its range, which makes it more difficult for disease to spread across populations, and DFSs are not migratory and do not inhabit the types of environment (as with aquatic species) where pathogens can readily disperse.

Overall, there currently is no evidence of disease-related declines or any indication that DFSs are particularly susceptible to disease outbreaks, and we conclude that disease is neither a current nor a future extinction risk for this subspecies.

Predators of the DFS include the red fox (Vulpes vulpes), gray fox (Urocyon cinereoargenteus), red-tailed hawk (Buteo jamaicensis), bald eagle (Haliaeetus leucocephalus), and possibly domestic pets and feral animals.

Changes in numbers of certain predators may cause some fluctuations in DFS numbers at a site (for instance, a DFS population may decline when red fox numbers increase), but these types of events are sporadic and localized. Conversely, although bald eagle numbers have dramatically increased in the Chesapeake Bay region over the past 40 years and eagles have been known to take DFSs, they still prey primarily on fish. And while feral dogs and cats may occasionally take DFSs, such predation is not a rangewide threat. The DFS population has increased over the last 40 years despite ongoing predation, and we conclude that predation at these levels is not a current or future extinction risk for this subspecies.

Several laws established in Maryland over the past 40 years provide substantial protections for DFS habitat (USFWS 2012, appendix D). The Maryland Critical Areas Act of 1984 designates all areas within 304.8 m (1,000 ft) of high tide as Critical Areas and, as amended, prohibits development and forest clearing within 60.96 m (200 ft) of streams and the Chesapeake Bay. These areas serve as both breeding habitat and dispersal corridors for DFSs. The Maryland Forest Conservation Act of 1991 requires that when a forested area is cleared and converted to other land uses, other forest areas must be protected in perpetuity or, alternatively, replanted to offset these losses. Additionally, the State-implemented portions of the Clean Water Act (33 U.S.C. 1251 et seq.) provide rangewide protection to the many forested wetlands where DFSs occur.

Several State programs in Maryland, including its Agricultural Land Protection Fund, Environmental Trust, and Rural Legacy Program, encourage voluntary conservation easements that protect lands from development. Collectively, these programs now protect 79,066 ha (195,377 ac) of private lands within the DFS' range. Similar programs in Delaware protect an additional 12,677 ha (31,327 ac) in Sussex County (USFWS 2012, table 3).

Although in Delaware and Virginia the DFS occurs primarily on Federal and State lands, regulatory protections affecting private lands allow for continued DFS range expansion. For example, Delaware's Agricultural Land Protection Program and Forest Legacy Program now protect more than 12,677 ha (31,327 ac) in Sussex County, much of which is or could be occupied by the DFS. The Virginia DFS population is completely protected on Chincoteague NWR. If needed, State-owned lands or private lands, or both, protected by land trusts would provide suitable habitat for future translocations.

Overall, many State laws and programs that protect the DFS and its habitat have been enacted or strengthened in the last 40 years, and it is likely that this State protection will continue. Currently, these regulatory mechanisms, together with other factors that address population and habitat trends, have substantially reduced threats to the DFS. We thus conclude that existing regulatory mechanisms are adequate in terms of reducing extinction risks for the DFS.

The level of risk posed by each of the following factors is assessed below.

Forest pest infestations can affect forest health and its ability to provide suitable habitat for the DFS. Gypsy moth (Lymantria dispar) outbreaks can decimate mature forest stands, although the affected stands will eventually regenerate. Monitoring outbreaks and spraying for gypsy moth control appear to have reduced this threat within the current range of the DFS, as infestations in the last several years have diminished in acreage (Maryland Department of Agriculture Forest Health Highlights 2007, 2008, 2009; entire).

Southern pine bark beetle (Dendroctonus frontalis) infestations can also decimate mature forest stands within the range of the DFS. Although beetle outbreaks necessitated salvage cuts for a total of 809 ha (2,000 ac) scattered across the southern counties in Maryland in the early 1990s, monitoring and control efforts appear to have reduced this threat as well.

Overall, an analysis of forest pests in the Chesapeake Bay watershed found that most areas on the Eastern Shore where DFSs occur have a relatively low likelihood of insect infestations, with 3.8 to 10 percent of this area considered to be at risk (Sprague et al. 2006, p. 87). Although emergence of new forest pests is to be expected, Maryland's Forest Health Monitoring Program conducts surveys to map and report forest pest problems (Maryland Department of Agriculture, Forest Pest Management, 2012, entire). Forest pest outbreaks are likely to recur and may increase if the climate warms as projected; however, this threat appears to be localized and sporadic and, with existing programs to monitor and treat forest pest outbreaks, we conclude that this is not an extinction risk factor for the DFS.

Vehicle strikes are a relatively common source of DFS mortality. Similarly to other species, the probability of DFSs being hit by vehicles is dependent on the DFS' density and proximity of roads to habitat. Vehicle strikes of DFSs tend to be reported more frequently in areas where DFSs are abundant, even if traffic levels are relatively low (e.g., Dorchester County). The conscientious reporting and collecting of DFSs killed on roads at the Blackwater and Chincoteague NWRs, where the DFS is very abundant, likely results in a more complete count of vehicle strikes than elsewhere. Vehicle strikes occur regularly at both refuges, yet DFSs remain abundant in both places and have expanded their occupancy at Chincoteague NWR.

Overall, most DFS populations across the subspecies' range continue to remain stable or are increasing in numbers despite these localized events, and we conclude that vehicle strikes alone are not a pervasive threat or extinction factor for this subspecies.

A summary of the five-factor analysis discussed above is provided in Table 3. Based on our analysis, we conclude that no single factor or combination of factors poses a risk of extinction to the DFS now or in the foreseeable future.

We have carefully assessed the best scientific and commercial information available regarding past, present, and future threats to the long-term viability of the DFS. The current range of the DFS spans the northern and southern portions of the Delmarva Peninsula, comprising all three States, and extends from coastal areas to the interior of the Delmarva Peninsula. The DFS inhabits a variety of forest types, from hardwood-dominated to pine-dominated forests and from wetland to upland forests, indicating an underlying genetic variability or behavioral plasticity that should enhance the subspecies' ability to adapt to changing environmental conditions. Its relatively wide distribution also provides redundancy of occupied forest across the landscape, which further reduces extinction risk, and its continued occupancy of woodlots over the past 20 to 30 years and the success of translocation efforts indicate considerable resilience to stochastic events. We thus expect the rangewide population of the DFS not only to remain at recovery levels but to grow and continue to occupy the full complement of landscapes and forest types on the Delmarva Peninsula.

The Act defines “endangered species” as any species that is “in danger of extinction throughout all or a significant portion of its range,” and “threatened species” as any species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The term “species” includes “any subspecies of fish or wildlife or plants, and any distinct population segment [DPS] of any species of vertebrate fish or wildlife which interbreeds when mature.” As a subspecies, the DFS has both met the recovery criteria we consider for delisting, and the analysis of existing and potential risks shows that the range and distribution of the subspecies is sufficient to withstand all foreseeable threats to its long-term viability. Thus, after assessing the best available information, we have determined that the DFS is no longer in danger of extinction throughout all of its range, nor is it likely to become threatened with endangerment in the foreseeable future.

Having determined the status of the DFS throughout all of its range, we next examine whether the subspecies is in danger of extinction in a significant portion of its range. Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so throughout all or a significant portion of its range, as stated above. We published a final policy interpreting the phrase “significant portion of its range” (79 FR 37578; July 1, 2014). This policy states that: (1) If a species is found to be endangered or threatened throughout a significant portion of its range, the entire species is listed as an endangered species or a threatened species, respectively, and the Act's protections apply to all individuals of the species wherever found; (2) a portion of the range of a species is “significant” if the species is not currently endangered or threatened throughout all of its range, but the portion's contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction or likely to become so in the foreseeable future throughout all of its range; (3) the range of a species is considered to be the general geographical area within which that species can be found at the time we make any particular status determination; and (4) if a vertebrate species is endangered or threatened throughout an SPR, and if it can also be shown the population in that significant portion is a valid DPS, we will list the DPS rather than the entire taxonomic species or subspecies.

The SPR policy is applied to all status determinations, including analyses for the purposes of making listing, delisting, and reclassification determinations. The procedure for analyzing whether any portion is an SPR is similar, regardless of the type of status determination we are making. The first step in our analysis of the status of a species is to determine its status throughout all of its range. If we determine that the species is in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range, we list the species as an endangered (or threatened) species and no SPR analysis will be required. If the species is neither in danger of extinction, nor likely to become so, throughout all of its range, we determine whether the species is in danger of extinction or likely to become so throughout a significant portion of its range. If it is, we list the species as an endangered species or a threatened species, respectively; if it is not, we conclude that listing of the species is not warranted.

When we conduct an SPR analysis, we first identify any portions of the species' range that warrant further consideration. The range of a species can theoretically be divided into portions in an infinite number of ways. However, there is no purpose to analyzing portions of the range that are not reasonably likely to be both significant and endangered or threatened. To identify only those portions that warrant further consideration, we determine whether there is substantial information indicating that (1) the portions may be significant and (2) the species may be in danger of extinction in those portions or likely to become so within the foreseeable future. We emphasize that answering these questions in the affirmative is not a determination that the species is endangered or threatened throughout a significant portion of its range—rather, it is a step in determining whether a more detailed analysis of the issue is required. In practice, a key part of this analysis is whether the threats are geographically concentrated in some way. If the threats to the species are affecting it uniformly throughout its range, no portion is likely to warrant further consideration. Moreover, if any concentration of threats apply only to portions of the range that clearly do not meet the biologically based definition of “significant” (i.e., the loss of that portion clearly would not be expected to increase the vulnerability to extinction of the entire species), those portions will not warrant further consideration.

If we identify any portions that may be both (1) significant and (2) endangered or threatened, we engage in a more detailed analysis to determine whether these standards are indeed met. The identification of an SPR does not create a presumption, prejudgment, or other determination as to whether the species in that identified SPR is endangered or threatened. We must go through a separate analysis to determine whether the species is endangered or threatened in the SPR. To determine whether a species is endangered or threatened throughout an SPR, we will use the same standards and methodology that we use to determine if a species is endangered or threatened throughout its range.

Depending on the biology of the species, its range, and the threats it faces, it may be more efficient to address the “significant” question first, or the status question first. Thus, if we determine that a portion of the range is not “significant,” we do not need to determine whether the species is endangered or threatened there. Conversely, if we determine that the species is not endangered or threatened in a portion of its range, we do not need to determine if that portion is “significant.”

Having determined that the DFS does not meet the definition of endangered or threatened throughout its range, we considered whether there are any significant portions of its range in which it is in danger of extinction or likely to become so. The full discussion regarding this analysis, summarized here, is provided in the September 23, 2014, proposed rule (79 FR 56686).

Applying the process described above, we evaluated the range of the DFS to determine if any area could be considered a significant portion of its range. Based on examination of the relevant information on the biology and life history of the DFS, we determined that there are no separate areas of the range that are significantly different from others or that are likely to be of greater biological or conservation importance than any other areas. We next examined whether any threats are geographically concentrated in some way that would indicate the subspecies could be in danger of extinction, or likely to become so, in that area. Through our review of threats to the subspecies, we identified some areas where DFSs are likely to be extirpated, including areas in Queen Anne's County, Maryland, where DFS distribution is scattered and relatively isolated by roads and water, and where future development is anticipated. We thus considered whether this area in the northern portion of the range may warrant further consideration as a significant portion of its range.

The forest area currently occupied by DFSs that is projected to be lost to development by 2030 would affect two small populations in Queen Anne's County that together constitute less than 0.5 percent of the rangewide population; however, five large DFS subpopulations are expected to remain viable across the northern portion of the current range. Additionally, Queen Anne's County's landscape does not represent a unique habitat type or ecological setting for the subspecies. Thus, the areas expected to be lost due to development would not appreciably reduce the long-term viability of the subpopulation in the northern portion of the range, much less imperil the DFS in the remainder of its range. Therefore, we have determined that this portion of the DFS' range does not meet the definition of SPR under the 2014 policy.

We also anticipate loss of DFS-occupied forests from sea level rise in Dorchester County, Maryland, on the southwestern periphery of the habitat supporting the largest subpopulation of DFS. However, these losses do not threaten either the subpopulation or the subspecies with a risk of extinction, as there is ample unoccupied and sufficiently connected habitat for displaced squirrels to colonize; this is bolstered by their ability to readily colonize new areas evidenced by successful expansion of DFS translocations. In addition, we anticipate the continued presence of mixed pine/hardwood forests adjacent to marsh and open water in Dorchester County and do not anticipate losses of any unique habitats. Therefore, losses due to sea level rise in this portion of the range would not appreciably reduce the long-term viability of the subpopulation, much less cause the subspecies in the remainder of its range to be in danger of extinction or likely to become so. We thus conclude the portion of the range that is expected to be lost from sea level rise does not meet the policy's definition of an SPR.

These are the only two portions of the range that we identified as meriting analysis as to their significance and level of endangerment in conformance with the 2014 SPR policy. Finding that the potential losses in small areas of Queen Anne's County would not cause cascading vulnerability and do not constitute unique areas that are not represented elsewhere in the subspecies' range, and finding that loss of areas in Dorchester County to sea level rise would not diminish the continued viability of the Dorchester subpopulation or cause the remainder of the subspecies to be in danger of extinction or likely to become so, we do not consider this subspecies to be endangered or threatened in any significant portion of its range. Further, having not found the basis for an SPR determination on grounds of either significance or threat, we also find that a DPS analysis is not warranted.

The subspecies' current and projected resiliency, redundancy, and representation should enable it to remain at recovered population levels throughout all of its range, and even expand its range, over the foreseeable future. Having assessed the best scientific and commercial data available and determined that the DFS is no longer endangered or threatened throughout all or a significant portion of its range and is not it likely to become so in the foreseeable future, we are removing this subspecies from the List under the Act.

Section 4(g)(1) of the Act requires us, in cooperation with the States, to implement a monitoring program for not less than 5 years for all species that have been recovered and delisted. The purpose of post-delisting monitoring (PDM) is to verify that a species remains secure from risk of extinction after the protections of the Act are removed by developing a program that detects the failure of any delisted species to sustain itself. If, at any time during the monitoring period, data indicate that protective status under the Act should be reinstated, we can initiate listing procedures, including, if appropriate, emergency listing under section 4(b)(7) of the Act.

This rule announces availability of the final PDM plan for the DFS. Public and peer review comments on the draft PDM plan have been addressed in the body of the plan and are summarized in the plan's appendix. The plan can be accessed at: http://www.regulations.gov under Docket No. FWS-R5-ES-2014-0021. It is also posted on the Service's national Web site (http://endangered.fws.gov) and the Chesapeake Bay Field Office's Web site (http://www.fws.gov/chesapeakebay). A summary of the PDM plan is provided below.

The PDM plan for the DFS builds upon and continues the research conducted while the DFS was listed. In general, the plan directs the Service and State natural resource agencies to (1) continue to map all DFS sightings and occupied forest to delineate the distribution and range, and (2) assess the occupancy of DFS in a sample of forest tracts to estimate the relative persistence of DFS populations versus extirpations across the range.

The PDM plan identifies measurable management thresholds and responses for detecting and reacting to significant changes in the DFS's protected habitat, distribution, and ability to remain at recovered population levels. If declines are detected equaling or exceeding these thresholds, the Service, along with other post-delisting monitoring participants, will investigate causes, including consideration of habitat changes, stochastic events, or any other significant evidence. Results will be used to determine if the DFS warrants expanded monitoring, additional research, additional habitat protection, or resumption of Federal protection under the Act.

This final rule revises 50 CFR 17.11(h) to remove the Delmarva Peninsula fox squirrel from the List of Endangered and Threatened Wildlife (List). It also revises 50 CFR 17.11(h) and 50 CFR 17.84(a) to remove the listing and regulations, respectively, for the nonessential experimental population of Delmarva Peninsula fox squirrels at Assawoman Wildlife Management Area in Sussex County, Delaware. The prohibitions and conservation measures provided by the Act, particularly through sections 7 and 9, no longer apply to this subspecies. Federal agencies are no longer required to consult with the Service under section 7 of the Act in the event that activities they authorize, fund, or carry out may affect the DFS. The take exceptions identified in 50 CFR 17.84(a)(2) for the experimental population of the DFS are also removed. There is no critical habitat designated for the DFS.

We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), need not be prepared in connection with regulations pursuant to section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our tribal trust responsibilities. We have determined that there are no tribal lands affected by this rule.

A complete list of all references cited in this final rule is available at http://www.regulations.gov, or upon request from the Chesapeake Bay Field Office (see ADDRESSES).

The primary authors of this final rule are staff members of the Chesapeake Bay Field Office (see ADDRESSES).

Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

NMFS manages the groundfish fishery in the BSAI according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2015 allocation of yellowfin sole total allowable catch for vessels participating in the BSAI trawl limited access fishery in the BSAI is 16,165 metric tons (mt) as established by the final 2015 and 2016 harvest specifications for groundfish in the BSAI (80 FR 11919, March 5, 2015). In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2015 allocation of yellowfin sole total allowable catch for vessels participating in the BSAI trawl limited access fishery in the BSAI will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 16,065 mt, and is setting aside the remaining 100 mt as incidental catch. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for yellowfin sole for vessels participating in the BSAI trawl limited access fishery in the BSAI.

After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of directed fishing for yellowfin sole by vessels fishing in the BSAI trawl limited access fishery in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of November 9, 2015.

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

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