Federal Register Vol. 80, No.222,

Please refer to Docket ID NRC-2015-0186 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:

• Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2015-0186.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select “ADAMS Public Documents” and then select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to [email protected]. For the convenience of the reader, instructions about obtaining materials referenced in this document are provided in the “Availability of Documents” section.

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

Please include Docket ID NRC-2015-0186 in your comment submission.

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

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

This rule is limited to the changes contained in Revision 1 to Amendment Nos. 0-3 to CoC No. 1031 and does not include other aspects of the MAGNASTOR® Cask System design. The NRC is using the “direct final rule” procedure to issue this amendment because it represents a limited and routine change to an existing CoC that is expected to be noncontroversial. Adequate protection of public health and safety continues to be ensured. The amendment to the rule will become effective on February 1, 2016. However, if the NRC receives significant adverse comments on this direct final rule by December 18, 2015, the NRC will publish a document that withdraws this action, and will subsequently address the comments received in a final rule as a response to the companion proposed rule published in the Proposed Rule section of this issue of the Federal Register. Absent significant modifications to the proposed revisions requiring republication, the NRC will not initiate a second comment period on this action.

A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:

(1) The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, a substantive response is required when:

(a) The comment causes the NRC staff to reevaluate (or reconsider) its position or conduct additional analysis;

(b) The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or

(c) The comment raises a relevant issue that was not previously addressed or considered by the NRC staff.

(2) The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.

(3) The comment causes the NRC staff to make a change (other than editorial) to the rule, CoC, or TSs.

For detailed instructions on submitting comments, please see the ADDRESSES section of this document.

Section 218(a) of the Nuclear Waste Policy Act (NWPA) of 1982, as amended, requires that “the Secretary [of the U.S. Department of Energy] shall establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at civilian nuclear power reactor sites, with the objective of establishing one or more technologies that the [U.S. Nuclear Regulatory] Commission may, by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission.” Section 133 of the NWPA states, in part, that “[the Commission] shall, by rule, establish procedures for the licensing of any technology approved by the Commission under Section 219(a) [sic: 218(a)] for use at the site of any civilian nuclear power reactor.”

To implement this mandate, the Commission approved dry storage of spent nuclear fuel in NRC-approved casks under a general license by publishing a final rule which added a new subpart K in part 72 of title 10 of the Code of Federal Regulations (10 CFR) entitled “General License for Storage of Spent Fuel at Power Reactor Sites” (55 FR 29181; July 18, 1990). This rule also established a new subpart L within 10 CFR part 72 entitled, “Approval of Spent Fuel Storage Casks,” which contains procedures and criteria for obtaining NRC approval of spent fuel storage cask designs.

The NRC issued a final rule on November 21, 2008 (73 FR 70587), that approved the NAC MAGNASTOR® Cask System design to add Amendment No. 0 to the list of NRC-approved cask designs in 10 CFR 72.214 as CoC No.1031. Subsequently on June 15, 2010 (75 FR 33678), the NRC issued a final rule adding Amendment No. 1 to CoC No. 1031 to the list of NRC-approved cask designs in 10 CFR 72.214. Similar final rules were issued on November 14, 2011 (76 FR 70331), and June 25, 2013 (78 FR 37927), to add Amendment Nos. 2 and 3 to CoC No. 1031, respectively, to the list of NRC-approved cask designs in 10 CFR 72.214.

By letter dated June 5, 2014 (ADAMS Accession No. ML14160A856), NAC submitted a technical deficiency report for the calculation error associated with the additional cooling time required for fuel assemblies that contain nonfuel hardware—one issue sought to be addressed by this revision. In its letter, NAC stated that Duke Energy Carolinas, LLC (Duke Energy), hold the only two general licenses (Catawba Nuclear Station and McGuire Nuclear Station) that are loading and storing casks using Amendment No. 2 to CoC No. 1031; and that ZionSolutions is the only general licensee currently loading and storing casks using Amendment No. 3 to CoC No. 1031. According to NAC, no casks manufactured under CoC No. 1031, Amendment Nos. 0 and 1, have been purchased by a general licensee. Subsequently, NAC contacted the licensees loading and storing casks Amendment Nos. 2 and 3 to CoC No. 1031 to notify them of the errors and to determine whether any loaded casks did not meet or planned loading would not meet the correct additional cool times.

In its revision request dated January 14, 2015, NAC provided letters from both Duke Energy and ZionSolutions discussing the actions Duke Energy and ZionSolutions took after being notified of the errors. Duke Energy established administrative controls to ensure that all loaded storage casks will meet the proposed cooling time limits in Table B2-5, which are more conservative than the additional cooling time limits in Table B2-5 of the TSs for Amendment No. 2. Duke Energy evaluated the five already-loaded storage systems to ensure compliance with NAC's proposed Table B2-5 (correct additional cooling times for spent fuel assemblies that contain control components). Duke Energy determined that all five already-loaded systems meet NAC's proposed Table B2-5. Additionally, Duke Energy stated that the five storage casks loaded since Duke Energy implemented administrative controls to ensure compliance with NAC's proposed Table B2-5 also meet both the TSs and NAC's proposed Table B2-5. Duke Energy documented these results within the Duke Energy corrective action program.

ZionSolutions initiated a condition report to review the loading records of the 20 already-loaded storage systems and those storage systems that ZionSolutions planned to continue loading using this amendment. ZionSolutions also established administrative controls to ensure that all loaded storage casks will meet the proposed cooling time limits in NAC's proposed Table B2-5, which are more conservative than the additional cooling time limits in Table B2-5 of the TSs for Amendment No. 3.

By application dated June 20, 2014 (ADAMS Accession No. ML14174B095), as supplemented January 14, 2015 (ADAMS Accession No. ML15016A047), NAC submitted an application for revision to Amendment Nos. 0 (the initial certificate), 1, 2, and 3 to CoC No. 1031, MAGNASTOR® Cask System. Revision 1 to Amendment Nos. 0-3 to CoC No. 1031 makes changes to the TSs, including correcting a typographical error in two actual boron loadings in TS 4.1.1(a), and revising the decay times in Tables B2-4 (for Amendment Nos. 0 and 1) and B2-5 (for Amendment Nos. 2 and 3) in Appendix B of the TSs for minimum additional decay time required for spent fuel assemblies that contain nonfuel hardware.

As documented in the Safety Evaluation Reports (SERs) (ADAMS Accession Nos. ML15180A092, ML15180A141, ML15180A220, and ML15180A281), for Revision 1 to Amendment Nos. 0-3 to CoC No. 1031, the NRC staff performed detailed safety evaluations of the proposed CoC revision request. There are no significant changes to cask design requirements in the proposed CoC revision. Considering the specific design requirements for each accident condition, the design of the cask would prevent loss of containment, shielding, and criticality control. If there is no loss of containment, shielding, or criticality control, the environmental impacts would be insignificant. This amendment does not reflect a significant change in design or fabrication of the cask. In addition, any resulting occupational exposure or offsite dose rates from the implementation of Revision 1 to Amendment Nos. 0-3 to CoC No. 1031 would remain well within the 10 CFR part 20 limits. Therefore, the proposed CoC changes will not result in any radiological or non-radiological environmental impacts that significantly differ from the environmental impacts evaluated in the environmental assessment supporting the July 18, 1990, final rule. There will be no significant change in the types or significant revisions in the amounts of any effluent released, no significant increase in the individual or cumulative radiation exposure, and no significant increase in the potential for or consequences from radiological accidents.

This direct final rule revises the MAGNASTOR® Cask System listing in 10 CFR 72.214 by adding Revision 1 to Amendment Nos. 0-3 to CoC No. 1031. The amendment consists of the changes previously described, as set forth in the revised CoC and TSs. The revised TSs are identified in the SER.

The revised MAGNASTOR® cask design, when used under the conditions specified in the CoC, the TS, and the NRC's regulations, will meet the requirements of 10 CFR part 72; therefore, adequate protection of public health and safety will continue to be ensured. When this direct final rule becomes effective, persons who hold a general license under 10 CFR 72.210 may load spent nuclear fuel into MAGNASTOR® Cask Systems that meet the criteria of Revision 1 to Amendment Nos. 0-3 to CoC No. 1031 under 10 CFR 72.212.

The National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this direct final rule, the NRC will revise the MAGNASTOR® Cask System design listed in 10 CFR 72.214, “List of approved spent fuel storage casks.” This action does not constitute the establishment of a standard that contains generally applicable requirements.

Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the Commission on June 30, 1997, and published in the Federal Register on September 3, 1997 (62 FR 46517), this direct final rule is classified as Compatibility Category “NRC.” Compatibility is not required for Category “NRC” regulations. The NRC program elements in this category are those that relate directly to areas of regulation reserved to the NRC by the Atomic Energy Act of 1954, as amended, or the provisions of 10 CFR. Although an Agreement State may not adopt program elements reserved to the NRC, it may wish to inform its licensees of certain requirements via a mechanism that is consistent with the particular State's administrative procedure laws, but does not confer regulatory authority on the State.

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31883).

The action is to amend 10 CFR 72.214 to revise the MAGNASTOR® Cask System listing within the “List of approved spent fuel storage casks” to include Revision 1 to Amendment Nos. 0-3 to CoC No. 1031. Under the National Environmental Policy Act of 1969, as amended, and the NRC's regulations in subpart A of 10 CFR part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions,” the NRC has determined that this rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required. The NRC has made a finding of no significant impact on the basis of this environmental assessment.

This direct final rule amends the CoC for the MAGNASTOR® Cask System design within the list of approved spent fuel storage casks that power reactor licensees can use to store spent fuel at reactor sites under a general license. Specifically, Revision 1 to Amendment Nos. 0-3 to CoC No. 1031, corrects a typographical error in two actual boron loadings in TS 4.1.1(a), and revises the decay times in Tables B2-4 (for Amendment Nos. 0 and 1) and B2-5 (for Amendment Nos. 2 and 3) in Appendix B of the TSs for minimum additional decay time required for spent fuel assemblies that contain nonfuel hardware.

On July 18, 1990 (55 FR 29181), the NRC issued an amendment to 10 CFR part 72 to provide for the storage of spent fuel under a general license in cask designs approved by the NRC. The potential environmental impact of using NRC-approved storage casks was initially analyzed in the environmental assessment for the 1990 final rule. The environmental assessment for this amendment tiers off of the environmental assessment for the July 18, 1990, final rule. Tiering on past environmental assessments is a standard process under the National Environmental Policy Act.

The NAC MAGNASTOR® Cask System is designed to mitigate the effects of design basis accidents that could occur during storage. Design basis accidents account for human-induced events and the most severe natural phenomena reported for the site and surrounding area. Postulated accidents analyzed for an Independent Spent Fuel Storage Installation (ISFSI), the type of facility at which a holder of a power reactor operating license would store spent fuel in casks in accordance with 10 CFR part 72, include tornado winds and tornado-generated missiles, a design basis earthquake, a design basis flood, an accidental cask drop, lightning effects, fire, explosions, and other incidents.

Considering the specific design requirements for each accident condition, the design of the cask would prevent loss of containment, shielding, and criticality control. If there is no loss of confinement, shielding, or criticality control, the environmental impacts would be insignificant. This amendment does not reflect a significant change in design or fabrication of the cask. There are no significant changes to cask design requirements in the proposed CoC amendment. In addition, because there are no significant design or process changes, any resulting occupational exposure or offsite dose rates from the implementation of Revision 1 to Amendments Nos. 0-3 to CoC No. 1031 would remain well within the 10 CFR part 20 limits. Therefore, the proposed CoC revision will not result in any radiological or non-radiological environmental impacts that significantly differ from the environmental impacts evaluated in the environmental assessment supporting the July 18, 1990, final rule. There will be no significant change in the types or significant revisions in the amounts of any effluent released, no significant increase in the individual or cumulative radiation exposure, and no significant increase in the potential for or consequences from radiological accidents. The NRC staff documented its safety findings in the SERs for these revisions.

The alternative to this action is to deny approval of Revision 1 to Amendment Nos. 0-3 to CoC No. 1031 and end the direct final rule. Consequently, any 10 CFR part 72 general licensee that seeks to load spent nuclear fuel into MAGNASTOR® Cask Systems in accordance with the changes described in proposed Revision 1 to Amendment Nos. 0-3 to CoC No. 1031 would have to request an exemption from the requirements of 10 CFR 72.212 and 72.214. Under this alternative, interested licensees would have to prepare, and the NRC would have to review, a separate exemption request, thereby increasing the administrative burden upon the NRC and the costs to each licensee. Therefore, the environmental impacts would be the same or less than the action.

Approval of Revision 1 to Amendment Nos. 0-3 to CoC No. 1031 would result in no irreversible commitments of resources.

No agencies or persons outside the NRC were contacted in connection with the preparation of this environmental assessment.

The environmental impacts of the action have been reviewed under the requirements in 10 CFR part 51. Based on the foregoing environmental assessment, the NRC concludes that this direct final rule entitled, “List of Approved Spent Fuel Storage Casks: NAC International, Inc., MAGNASTOR® Cask System; Certificate of Compliance No. 1031, Amendment Nos. 0-3, Revision 1,” will not have a significant effect on the human environment. Therefore, the NRC has determined that an environmental impact statement is not necessary for this direct final rule.

This direct final rule does not contain any information collection requirements and, therefore, is not subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The NRC may not conduct or sponsor, and a person is not required to respond to a request for information or an information collection requirement unless the requesting document displays a currently valid Office of Management and Budget control number.

Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the NRC certifies that this rule will not, if issued, have a significant economic impact on a substantial number of small entities. This direct final rule affects only nuclear power plant licensees and NAC. These entities do not fall within the scope of the definition of small entities set forth in the Regulatory Flexibility Act or the size standards established by the NRC (10 CFR 2.810).

On July 18, 1990 (55 FR 29181), the NRC issued an amendment to 10 CFR part 72 to provide for the storage of spent nuclear fuel under a general license in cask designs approved by the NRC. Any nuclear power reactor licensee can use NRC-approved cask designs to store spent nuclear fuel if it notifies the NRC in advance, the spent fuel is stored under the conditions specified in the cask's CoC, and the conditions of the general license are met. A list of NRC-approved cask designs is contained in 10 CFR 72.214. The NRC issued a final rule on November 21, 2008 (73 FR 70587), that approved the NAC MAGNASTOR® Cask System design to add Amendment No. 0 to the list of NRC-approved cask designs in 10 CFR 72.214 as CoC No. 1031. Subsequently on June 15, 2010 (75 FR 33678), the NRC issued a final rule adding Amendment No. 1 to CoC No. 1031 to the list of NRC-approved cask designs in 10 CFR 72.214. Similar final rules were issued on November 14, 2011 (76FR 70331), and June 25, 2013 (78 FR 37927), to add Amendment Nos. 2 and 3 to CoC No. 1031, respectively, to the list of NRC-approved cask designs in 10 CFR 72.214.

On June 20, 2014, as supplemented January 14, 2015, NAC submitted an application to revise the MAGNASTOR® Cask Systems as described in Section IV, “Discussion of Changes,” of this document.

The alternative to this action is to withhold approval of Revision 1 to Amendment Nos. 0-3 to CoC No. 1031 and to require any 10 CFR part 72 general licensee seeking to load spent nuclear fuel into the MAGNASTOR® Cask System under the changes described in Revision 1 to Amendment Nos. 0-3 to CoC No. 1031 to request an exemption from the requirements of 10 CFR 72.212 and 72.214. Under this alternative, each interested 10 CFR part 72 licensee would have to prepare, and the NRC would have to review, a separate exemption request, thereby increasing the administrative burden upon the NRC and the costs to each licensee.

Approval of this direct final rule is consistent with previous NRC actions. Further, as documented in the SERs and the environmental assessment, the direct final rule will have no adverse effect on public health and safety or the environment. This direct final rule has no significant identifiable impact or benefit on other Government agencies. Based on this regulatory analysis, the NRC concludes that the requirements of the direct final rule are commensurate with the NRC's responsibilities for public health and safety and the common defense and security. No other available alternative is believed to be as satisfactory, and therefore, this action is recommended.

The NRC has determined that the backfit rule (10 CFR 72.62) does not apply to this direct final rule. Therefore, a backfit analysis is not required. This direct final rule revises Amendment Nos. 0-3 for CoC No. 1031 for the MAGNASTOR® Cask System, as currently listed in 10 CFR 72.214, “List of approved spent fuel storage casks.” Revision 1 to Amendment Nos. 0-3 to CoC No. 1031 corrects a typographical error in two actual boron loadings in TS 4.1.1(a), and revises the decay times in Tables B2-4 (for Amendment Nos. 0 and 1) and B2-5 (for Amendment Nos. 2 and 3) in Appendix B of the TSs for minimum additional decay time required for spent fuel assemblies that contain nonfuel hardware.

Although NAC has manufactured casks under existing CoC No. 1031, Amendment Nos. 0-3, that are being revised by this final rule, NAC, as the vendor, is not subject to backfitting protection under 10 CFR 72.62. Moreover, NAC requested these changes and has requested to apply it to the existing casks manufactured under Amendment Nos. 0-3. Therefore, even if the vendor were deemed to be an entity protected from backfitting, this request represents a voluntary change and is not backfitting for the vendor.

Under 10 CFR 72.62, general licensees are entities that are protected from backfitting. However, according to NAC, no general licensees have purchased the systems under CoC No. 1031, Amendment Nos. 0 and 1, which are, in part, the subject of this revision. Therefore, the changes in CoC No. 1031, Amendment Nos. 0 and 1, which are approved in this direct final rule do not fall within the definition of backfitting under 10 CFR 72.62 or 10 CFR 50.109(a)(1), or otherwise represent an inconsistency with the issue finality provisions applicable to combined licenses in 10 CFR part 52 for general licensees.

According to NAC, casks under CoC No. 1031, Amendment Nos. 2 and 3, have been provided to two general licensees (Duke Energy Carolinas, LLC, loaded under CoC No. 1031, Amendment No. 2; and ZionSolutions loaded under CoC No. 1031, Amendment No. 3). General licensees are required, pursuant to 10 CFR 72.212, to ensure that each cask conforms to the terms, conditions, and specifications of a CoC, and that each cask can be safely used at the specific site in question. Because the casks delivered under CoC No. 1031, Amendment Nos. 2 and 3, now must be evaluated under 10 CFR 72.212 consistent with Revision 1 to Amendment Nos. 2 and 3 to CoC No. 1031, this change in the evaluation method and criteria constitutes a change in a procedure required to operate an ISFSI and, therefore, would constitute backfitting under 10 CFR 72.62(a)(2).

However, in this instance, NAC has provided documentation from the general licensees voluntarily indicating their lack of objection to Revision 1 to, Amendment Nos. 2 and 3 to CoC No. 1031. Specifically, in this instance, both licensees indicated their intention to upgrade their existing CoC No. 1031, Amendment Nos. 2 and 3, storage fleet to Amendment Nos. 4 or 5 of CoC No. 1031. These later amendments to CoC No. 1031 are consistent with the corrections being made in this revision. Therefore, although the general licensees are entities protected from backfitting, this request represents a voluntary change and is not backfitting. In order to provide general licensees adequate time to implement the revised CoC in the event that they have not upgraded to Amendment Nos. 4 or 5 by the time these revisions become effective, the revised CoC also incorporates a condition that provides general licensees 180 days from the effective date of Revision 1, for each revised certificate, to implement the changes authorized by this revision and to perform the required evaluation.

In addition, the changes in Revision 1 to CoC No. 1031, Amendment Nos. 0-3to CoC No. 1031, do not apply to casks which were manufactured to other amendments of CoC No. 1031, and, therefore, have no effect on current ISFSI licensees using casks which were manufactured to other amendments of CoC No. 1031. For these reasons, NRC approval of Revision 1 to, Amendment Nos. 0-3 to CoC No. 1031, does not constitute backfitting for users of the MAGNASTOR® Cask System which were manufactured to other amendments of CoC No. 1031, under 10 CFR 72.62, 10 CFR 50.109(a)(1), or the issue finality provisions applicable to combined licenses in 10 CFR part 52.

Accordingly, no backfit analysis or additional documentation addressing the issue finality criteria in 10 CFR part 52 has been prepared by the staff.

This action is not a major rule as defined in the Congressional Review Act (5 U.S.C. 801-808).

The documents identified in the following table are available to interested persons through one or more of the following methods, as indicated.

I. Background

In the Federal Register of September 17, 2015 (80 FR 55908), we published a final rule entitled “Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Human Food” (the final human preventive controls rule). Among other things, the final human preventive controls rule amended our regulation for current good manufacturing practice in manufacturing, packing, or holding human food to modernize it, and to add requirements for domestic and foreign facilities that are required to register under section 415 of the FD&C Act (21 U.S.C. 350d) to establish and implement hazard analysis and risk-based preventive controls for human food. In the preamble to the final human preventive controls rule (80 FR 55908), we stated that the rule is effective November 16, 2015, and provided for compliance dates of 1 to 3 years in most cases.

In Comment 214 in the final human preventive controls final rule (80 FR 55908 at 55986 to 55987), we described comments that discuss facilities that comply with the Grade “A” PMO and are regulated under the NCIMS system, and we used the term “PMO facilities” as an abbreviation for these facilities. As previously discussed (78 FR 3646 at 3662; January 16, 2013), the PMO is a model regulation published and recommended by the U.S. Public Health Service/FDA for voluntary adoption by State dairy regulatory agencies to regulate the production, processing, storage and distribution of Grade “A” milk and milk products to help prevent milk-borne disease. Some comments recommended that we make full use of the existing milk safety system of State regulatory oversight for Grade “A” milk and milk products provided through the NCIMS and the food safety requirements of the PMO. Some comments asked us to exempt PMO-regulated facilities (or the PMO-regulated part of a PMO facility that also produces food products not covered by the PMO) from the requirements of the rule for hazard analysis and risk-based preventive controls, or to otherwise determine that facilities operating in compliance with the PMO are also in compliance with those requirements. These comments suggested we could, as an interim step if we find it necessary, stay the application of these requirements to PMO-regulated facilities and work with the NCIMS cooperative program to enact any modifications to the PMO as may be needed to warrant an exemption or comparability determination. In response to these comments, we established a compliance date of September 17, 2018, for “PMO facilities” (see Response 214, 80 FR 55908 at 55987 to 55988).

On September 10, 2015, the Office of the Federal Register made a pre-publication copy of the final human preventive controls rule available to the public through its procedures for advance display (Ref. 1). Since September 10, 2015, we have provided opportunities for stakeholders to ask questions about the rule, through webinars and through a Web portal for submission of questions (Refs. 2 and 3). Some PMO facilities, in addition to manufacturing, processing, packing, or holding grade “A” milk or milk products, manufacture, process, pack, or hold other food subject to the final human preventive controls rule. Some of these facilities have asked us to clarify whether the extended compliance date for “PMO facilities” applies only to grade “A” milk and milk products covered by NCIMS under the PMO, or whether the extended compliance date applies broadly to all activities conducted by the facility (e.g., activities related to other food produced at the facility).

In this document, we are clarifying that the extended compliance date of September 17, 2018, for “PMO facilities” applies only to grade “A” milk and milk products covered by NCIMS under the PMO, and not to the manufacturing, processing, packing, or holding of other food. As we discussed in Response 214 (80 FR 55908 at 55987 to 55988), we agreed that we should make use of the existing system of State regulatory oversight for Grade “A” milk and milk products provided through the NCIMS and the food safety requirements of the PMO. We described our reasons for deciding to extend the compliance date for “PMO-regulated facilities” to comply with the requirements of subparts C and G to September 17, 2018. Those reasons related to the current provisions of the PMO, the work already begun by NCIMS to modify the PMO to include all of the requirements established in the final human preventive controls rule, and complex implementation issues concerning the interstate movement of milk and milk products and imported milk. We explained that in establishing a compliance date of September 17, 2018, for PMO facilities, we considered: (1) The extent of revisions that must be made to incorporate the requirements of this rule for hazard analysis and risk-based preventive controls into the PMO; (2) the process to revise the PMO; and (3) the date at which the necessary revisions to the PMO could begin to be made. All of these discussions in the human preventive controls final rule related to the activities regulated by NCIMS under the PMO.

We have examined the impacts of this final rule under Executive Order 12866, Executive Order 13563, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Orders 12866 and 13563 direct us to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). We have developed a comprehensive Economic Analysis of Impacts that assesses the impacts of this final rule (Ref. 4). We believe that this final rule is not a significant regulatory action as defined by Executive Order 12866.

The Regulatory Flexibility Act requires us to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because this final rule is making no change to the compliance date announced for facilities regulated under the NCIMS system in the human preventive controls rule published on September 17, 2105, we have determined that this final rule will not have a significant economic impact on a substantial number of small entities.

The Unfunded Mandates Reform Act of 1995 (section 202(a)) requires us to prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $144 million, using the most current (2014) Implicit Price Deflator for the Gross Domestic Product. This final rule would not result in an expenditure in any year that meets or exceeds this amount.

We have determined under 21 CFR 25.30(j) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

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

The following references are on display in the Division of Dockets Management (see ADDRESSES) and are available for viewing by interested persons between 9 a.m. and 4 p.m., Monday through Friday; they are also available electronically at http://www.regulations.gov. FDA has verified the Web site addresses, as of the date this document publishes in the Federal Register, but Web sites are subject to change over time.

HUD published a document in the Federal Register on November 12, 2015, at 80 FR 69864, amending the accounting requirements for the CDBG program, including 24 CFR 570.489. The amendments included clarification of how HUD determines compliance with planning and administration cost limits. In the preamble to the rule, at page 69867, first column, HUD stated that the regulations revised by rule modify the limits on administrative and planning expenses by adding to the existing compliance test a new test for grants with an origin year of 2015and subsequent years, which would continue to remain in place for all grants. However, language was inadvertently included in the regulatory text that limited the existing test to CDBG grants with an origin year prior to 2015. This document corrects that limiting language.

In interim final rule FR Doc. 2015-28700, published on November 12, 2015 (80 FR 69864), make the following correction:

On page 69872, in the first column, in § 570.489, correct paragraph (a)(3)(ii) to read as follows:

In order to provide a concise and ready reference to its interpretations of ERISA, the Department publishes its interpretive bulletins in the Rules and Regulations section of the Federal Register. The Department is publishing in this issue of the Federal Register, ERISA Interpretive Bulletin 2015-02, which interprets ERISA section 3(2)(A), 29 U.S.C. 1002(2)(A), section 3(5), 29 U.S.C. 1002(5), and section 514, 29 U.S.C. 1144, as they apply to state laws designed to expand workers' access to retirement savings programs. Some states have adopted laws or are exploring approaches designed to expand the retirement savings options available to their private sector workers through ERISA-covered retirement plans. One of the challenges the states face in expanding retirement savings opportunities for private sector employees is uncertainty about ERISA preemption of such efforts. ERISA generally would preempt a state law that required employers to establish and maintain ERISA-covered employee benefit pension plans. The Department also has a strong interest in promoting retirement savings by employees. The Department recognizes that some employers currently do not provide pension plans for their employees. The Department believes that it is important that employees of such employers be encouraged to save for retirement, and it is in the interest of the public that employers be encouraged to provide opportunities for their employee retirement savings. The Department therefore believes that states, employers, other plan sponsors, workers, and other stakeholders would benefit from guidance on the application of ERISA to these state initiatives.

For the reasons set forth in the preamble, the Department is amending Subchapter A, Part 2509 of Title 29 of the Code of Federal Regulations as follows:

Shell Exploration & Production Company requested that the Coast Guard establish a safety zone around the Turritella FPSO, which is a ship-shaped offshore production facility that stores crude oil in tanks located in its hull. It will attach to a moored turret buoy and move in a 360 degree arc around the position 26°25′38.74″ N., 90°48′45.34″ W. The purpose of the safety zone is to protect the facility from all vessels operating outside the normal shipping channels and fairways that are not providing services to or working with the facility. Therefore, on July 28, 2015 we published a NPRM with a request for comments entitled, “Safety Zones: Turritella FPSO system, Walker Ridge 551, Outer Continental Shelf on the Gulf of Mexico” in the Federal Register (80 FR 44910). We received no comments on the NPRM.

The Coast Guard is issuing this rule under the authority in 14 U.S.C. 85, 43 U.S.C. 1333, Department of Homeland Security Delegation No. 0170.1, and 33 CFR part 147, which collectively permit the establishment of safety zones for facilities located on the OCS for the purpose of protecting life, property and the marine environment.

The Coast Guard has determined that a safety zone is necessary to protect the facility from all vessels operating outside the normal shipping channels and fairways that are not providing services to or working with the facility. The purpose of the rule is to significantly reduce the threat of allisions, oil spills, and releases of natural gas, and thereby protect the safety of life, property, and the environment.

For the purpose of safety zones established under 33 CFR part 147, the deepwater area is considered to be waters of 304.8 meters (1,000 feet) or greater depth extending to the limits of the Exclusive Economic Zone (EEZ) contiguous to the territorial sea of the United States and extending to a distance up to 200 nautical miles from the baseline from which the breadth of the sea is measured. Navigation in the vicinity of the safety zone consists of large commercial shipping vessels, fishing vessels, cruise ships, tugs with tows and the occasional recreational vessel. The deepwater area also includes an extensive system of fairways.

As noted above, we received no comments on our NPRM published July 28, 2015. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

This rule establishes a safety zone extending 500 meters (1640.4 feet) around the stern of the FPSO when it is moored to the turret buoy. If the FPSO detaches from the turret buoy, the safety zone of 500 meters (1640.4) will be measured from the center point of the turret buoy. No vessel, except those attending the facility, or those less than 100 feet in length and not engaged in towing will be permitted to enter the safety zone without obtaining permission from Commander, Eighth Coast Guard District or a designated representative.

We developed this rule after considering numerous statutes and executive orders (E.O.s) related to rulemaking. Below we summarize our analyses based on these statutes and executive orders, and we discuss First Amendment rights of protestors.

E.O.s 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under E.O. 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.

This rule is not a significant regulatory action due to the location of the Turritella FPSO—on the Outer Continental Shelf—and its distance from both land and safety fairways. Vessel traffic can pass safely around the safety zone using alternate routes. Exceptions to this rule include vessels measuring less than 100 feet in length overall and not engaged in towing. Deviation to transit through the safety zone may be requested. Such requests will be considered on a case-by-case basis and may be authorized by the Commander, Eighth Coast Guard District or a designated representative.

The Regulatory Flexibility Act of 1980 (RFA), 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 received 0 comments from the Small Business Administration on this rulemaking. 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.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

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. If the 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.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small 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 have determined that it is consistent with the fundamental federalism principles and preemption requirements described in E.O. 13132.

Also, this rule does not have tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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 an 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 made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a safety zone around an OCS Facility to protect life, property and the marine environment. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. The environmental analysis checklist supporting this determination and Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES.

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.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 147 as follows:

I. Table of Abbreviations DHS Department of Homeland Security FR Federal Register NPRM Notice of Proposed Rulemaking OCS Outer Continental Shelf SPAR A large diameter, vertical cylinder supporting a deck USCG United States Coast Guard II. Background Information and Regulatory History

Bennu Oil and Gas requested that the Coast Guard establish a safety zone extending 500 meters (1640.4 feet) from each point on the Titan SPAR facility structure's outermost edge located in the deepwater area of the Gulf of Mexico on the OCS. The purpose of the safety zone is to protect the facility from all vessels operating outside the normal shipping channels and fairways that are not providing services to or working with the facility. Therefore, on July 24, 2015 we published a NPRM with a request for comments entitled, “Safety Zones: Titan SPAR, Mississippi Canyon 941, Outer Continental Shelf on the Gulf of Mexico” in the Federal Register (80 FR 43998). We received no comments on the NPRM.

The Coast Guard is issuing this rule under authority in 14 U.S.C. 85, 43 U.S.C. 1333, Department of Homeland Security Delegation No. 0170.1, and Title 33, CFR part 147, which collectively permit the establishment of safety zones for facilities located on the OCS for the purpose of protecting life, property and the marine environment. The Coast Guard has determined that a safety zone is necessary to protect the facility from all vessels operating outside the normal shipping channels and fairways that are not providing services to or working with the facility. The purpose of the rule is to significantly reduce the threat of allisions, oil spills, and releases of natural gas, and thereby protect the safety of life, property, and the environment.

For the purpose of safety zones established under 33 CFR part 147, the deepwater area is considered to be waters of 304.8 meters (1,000 feet) or greater depth extending to the limits of the Exclusive Economic Zone (EEZ) contiguous to the territorial sea of the United States and extending to a distance up to 200 nautical miles from the baseline from which the breadth of the sea is measured. Navigation in the vicinity of the safety zone consists of large commercial shipping vessels, fishing vessels, cruise ships, tugs with tows and the occasional recreational vessel. The deepwater area also includes an extensive system of fairways.

As noted above, we received no comments on our NPRM published July 24, 2015. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

This rule establishes a safety zone extending 500 meters (1640.4 feet) from each point on the Titan SPAR facility structure's outermost edge. No vessel, except those attending the facility, or those less than 100 feet in length and not engaged in towing will be permitted to enter the safety zone without obtaining permission from Commander, Eighth Coast Guard District or a designated representative.

We developed this rule after considering numerous statutes and executive orders (E.O.s) related to rulemaking. Below we summarize our analyses based on these statutes and executive orders, and we discuss First Amendment rights of protestors.

E.O.s 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under E.O. 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.

This rule is not a significant regulatory action due to the location of the Titan SPAR—on the Outer Continental Shelf—and its distance from both land and safety fairways. Vessel traffic can pass safely around the safety zone using alternate routes. Exceptions to this rule include vessels measuring less than 100 feet in length overall and not engaged in towing. Deviation to transit through the safety zone may be requested. Such requests will be considered on a case-by-case basis and may be authorized by the Commander, Eighth Coast Guard District or a designated representative.

The Regulatory Flexibility Act of 1980 (RFA), 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 received 0 comments from the Small Business Administration on this rulemaking. 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.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

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. If the 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.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small 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 have determined that it is consistent with the fundamental federalism principles and preemption requirements described in E.O. 13132.

Also, this rule does not have tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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 an 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 made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a safety zone around an OCS Facility to protect life, property and the marine environment. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. The environmental analysis checklist supporting this determination and Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES.

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.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 147 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-2015-0376 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 19, 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-2015-0376, 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-10814 filed by BASF Corporation, 100 Park Avenue, Florham Park, NJ 07932. The petition requested that 40 CFR 180.960 be amended by establishing an exemption from the requirement of a tolerance for residues of 2-propenoic acid, polymer with ethenylbenzene and (1-methylethenyl)benzene (CAS Reg. No. 52831-04-6). That document included a summary of the petition prepared by the petitioner and solicited comments on the petitioner's request. There were no comments received in response to the notice of filing.

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).

2-propenoic acid, polymer with ethenylbenzene and (1-methylethenyl)benzene 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 1,000 and less than 10,000 daltons. The polymer contains less than 10% oligomeric material below MW 500 and less than 25% oligomeric material below MW 1,000, and the polymer does not contain any reactive functional groups.

Thus, 2-propenoic acid, polymer with ethenylbenzene and (1-methylethenyl)benzene 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 2-propenoic acid, polymer with ethenylbenzene and (1-methylethenyl)benzene.

For the purposes of assessing potential exposure under this exemption, EPA considered that 2-propenoic acid, polymer with ethenylbenzene and (1-methylethenyl)benzene could be present in all raw and processed agricultural commodities and drinking water, and that non-occupational non-dietary exposure was possible. The minimum number average MW of 2-propenoic acid, polymer with ethenylbenzene and (1-methylethenyl)benzene is 2,000 daltons. Generally, a polymer of this size would be poorly absorbed through the intact gastrointestinal tract or through intact human skin. Since 2-propenoic acid, polymer with ethenylbenzene and (1-methylethenyl)benzene 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 2-propenoic acid, polymer with ethenylbenzene and (1-methylethenyl)benzene to share a common mechanism of toxicity with any other substances, and 2-propenoic acid, polymer with ethenylbenzene and (1-methylethenyl)benzene does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that -2-propenoic acid, polymer with ethenylbenzene and (1-methylethenyl)benzene 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 2-propenoic acid, polymer with ethenylbenzene and (1-methylethenyl)benzene, 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 2-propenoic acid, polymer with ethenylbenzene and (1-methylethenyl)benzene.

There are no existing tolerance exemptions for 2-propenoic acid, polymer with ethenylbenzene and (1-methylethenyl)benzene.

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 2-propenoic acid, polymer with ethenylbenzene and (1-methylethenyl)benzene.

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

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

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-2015-0179 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 19, 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-2015-0179, 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 April 22, 2015 (80 FR 22466) (FRL-9925-79), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 4F8294) by Cheminova Inc., c/o Cheminova A/S, 1600 Wilson Blvd., Suite 700, Arlington, VA 22209-2510. The petition requested that 40 CFR 180.629 be amended by establishing tolerances for residues of the fungicide flutriafol, ((±)-α-(2-fluorophenyl)-α-(4-fluorophenyl)-1H-1,2,4-triazole-1-ethanol), in or on hops, dried cones at 20 parts per million (ppm). That document referenced a summary of the petition prepared by Cheminova Inc., c/o Cheminova A/S, the registrant, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing. For purposes of accuracy, the Agency notes that a harmless error was made in the notice of filing publication and is correcting that misstatement here: The petition was actually filed by Cheminova A/S, c/o Cheminova, Inc.

Additionally, in the Federal Register of February 4, 2015 (80 FR 5946) (FRL-9922-06) EPA established tolerances for residues of flutriafol, in or on several commodities, including cotton, gin byproducts at 6.0 ppm and cotton, undelinted seed at 0.50 ppm. When establishing the general tolerances in paragraph (a) for cotton, gin byproducts at 6.0 ppm and cotton, undelinted seed at 0.50 ppm, EPA inadvertently forgot to remove the existing tolerances for cotton, gin byproducts at 0.02 ppm and cotton, undelinted seed at 0.01 ppm from the table in paragraph (d) for Indirect or inadvertent residues. These indirect tolerances were made redundant by the establishment of the tolerances in the General section at a higher level for the same commodities. Therefore, EPA is removing the cotton, gin byproducts and cotton, undelinted seed tolerances established in § 180.629(d).

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

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

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Consistent with the mammalian toxicity profiles of the other triazole fungicides, the prevalent adverse effects following oral exposure to flutriafol were in the liver. Effects consisted of increases in liver enzyme release (alkaline phosphatase), liver weights, and histopathology findings (hepatocyte vacuolization to centrilobular hypertrophy and slight increases in hemosiderin-laden Kupffer cells, minimal to severe fatty changes, and bile duct proliferation/cholangiolar fibrosis). Progression of toxicity occurred with time as some effects were only observed at chronic durations.

Slight indications of effects in the hematopoietic system were sporadically seen in all species consisting of slight anemia, increased platelets, white blood cells, neutrophils, and lymphocytes. The effects in the neurotoxicity screening batteries were observed only at higher doses and were considered secondary effects (decreased motor activity and hindlimb grip strength, ptosis, lost righting reflex, hunched posture, and ataxia). Flutriafol showed no evidence of dermal toxicity, or immunotoxicity. Flutriafol showed no evidence of carcinogenicity in rodents or in vitro.

There is evidence of increased quantitative and qualitative pre- and postnatal susceptibility for flutriafol in rats and rabbits. In the first of two rat developmental toxicity studies, developmental effects (delayed ossification or non-ossification of the skeleton in the fetuses) were observed at a lower dose than that where maternal effects were observed. In the second rat developmental study, developmental effects (external, visceral, and skeletal malformations; embryo lethality; skeletal variations; a generalized delay in fetal development; and fewer live fetuses) were more severe than the decreased food consumption and body-weight gains observed in the dams at the same dose. For rabbits, intrauterine deaths occurred at a dose level that also caused adverse effects in maternal animals. In the 2-generation reproduction studies, effects in the offspring decreased litter size and percentage of live births (increased pup mortality) and liver toxicity can be attributed to the systemic toxicity of the parental animals (decreased body weight and food consumption and liver toxicity) observed at the same dose.

Flutriafol is categorized as having high oral acute toxicity in the mouse. It is categorized as having low acute toxicity via the oral, dermal and inhalation routes in rats. Flutriafol is minimally irritating to the eyes and is not a dermal irritant. Flutriafol was not shown to be a skin sensitizer when tested in guinea pigs.

Flutriafol is considered to be “Not likely to be Carcinogenic to Humans” based on the results of the carcinogenicity studies in rats and mice. The results of the rat chronic toxicity/carcinogenicity study and the mouse carcinogenicity study are negative for carcinogenicity. All genotoxicity studies on flutriafol showed no evidence of clastogenicity or mutagenicity.

Specific information on the studies received and the nature of the adverse effects caused by flutriafol as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in the final rule published in the Federal Register of June 6, 2014 (79 FR 32666) (FRL-9910-38).

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which the NOAEL and the LOAEL are identified. Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/assessing-human-health-risk-pesticides.

A summary of the toxicological endpoints for flutriafol used for human risk assessment is discussed in Unit III.B. of the final rule published in the Federal Register of June 6, 2014.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to flutriafol, EPA considered exposure under the petitioned-for tolerances as well as all existing flutriafol tolerances in 40 CFR 180.629. EPA assessed dietary exposures from flutriafol in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure.

Such effects were identified for flutriafol. In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture (USDA) Nationwide Health and Nutrition Examination Survey, What We Eat In America (NHANES/WWEIA) conducted from 2003-2008. As to residue levels in food, EPA made the following assumptions for the acute exposure assessment: Tolerance-level residues or tolerance-level residues adjusted to account for the residues of concern for risk assessment and 100 percent crop treated (PCT). Since adequate processing studies have been submitted which indicate that tolerances for residues in/on apple juice, grape juice, dried prunes, and tomato puree are unnecessary and since tolerances for residues in/on raisin and tomato paste tolerances are established, the DEEM (ver. 7.81) default processing factors for these commodities were reduced to 1. The DEEM (ver. 7.81) default processing factors were retained for the remaining relevant commodities.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA NHANES/WWEIA conducted from 2003-2008. As to residue levels in food, EPA made the following assumptions for the chronic exposure assessment: Tolerance-level residues or tolerance-level residues adjusted to account for the residues of concern for risk assessment and 100 PCT. Since adequate processing studies have been submitted which indicate that tolerances for residues in/on apple juice, grape juice, dried prunes, and tomato puree are unnecessary and since tolerances for residues in/on raisin and tomato paste tolerances are established, the DEEM (ver. 7.81) default processing factors for these commodities were reduced to 1. The DEEM (ver. 7.81) default processing factors were retained for the remaining relevant commodities.

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

iv. Anticipated residue and percent crop treated (PCT) information. EPA did not use anticipated residue and/or PCT information in the dietary assessment for flutriafol. Tolerance-level residues and/or 100 PCT were assumed for all food commodities.

2. Dietary exposure from drinking water. The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for flutriafol in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of flutriafol. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/about-water-exposure-models-used-pesticide.

Based on the First Index Reservoir Screening Tool (FIRST), and Pesticide Root Zone Model Ground Water (PRZM GW), the estimated drinking water concentrations (EDWCs) of flutriafol for acute exposures are estimated to be 15.9 parts per billion (ppb) for surface water and 193 ppb for ground water.

For chronic exposures assessments the EDWC's are estimated to be 5.39 ppb for surface water and 165 ppb for ground water.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 193 ppb was used to assess the contribution to drinking water. For chronic dietary risk assessment, the water concentration of value 165 ppb was used to assess the contribution to drinking water.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Flutriafol is not registered for any specific use patterns that would result in residential exposure.

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

Flutriafol is a member of the triazole-containing class of pesticides. Although conazoles act similarly in plants (fungi) by inhibiting ergosterol biosynthesis, there is not necessarily a relationship between their pesticidal activity and their mechanism of toxicity in mammals. Structural similarities do not constitute a common mechanism of toxicity. Evidence is needed to establish that the chemicals operate by the same, or essentially the same, sequence of major biochemical events. In conazoles, however, a variable pattern of toxicological responses is found; some are hepatotoxic and hepatocarcinogenic in mice. Some induce thyroid tumors in rats. Some induce developmental, reproductive, and neurological effects in rodents. Furthermore, the conazoles produce a diverse range of biochemical events including altered cholesterol levels, stress responses, and altered DNA methylation. It is not clearly understood whether these biochemical events are directly connected to their toxicological outcomes. Thus, there is currently no evidence to indicate that conazoles share common mechanisms of toxicity and EPA is not following a cumulative risk approach based on a common mechanism of toxicity for the conazoles. For information regarding EPA's procedures for cumulating effects from substances found to have a common mechanism of toxicity, see EPA's Web site at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides.

Triazole-derived pesticides can form the metabolite 1,2,4-triazole (T) and two triazole conjugates triazolylalanine (TA) and triazolylacetic acid (TAA). To support existing tolerances and to establish new tolerances for triazole-derivative pesticides, EPA conducted an initial human-health risk assessment for exposure to T, TA, and TAA resulting from the use of all current and pending uses of any triazole-derived fungicide as of September 1, 2005. The risk assessment was a highly conservative, screening-level evaluation in terms of hazards associated with common metabolites (e.g., use of a maximum combination of uncertainty factors) and potential dietary and non-dietary exposures (i.e., high-end estimates of both dietary and non-dietary exposures). In addition, the Agency retained the additional 10X Food Quality Protection Act (FQPA) safety factor (SF) for the protection of infants and children. The assessment included evaluations of risk for various subgroups, including those comprised of infants and children. The Agency's complete risk assessment can be found in the propiconazole reregistration docket at http://www.regulations.gov. Docket ID Number EPA-HQ-OPP-2005-0497.

The most recent update to that aggregate human health risk assessment for free traizoles and its conjugates was conducted on April 9, 2015. This assessment considered all proposed/registered triazole derived pesticides uses with the resulting risk less than the Agency's level of concern. An update to the aggregate human health risk assessment for free triazoles and its conjugates may be found in this current docket, docket ID number EPA-HQ-OPP-2015-0179-0014 entitled, “Common Triazole Metabolites: Updated Aggregate Human Health Risk Assessment to Address The New Section 3 Registrations for Use of Propiconazole on Tea, Dill, Mustard Greens, Radish, and Watercress; Use of Difenoconazole on Globe Artichoke, Ginseng and Greenhouse Grown Cucumbers and Conversation of the Established Foliar Uses/Tolerances for Stone Fruit and Tree Nut Crop Groups to Fruit, Stone, Group 12-12 and the Nut, Tree, Group 14-12.; and Use of Flutriafol on Hops.”

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

2. Prenatal and postnatal sensitivity. The potential impact of in utero and perinatal flutriafol exposure was investigated in three developmental toxicity studies (two in rats, one in rabbits) and 2 multi-generation reproduction toxicity studies in rats. In the first of two rat developmental toxicity studies, increased quantitative susceptibility was observed with developmental effects (delayed ossification or non-ossification of the skeleton in the fetuses) seen at a lower dose than maternal effects. In the second rat developmental study, a qualitative susceptibility was noted. Although developmental toxicity occurred at the same dose level that elicited maternal toxicity, the developmental effects (external, visceral, and skeletal malformations; embryo lethality; skeletal variations; a generalized delay in fetal development; and fewer live fetuses) were more severe than the decreased food consumption and body-weight gains observed in the dams. For rabbits, there was in increased qualitative fetal susceptibly. Intrauterine deaths occurred at a dose level that also caused adverse effects in maternal animals. In the 2-generation reproduction studies, a qualitative susceptibility was also seen. Effects in the offspring decreased litter size and percentage of live births (increased pup mortality) and liver toxicity can be attributed to the systemic toxicity of the parental animals (decreased body weight and food consumption and liver toxicity).

3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X. That decision is based on the following findings:

i. The toxicity database for flutriafol is complete.

ii. There is no indication that flutriafol is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity. Signs of neurotoxicity were reported in the acute and subchronic neurotoxicity studies at the highest dose only; however, these effects were primarily seen in animals that were agonal (at the point of death) and, thus, are not indicative of neurotoxicity. In addition, there was no evidence of neurotoxicity in any additional short-term or long-term toxicity studies in rats, mice, and dogs.

iii. There are no concerns or residual uncertainties for prenatal and/or postnatal toxicity. Although there is evidence for increased quantitative and qualitative susceptibility in the prenatal study in rats and rabbits and the 2-generation reproduction study rats, there are no concerns for the offspring toxicity observed in the developmental and reproductive toxicity studies for the following reasons: (1) clear NOAELs and LOAELs were established in the fetuses/offspring for each of these studies; (2) the dose-response for these effects are well-defined and characterized; (3) developmental endpoints are used for assessing acute dietary risks to the most sensitive population (females 13-49 years old) as well as all other short and intermediate-term exposure scenarios; (4) the acute reference dose for females 13-49 is 1,000 fold lower than the dose at which quantitative susceptibility in the first developmental rat study was observed; and (5) the chronic reference dose is greater than 300-fold lower than the dose at which the offspring effects were observed in the 2-generation reproduction studies.

iv. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to flutriafol in drinking water. These assessments will not underestimate the exposure and risks posed by flutriafol.

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

1. Acute risk. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to flutriafol will occupy 39% of the aPAD for females 13-49 years, the population group receiving the greatest % aPAD.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to flutriafol from food and water will utilize 96% of the cPAD for children 1-2 years old, the population group receiving the greatest exposure. There are no residential uses for flutriafol.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Because there is no short-term residential exposure, and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess short-term risk), no further assessment of short-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating short-term risk for flutriafol.

4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Because there is no intermediate-term residential exposure, and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess short-term risk), no further assessment of intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating intermediate-term risk for flutriafol.

5. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, flutriafol is not expected to pose a cancer risk to humans.

6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to flutriafol residues.

Adequate enforcement methodology gas chromotography/nitrogen-phosphorus detector (GC/NPD) for the proposed tolerances is available to enforce the tolerances recommended herein is available to enforce the tolerance expression.

The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: [email protected].

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 flutriafol.

Therefore, tolerances are established for residues of flutriafol, ((±)-α-(2-fluorophenyl)-α-(4-fluorophenyl)-1H-1,2,4-triazole-1-ethanol), in or on hop, dried cones at 20 ppm. Additionally, the tolerances for cotton, gin byproducts, and cotton, undelinted seed established in 180.629(d) are being removed.

This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

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:

Table of Contents of Supplementary Information I. Background II. Response to Appeals A. Scope of Rulemaking Dangerous Goods Advisory Council American Chemistry Council Association of American Railroads PHMSA and FRA Response B. Tribal Impacts and Consultation Columbia River Treaty Tribes and Northwest Treaty Tribes PHMSA and FRA Response C. Information Sharing/Notification Columbia River Treaty Tribes and Northwest Treaty Tribes PHMSA and FRA Response D. Testing and Sampling Program Dangerous Goods Advisory Council PHMSA and FRA Response E. Retrofit Timeline and Tank Car Reporting Requirements American Fuel & Petrochemical Manufacturers PHMSA and FRA Response F. Thermal Protection for Tank Cars Association of American Railroads PHMSA and FRA Response G. Advanced Brake Signal Propagation Systems Dangerous Goods Advisory Council PHMSA and FRA Response Association of American Railroads PHMSA and FRA Response III. Summary I. Background

Under 49 CFR 106.110-106.130,1 a person may appeal a PHMSA action, including a final rule. Appeals must reach PHMSA no later than 30 days after the date PHMSA published the regulation. On May 8, 2015, PHMSA, in coordination with FRA, published a final rule entitled “Hazardous Materials: Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains” (HM-251, 80 FR 26644) (the final rule). The final rule adopted requirements designed to reduce the consequences and, in some instances, reduce the probability of, accidents involving trains transporting large quantities of flammable liquids. The final rule defines certain trains transporting large volumes of flammable liquids as “high-hazard flammable trains” (HHFT) 2 and regulates their operation in terms of enhanced tank car designs, speed restrictions, braking systems, and routing. In response to the final rule, PHMSA received six appeals, one of which was withdrawn. The five active appeals were submitted by the DGAC, ACC, AAR, AFPM, and jointly the Columbia River Treaty Tribes and the Northwest Treaty Tribes.

Section 106.130 requires PHMSA to notify those who appeal, in writing, of the action on the appeal, within 90 days after the date that PHMSA published the action being appealed. Based on the final rule's publication date of May 8, 2015, PHMSA was required to provide a response or notice of delay by August 6, 2015. On August 6, 2015, PHMSA posted a notice of delay on its Web site and subsequently published that notice in the Federal Register on August 10, 2015 (Notice 15-14; 80 FR 47987).3

This document summarizes and responds to the appeals of the DGAC, ACC, AAR, AFPM, and jointly the Columbia River Treaty Tribes and the Northwest Treaty Tribes. PHMSA has consolidated the appeals and structured this document to address the content of the appeals by topic area. The topic areas include (1) Scope of Rulemaking; (2) Tribal Impacts and Consultation; (3) Information Sharing/Notification; (4) Testing and Sampling Programs; (5) Retrofit Timeline and Tank Car Reporting Requirements; (6) Thermal Protection for Tank Cars; and (7) Advanced Brake Signal Propagation Systems. In each section, PHMSA summarizes the pertinent appeals on the topic area, by appellant, and then provides PHMSA and FRA's response to the appeals on that topic area. The document concludes with a summary of further actions in response to the appeals.

DGAC expresses concern that the definition of “HHFT” as adopted in the final rule would subject manifest trains 4 to the applicable additional requirements for HHFTs. DGAC contends that shippers cannot know if tank cars they offer to a carrier will be assembled into a manifest train that meets the definition of HHFT, triggering requirements for those tank cars to meet the enhanced standards the final rule establishes. Additionally, DGAC states that at the time of pick-up, railroads cannot make this determination either. DGAC expects that the inability of both shippers and carriers to determine if a future manifest train will be an HHFT will necessitate approximately 40,000 additional DOT Specification 111 (DOT-111) tank cars to be retrofitted to the DOT Specification 117R (DOT-117R) requirements or replaced with the new DOT Specification 117 (DOT-117) tank cars under the final rule. DGAC believes that the definition of HHFT in the final rule is harmfully broad and should be revised to limit its applicability to railroad operations only and not to determine a tank car specification.

DGAC also states that both the term and definition for a “high-hazard flammable unit train” (HHFUT) 5 were not proposed in the NPRM. DGAC believes the addition of a new definition for HHFUT is unnecessary and requests that the definition be eliminated.

DGAC also believes that speed restrictions in the final rule should apply only to crude oil and ethanol trains. It states speed restrictions on all flammable liquids may cause delays in rail service for other rail operations, which could cause significant safety impacts. DGAC opines that more time in transit, more or longer trains, and more overall congestion could cause more incidents.

DGAC also states that the scope of the final rule is not harmonized with applicable Canadian regulations. While it believes Canada has taken a “commodity-based approach” to the phase-out of legacy DOT-111 tank cars and corresponding retrofit timeline, it states that the U.S. approach is based on classification and packing group. DGAC believes that a commodity-based approach, addressing crude oil and ethanol, makes the most sense because it would address the material being transported in unit trains from a reasonable risk approach. DGAC also continues to encourage PHMSA, FRA, and Transport Canada (TC) to better identify the root causes of crashes and derailments involving these flammable liquids.

In summary, DGAC contends that the applicability of the final rule should be limited to the transportation of crude oil and ethanol trains, which, it says, was the stated intention of the rule. DGAC argues that, if the Department wishes to pursue enhanced tank car standards and operational requirements for other Class 3 (flammable liquid) materials, it should do so in a separate rulemaking.

ACC requests that PHMSA revise the final rule to ensure that the requirement to retrofit existing tank cars applies only to cars carrying crude oil and ethanol. Other than tank cars transporting crude oil or ethanol, ACC states that the preamble and the Regulatory Impact Analysis (RIA) show that PHMSA's final rule did not intend to require retrofits of most tank cars transporting other flammable liquids.

ACC requests “that the HHFT definition be reserved for regulations that apply to railroad train operations, not to tank car design.” They assert that the HHFT definition should not trigger design standards that would apply to most tank cars intended to contain Class 3 flammable liquids. ACC does not contest the application of the HHFT concept to operational controls, such as establishing speed limits or braking requirements.

Furthermore, like DGAC, ACC contends that the final rule will necessitate that approximately 40,000 6 additional DOT-111 tank cars either be retrofitted to meet the DOT-117R requirements or be replaced with the new DOT-117 tank cars. ACC suggests that this is in contrast to the stated focus on crude oil and ethanol. ACC echoes DGAC, stating that the shipper has no control over how railroads pick up cars and assemble manifest trains. While chemical shippers can, and often do, tender fewer than 20 tank cars loaded with flammable liquids at a time, there is no certainty that those chemicals will always be on a manifest train with fewer than 35 tank cars loaded with a flammable liquid. ACC asserts that the final rule does not align with the increased risk of derailment associated with unit trains and notes that flammable liquid chemicals are not shipped in unit trains. For that reason, ACC considers the HHFT definition to be overly broad and not aligned with the increased risk of derailment associated with unit trains. ACC urges that the scope be clarified so that the final rule will apply to crude oil unit trains, citing the relevant discussion in the Notice of Proposed Rulemaking. See 79 FR 45040. ACC indicates that because even a single tank car loaded with a Class 3 (flammable liquid) material tendered by one of its members may be placed in an HHFT, all tank cars intended to contain Class 3 (flammable liquid) materials will have to meet the design criteria set forth in the final rule. Furthermore, ACC explains that after publication of the final rule, railroads explicitly told ACC members that they will not manage manifest train operations to avoid triggering the regulatory requirements of the HHFT definition.

ACC contends that removing the retrofitting requirements for Class 3 flammable liquids that are not crude oil or ethanol would alleviate shop capacity problems and provide greater harmonization with TC's analogous retrofit schedule. ACC contends that PHMSA's adherence to using packing group, rather than to using risk, severely complicates the implementation of the rules in the two countries. ACC states that some of the Class 3 flammable liquid materials that will be affected by the final rule are classified in Packing Group (PG) I, so those tank cars will reach PHMSA's deadlines for retrofit or replacement before the tank cars that carry either ethanol or PG II crude oil. ACC states that the different prioritizations chosen by TC and by PHMSA will exacerbate conflicts over tank car shop space.

In sum, ACC believes that the scope of the final rule will inadvertently affect nearly 40,000 legacy DOT-111 tank cars that transport Class 3 flammable liquids that were not accounted for in the accompanying RIA. ACC states that because a shipper cannot know how a carrier will assemble a train, the possibility that a shipper's tank car will be placed into an HHFT will force all shippers of Class 3 materials to retrofit or purchase tank cars to meet the DOT-117R or DOT-117 specification. ACC believes that, coupled with a retrofit timeline that does not match the Canadian timeline, the final rule will fail to properly address the risks associated with hazardous materials offered and transported in unit trains.

AAR contests the scope of the final rule because it permits shippers to continue to package Class 3 flammable liquid materials in tank cars that do not meet the new DOT-117 tank car standard. AAR states that PHMSA has created two pools of tank cars, those that meet the heightened standard for HHFTs and those that do not. As a result, AAR asserts, shippers may continue to offer Class 3 flammable liquid materials in DOT-111 tank cars as long as the DOT-111 is not placed in an HHFT. According to AAR, this places an unjustified burden on the railroads to continuously analyze the composition of each train transporting Class 3 flammable liquid materials in DOT-111 tank cars. AAR claims that PHMSA's argument, that through fleet management the railroads can avoid this issue, is baseless. AAR believes that PHMSA should harmonize with Canada by banning the use of DOT-111 tank cars for transporting any Class 3 flammable liquid materials. By failing to harmonize with Canada in this respect, AAR contends that the U.S. market will become flooded with legacy DOT-111 tank cars, which will further exacerbate the fleet management challenges U.S. railroads will face to construct trains to avoid meeting the definition of an HHFT.

To support its appeal, AAR submitted waybill data from its subsidiary Railinc showing numbers of flammable liquid shipments tendered in smaller groups of cars that do not by themselves meet the definition of an HHFT. Data from the first quarter of 2015 illustrate that 37,000 cars of flammable liquids (other than crude oil and ethanol) were tendered in blocks of 20 cars or fewer. During the same period, 37,576 tank cars of other flammable liquids (other than the 25,009 tank cars of crude oil or 39,956 tank cars of ethanol) were tendered in groups of fewer than 35 cars. According to AAR, had the final rule been in effect, a total of 102,541 cars of flammable liquids could have moved in existing DOT-111s.7 AAR contends that PHMSA should specify a sunset date for discontinuing the use of DOT-111 tank cars for hazardous materials not in an HHFT.

In regards to DGAC's, ACC's, and AAR's appeals on the scope of the final rule, we disagree with those appellants' assertions and maintain that the method we determined to apply the new regulatory requirements and the regulatory analysis to support those decisions were conducted through careful consideration of the risks flammable liquids pose and the comments received during the rulemaking process. The position these appellants are taking in the appeals is based on anecdotal evidence and an interpretation of tank car fleet numbers that exaggerates the scope of the rulemaking. While we respect the argument that both shippers and carriers of Class 3 flammable liquids by rail will face new challenges in the wake of these regulations, we maintain that they are capable of working together to comply with the requirements established by the final rule.

DGAC, AAR, and ACC contend that both shippers and carriers cannot predict whether tank cars offered for transportation will be placed in a train set meeting the definition of an HHFT. By relying on this rationale, DGAC and ACC contend that the final rule will require nearly 40,000 tank cars to be replaced with the new DOT-117 tank car or be retrofitted to the DOT-117R requirements because a tank car possibly placed in an HHFT. These numbers are based on the 2015 Railway Supply Institute (RSI) fleet forecast predicting the number of DOT-111 tank cars transporting Class 3 flammable liquids (other than crude oil and ethanol). The solution they urge is limiting the scope of the rule to crude oil and ethanol.

We disagree. We believe that limiting the scope of the rulemaking to crude oil and ethanol would not align with the intent and applicability of the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180). The HMR are risk based and focus on the hazards presented during transportation. Focusing only on a subset of flammable liquids is a short-sighted regulatory approach and has the potential to lead to inconsistencies and safety concerns in the future. PHMSA's goal is to provide regulatory certainty that addresses the risks posed by all HHFTs.

In the NPRM, PHMSA proposed a definition of an HHFT with a threshold of 20 cars in a train. This aligned with AAR's “Key Train” definition in its circular OT-55-N, indicating the railroads currently recognize that trains of this make-up represent a high risk.8 Additionally, the NPRM tied the applicability of the new tank car specification to the HHFT definition. In response to the NPRM, PHMSA received numerous comments suggesting that both shippers and carriers would be placed in an untenable position because it is impossible to determine when tank cars would be in an HHFT. To address commenters' concerns, we revised the definition of HHFT to 20 cars in a block or 35 throughout the train. The risk-based equivalency of 20 cars in a block and 35 cars throughout the train is calculated in the RIA on page 323.9 PHMSA based this change on calculations finding that 20 cars in a block is roughly equivalent to 35 cars placed throughout a train, as well as AAR's comments noting that such a change would alleviate concerns about manifest trains operating in High Threat Urban Areas (HTUAs).

Similarly, PHMSA denies DGAC's request to remove the definition of HHFUT. Again, PHMSA developed the definition based on an analysis of comments received on the NPRM and careful cost analysis. While the definition of HHFUT was not expressly proposed in the NPRM, the NPRM did propose requirements for enhanced brake signal propagation systems for all trains meeting the definition of HHFT. PHMSA believes that the HHFUT definition captures the subset of HHFTs that represent the highest risk and where the most benefits from ECP braking will be gained and that the definition is within the scope of the NPRM proposals.

Regarding the appellants' concerns that the tank car specification is linked to the number of cars in the train, PHMSA understands that railroads have significant fleet management programs in place. On page 221 of the RIA, PHMSA details the agency's understanding of railroads' capability to conduct fleet management. We are aware that both shippers and carriers have fleet managers to predict or control whether a given tank car will be used in manifest train service or unit train service. Despite these fleet management capabilities and programs, the appellants indicate they have little control over the number of cars loaded with Class 3 (flammable liquid) materials in a train. To argue that neither party can predict a train's composition—particularly when transporting hazardous materials—implies an alarming lack of awareness in appellants' own operations. Indeed, train crews are actually required to maintain a document that reflects the current position in the train of each rail car containing a hazardous material. See § 174.26.

AAR contends that all cars transporting flammable liquids should be retrofitted to the DOT-117R requirements. On the other hand, the shippers contend no cars, other than those transporting crude oil and ethanol, should be retrofitted. PHMSA believes the final rule strikes the correct balance by requiring retrofits of all tank cars in crude oil and ethanol service plus the 354 tank cars in PG III service by estimating roughly 10 percent of trains transporting PG III commodities might meet the HHFT definition, and thus, that 10 percent of the cars would require retrofitting.10 Further, PHMSA expects that the railroads will manage the assembly of loaded tank cars and manage the classification of trains to exclude tank cars from HHFTs that do not meet the new DOT-117 and DOT-117R tank car specifications.

Therefore, as previously stated, the estimated number of tank cars in PG III flammable liquid service that would be used to make up HHFTs, and hence have to meet the new requirements, is 354 tank cars, not the nearly 40,000 DGAC and ACC allege. The costs presented in the RIA were based on an analysis of public waybill data and include the costs of retrofitting the 354 tank cars mentioned above. The analysis showed that no other flammable liquid commodities of any packing group—other than crude oil or ethanol—were shipped in quantities that would trigger the HHFT requirements.

Further, our analysis of the waybill data indicated that far fewer than 10 percent of PG III cars would be affected by the HHFT definition. Nevertheless, to be conservative, we assumed roughly 10 percent of trains transporting PG III commodities might meet the HHFT definition, therefore 10 percent of the cars would require retrofitting. After adjusting for retirement of some cars and accounting for Canada's fleet share, we calculated that 10 percent of the remaining cars equaled the 354 cars that we incorporated into the cost analysis.

ACC's assertion that nearly 40,000 tank cars would have to be retrofitted or replaced to meet the enhanced tank car standards due to their possible placement in an HHFT is grossly exacerbated by the railroads advising ACC that they will not manage fleets to avoid their shipments becoming subject to the new regulations. PHMSA does not agree that this is a valid basis for revising the scope of the final rule's requirements. We explicitly limited the reach of the final rule to trains transporting large quantities of flammable liquids, and defined HHFT to exclude typical manifest trains that do not transport the large quantities of flammable liquids. For railroads to state that they will not manage train sets undermines the risk-based goal of the final rule to exclude commodities not typically shipped in large quantities.

DGAC, ACC, and AAR also contend that the U.S. packing group approach is not harmonized with Canada's commodity-based approach to the phase out of DOT-111 tank cars and corresponding retrofit timeline. Again, we disagree. By designating DOT-111 tank cars for phase out by packing group, we are aligned with Canada. While the Canadian approach expressly states crude oil and ethanol, we chose to use PG I, which encapsulates crude oil, and PG II, which encapsulates ethanol. DOT and TC were in constant communication while developing the respective rulemaking actions.

AAR also appealed the rule for not specifying a sunset date for the continued use of DOT-111 tank cars for all Class 3 flammable liquids. AAR contends that this will cause the non-retrofitted Canadian fleet to flood the U.S. market, making it increasingly difficult to manage the operational complexities of two pools of tank cars. Even if AAR's contention is true, we chose to authorize the continued use of DOT-111 tank cars for the transportation of hazardous materials not in an HHFT because it would have been cost prohibitive to prohibit all Class 3 flammable liquids in DOT-111 tank cars. As stated in the RIA and final rule preamble, we believe that we appropriately addressed the risk of continued use of such cars by prohibiting the use of legacy DOT-111 tank cars for HHFT service. For these reasons, the DGAC, ACC, and AAR appeals on the scope of the final rule are denied.

The Columbia River Treaty Tribes and the Northwest Treaty Tribes (“Treaty Tribes”) submitted an appeal to the Secretary on June 5, 2015. The Treaty Tribes' arguments suggest that by omitting formal tribal consultation, DOT did not follow Executive Order (E.O.) 13175 and DOT guidance. By way of remedy, the Treaty Tribes urge PHMSA to “reopen a notice and comment period for the Tank Car Rule [and] carry out tribal consultations on all aspects of the Tank Car Rule.”

The Treaty Tribes' appeal lays out various arguments for tribal consultation under E.O. 13175 and DOT guidance. First, the appeal argues that PHMSA erred in concluding that the rulemaking “does not significantly or uniquely affect tribes.” Second, the Treaty Tribes' appeal argues that the final rule “impose[s] substantial direct effects or compliance costs” on Indian tribal governments. Third, the Treaty Tribes' appeal finds fault with PHMSA's discussion of its “superseding preemption” authority for hazardous materials regulations in the final rule's discussion of tribal consultation.

We appreciate the comments the Treaty Tribes and other Tribes provided to the NPRM, which are addressed in the final rule. However, PHMSA respectfully disagrees with the Treaty Tribes appellants and maintains that the appellants' concerns were addressed during the rulemaking process. Overall, the comments from Indian tribal governments to the NPRM expressed concerns about the potential environmental, economic, and safety impacts of crude oil train derailments on tribal lands. PHMSA responded to those concerns by adopting a final rule designed to reduce the severity of and/or prevent derailments in an effort to improve public safety and protection of the environment. PHMSA and FRA conducted an extensive and thorough review of all comments received, and considered the concerns of all stakeholders, including Indian tribal governments. In the final rule, PHMSA summarized and discussed the comments of our stakeholders, including in-depth discussions of the comments of Indian tribal governments, and provided justifications for our adopted proposals and for those proposals we did not adopt.

E.O. 13175 establishes processes for when a Federal agency is “formulating and implementing policies that have tribal implications.” 11 This E.O., re-affirmed by President Obama in a November 5, 2009, “Tribal Consultation” memorandum, 12 states that “[p]olicies that have tribal implications” refers to “regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects 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.” In addition, under DOT Order 5301.1 and other DOT tribal policies, components of DOT must consult with Indian tribal governments before taking any actions that “significantly or uniquely” affect them.13 In the final rule, PHMSA discussed E.O. 13175, and reasonably concluded that the rulemaking did not: (1) Have tribal implications; (2) significantly or uniquely affect tribes; or (3) impose substantial direct effects or compliance costs on tribal governments.14

The Treaty Tribes argue that consultation was required because of alleged unique and substantial effects of the final rule on the Treaty Tribes and their interests. Specifically, the Treaty Tribes' appeal discusses the unique history of their fishing rights and states, “[h]ad PHMSA consulted with the Northwest treaty tribes, it would have learned of the tribal and federal interests in their collective usual and accustomed fishing areas and potential impacts resulting from the proposed Tank Car Rule.” The Treaty Tribes discussed their concerns with the rail routing analysis discussion of environmentally sensitive areas. Though the Treaty Tribes' fishing rights may be unique, the trigger for the consultation requirement is a federal action that has a significant or unique effect upon tribes. Here, no such federal action exists. The enhanced safety provisions in the final rule, are designed to decrease the likelihood and severity of derailments and resulting spills, in an effort to improve public safety and protect the environment. The requirements adopted in the final rule do not apply directly to tribes. They apply to railroads and hazardous materials shippers. Any potential effect on tribes would take place several stages removed from the federal action of the final rule.

PHMSA believes that these regulations work to the benefit of all communities and areas affected by the rail transportation of flammable liquids. For this reason, PHMSA affirms that the impact of the final rule is not “significant” or “unique” to communities or resources under the jurisdiction of tribal governments.

The Treaty Tribes argue that the rule affects the relationship between tribes and the U.S., triggering the consultation provisions of E.O. 13175. The NPRM requested comments on whether the railroad's notification requirements should proceed through tribal emergency response commissions. This proposal was not adopted in the final rule. The tribes argue that this impacted the relationship between the tribes and the federal government. However, the information-sharing provisions would have directed the railroads to share information with the tribes. Although this may or may not affect the tribes' relationships with the railroads, it would not affect the relationship between tribes and the federal government.

As further discussed in the Notification Section of this document, the Treaty Tribes asked that PHMSA reinstitute the notice provisions of the Secretary's May 7, 2014 Emergency Order. DOT has kept in place the May 2014 Emergency Order that requires railroads to provide Bakken crude oil information directly to State Emergency Response Commissions (SERCs). PHMSA plans to revisit these provisions in an upcoming rulemaking and has pledged to maintain the Emergency Order until such a rulemaking codifying these provisions is published. Accordingly, for the reasons previously stated, this rulemaking has not affected the relationship between tribes and the federal government.

Finally, the Treaty Tribes argue that “PHMSA asserts the preemption provisions of 49 U.S.C. 5126 and 20106 supersede” the need for tribal consultation. This is an inaccurate characterization of PHMSA's position. In the final rule, we state that “PHMSA has determined that this rulemaking does not significantly or uniquely affect tribes, and does not impose substantial direct effects or compliance costs on such governments.” Although the rule referenced the preemption authorities of PHMSA and FRA, the basis for the decision to forgo tribal consultation was the lack of direct tribal impacts. In this case, PHMSA reasonably determined that a consultation with tribal officials was not necessary under the guidelines of E.O. 13175 and DOT policies.

Moreover, the Treaty Tribes' appeal asked that PHMSA “reopen a notice and comment period for the Tank Car Rule [and] carry out tribal consultations on all aspects of the Tank Car Rule.” Independent of the arguments discussed above, PHMSA and FRA suggest that granting this aspect of the Treaty Tribes' appeal would result in further rulemaking proceedings that would frustrate implementation of the final rule's safety advancements and potentially delay safety improvements due to regulatory uncertainty.

While PHMSA does not believe E.O. 13175 required a consultation for the HHFT rulemaking, PHMSA recognizes the importance of government-to-government relationships with tribes. To this end, PHMSA has expanded its tribal outreach efforts. For example, in March 2015, DOT representatives met with representatives from the Prairie Island Tribe to discuss tribal concerns with the movement of Bakken crude oil through their community. In August 2015, PHMSA representatives attended the Northwest Tribal Emergency Management Council's annual meeting in Spokane, Washington. This provided an opportunity to speak directly with tribal emergency management leaders and emphasize the importance of effective tribal and federal cooperation. In addition, PHMSA provides hazardous materials emergency preparedness grant funding to tribes to carry out planning and training activities to ensure that State, local, and tribal emergency responders are properly prepared and trained to respond to hazardous materials transportation incidents. For these reasons, the Treaty Tribes appeal to reopen a notice and comment period for the final rule and carry out tribal consultations on all aspects of the rule is denied.

The Treaty Tribes also appealed the notification provisions of the final rule. They have stated, “On its face, the Tank Car Rule could be read to abandon the Emergency Order and cut back on both emergency responder and tribal access to train route and emergency response information.” According to the Treaty Tribes, the notification provisions adopted in the final Rule “weaken the notification scheme in a number of ways” since the information provided is “far less informative” and its dissemination is limited to “those with a need-to-know in an anti-terrorism context.” For these reasons, the Treaty Tribes asked that PHMSA reinstitute the notice provisions of the Secretary's May 7, 2014 Emergency Order.

We agree with the Treaty Tribes. As discussed in the Treaty Tribes' petition, on May 7, 2014, the Secretary issued an Emergency Order in Docket No. DOT-OST-2014-0067 (“May 2014 Emergency Order” or “Order”). That Order requires each railroad transporting in commerce within the U.S. 1,000,000 gallons or more of Bakken crude oil in a single train to provide certain information in writing to the SERCs for each State in which it operates such a train. The Order requires railroads to provide: (1) The expected volume and frequency of affected trains transporting Bakken crude oil through each county in a State; (2) the routes over which the identified trains are expected to operate; (3) a description of the petroleum crude oil and applicable emergency response information; and (4) contact information for at least one responsible party at the railroad. In addition, the Order requires that railroads provide copies of notifications made to each SERC to FRA upon request and to provide SERCs updated notifications when there is a “material change” in the volume of affected trains. Subsequent to issuing the Order, in August 2014, PHMSA published the HHFT NPRM, which, in part, proposed to codify and clarify the requirements of the Order, and requested public comment on the proposal.

Based on the comments received to the NPRM, along with PHMSA and FRA's analysis of the issues involved in the HHFT final rule, PHMSA did not adopt the notification requirements of the proposed rule. PHMSA determined expansion of the existing route analysis and consultation requirements of § 172.820 to include HHFTs was the best approach to ensure emergency responders and others involved with emergency response planning and preparedness would have access to sufficient information regarding crude oil shipments moving through their jurisdictions to adequately plan and prepare from an emergency response perspective. Thus, the final rule expanded the applicability of § 172.820 to HHFTs. As part of these additional safety and security planning requirements, the final rule requires rail carriers operating HHFTs to comply with § 172.820(g), which requires that railroads “identify a point of contact on routing issues and provide that contact's information (including his or her name, title, phone number and email address):

Thus, these notification provisions require railroads to proactively provide this contact information to “State and/or regional Fusion Centers” and ensure that “state, local, and tribal officials . . . who directly contact the railroad to discuss routing decisions” are provided the same information. Tribal officials can also coordinate with Fusion Centers to obtain this information. At the time of the final rule's publication, the notification provisions discussed above were set to supersede the May 2014 Emergency Order, once codified notification provisions are fully implemented (i.e., March 31, 2016).

Subsequent to publication of the final rule, PHMSA received feedback from stakeholders (including tribal authorities) expressing intense concern about the Department's decision to forgo the proactive notification requirements of the Order and in the NPRM. Generally, these stakeholders expressed the view that given the unique risks posed by the frequent rail transportation of large volumes of flammable liquids, including Bakken crude oil, PHMSA should not eliminate the proactive information sharing provisions of the Order and rely solely on the consultation and communication requirements in existing § 172.820. These stakeholders expressed concern that the final rule may limit the availability of emergency response information by superseding the May 2014 Emergency Order.

In response to these concerns and after further evaluating the issue within the Department, in a May 28, 2015 notice (Notice), PHMSA announced that it would extend the Order indefinitely, while it considered options for codifying the disclosure requirement permanently.15 Furthermore, on July 22, 2015, FRA issued a public letter instructing railroads transporting crude oil that they must continue to notify SERCs of the expected movement of Bakken crude oil trains through individual states.16

The Treaty Tribes' appeal reiterates these concerns about the codified notification provisions, stating that they “cut back on both emergency responder and tribal access to train route and emergency response information.” In light of the May 28, 2015 PHMSA Notice and other DOT communications, PHMSA believes that we have adequately addressed the Treaty Tribes' concerns about the information sharing provisions of the final rule and the Treaty Tribes' explicit support for the notification procedures in the May 2014 Emergency Order. Since DOT has already re-examined the decision to allow the final rule to supersede the May 2014 Emergency Order and determined that the Order will remain in full force and effect until the agency considers options for codifying it on a permanent basis, PHMSA believes we have been responsive to this aspect of the Treaty Tribes' appeal. In accordance with the Notice, PHMSA continues to consider options for codifying the central aspects of the Order permanently in a future rulemaking action. The treaty tribes will have the opportunity to comment on these future regulatory proposals in the course of that rulemaking proceeding. In addition, PHMSA is seeking opportunities similar to attending the Northwest Tribal Emergency Management Council's meeting held in Spokane, Washington, to engage further with the tribal communities affected by our regulations. Continued opportunities to reach out directly to tribal emergency management leaders will improve the cooperation between PHMSA and the tribes.

DGAC does not believe the sampling and testing program adopted in § 173.41 is justified or warranted and requests that we eliminate this provision. DGAC asserts that the classification sampling and testing program would not change the tank car selection or emergency response guidebook responses. DGAC also expresses concern that sampling during transportation could create a safety risk as closed packages are re-opened.

If PHMSA does not repeal the program, DGAC requests additional clarification. Specifically, DGAC requests that we revise the final rule to include a definition for “unrefined petroleum-based products,” consistent with the discussion in the preamble. See 80 FR 26704. DGAC further requests additional guidance on the provision in § 173.41(a)(2), which states “and when changes that may affect the properties of the material may occur . . . ,” and additional guidance on the recordkeeping requirements.

Finally, DGAC requests that we provide a delayed compliance date of March 31, 2016 for implementation of the requirements in § 173.41 if the requirement is maintained. This date aligns with the delayed compliance date of March 31, 2016, provided for a rail carrier to complete the initial planning process required in § 172.820. DGAC believes that a delayed compliance date is necessary because “affected parties have certain testing procedures in place, the development, distribution and training of affected hazardous materials employees in a more `formal' program by July 7, 2015 is not reasonable.”

In regards to DGAC's appeal on the sampling and testing program, PHMSA maintains that that sampling and testing program is justified and necessary. In its safety recommendation, R-14-6, the National Transportation Safety Board (NTSB) recognized the importance of requiring “shippers to sufficiently test and document the physical and chemical characteristics of hazardous materials to ensure the proper classification, packaging, and record-keeping of products offered in transportation.” The entire premise of the HMR is built around the shipper's responsibility to properly classify a hazardous material. Under § 171.2(e), “No person may offer or accept a hazardous material for transportation in commerce unless the hazardous material is properly classed, described, packaged, marked, labeled, and in condition for shipment as required or authorized by applicable requirements of this subchapter.” Proper classification ensures the correct regulatory provisions are being followed both when the material is initially offered and during downstream shipments. The HMR requires correct classification and communication, even when the shipper has the option to use a more stringent packaging. Classification also includes ensuring that all correct hazard classes are identified. Many provisions in the HMR also require the shipper to have knowledge about the material that exceeds the information provided by the shipping papers or Emergency Response Guidebook (ERG). For example, it is forbidden to offer “a material in the same packaging, freight container, or overpack with another material, the mixing of which is likely to cause a dangerous evolution of heat, or flammable or poisonous gases or vapors, or to produce corrosive materials” under § 173.21(e). For petroleum crude oil, the shipper may additionally need to identify properties such as corrosivity, vapor pressure, specific gravity at loading and reference temperatures, and the presence and concentration of specific compounds (e.g., sulfur), depending on the different packaging options selected and the conditions under which the material is being offered. Considering the challenges posed by materials with variable composition and potentially variable properties, such as crude oil, providing criteria for sampling and testing of unrefined petroleum-based products is a critical first step in safe transportation of these materials. Proper classification and the assignment of a packing group for a hazardous material determines what packaging is appropriate for that material.

Industry also recognizes the importance and unique challenges of properly classifying petroleum crude oil. The American Petroleum Institute spearheaded efforts to develop an industry standard for the classification of petroleum crude oil, resulting in the development of American National Standards Institute (ANSI)/American Petroleum Institute (API) Recommend Practices (RP) 3000, “Classifying and Loading of Crude Oil into Rail Tank Cars.” This API standard went through a public comment period during its development in order to be designated as an American National Standard.

We also disagree that providing more specificity or guidance to the program is necessary. The term “unrefined petroleum-based products” is clear as written. “Petroleum” is used throughout the HMR. The term “unrefined” is sufficiently clear in the context of the petroleum industry. Therefore, the term “unrefined petroleum-based products” would be any material that is petroleum based, and has not undergone refinement. For example, heat treating to reduce vapor pressure or to remove the dissolved gases in crude oil so that it may be transported for refinement would not meet the American Fuel & Petrochemical Manufacturers (AFPM) or other industry definitions of “refining.” 17

We disagree that additional guidance is necessary, as the requirement in § 173.41(e) to document and maintain records of the sampling and testing program is clear. In both the NPRM and final rule, we stated respectively that we are not proposing or adopting a requirement for the retention of test results. Therefore, the documentation in paragraph (e) must describe the program itself.

We also disagree that the requirements of when to sample are unclear or present a safety risk. The sampling and testing program is only required prior to the offering of the material for transportation. This is further clarified in § 173.41(a) (2), which states, “Sampling prior to the initial offering of the material for transportation and when changes that may affect the properties of the material occur (i.e., mixing of the material from multiple sources, or further processing and then subsequent transportation).” Therefore, sampling would be required before the initial offering for transportation, and in some situations when the material is re-offered for transportation. The examples in the description provide flexibility to accommodate changing industry practices, and should not be replaced with a prescriptive list. Overall, API RP 3000 provides a more specific example of how the sampling requirements of § 173.41 may be met. As we stated in the final rule,

Finally, we disagree that a delayed compliance date of March 31, 2016 should be provided for implementation of the requirements in § 173.41 to provide shippers adequate time to implement changes for training and documentation. The date established for rail routing requirements allows for the collection of six months of data and completion of a risk assessment. The sampling and testing requirements are simply a mechanism to document existing regulatory requirements for proper classification of energy products. In addition, the Department issued Emergency Order DOT-OST-2014-0025 on February 25, 2014 (EO 25), which was subsequently revised and amended on March 6, 2014.18 EO 25 required those who offer crude oil for transportation by rail to ensure that the product is properly tested and classified in accordance with federal safety regulations. Further, EO 25 required that all rail shipments of crude oil that are properly classed as a flammable liquid in PG III material be treated as a PG I or II material. The Amended EO 25 also authorized PG III materials to be described as PG III for the purposes of hazard communication. The Amended EO 25 differs from the original in that it prohibits persons who ordinarily offer petroleum crude oil for shipment as UN 1267, petroleum crude oil, Class 3, PG I, II, or III from reclassifying such crude oil with the intent to circumvent the requirements of this Amended Order. As discussed in the final rule, the sampling and testing program requirements superseded EO 25 and made it no longer necessary. By extending the compliance date, PHMSA would create a safety gap which was previously covered under EO 25 as amended. For these reasons, the appeal submitted by DGAC on the sampling and testing program is denied.

AFPM supports PHMSA and FRA's plan to establish a reporting obligation on retrofit progress and shop capacity. However, it asserts that the final rule's reporting requirement is insufficient to accomplish its intended purpose. In its appeal, AFPM recommends a substantial expansion of reporting timelines and requested data to ensure all types of tank car retrofits are evaluated and not just non-jacketed DOT-111 legacy tank cars in Packing Group I service.

In regards to AFPM's appeal, PHMSA believes that the final rule's established industry reporting obligation on retrofit progress and shop capacity will achieve the stated goals. The first phase of the retrofit timeline includes a January 1, 2017, deadline for retrofitting non-jacketed DOT-111 tank cars in PG I service. Owners of non-jacketed DOT-111 tank cars in PG I service for use in an HHFT who are unable to meet the January 1, 2017, retrofit deadline specified in § 173.243 (a)(1), are required to submit a report by March 1, 2017, to the Department. Groups representing tank car owners may submit a consolidated report to the Department in lieu of individual reports from each tank car owner. The report must include the following information regarding retrofitting progress:

• The total number of tank cars retrofitted to meet the DOT-117R standard;

• The total number of tank cars built or retrofitted to meet the DOT-117P standard;

• The total number of DOT-111 tank cars (including those built to CPC-1232 industry standard) that have not been modified;

• The total number of tank cars built to meet the DOT-117 standard; and

• The total number of tank cars built or retrofitted to a DOT-117, 117R or 117P that are electronically controlled pneumatic (ECP) brake ready or ECP brake equipped.

In developing the retrofit schedule, PHMSA and FRA examined the available shop capacity, the comments received, historical performance of the rail industry dealing with retrofit requirements, and the potential impacts associated with the retrofit schedule. The final rule also stated the Department could request additional reports with reasonable notice if necessary to facilitate the timely retrofits of those tank cars posing the highest risk. PHMSA and FRA are confident that the adopted reporting requirements are sufficient in that they will achieve the Department's stated goals. In addition, the Department may request additional reports as needed to verify industry progress toward retrofitting requirements. For the reasons stated, the appeal submitted by AFPM on the retrofit and tank car reporting of the final rule is denied.

In its appeal, AAR requests that we require enhanced thermal protection when new or retrofitted tank cars are built with jackets. That thermal protection would be beyond what is required in the final rule and allow further tank car survivability in a pool fire scenario. AAR asserts that PHMSA should require an enhanced thermal blanket with thermal conductivity no greater than 2.65 BTU per inch, per hour, per square foot, and per degree Fahrenheit at a temperature of 2000 F, ± 100F.

In regards to AAR's appeal, PHMSA believes AAR has not presented a compelling basis for amending this aspect of the final rule. The final rule requires tank cars in HHFTs to have thermal protection that meets the requirements of § 179.18, while also having a pressure relief device that complies with § 173.31. Section 179.18 establishes a performance standard that requires a tank to be able to withstand a pool fire for at least 100 minutes and a torch fire for at least 30 minutes. The 100-minute standard is intended to provide time for emergency response and accident assessment. Section 173.31 requires a reclosing pressure relief device for any tank car transporting a Class 3 (flammable liquid). Further, the pressure relief device “must be made of materials compatible with the lading, having sufficient flow capacity to prevent pressure build-up in the tank to no more than the flow rating pressure of the pressure relief device in fire conditions as defined in Appendix A of the AAR Specifications for Tank Cars.” See § 179.15. AAR contends that PHMSA should adopt a different standard. Specifically, AAR argues that PHMSA should require that all tank cars transporting flammable liquids be equipped with a thermal blanket that allows for thermal conductivity not to exceed 2.65 BTU per inch, per hour, per square foot, and per degree Fahrenheit at a temperature of 2,000 °F, ± 100 °F. Using the standard AAR proposes would potentially provide 800 minutes of protection in a pool fire. Further, it contends that PHMSA should require that all tank cars transporting flammable liquids be equipped with a pressure relief device that will allow the release of only enough quantity to prevent a thermal tear.

AAR's suggestion that its thermal blanket proposal would provide greater protection than that currently HMR requirements, raises a number of concerns. First, the units for thermal conductivity are incorrect. Although it may seem counter-intuitive, increasing the thickness of the thermal blanket using the method provided by AAR, would actually increase the thermal conductivity and decrease the performance of the thermal protection system. Additionally, there is no experiential or experimental basis for AAR's use of a 2,000 °F fire temperature. The current requirement of a 1,600 °F pool fire temperature is based on experimental data from a pool fire test involving liquefied petroleum gas (LPG). The experimental data, including the heat flux, were normalized over the entire surface of the car to represent total engulfment in a pool fire.

Furthermore, it is unclear whether existing thermal blankets would meet AAR's proposed standard or even whether AAR's proposed standard requiring thermal blankets would provide an added benefit compared to that prescribed by PHMSA. AAR provided no evidence that requiring a thermal blanket and specifying the properties of the material will enhance safety. AAR asserts that, based on AFFTAC modeling, a tank car equipped with a thermal blanket can withstand a pool fire for hours, or in some circumstances, a tank car could indefinitely withstand a pool fire without failure and loss of lading. PHMSA and FRA have two concerns with this assertion. As an initial matter, while thermal conductivity is an input to the AFFTAC model, the model does not account for degradation of the material in a pool fire, and therefore it assumes the thermal conductivity is constant for the duration of a pool fire. However, if the thermal protection begins to degrade soon after 100 minutes (assuming constant properties) the results AFFTAC would be overly optimistic. Additionally, AFFTAC is not capable of analyzing a lading comprised of more than two components, such as crude oil. It has been suggested that two component materials can be used as a surrogate for crude oil. Before the design of the AAR proposed thermal protection system meeting the DOT-117 standard can be approved, the accuracy of using a two-component system as a surrogate for crude oil must be demonstrated.

Assuming that AAR's proposal would add time—an assumption that, at this point, is unsupported by any objective data—AAR has not provided any evidence that there is a practical benefit to extending the time period before the lading is released from a location other than from the pressure relief device. The primary intent of the 100-minute requirement in the HMR is to provide first responders time to assess the accident and initiate remedial actions such as evacuating an area. There has not been any evidence presented that the current requirement is insufficient for achieving these goals.

Finally, AAR's proposal sets up a technical standard, but it does not necessarily establish a minimum time requirement for survivability of the tank car. The potential for variability under the AAR proposal would present added uncertainty. In developing a first response strategy, a minimum level of certainty is needed, and controlling the anticipated variables is vital. This information is vital for first responders, who need to have a reasonable understanding of the expected time frame after an event to establish an effective plan that can be executed within the baseline time that is available.

PHMSA addressed its rationale for choosing a minimum standard that requires a DOT-117/DOT-117R tank car to withstand a pool fire for at least 100 minutes and torch fire for at least 30 minutes in the preamble to the final rule. See 80 FR at 26670-26671. It noted that AAR's T87.6 Task Force agreed that a survivability time of 100 minutes in a pool fire should be used as a benchmark for adequate performance. Additionally, the 100-minute pool fire baseline is consistent with the current federal regulations for pressure cars transporting Class 2 materials, and serves as the existing performance standard for pressure tank cars equipped with a thermal protection system. PHMSA also noted that the 100-minute pool fire baseline had been “established to provide emergency responders with adequate time to assess a derailment, establish perimeters, and evacuate the public as needed, while also giving time to vent the hazardous material from the tank and prevent an energetic failure of the tank car.” See 80 FR 26671.

With respect to pressure relief devices, which are designed to work in conjunction with the thermal protection system, PHMSA noted that there was widespread concurrence among commenters for a redesigned pressure relief device for DOT-117 cars. See 80 FR at 26670-26671. The simulations performed by PHMSA indicated that a reclosing pressure relief valve was of primary importance, because when a tank car is exposed to a pool fire the PRD will maintain a low pressure in the tank and potentially extend the time before a tank car will thermally rupture. PHMSA also determined that high-flow capacity, reclosing pressure relief devices can be acquired reasonably in the market and they can be installed on new or retrofitted tank cars. These factors support the performance standard chosen by PHMSA for pressure relief devices. For the reasons stated, the appeal submitted by AAR on thermal protection in the final rule is denied.

DGAC appeals to PHMSA requesting the elimination of the electronically controlled pneumatic (ECP) brake requirement from the final rule. The DGAC appeal rests on three main arguments. First, DGAC agrees with the comments AAR and API submitted in response to the NPRM. Second, DGAC argues that the timeline for implementing the ECP brake requirement is inconsistent with the retrofit schedule adopted in the final rule and will require ECP brakes to be installed before retrofitting. Third, DGAC alleges there will be difficulties moving HHFUTs from Canada to the U.S. because Canada has not adopted similar ECP brake requirements.

In regards to DGAC's appeal to eliminate the ECP brake requirement, PHMSA maintains that the retrofit schedule is consistent, and that the final rule will not lead to the unspecified difficulties that concern DGAC. Further, we respectfully disagree with DGAC's first argument agreeing with AAR and API regarding this issue. PHMSA considered the comments submitted by AAR and API in drafting the final rule, and as part of its appeal, DGAC provides no new information to support the AAR and API comments. Rather than restating its previous analysis here, PHMSA directs DGAC to the discussion of the ECP brake requirement in the final rule and the RIA. See 80 FR 26692-26703; and RIA, p. 33-36, 207-278.

The timeline for implementing ECP brakes on HHFUTs will allow the rail industry to orderly schedule retrofits to comply with both requirements. PHMSA expects that in most instances ECP brakes will be installed when a tank car is sent to the service shop for retrofitting. This will avoid taking the car out of service more than is absolutely necessary. There should be no need to install ECP brakes on a tank car prior to retrofitting the car. The RIA to the final rule estimates that about 60,000 tank cars will need to have ECP brakes installed. Approximately one-third of these cars will be new construction, and the remaining cars, retrofits. See RIA, pp. 218-219.

Currently, crude oil and ethanol are the only Class 3 (flammable liquids) transported in trains that fall within the HHFUT definition. These hazardous materials are assigned to a packing group based on their flash point and initial boiling point. Crude oil may be classified as PG I (high danger), PG II (medium danger), or PG III (low danger).

The final rule requires all DOT-111 and non-jacketed CPC-1232 tank cars used in PG I service to be retrofitted no later than April 1, 2020.19 PHMSA anticipates that the industry will apply a vast majority of those retrofitted cars to unit train service because it makes financial sense to put the first retrofitted cars to use in the highest priority service. The ECP brake requirement for an HHFUT transporting at least one tank car loaded with PG I material does not go into effect until January 1, 2021. Therefore, PHMSA and FRA believe that the combination of new cars and retrofits completed prior to January 1, 2021, should be sufficient to supply the tank cars needed to operate in ECP brake mode. See RIA, p. 146.

The same is true with respect to those HHFUTs transporting loaded tank cars of ethanol or crude oil not in PG I service. These trains must operate in ECP brake mode as of May 1, 2023, when traveling in excess of 30 mph. The final rule requires retrofitting all DOT-111 tank cars used in PG II service no later than May 1, 2023. Non-jacketed CPC-1232 tank cars used in PG II follow closely behind with a retrofit deadline of July 1, 2023. For the reasons stated above, PHMSA reaffirms its position and disagrees that the timeline for implementing the ECP brake requirement is inconsistent with the retrofit schedule adopted in the final rule. See RIA, p. 146.

Lastly, PHMSA discussed U.S./Canada harmonization efforts in the final rule. See 80 FR 26662. PHMSA recognizes that the transportation of flammable liquids by rail is a cross-border issue. In developing the final rule, U.S. DOT and TC worked closely to ensure that the new tank car standards for HHFTs do not create barriers to movement, but harmonization is not required in every instance. PHMSA and FRA strongly believe that the ECP brake requirement for HHFUTs is an important measure to help protect public safety and the environment in the U.S. That said, PHMSA and FRA carefully considered cross-border issues with respect to ECP braking, particularly when a train is crossing from Canada into the U.S., and provided authorization in the final rule for continued transportation. If an HHFUT without ECP brakes arrives in the U.S. from Canada, that train may continue in transportation at a speed that does not exceed 30 mph. This solution eliminates cross-border barriers to transportation and should alleviate any of the unspecified difficulties that concern DGAC. For these reasons, DGAC's appeal to eliminate the ECP brake requirement of the final rule is denied.

AAR also asks us to eliminate the new ECP brake standard for HHFUTs traveling in excess of 30 mph. AAR contends that PHMSA should remove the ECP brake requirement from the final rule, and provides 10 arguments that purportedly support its position.

In regards to AAR's appeal with respect to ECP braking, AAR's arguments do not present a compelling basis for repealing the ECP brake requirement in the final rule. PHMSA stands by the Final Rule's established two-tiered approach to braking systems that focuses on increasing safety for trains transporting large quantities of flammable liquids. All HHFTs traveling in excess of 30 mph must operate using a two-way end-of-train (EOT) device or a distributed power system. All HHFUTs traveling in excess of 30 mph must operate using ECP brakes. The ECP brake requirement begins on January 1, 2021, for any HHFUT transporting at least one loaded tank car of PG I material. For all other HHFUTs, the ECP brake requirement is mandatory beginning May 1, 2023.

The basis for the ECP brake requirement was thoroughly researched prior to publication of the final rule. ECP brakes allow for shorter stopping distances and reduced in-train forces. In the ECP brake mode of operation, all cars brake simultaneously by way of an electronic signal. ECP brake systems simultaneously apply and release freight car air brakes through a hardwired electronic pathway down the length of the train, and allow the engineer to “back off” or reduce the braking effort to match the track grade and curvature, without having to completely release the brakes and having to recharge the main reservoirs before another brake application can be made. These differences in the operation of the two braking systems give ECP brakes several business benefits. Operationally, ECP brakes have the potential to save fuel and reduce emissions, reduce wear and stress on wheels and brake shoes, and provide train engineers greater control on the braking characteristics of trains. From a safety perspective, ECP brakes greatly reduce the risk of runaway trains due to a diminished reservoir air supply, and reduce the probability of an incident by providing 40 to 60 percent shorter stopping distances. ECP brake wiring also provides the train a platform for the gradual addition of other train-performance monitoring devices using sensor-based technology to maintain a continuous feedback loop on the train's condition for the train crew. PHMSA is highly confident that this requirement will minimize the effects of derailments involving HHFUTs by limiting the number of cars involved in the derailment and decreasing the probability of tank car punctures. Indeed, an NTSB study published after PHMSA published the final rule supports the safety basis for ECP brakes, finding that ECP brakes provide better stopping performance than conventional air brakes and distributed power (DP) units in full service and emergency braking applications.20

AAR's initial assertion is that PHMSA ignores the actual experience of North American railroads in operating trains equipped with ECP brakes. It contends that the experience of these railroads demonstrates that ECP brakes are unreliable. Additionally, AAR states that ECP brakes do not function materially better than trains with conventional air brakes that make use of DP and dynamic braking. Finally, AAR claims that neither PHMSA nor FRA made any effort to collect information from railroads about their experiences with ECP brakes and that PHMSA failed to incorporate the data that was gathered into its analysis.

We disagree. In coordination with FRA, PHMSA did consider the experience of North American railroads when we developed the requirement for ECP brakes on HHFUTs that operate in excess of 30 mph. Both the final rule and the RIA discuss at length the North American experience with ECP brakes. See RIA, pp. 216-236; 80 FR 26997-26998. The information relied upon by PHMSA and FRA included comments from the railroads and suppliers, reports and papers presented by railroad officials discussing ECP brake effectiveness, and testimony at previous public hearings held by FRA. Examples of comments that PHMSA and FRA relied upon include AAR's comments on dynamic braking and RSI's comments on the costs of installing ECP brakes on newly constructed and retrofitted tank cars. See RIA, pp. 216-217, 218, 239, and 262-263.

Examples of reports and presentations from railroad personnel include the following:

• “Electronically-Controlled Pneumatic (ECP) Brake Experience at Canadian Pacific,” Wachs, K., et al., which was presented at the 2011 International Heavy Haul Association (IHHA) Conference, in Calgary, AB, Canada. See RIA, pp. 216-217, 263, and 267.

• “Norfolk Southern ECP Brake Pilot Project Update,” Forrester, J., presented at the 2010 National Coal Transportation Association O & M Committee Meeting in Coeur d'Alene ID. See RIA, pp. 236-237.

• “ECP Perspectives,” Maryott, D. presented at the 2008 Air Brake Association Proceedings of the 100th Annual Convention and Technical Conference in Chicago, IL. See RIA, pp. 236.

Much of the value of these reports, which were initiated and completed outside this rulemaking, was that PHMSA and FRA received hard numbers and data resulting from the direct testing of North American railroad operations using ECP brakes. The data from these reports included information on fleet reductions, rail wear, wheel wear, stop time, restart time, and stopping distances. Additionally, PHMSA and FRA relied on statements at two FRA public hearings held on October 4, 2007, and October 19, 2007, that were held during FRA's rulemaking process establishing ECP brake system standards. The public hearing included comments from Mr. Michael Iden, an official of Union Pacific Railroad Company (UP), who described an example of how regulatory relief from brake inspections on trains with ECP brakes would help to save fuel while also reducing congestion (by allowing an ECP-equipped train to overtake slower trains that require more frequent brake inspections).21 Based on the totality of the evidence available, PHMSA and FRA unanimously concluded that applying an ECP braking requirement to a limited subset of trains, HHFUTs, is warranted when transporting extremely large quantities of Class 3 (flammable liquids).22

AAR relies on a report titled “Assessment of the Enhanced Braking Requirements in the Hazardous Materials: Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains Final Rule of May 1, 2015” (hereinafter referred to as the “Oliver Wyman Report”), which lists a number of purported quotes from interviews with unnamed railroad officials in support of the contention that PHMSA and FRA did not incorporate the railroads' negative comments about ECP brakes into its analysis. These anecdotes (from UP, Canadian Pacific Railway (CP), and CSX Transportation, Inc.) essentially suggest that ECP brakes were tried and abandoned a number of years ago. These statements are not persuasive, as PHMSA and FRA acknowledged in the RIA at pages 223-225 that there may be problems at the outset with using ECP brakes, just as there are with any newer technology. There is evidence that ECP brake technology has advanced since these railroads stopped operating trains using ECP brakes, see RIA, pp. 225-226, but there is no discussion in the Oliver Wyman Report about whether these railroads have considered re-adopting ECP brakes in limited circumstances, such as with captive unit train fleets.

The purported quotes in the Oliver Wyman Report from officials of BNSF Railway Company (BNSF) and Norfolk Southern Railway Company (NS), while current, provide conclusions rather than analysis. In the rare instances where the Oliver Wyman Report does provide tangible numbers, there are no references that would allow PHMSA and FRA to research and verify the information and assess its applicability. See e.g., pp. 8, concerning the rate of failures on BNSF. If these railroads have actual data reflecting the real-world effectiveness of ECP brakes in North America, they have not provided it in the course of this appeal or the rulemaking process.23 Similarly, FRA has not received a written status report from BNSF on the progress of the testing for the 5,000 Mile ECP test train that has been due to the agency since April 2015.24 Therefore, AAR's unsupported contentions concerning the North American experience with ECP brakes do not present a compelling reason to revisit PHMSA and FRA's ECP brake requirement for HHFUTs on trains traveling in excess of 30 mph.

AAR raises two issues about PHMSA's reliance on international experiences with ECP brakes. First, AAR contends that it was inappropriate for PHMSA to rely on the experiences of Australian and other foreign railroads with ECP brakes. AAR believes the ECP brake operations in these other countries are dissimilar to operations in the U.S. AAR states this is because the international systems discussed tend to be closed-loop mining railroads that do not interchange with other railroads and rarely break apart the trainsets. Second, AAR claims that PHMSA and FRA mischaracterize the conclusions of the Sismey and Day Report, published in 2014, that conducted a survey of Australian railroads using ECP brakes to gauge their experiences with ECP brakes. See “The ECP Brake—Now it's Arrived, What's the Consensus?,” Sismey, B. and Day, L., presented to the Conference on Railway Excellence, 2014, Adelaide, Australia. Neither of these issues supports eliminating the ECP brake requirement from the final rule.

PHMSA and FRA believe that AAR's argument overstates the differences between the international ECP brake model and unit trains in the U.S., particularly HHFUTs. As noted on page 220 of the RIA, PHMSA and FRA expect that the limited number of HHFUTs will stay together for an extended period of time to meet the demand for service. The tank cars in an HHFUT are not regularly being switched to different destinations. These types of trains are not acting like a typical manifest train that commonly enters a yard to be broken up and have its cars reclassified and redirected into other trains. Instead, they are making continuous loops to and from the loading and unloading facilities. This is how these trains are currently marketed. See RIA, pp. 220, 232-233. The final rule builds off of that model. Of course, there may be facilities that cannot take an entire unit train at once. This may necessitate breaking the train apart for the limited purpose of serving the facility. PHMSA and FRA account for this circumstance by recognizing that U.S. railroads will likely use overlay ECP brake systems. This would allow operations at a facility without using ECP brakes, ensuring a measure of flexibility. Once that service is completed, PHMSA reasonably expects that the cut of tank cars will retake its place in the HHFUT to make its return trip. These similarities make the Australian (and other international experiences) relevant.

The claim that PHMSA mischaracterizes the Sismey and Day Report is surprising in light of PHMSA and FRA's reading of the Oliver Wyman Report. The Oliver Wyman Report cites to selective information from the Sismey and Day Report, which mischaracterizes its findings. To be clear, PHMSA and FRA accurately cite to the Sismey and Day Report in the RIA. See pp. 34-36. On page 34 of the RIA, PHMSA and FRA note that the report details how ECP brakes have performed in practice since Australian railroads began using the technology. PHMSA and FRA fully recognize in the RIA that the report highlights the benefits of ECP brakes and the associated challenges experienced by Australian railroads. In summarizing the conclusion of the Sismey and Day report, PHMSA and FRA note that “[t]he report concludes that the challenges experienced in practice are largely resolved and that there is a business case to expand the use of ECP brakes into intermodal service.” PHMSA and FRA do not see the basis for AAR's claims given the “Conclusion” of the Sismey and Day Report, which is as follows:

Watershed events for the future of ECP brakes and the rail industry:

• Introduction of ECP brakes on unit mineral trains which happened from 2005 onwards.

• Retrofit of ECP brakes on unit mineral trains which are underway in the Pilbara from 2012 onwards.

• The emergence of viable business cases for Introduction of ECP brakes onto intermodal unit trains and onto the wider wagon fleet used in general service.

See p. 30, “The ECP Brake—Now it's Arrived, What's the Consensus?”.

There is one additional issue raised by AAR through the Oliver Wyman Report that merits discussion. This is the highlighting of purported difficulties experienced by international users who commingled trains using ECP brakes with trains using conventional air brakes. The Oliver Wyman Report claims, based on an anecdotal report of a single unnamed employee, that the former Quebec Cartier Mining Railroad or QCM (now AccelorMittal) has experienced difficulties with operations where three of the company's eight trains are equipped with ECP brakes while the other five trains have conventional brakes. The report claims that severe problems have occurred when trying to pick up bad order cars when some cars are equipped with ECP brakes while others are equipped with conventional air brakes. The Oliver Wyman Report then attributes to the unnamed employee a statement that the railroad is considering standardizing braking using just ECP brakes or just conventional air brakes.

To be clear, the Oliver Wyman Report provides no hard evidence that QCM has instituted a plan to eliminate its fleet of trains equipped with ECP brakes or its trains equipped with conventional air brakes.25 However, the situation described above with bad ordered cars would not present the same problem for an HHFUT equipped with ECP brakes in the U.S. The QCM uses a stand-alone ECP brake system on its trains. The stand-alone ECP brake system eliminates the ability to revert to conventional air brake mode. PHMSA expects that U.S. railroads will use an overlay ECP brake system, which allows a car to be transported in ECP brake or conventional air brake mode. This was discussed extensively in the RIA. See pp. 219-220, 225, and 230.

PHMSA also notes that QCM made a business decision to introduce trains equipped with ECP brakes onto its line in 1998. This means that QCM has voluntarily operated with a mixed allotment of ECP brake trains and conventional air brake trains for about 17 years. If the purported difficulties of maintaining ECP trains along with conventional air brake trains were as severe as the Oliver Wyman Report suggests, then PHMSA and FRA expect that QCM would have abandoned either ECP brakes or conventional air brakes long before June 12, 2015, which is the date of the Oliver Wyman Report.

AAR argues that “PHMSA relied on the purported business benefits of ECP braking as predicted in a 2006 report by Booz Allen Hamilton,” and did not make an effort to verify whether real-world experience with ECP brakes validated the Booz Allen predictions. It is AAR's view “that the benefits predicted by Booz Allen nine years ago did not materialize in subsequent field tests in North America and operations in foreign countries.” Therefore, it states that PHMSA and FRA erred by calculating business benefits based on the Booz Allen analysis. AAR relies on the Oliver Wyman Report to support its contentions, see pp. 24-48, but its contentions simply are not supported by the facts. PHMSA and FRA considered a number of sources in addition to the Booz Allen Report to develop the final rule, including comments to the NPRM, reports and presentations analyzing ECP brake operations in North America and abroad, and testimony during two FRA public hearings on ECP brakes.

Fuel Savings: The Oliver Wyman Report states that there are likely some fuel savings, but they are not “validated.” The Oliver Wyman Report states that the 5.4 percent fuel savings on CP occurred, but that the actual savings over an entire system would be less, because the terrain over which it realized the 5.4 percent savings was advantageous. The Oliver Wyman Report then states that PHMSA's 2.5 percent estimate of fuel savings, less than half that realized by CP, and half of that predicted by the Booz Allen Report, was arbitrary, with no basis.

As explained in the RIA on pages 216-217, 262-263, and 267, PHMSA and FRA assumed a reduction of more than 50 percent from the real-world CP experience because PHMSA recognized that the terrain where the testing occurred maximized fuel benefits. This was very conservative, and a larger estimate of fuel savings could have been justified. At no point does the Oliver Wyman Report present hard evidence that railroads would experience less fuel savings than the 2.5 percent PHMSA and FRA estimate. Instead, the Oliver Wyman Report offers something from the Sismey and Day Report that stated “the general feeling was that there may be some fuel savings with ECP braked trains but no one would hazard a guess on the magnitude.” The Oliver Wyman Report also quotes an unnamed employee from the QCM to support its position. This employee purportedly commented to Oliver Wyman that there had been no fuel consumption benefits from ECP brakes compared to conventional systems. This anecdotal evidence from an unnamed source is directly contradicted by independent published reports that we cited in the final rule about QCM, noting that its ECP-equipped trains had led to a decrease in fuel use of 5.7 percent. See 80 FR 26697. This evidence supports the reasonableness of PHMSA and FRA's fuel savings estimate, with the likelihood that any errors were to the conservative side. Even if we accepted the Oliver Wyman Report's unsubstantiated statement that ECP brakes would result in “some fuel savings,” the 2.5 percent we used for fuel savings in the final rule is a reasonable estimate of “some savings.” Therefore, we decline to reduce that estimate to zero as AAR urges.

Wheel Savings:

The Oliver Wyman Report states at p. 96:

The Oliver Wyman Report merely makes the statement above but does not present evidence to support that ECP-equipped trains have experienced more of these types of defects than equivalent unit trains with conventional air brakes operating under the same conditions on the same track. Notwithstanding, some initial increase in wheel wear, such as thermal mechanical shelling, is explainable—and, possibly, expected—during the familiarization phase when new train crews gather knowledge about the braking capabilities of ECP braking. PHMSA and FRA addressed this issue in the RIA on page 217. However, the Oliver Wyman Report does not provide the necessary context for the information to allow PHMSA and FRA to draw any judgments about its statements. To adequately evaluate such reports, it is important to untangle the potential causes so that we can determine whether the reported wheel wear was caused by issues related to ECP braking. The Oliver Wyman Report does not do that. As a result, it is impossible to conclude that the reported wheel wear is caused by ECP braking as opposed to factors related to track conditions or usage.

PHMSA and FRA do note that the phrase “higher brake usage” possibly could explain the greater wheel wear found by some ECP brake operations. The wheel wear per unit time per car is higher because the cars tend to operate more miles. The savings in wheel wear, detailed on pages 263-266 of the RIA, are based on car-miles, as explained in the flow assumptions on pages 252-254 of the RIA. There is no evidence to suggest the cars with ECP brakes have more wheel wear per car-mile. As an example, if the cars have more wheel wear per unit of time and are experiencing a 50 percent reduction in wheel wear, that implies the cars are used for more than twice as many miles per car-year as cars not equipped with ECP brakes. PHMSA and FRA believe this is a reasonable inference to draw from the data and notes that it further contradicts other AAR assertions that more ECP-equipped tank cars will be needed. Evidence that ECP-equipped wheel temperatures are more even, as offered in the Oliver Wyman Report, makes it likely that savings per car mile are being realized in ECP-equipped trains. Neither AAR, nor the Oliver Wyman Report, offers any evidence of less wheel savings per car-mile than estimated in the RIA.

The Oliver Wyman Report also states that rail renewal will not be coordinated with wheel maintenance because the tank car maintenance will be the responsibility of the tank car owners, not the railroad. FRA staff, including inspectors with recent employment experience on railroads, are not aware of any efforts to coordinate wheel maintenance with rail renewal on any operating railroads. This seems doubly irrelevant, as the RIA does not estimate rail savings as a quantifiable business benefit, while the Oliver Wyman Report describes a failure to coordinate maintenance in a way that is not current railroad practice.

Brake Inspections: The Oliver Wyman Report contends that North American operations have produced no data to support PHMSA's claim that the overall tank car fleet size can be reduced because cycle times will improve due to longer intervals between brake inspection stops with ECP brake equipment.

The Oliver Wyman Report contention does not comport with reality. Railroads do see advantages from increasing the current 1,000-mile brake inspection distance to 3,500 miles.26 FRA allowed the longer distance between inspections in its 2008 ECP Brake rule at the request of railroads as an incentive to the railroads to test ECP brake equipment and because of the safety features inherent in ECP brake systems. See 73 FR 61512 (Oct. 16, 2008). FRA has recently granted a request from BNSF and NS allowing these railroads to move forward with a pilot program that increases the distance between brake inspections to 5,000 miles on certain ECP-equipped trains. This pilot program allows BNSF and NS to conduct test operations using an ECP-equipped train from the Powder River Basin to Macon, Georgia with only one brake inspection per trip compared to four inspections (one Class I and three Class IA inspections) for the same train operated using conventional brakes. It follows that if the railroads did not envision a benefit to the decreased frequency of brake inspections, they would not be pursuing the 5,000-mile waiver.

Cycle Times: The Oliver Wyman Report argues that PHMSA's assumptions regarding reduced cycle times and reductions in car fleet size are overstated because trains must still regularly stop for servicing events and crew changes. Additionally, the Oliver Wyman Report contends that the speed of a single train will be influenced by other trains on the system, and skipping inspections does not exempt a train from network congestion. These arguments, which are addressed in part above, do not present a compelling rationale for eliminating the ECP brake requirement for HHFUTs.

Class IA brake tests can take several hours, and are usually performed in yards. If the ECP-equipped train is ready for departure eight hours earlier than usual, the train may be dispatched ahead of other trains that would have been dispatched before it in that eight-hour window, and, it will, on average, arrive at the next yard eight hours earlier, as congestion effects are likely to be random. Also, there is no reason to revise the estimated reduction in tank car fleet size assumed by PHMSA and FRA. Train crew changes do not require Class IA brake tests, and are not relevant to this issue. Further, the Oliver Wyman Report's suggestion that wheel wear is increased because of increased usage would indicate that unit trains are experiencing shorter cycle times.

Brake Shoe Savings: The Oliver Wyman Report contends based on a singular statement from an unnamed BNSF employee that it is unlikely that any brake shoe savings would be possible for ECP brakes compared to conventionally braked trains.

While PHMSA and FRA did not calculate any savings for brake shoes in its analysis of business benefits, it appears that there might be a benefit, based on the comment in the Sismey and Day Report, cited in the Oliver Wyman Report, that shoe wear was very even on ECP-equipped trains when compared to trains with conventional air brakes. Thus, the concerns raised by the Oliver Wyman Report in this area are not relevant to PHMSA and FRA's determinations about ECP brakes.

Network Capacity Benefits: The Oliver Wyman Report questions the RIA to the extent that it includes a statement that “FRA found that ECP brakes offered major benefits in train handling, car maintenance, fuel savings, and increased capacity under the operating conditions present.” The Oliver Wyman Report is unclear about the basis for this claim because it contends that “FRA has not publically reported on any data collection and analysis from North American railroad test operations using ECP brakes.”

The increased capacity discussed in the RIA comes from a statement in the Booz Allen Report. However, those benefits were based on ECP brakes being installed on a large proportion of the trains on a line. PHMSA and FRA do not expect the same situation with respect to HHFUTs. As a result, PHMSA and FRA did not include capacity benefits in the quantified business benefits.

AAR contends that PHMSA must rely on theoretical business benefits, even if not supported by actual experience, because AAR believes the costs far exceed the potential safety benefits of the final rule. We disagree. The safety benefits of ECP brakes are integral to the final rule. As such, PHMSA and FRA relied on both the business benefits and safety benefits to support the ECP brake requirement adopted in the final rule.

PHMSA and FRA consider the safety benefits to be a fundamental element of the overall benefits and believe that the safety benefits estimated in the RIA are reasonable based on the evidence. The safety benefits of ECP brakes are thoroughly described in detail in the RIA on pages 78-120 discussing both low consequence events and high consequence events. This discussion examines the probability of these events occurring and includes a range of benefits. Furthermore, the RIA thoroughly examines the effectiveness rate for ECP brakes on pages 246-251 in the context of accident mitigation and avoidance, finding that ECP brakes reduce the probability of tank car punctures in the event of derailment by about 20 percent.

With respect to AAR's argument that PHMSA overly relied on theoretical business benefits, PHMSA and FRA requested comments from the industry in the NPRM. Industry did not submit any data to contradict our findings.27 Moreover, between the NPRM and final rule, PHMSA and FRA continued to conduct research to determine benefits that would be most accurate looking at real world experiences. The business benefits relied upon by PHMSA came from documented sources, including testimony and reports from Class I railroads. These sources include reports addressing operations on CP, BNSF, Quebec Cartier Mining, UP, and NS, as well as operations on international railroads. PHMSA and FRA's views were also informed by review of the Booz Allen report prepared for FRA in 2006. All these reports are cited in the RIA on pages 34, 217, 235, 236, and 263.

These sources discuss the actual effects of ECP brake usage on multiple railroads. Indeed, long before PHMSA began the rulemaking process for the final rule, BNSF reported fleet reductions on trains equipped with ECP brakes. Similarly, NS reported that ECP-equipped trains experienced a reduction in dwell time, operated at track speed for longer periods of time, were able to better control their speed, and had faster loading processes and better car loading performances than trains with conventional braking. This information is consistent with the recent TTCI ECP Brakes presentation noted above, which found among other things that ECP brakes could increase equipment utilization, allow for longer trains, and permit higher train speeds. While this presentation was not used in the development of the final rule, it is helpful in informing the current discussion on ECP brakes. However, even without the TTCI ECP Brakes presentation, PHMSA is confident the information cited in the RIA supports its analysis.

AAR argues that PHMSA underestimated the cost of implementing ECP braking in the final rule, and that the actual cost to implement ECP brakes on HHFUTs is more than six times PHMSA's estimate. This argument is based on AAR's contention that ECP brake-equipped tank cars and locomotives will not run in dedicated sets, segregated from the rest of the fleet. AAR contends that segregated fleets are not operationally possible. As a result, it suggests that 10 times as many locomotives will need to be equipped with ECP brakes as we estimated and that PHMSA underestimated the number of tank cars needed for ECP brake service on HHFUTs by more than 25 percent. See Oliver Wyman Report, pp. 49-70.

These arguments are not new. PHMSA and FRA considered AAR's comments to the NPRM on this subject. We expect that railroads will be able to manage HHFUT fleets, which can be kept as captive fleet unit trains. Similar to unit coal trains that currently operate with ECP brakes, HHFUTs are expected to stay together, including the locomotive. See RIA, p. 220. While railroads may regularly shift locomotives under current operations, PHMSA and FRA are confident that, like coal unit trains, railroads can manage a specialized fleet of ECP-equipped locomotives to handle HHFUTs. See RIA, p. 221. In this sense, managing locomotives for HHFUTs likely is similar to managing distributed power locomotives, which is already a common practice. Not all trains have distributed power, but the railroads have a history of being able to manage these assets efficiently.

PHMSA and FRA do recognize there are costs associated with keeping a fleet of HHFUT locomotives. As a result, PHMSA and FRA estimated that it would cost around $80 million (undiscounted) to equip all the necessary locomotives with ECP brakes. This included equipping four locomotives for every train, even though we expect that railroads will only need an average of three locomotives for operations. We also included the cost of wrap-around cables to provide a backup preventing the lack of locomotives from becoming a bottleneck. Wrap-around cables allow a train to operate in ECP brake mode even when one or more locomotives or cars are not equipped with ECP brakes. Additionally, PHMSA and FRA accounted for fleet management costs.

The Oliver Wyman Report assumes that all locomotives will be equipped with ECP brakes, with a total cost of about $1.8 billion. This appears to overestimate the costs, as it assumes that railroads cannot manage their locomotive fleets. Given the railroads' history of effectively managing their equipment, it is unlikely that railroads will equip all locomotives. However, if a railroad chooses to equip all locomotives, it will be an operating practices decision and not due to the regulation.

The costs that PHMSA and FRA used are well documented in the RIA. They incorporate the comments PHMSA received to the NPRM. Many of these comments came from the rail industry, including AAR, RSI, and car manufacturers. For example, we estimated that it would cost $7,800 to retrofit a tank car with ECP brakes and $7,300 to equip a new car with ECP brakes. This was based on comments from RSI. The average cost—based on the estimated number of new construction tank cars needed compared to the number of retrofit tank cars needed—was $7,633. AAR in its “Supplemental Comments,” which were posted to the docket on January 30, 2015, stated that the cost of ECP brakes per tank car is $7,665. The Oliver Wyman Report states that the cost per tank car for ECP brakes is $9,665. See p. 58. Based on the evidence available, PHMSA made a reasonable estimate of the cost of equipping each required tank car with ECP brakes.

With respect to the cost of locomotives, the Oliver Wyman Report estimates the cost of equipping a current locomotive to be $88,300 and provides no estimate for equipping new locomotives. PHMSA and FRA anticipate that 2,532 locomotives would be needed to operate all HHFUTs in ECP brake mode. As discussed, this number is based on an average of three locomotives per HHFUT plus an additional locomotive for each HHFUT to act as a buffer when another locomotive is shopped. Therefore, based on current production, PHMSA and FRA expect that the railroads will be able to operate HHFUTs using new locomotives. We estimate the incremental cost of equipping a new locomotive with ECP brakes over current technology electronic brakes (i.e. Wabtec Fastbrake or New York Air Brake CCB-2) to be about $40,000. This information was provided by FRA's Motive Power and Equipment Division, and was based on the Division's background knowledge resulting from information from the manufacturers. As a result, PHMSA and FRA are confident that the estimate is reasonable.

The Oliver Wyman Report also assumes that every employee must be trained on ECP brake systems. PHMSA and FRA believe the ECP brake requirements in the final rule can reasonably be accomplished without training every employee. Indeed, we significantly increased the number of employees we estimated would need to be trained from the NPRM to the final rule. This was because PHMSA and FRA reassessed their initial position from the NPRM based on the public comments. Using the waybill sample, we determined that approximately 68 percent of the total ton-miles were on routes that had crude oil or ethanol unit trains. As a result, PHMSA and FRA adjusted the number of employees to include 68 percent of the total crews. According to these estimates, around 51,500 employees would need to be trained, as described on page 242 of the RIA.

The Oliver Wyman Report also states that it takes significantly more time to make repairs on trains equipped with ECP brakes. We acknowledged that the lack of training and unfamiliarity with the ECP brake components likely contribute to such delays.28 See RIA, pp. 223-224. However, once all employees who work at locations with ECP-equipped HHFUTs are adequately trained, PHMSA and FRA expect the repair time will be reduced to match that of conventional brakes.

AAR contends that mandating ECP brakes will cause significant collateral damage because ECP brakes are unreliable. AAR similarly believes that deployment of ECP brakes will disrupt major arteries in the national railroad network, thereby degrading the performance and capacity of the network. Further, AAR argues that the ECP brake requirement could delay Positive Train Control (PTC) implementation, which has been deemed safety-critical.

PHMSA and FRA addressed these arguments in the RIA in our discussion on the reliability of ECP brakes. See RIA, pp. 222-226. PHMSA and FRA conducted substantial research into the implementation of ECP brakes and found no examples of damage to the network where ECP brakes were properly integrated. As a result, we expect that with the correct infrastructure in place—such as sufficient training of railroad personnel and proper deployment of equipment and ECP brake components to ensure that they are readily available when needed—railroads can manage the ECP brake implementation without a disruption to the network. As noted in the RIA, at least one manufacturer has stated that the issue with ECP brake systems “is not reliability, but rather, availability of power and shops.” “The Science of Train Handling”, William C. Vantuono, Railway Age, June 2012, at 25-26. Because of these issues, PHMSA recognized that there may be delays associated with ECP brake implementation at the initial stages, as there would be during the roll-out of any newer technology. However, given that the ECP brake operations are not required on HHFUTs until January 1, 2021, for trains transporting a loaded tank car of Class 3, PG I, flammable liquid, and May 1, 2023, for all other HHFUTs transporting Class 3 flammable liquids, PHMSA believes there is sufficient time built into the implementation to ensure the network is not significantly disrupted by delays attributable to ECP braking technology.

AAR's reliance on the Oliver Wyman Report does not alter PHMSA and FRA's position. The Oliver Wyman Report claims that “[a]dding a second braking technology to a large portion of the North American rolling stock fleet will materially increase the operational complexity of the railroad industry, and will reverse gains in productivity achieved over the past 35 years.” See Oliver Wyman Report, p. 79. We analyzed the size of the fleet that would be required to be equipped with ECP brakes in the RIA. The number of cars and locomotives required to operate an HHFUT fleet equipped with ECP brakes likely would be relatively small and captive (a maximum of 633 unit trains on the network at any given time, see RIA, p. 219) when compared to the total universe of train movements.

The Oliver Wyman Report also raises a number of issues, including concerns about ECP cables, ECP brake-equipped locomotives, ECP brake car components, crosstalk, and unexpected stopping. None of these purported issues support eliminating the ECP brake requirement in the final rule. Much of what is presented is anecdotal evidence based on reports from unnamed railroad personnel that are lacking in data or analysis. Further, some of the railroads cited as providing information on their ECP braking experience have no experience with the current version of ECP brakes that is compliant with July 2014 update to the AAR Standard S-4200 series. For example, CP has not used ECP braking since removing it from limited operations in 2012, while UP has not operated ECP-equipped trains in approximately six years.

AAR raised the ECP brake cable issue in its comments to the NPRM and PHMSA and FRA addressed those comments in the final rule. See 80 FR 26702. AAR commented that the cables and batteries for ECP brakes would need to be replaced every five years. PHMSA and FRA accounted for this cost in the RIA on page 228.

We also addressed the crosstalk issue in the RIA at page 225. Crosstalk occurs when there is an interruption in the signal, usually caused when two ECP brake trains pass in close proximity, which results in an ECP-equipped train going into emergency brake mode. PHMSA and FRA acknowledged that this was an issue in earlier iterations of ECP brake systems, but software updates to the ECP brake programming had resolved the problem. See “The ECP Brake—Now it's Arrived, What's the Consensus?” Indeed, AAR acknowledged this by incorporating the software update into the AAR Standard S-4200 series in July 2014.

The Oliver Wyman Report further contends that PHMSA and FRA incorrectly assessed the effect of ECP brakes on wheel wear. The basis for this contention appears to be some recent “test operations” on BNSF where wheel defects such as tread build up, flat spots, and wheel shelling have been found. See Oliver Wyman Report, p. 94. PHMSA and FRA note that the quoted “BNSF 14 Run Overview 2014” has not been provided for reference, and, as discussed above, the report does not present any evidence that ECP-equipped trains actually experience more of these types of defects than equivalent trains with conventional air brakes operating under the same conditions over the same track. Although some initial increase in wheel wear, such as thermal mechanical shelling, would be explainable during the familiarization phase when new train crews gather knowledge about the braking capabilities of ECP brakes, see RIA, p. 217, the Oliver Wyman Report does not put its information in a context that allows PHMSA and FRA to draw any judgments about that information. The same is true with respect to the reporting of a recent situation where a single train had 14 separate wheel exceptions taken. The Oliver Wyman Report merely concludes the wheel exceptions were due to ECP braking without examining the potential causes to determine whether the reported wheel wear was actually caused by issues related to ECP braking or something else. Therefore, as presented, there is no evidence that the reported wheel wear is caused by ECP braking as opposed to factors related to usage or other track conditions. This is important because wheel wear is a function of use. Further, as noted above, the phrase “higher brake usage” possibly explains the greater wheel wear found in some operations. The wheel wear per unit time per car is higher because the cars operate more miles. PHMSA and FRA calculated the savings in wheel wear, detailed on pages 263-266 of the RIA, based on car-miles, as explained in the flow assumptions on pages 252-254 of the RIA. There is no evidence to suggest these cars have more wheel wear per car-mile.

The Oliver Wyman Report also argues that PHMSA and FRA did not address potential problems with buffer cars for HHFUTs. In the RIA, p. 238, we address the costs associated with equipping the buffer cars with wrap around cables. This was considered the lowest cost option. PHMSA and FRA recognized that there are other options, as the Oliver Wyman Report details. The Oliver Wyman Report option of equipping a fleet of buffer cars with ECP brakes is significantly more expensive than the reasonable alternative we provided. If railroads chose to use a permanent fleet of ECP-equipped buffer cars, that would be a business decision, not a regulatory requirement.

Finally, AAR contends that the ECP brake requirements in the final rule may delay implementation of PTC. Railroads are currently required by statute to implement PTC by the end of the year 2015. The ECP brake requirement for HHFUTs does not become effective until January 1, 2021, or May 1, 2023, depending on the commodity being transported. This means that railroads should have PTC implemented well in advance of the ECP brake requirement. Thus, we do not foresee a situation where the ECP brake requirements will delay PTC implementation.

AAR contends that PHMSA and FRA erred in using the new Sharma & Associates report (Sharma Report) to calculate the benefits due to the reduced probability of punctures on HHFUTs operating in ECP brake mode. It argues that the assumptions used in the Sharma Report are flawed in numerous ways. AAR provides the “Summary Report Review of Analysis Supporting `Hazardous Materials: Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains' Final Rule” (TTCI Summary Report), which TTCI personnel prepared, as a supporting document. We disagree with AAR's contentions. For the reasons discussed below, PHMSA and FRA find that AAR's arguments do not support eliminating the ECP brake requirement in the final rule.

Statistical approach: The statistical approach used in the Sharma Report to analyze the potential benefits of ECP brakes in the final RIA is not flawed. The confidence band suggested by the TTCI Summary Report is applicable to situations where a minimum value is being specified. The confidence band is needed to understand the range of values and the potential for values to fall below the specified value. For example, when specifying tensile strength of a material (based on average test values) it is important to know the potential variability, in the form of a confidence band, of the strength. In the case of the RIA, PHMSA and FRA's analysis determined the effectiveness of ECP brakes based on the average of the calculated number of punctures. Implicit in a comparison of averages is that in some cases the effectiveness will be less than the average and in others greater than the average.

Consider the notion of “test” versus “simulation.” As an example, if one were conducting a physical test to determine the effect of a change in thickness on the impact energy of a specimen, one might have to conduct several tests and then apply statistical techniques to the measured values to arrive at the results. On the other hand, if one were using a finite element simulation to measure the same condition, one set of simulations would be sufficient. In fact, every simulation with the same set of input parameters would produce the same output. The variability that is associated with “testing” is not there.

Another problem with using the conventional statistical methods, such as confidence intervals and margins of error, is that the cases PHMSA is “sampling” are not random. In fact, they were deliberately chosen to represent a range of input conditions. Additionally, the methods suggested in the TTCI Summary Report would not be appropriate because there is no variance in the “measured” results of our trials. Each trial (a simulation with a specific set of inputs) always produces the exact same set of outputs. Hence, our “variation” is not produced by the random variation of factors beyond our control; it is essentially the result of specific input conditions, though the outputs are not predictable from the outset.

The Sharma Report considers all different combinations of initial speed and number of cars behind the point of derailment (POD). The sample size for the conventional and ECP brake systems consists of 162 cases (separate derailment simulations) each. For the two-way EOT brake configuration, 90 cases were considered. As indicated above, these cases were used to simulate average derailment conditions using each brake configuration. The methodology is not trying to predict the outcome of a specific derailment within some margin of error, nor is it being used to assure that all outcomes meet some minimum requirement within some confidence interval (such as how a set of tensile tests would be used to establish a design stress for a material). For these reasons, the TTCI Summary Report analogy of an election is, again, flawed, as the system is not trying to predict the results of one particular event.

Inconsistent values in tables: The TTCI Summary Report also points to number of inconsistencies in the values reported for the most likely number of punctures and the analyses in which they are used throughout the RIA. PHMSA recognizes that there was a transcription error in Table BR4 of the RIA, see p. 210, and corrects those errors here. Table BR4 should read as follows:

Modeling used in the final rule: The TTCI Summary Report contends the modeling and analytical approach used in the final rule is sufficiently different from the modeling and analytical approach used in the NPRM, suggesting that reliance on the final Sharma report for the final rule warranted additional notice and comment. Yet AAR discussed this very work in detail in its comments to the NPRM review. AAR's comments to the NPRM appended a 13-page critique of the LS-Dyna methodology authored by Dr. Steven Kirkpatrick of Applied Research Associates. In addition, the main body of AAR's comments to the NPRM contained several references to both Dr. Kirkpatrick's critique as well as Sharma's reliance on the LS-Dyna work. In developing the final rule, we refined the modeling and analytical approach used in the NPRM to account for and take into consideration many elements of AAR's comments and Dr. Kirkpatrick's critique. For example, the modeling conducted during preparation of the NPRM was limited to modeling the results of a derailment of a 100-car train, assuming the derailment occurred at the first car behind a train's locomotive. In response to AAR's comments and Dr. Kirkpatrick's critique, in developing the final rule, we conducted additional modeling again using a 100-car train model, but this time to more accurately represent real life derailment scenarios, we modeled and analyzed the effects of cars derailing throughout the train consist (i.e., assuming the 20th, 50th, and 80th cars in a consist derail), not just the first car. Similarly, to address AAR and Dr. Kirkpatrick's concerns regarding the impactor size used in the modeling, we conducted a sensitivity analysis using both smaller and larger-sized impactors than used in the NPRM modeling. This sensitivity analysis demonstrated that impactor size affected the number of tank cars punctured and the velocity at which those cars punctured only negligibly.

One element of the analysis that was introduced for the final rule was the mechanism for calculating overall effectiveness based on the distribution of PODs along the train. This addition to the analysis was in response to the critique of the technique by AAR/TTCI in comments to the NPRM suggesting that this distribution be accounted for in the analysis. This element was added to the analysis in the final rule stage in response to AAR's comments critiquing the NPRM.

The Sharma Report model was validated in both the number of cars derailed and number of punctures in real life derailments such as Aliceville. Indeed, the rear car distance traveled in one set of Dyna simulations matched the Aliceville locomotive's event recorder data with a difference of less than four percent. This indicates that, in spite of all the potential variations, the derailment simulations closely matched what actually occurred in the Aliceville accident as evidenced by the event recorder download. See RIA, p. 214.

On the issue of impactor size distribution, the TTCI Summary Report notes that “the distribution of impactor size was very similar.” PHMSA and FRA disagree. The average impactor size variation between the three distributions was 58 percent. We would not characterize that as “similar.” Past work on tank car puncture resistance—including substantial work conducted by Dr. Kirkpatrick (and funded by the industry/AAR)—shows that the effect of a 58 percent variation in impactor size is quite significant.

Furthermore, the review of Sharma's modeling in AAR's comment to the NPRM suggested that the distribution presented above might be skewed towards smaller impactors. However, as noted by Dr. Kirkpatrick in his earlier work, when the combinations of complex impactor shapes (such as couplers and broken rail) and off-axis impactor orientations are considered, many objects will have the puncture potential of an impactor with a characteristic size that is less than 6 inches. See “Detailed Puncture Analysis of Tank Cars: Analyses of Different Impactor Threats and Impact Conditions,” Kirkpatrick, SW., DOT/FRA/ORD-13/17, March 2013.29 The impactor distributions considered in PHMSA and FRA's analysis in the final rule are consistent with this notion.

Need for additional study: The TTCI Summary Report contends that the modeling and analysis utilize a number of assumptions and simplifications, the effects of which need further study. AAR made a similar comment in its comments on the NPRM, and the extended analysis in the final rule addressed these issues by studying/reviewing several additional elements of the methodology. PHMSA and FRA addressed several prior criticisms submitted in connection with the NPRM, including:

In addition, the RIA for the final rule includes justification for many of the assumptions made in the analysis, including the friction coefficients used, the coupler model, and the lateral derailment load values. See RIA, pp. 63-72, 207-212, 213-216, and 246-247. In other words, this is similar to AAR's earlier critique on the topic and we addressed most elements of that critique in the RIA.

Derailment location: The TTCI Summary report states that “the probability distribution for derailment location within the train does not appear to take train length into account,” thus exaggerating the benefit of operating in ECP brake mode. The Sharma Report estimated the distribution of PODs using the best available data, which included all reasonable derailments. Any “exaggeration” of benefits towards ECP brakes due to the PODs being skewed towards the front of the train would tend to exaggerate the benefit of DP trains even more. Thus, even if the distribution was skewed towards the front, the Sharma Report does not exaggerate the relative benefits of ECP brakes compared to DP trains.

Use of derailment data from all train types: The TTCI Summary Report asserts that the analysis performed on the probability of derailments occurring throughout the train seems to use data from all train types to derive a distribution of derailment locations. This is true. The locations of train derailments are more uniformly spread under mixed traffic conditions compared to unit trains. This tends to push the average location of POD further towards the rear of the train. In fact, the POD, as a percent of the length of train for unit trains, is about half that of freight trains (21% compared to 41%). As a result, PHMSA and FRA expect that the use of derailment data of all train types (as opposed to unit trains only), results in a prediction of lower benefits for ECP braking. Using PODs from unit trains only would have led to ECP brake benefits being higher. We considered this during development of the final rule and determined our assumptions were conservative.

Analyzing the number of cars trailing POD: The TTCI Summary Report notes that “[t]he critical parameter is not the first car in the train that was derailed, but rather the number of cars trailing the first car derailed.” PHMSA and FRA agree. This is exactly how all the LS-Dyna modeling was done. We modeled 100 cars, 80 cars, 50 cars, and 20 cars behind the POD, and interpolated the results for the other cases.

Net braking ratios: The TTCI Summary report notes that PHMSA and FRA make multiple references in the RIA to the use of higher net braking ratios (NBR) with ECP brakes. While the RIA does make reference to a higher NBR, the LS-Dyna simulations were all performed with the same braking ratio. The results presented in the RIA are based on ECP brakes with 12 percent NBR, the same used for the other brake systems considered. See RIA, pp. 324. So, the benefits attributed to ECP brakes regarding the reduced number of cars punctured do not include any contribution from increased braking ratio.

However, it is important to note that even though the NBR allowed for the different brake systems are theoretically the same, the use of ECP brakes does, as a practical matter, allow a train to better approach the high end of the limit. This is because features inherent to ECP brake design allow a more uniform and consistent effective brake cylinder pressure to be maintained as compared to conventional pneumatic brakes.30 Closed loop feedback control of the cylinder pressure is an inherently more reliable method of obtaining the commanded pressure than the open loop, volume displacement method used in conventional brake systems. Furthermore, trains equipped with ECP brakes can detect and report low brake cylinder pressure malfunctions on individual cars, which can then be addressed. In contrast, a malfunctioning pneumatic control valve generating lower than commanded pressure may go unnoticed indefinitely. Additionally, the overall braking ratio of a train equipped with ECP brakes can be much closer to the allowable upper limit than a conventionally-braked train because the cars in an ECP-equipped train are all braking at the same effective brake ratio (to the extent that the physical capacity of their individual construction allows). The brake ratios of cars in a conventionally-braked train can vary over the allowable range (8.5 percent to 14 percent loaded NBR), so the train average brake ratio is limited by this variation already built into the existing fleet. For these reasons, PHMSA and FRA expect that DOT-117/DOT-117R cars (with ECP brakes) can be built (or converted from existing cars) with an NBR close to 14 percent and operated (in ECP trains) with a train average brake ratio also very close to 14 percent. In contrast, the train average brake ratio of a train with conventional air brakes is likely to be significantly lower, even if some of the cars have close to a 14 percent NBR.

Control of unit trains: The TTCI report takes issue with a statement in the RIA to the final rule concerning unit train operations being more difficult to control than other types of trains. The excerpts, and TTCI's comments, are qualitative characterizations of unit train operations. However, the excerpt from the RIA did not influence the objective analysis we performed in support of this rule.

Peak ECP brake benefits: TTCI takes issue with the modeling that shows ECP brake effectiveness peaking at 40 mph. The TTCI Summary reports states, ” [i]ntuitively, it would seem that the benefit of ECP brakes would either increase or decrease as speed increases.” Derailment performance is the result of several physical phenomena. Consider a derailment that happens at a very slow speed. Given the physical strength of the tanks and the energy levels involved, there would be no punctures for either a conventionally braked train or an ECP-equipped train. As a result, there would be no perceived derailment benefit to ECP brakes at very low speeds when the benefit is measured by puncture probability. As the speeds increase, and one starts seeing multiple punctures as a result of the derailment, the benefits of ECP braking become more apparent. However, at higher speeds, the percentage of braking time spent in the “propagation mode” (where ECP brakes offer the most benefit) is a smaller portion of the overall time spent braking. Consequently, the relative benefits of ECP braking start to diminish at speeds over 40 mph.

Derailment rates: The derailment rate we used was based on the most recent five complete years of data: 2009-2013. Using the most recent years to construct this rate largely incorporates the factor of 10 decrease in the observed derailment rate cited by TTCI into our estimate of future derailments. It is not realistic to expect tenfold decreases in the derailment rate to continue indefinitely. In our judgement, the rate decrease may have bottomed out, so we used a constant rate based on the most recent data, which reduces the rate to the fewest derailments per carload observed in the available data, to forecast future derailments.

Criticism of Train Operation and Energy Simulator (TOES) modeling: The TTCI Summary Report attempts to respond to perceived criticism of the TOES modeling TTCI used to evaluate emergency braking scenarios involving ECP brakes. As an example, the TTCI Summary Report takes issue with the statement in the RIA that TTCI's modeling “only captures a part of the benefit of ECP.” See RIA, p. 70. TTCI contends that

The TTCI Summary Report's contention, however, ignores the reduced coupler force benefits of ECP braking. The lower coupler forces inherent to an ECP brake application reduce the chaos/energy input into the simulation. The TTCI Summary Report did not consider or even acknowledge the benefits associated with this aspect of ECP braking.

The TTCI Summary Report also takes issue with statements in the RIA discussing PHMSA and FRA's conclusion that AAR's predictions of two-way EOT or DP performance are overestimated. See RIA, pp. 68 and 70. This is because AAR's comments, which rely on a TTCI Summary Report, expect that DP and two-way EOT devices offer a benefit if the derailment occurs in the rear half of the train. This is incorrect. There is no benefit to DP if the POD is in the second half of the train. Under derailment conditions (where trains break in two), DP offers no benefit over conventional brakes. By keeping the train together in their simulations, AAR attributed benefits to DP and two-way EOT devices where none exist. Indeed, this issue is addressed in NTSB's Train Brake Simulation Study, published on July 20, 2015. See p. 12. While this newly issued study was not used in the development of the final rule, it is informative on ECP brake performance in emergency braking compared to DP emergency braking. Indeed, the NTSB specifically looked at derailments with air hose separation and train separation occurring in the second half of the train and found “there is no benefit to DP if the emergency is initiated in the second half of the train.” 31 Thus, the NTSB study determined that trains operating in ECP brake mode “[are] not substantially affected by the location of the emergency initiation.”

Finally, The TTCI Summary Report argues that “there is no analysis produced that shows that reducing the number of cars in the Aliceville derailment from 26 to 24.5 (or even 24) cars would have resulted in a significant—or any—benefit in terms of reduced severity of the accident.” We disagree. The reduction of the number of cars punctured is fundamental to improving tank car safety. All the comments from AAR and the industry, whether it is adding head shields, jackets, or thickness, have aimed exactly for this result: reducing the number of cars punctured. One way to reduce the number of cars punctured is to stop them from entering the pile-up in the first place. By TTCI's own analysis, which is skewed towards overestimating the benefits of DP, ECP braking provides an eight percent reduction in the number of cars entering the pile-up, and a further twelve percent reduction in kinetic energy, a combined benefit of about 20 percent due to ECP braking. If one then combines this benefit with the structural benefit such as jackets and head shields, one starts seeing cumulative significant reductions in damage severity, which is the intent of the final rule.

Relying on the Oliver Wyman Report, AAR asserts that requiring ECP brakes on HHFUTs will present integration challenges with PTC for two reasons. First, implementation of the ECP brake requirement will require new braking algorithms. Second, there will be difficulties associated with installing two complex technologies on locomotives simultaneously. PHMSA and FRA addressed both of these arguments in the final rule and do not find either argument compelling.

The Oliver Wyman Report states that braking algorithms will need to be modified and that there will be great difficulty and expense creating algorithms for PTC for ECP trains. PHMSA and FRA previously addressed this argument in the preamble to the final rule. See 80 FR 26702-26703. We recognize that PTC coupled with ECP brakes may result in significant business benefits—such as increased fluidity and higher throughputs—but there is simply no regulatory requirement directing that ECP brake systems be integrated with PTC. Further, the Oliver Wyman Report assertion that integration is necessary for safety reasons is not supported by data or analysis. PTC operates on a block system with forced braking to ensure that a single block is not occupied by two trains at once. In other words, if one train is occupying the block, then a trailing train cannot enter the block. An algorithm based on a conventionally braked train will provide a conservative cushion for the stopping distance for a train operating in ECP brake mode, but it does not change the fact that under PTC only one train will occupy the block at a time. Operations during this time could be used to safely collect the data needed to develop the algorithm to apply to trains operating in ECP brake mode. Of course, once developed, the benefits of shorter stopping distances can then be safely integrated into the system, but such actions would be voluntary business decisions by a railroad based on a belief that integration between ECP brakes and PTC will provide efficiencies not otherwise available.

The Oliver Wyman Report further contends that there will be costs associated with placing locomotives in the shop to install ECP brake systems in addition to PTC programming. PHMSA and FRA accounted for the costs of installing ECP brakes on locomotives on page 219-220 of the RIA, assigning a cost of $40,000 per locomotive.32 This is for new locomotives, because PHMSA and FRA expect that the allotment of locomotives needed to operate HHFUTs will come from new builds. As a result, shop time likely will be reserved for regular inspections (e.g., 92-day and 368-day inspections), at which time the railroads may take the opportunity, to the extent necessary, to focus on PTC installation issues.

The Oliver Wyman Report attempts to buttress its argument on costs by stating that there will be hidden costs due to the complexity of integrating PTC and ECP brakes on the same locomotive. Such comments are purely anecdotal and not supported by any data or analysis. The purported costs are unquantified in the Oliver Wyman Report and appear to be based solely on the comments of an unnamed UP mechanical officer. PHMSA notes that UP has minimal experience with ECP brakes, using the technology for about eight months over six years ago.

Finally, PHMSA and FRA note that the Oliver Wyman Report states ECP braking is not a mature technology and, therefore, “will increase operational disruption and failures that compromise safety.” PHMSA and FRA addressed contentions about technological readiness in the RIA at page 222-225. It is unclear why the Oliver Wyman Report insists on characterizing ECP brake technology as “immature.” Such statements are unsupported and, indeed, contradicted by various other sources. In the RIA, we cited an independent report calling ECP a “mature” technology. To place the quote in context, PHMSA and FRA now cite to the entire paragraph:

PHMSA and FRA recognize that ECP brakes are not in widespread use in the U.S., but that is not a proxy for maturity of the technology. AAR first began developing interchange standards for ECP brake systems in 1993. As noted in the RIA, North American railroads have used ECP brakes in some form since at least 1998. Australian railroads began widespread use of ECP brakes in 2005. The technology has grown and improved over that time as the industry has worked to resolve “crosstalk” and “interoperability” issues. Even TTCI, in its recent ECP Brakes presentation, notes that AAR “agrees that ECP is a mature technology.” Of course, this is not to suggest that no issues will arise with ECP brakes as railroads implement the braking system on HHFUTs. However, PHMSA and FRA account for such issues in the RIA, recognizing there will need to be significant investment in training and to ensure sufficient equipment is on hand to address normal operational issues. Therefore the accumulation of business benefits was assumed to be demonstrated one year after ECP trains are put into service, recognizing that this change in operating culture will take time. See RIA pg. 218.

AAR contends that the final rule fails to address or mitigate the harmful impact on small business, including Class III railroads, commuter railroads, smaller contractors, and hazardous materials shippers. The basis for this contention is that federal law requires PHMSA and FRA to assess the impact of the final rule on small business and consider less burdensome alternatives. We did assess the impact of the final rule on small business and considered less burdensome alternatives to develop the final rule.

PHMSA and FRA conducted a Regulatory Flexibility Analysis (RFA), which looked at the costs associated with small businesses for the entire final rule. See 80 FR 26725-26735. The RFA included a focused analysis of braking requirements. See 80 FR 26732-26733. As stated in the RFA, about 22 percent of short lines (160 of 738 small railroads) transport flammable liquids in HHFTs and most small railroads the final rule affects do not operate at speeds higher than the restricted speeds. Indeed, before we issued the NPRM and the final rule, the American Short Line and Regional Railroad Association (ASLRRA) recommended to their members that they voluntarily operate unit trains of crude oil at a top speed of no more than 25 mph on all routes. ASLRRA issued this letter in response to the Secretary's Call to Action on February 12, 2014, and it has been added to the docket.

PHMSA and FRA did acknowledge that some small railroads may be affected by the ECP brake mandate because they accept unit trains of crude oil (and other trains that trigger the mandate) from Class I railroads. However, we accounted for this impact in two ways in the final rule. First, as discussed on page 220 of the RIA, PHMSA and FRA assumed an overlay ECP brake system. This will allow the tank cars to work both with ECP brakes and conventional air brakes. While the initial cost to the car owner is slightly higher than a stand-alone ECP brake system, we expect that the added flexibility of an overlay system makes it the most likely alternative to be chosen by car owners. Aa a result, any small railroad that accepts a unit train of crude oil would be able to use their own power (locomotives) because the trains would travel at a maximum speed of 30 mph and would be able to use conventional air brakes. Second, PHMSA and FRA also anticipate that Class I and smaller railroads will make use of alternatives, such as trackage rights or interchange agreements, which will allow smaller railroads to avoid equipping their locomotives with ECP brakes. Under this type of scenario, Class I railroad crews operating an HHFUT in ECP brake mode could continue operating over the smaller railroad's line, and the HHFUT would pass through the interchange with the train intact.

AAR also raised the concern that short line railroads would be assuming the responsibility for troubleshooting ECP brake-related problems by accepting HHFUTs from Class I railroads. AAR states that this type of troubleshooting requires expertise beyond that of most small railroads because they do not have the resources to hire trained electronic engineers with the necessary expertise to identify the source of ECP system failures. PHMSA and FRA addressed the need for training on small railroads in the RIA on page 220. Because the final rule includes the less burdensome alternatives discussed above, PHMSA and FRA believe that there are effective methods for avoiding the type of training described.

Finally, AAR states that where an interchange agreement requires the small railroads to use existing power, there would be an enormous expense for the small railroad because that railroad would need to equip locomotives with ECP brakes for handling interchanged unit trains. AAR asserts that this is a particularly large problem because most small railroads have older locomotives that are not processor-based and that lack the required space to install an ECP brake system. It estimates it would cost approximately $250,000 to equip a non-processor based locomotive with ECP brakes. For the reasons discussed above, PHMSA and FRA do not anticipate that older locomotives would need to be equipped.

AAR argues that the ECP brake requirement in the final rule is prohibited by 49 U.S.C. 20141. This statute provides that “[t]he Secretary shall require two-way end-of-train devices (or devices able to perform the same function) on road trains, except locals, road switchers, or work trains, to enable the initiation of emergency braking from the rear of a train.” The statute further requires the Secretary to establish performance based regulations to govern the use of two-way EOT devices and allows the Secretary “to allow for the use of alternative technologies that meet the same basic performance requirements.” See 49 U.S.C. 20141(b)(2). AAR contends that PHMSA and FRA's ECP braking requirement is defective because it directs freight railroads to use ECP brake systems instead of two-way EOT devices. This argument is without merit because any HHFUT operating in ECP brake mode must comply with the ECP-EOT requirements in part 232, subpart G. See § 174.310(a)(3); 80 FR 26748.

FRA initially issued regulations governing the use of conventional two-way EOT devices in 1997. See 62 FR 278 (Jan. 2, 1997). These regulations are in part 232, subpart E, and are targeted at trains with conventional air brakes. Subpart E requires a conventionally braked train to have a two-way EOT device or an alternative technology unless it meets one of the explicit exceptions identified in § 232.407(e). For example, under § 232.407(e), a conventionally braked train is not required to operate with a two-way EOT device if a locomotive or locomotive consist is located at the rear of the train that is capable of making an emergency brake from the rear—as would occur with a lined and operative DP locomotive located at the rear of the train—or when the train does not operate over heavy grade and the speed of the train is limited to 30 mph.34

AAR appears to be under the misconception that the final rule fails to comply with 49 U.S.C. 20141 because it foregoes the requirements in part 232, subpart E, for HHFUTs operating in excess of 30 mph. However, the final rule pertaining to ECP brakes does comply with 49 U.S.C. 20141. It mandates compliance with part 232, subpart G, for any HHFUT operating in ECP brake mode. Indeed, subpart G contains EOT device requirements that are specific to trains operating in ECP brake mode. See § 232.613.

The ECP-EOT device requirements in section 232.613 were promulgated as part of FRA's ECP regulations in 2008. See 73 FR 60512 (Oct. 16, 2008). These regulations were issued, in part, under 49 U.S.C. 20141.35 See 73 FR at 61552. While ECP-EOT devices perform many of the same functions as conventional two-way EOT devices, FRA recognized that ECP-EOT devices also have different features than those required for trains operated using conventional air brakes:

See 73 FR 61545. Although FRA noted that the ECP-EOT device operates differently than a conventional two-way EOT device, the ECP-EOT device does ensure that an automatic emergency brake application occurs in the event of a communication breakdown:

Id. Section 232.613 requires the ECP-EOT device to send a beacon every second from the rear unit of the train to the controlling locomotive. The EOT beacon works as a kind of fail-safe. It functions virtually identically to the radio signal of a conventional two-way EOT device with one important exception: if the EOT Beacon is lost for six seconds on a train operated in ECP brake mode, then the train goes into penalty brake application, which will brake all cars in the train simultaneously. In contrast, a two-way EOT device may lose communication for up to 16 minutes, 30 seconds, at which point the train speed must be reduced to 30 mph.

Based on these factors, PHMSA and FRA conclude that the ECP brake component of the final rule complies with the requirements of 49 U.S.C. 20141. AAR should be aware that HHFUTs operating in ECP brake mode must have an ECP-EOT or an appropriate alternative, such as an ECP-equipped locomotive, at the rear of the train. This requirement is consistent with FRA's ECP brake regulations at part 232, subpart G.

For the above reasons, AAR's appeal to eliminate the new ECP brake standard of the final rule is denied.

PHMSA denies the appellants' (DGAC, ACC, AAR, AFPM, and Treaty Tribes) appeals on Scope of Rulemaking, Tribal Impacts and Consultation, Retrofit Timeline and Tank Car Reporting Requirements, Thermal Protection for Tank Cars, and Advanced Brake Signal Propagation Systems. We conclude we reasonably determined how to apply new regulations and provided the regulatory analysis to support those decisions. While we understand that shippers, carriers, and tank car manufacturers for Class 3 flammable liquids will face new challenges in the wake of these regulations, we maintain that they are capable of complying with the final rule.

We also deny DGAC's appeal to eliminate or provide further guidance for the Sampling and Testing program. The sampling and testing program is reasonable, justified, necessary, and clear as written. Additionally, we disagree that a delayed compliance date of March 31, 2016 should be provided for implementation of the requirements in § 173.41 for shippers to implement changes for training and documentation.

With respect to Information Sharing/Notification, PHMSA announced in a May 28, 2015, notice that it would extend the Emergency Order applicable to the topic of Information Sharing/Notification indefinitely, while it considered options for codifying the disclosure requirement permanently. Furthermore, on July 22, 2015, FRA issued a public letter instructing railroads transporting crude oil that they must continue to notify SERCs of the expected movement of Bakken crude oil trains through individual States. While the treaty tribes and other stakeholders will have the opportunity to comment on these future regulatory proposals in the course of that rulemaking proceeding, PHMSA will continue to seek opportunities to reach out to the tribes and consultation from tribal leaders.

The fishery for coastal migratory pelagic fish (king mackerel, Spanish mackerel, and cobia) is managed under the Fishery Management Plan for the Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic (FMP). The FMP was prepared by the Gulf of Mexico and South Atlantic Fishery Management Councils (Councils) and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

The commercial quota for the Gulf migratory group king mackerel in the western zone is 1,071,360 lb (485,961 kg) (76 FR 82058, December 29, 2011), for the current fishing year, July 1, 2015, through June 30, 2016.

Regulations at 50 CFR 622.388(a)(1) require NMFS to close the commercial sector for Gulf migratory group king mackerel in the western zone when the quota is reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. Based on the best scientific information available, NMFS has determined the commercial quota of 1,071,360 lb (485,961 kg) for Gulf migratory group king mackerel in the western zone will be reached by November 17, 2015. Accordingly, the western zone is closed to commercial fishing for Gulf migratory group king mackerel effective at noon, local time, November 17, 2015, through June 30, 2016, the end of the current fishing year. The western zone of Gulf migratory group king mackerel is that part of the EEZ between a line extending east from the border of the United States and Mexico and 87°31.1' W. longitude, which is a line directly south from the state boundary of Alabama and Florida.

Except for a person aboard a charter vessel or headboat, during the closure no person aboard a vessel that has been issued a commercial permit for king mackerel may fish for or retain Gulf migratory group king mackerel in the EEZ in the closed zone (50 CFR 622.384(e)(1)). A person aboard a vessel that has a valid charter vessel/headboat permit for coastal migratory pelagic fish may continue to retain king mackerel in or from the closed zone under the bag and possession limits set forth in 50 CFR 622.382(a)(1)(ii) and (a)(2), provided the vessel is operating as a charter vessel or headboat (50 CFR 622.384(e)(2)). A charter vessel or headboat that also has a commercial king mackerel permit is considered to be operating as a charter vessel or headboat when it carries a passenger who pays a fee or when there are more than three persons aboard, including operator and crew.

During the closure, king mackerel from the closed zone, including those harvested under the bag and possession limits, may not be purchased or sold. This prohibition does not apply to king mackerel from the closed zone that were harvested, landed ashore, and sold prior to the closure and were held in cold storage by a dealer or processor (50 CFR 622.384(e)(3)).

The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of Gulf migratory group king mackerel and is consistent with the Magnuson-Stevens Act and other applicable laws.

This action is taken under 50 CFR 622.388(a)(1) and 622.384(e), and is exempt from review under Executive Order 12866.

These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.

This action responds to the best scientific information available. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirements 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 procedures are unnecessary and contrary to the public interest. Such procedures are unnecessary because the rule implementing the commercial quota and the associated requirement for closure of the commercial harvest when the quota is reached or is projected to be reached has already been subject to notice and public comment, and all that remains is to notify the public of the closure. Additionally, allowing prior notice and opportunity for public comment is contrary to the public interest because of the need to immediately implement this action to protect the king mackerel stock, because the capacity of the fishing fleet allows for rapid harvest of the quota. Prior notice and opportunity for public comment would require time and could potentially result in a harvest well in excess of the established quota.

For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).

Regulations implemented under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971 et seq.) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq.) governing the harvest of bluefin tuna by persons and vessels subject to U.S. jurisdiction are found at 50 CFR part 635. Section 635.27 subdivides the U.S. bluefin tuna quota recommended by the International Commission for the Conservation of Atlantic Tunas (ICCAT) among the various domestic fishing categories per the allocations established in the 2006 Consolidated Highly Migratory Species Fishery Management Plan (2006 Consolidated HMS FMP) (71 FR 58058, October 2, 2006), as amended by Amendment 7 to the 2006 Consolidated HMS FMP (Amendment 7) (79 FR 71510, December 2, 2014).

The U.S. bluefin tuna annual quota from the International Commission for the Conservation of Atlantic Tunas (ICCAT) includes, as in previous years, a 25-mt set-aside for bluefin tuna bycatch related to longline fisheries operating in the vicinity of the ICCAT management area boundary. See ICCAT Recommendation 14-05; and 80 FR 52198, (August 28, 2015) (implementing the quota domestically). For management and monitoring purposes, NMFS implements this set-aside in the NED gear restricted area as quota available to Atlantic Longline category permitted vessels. Longline is not a permitted gear for directed fishing on bluefin tuna; any catch must be incidental to fishing for other species. Accounting for this bycatch includes all catch (landings and dead discards). The NED is the Atlantic Ocean area bounded by straight lines connecting the following coordinates in the order stated: 35°00′ N. lat., 60°00′ W. long.; 55°00′ N. lat., 60°00′ W. long.; 55°00′ N. lat., 20°00′ W. long.; 35°00′ N. lat., 20°00′ W. long.; 35°00′ N. lat., 60°00′ W. long.

Under Amendment 7 (79 FR 71510, December 2, 2014), new rules were implemented for Longline category vessels fishing in the NED. See 50 CFR 635.15(b)(8). Any bluefin tuna bycatch by permitted vessels fishing with pelagic longline gear in the NED counts toward the ICCAT-allocated separate NED quota (25 mt), until that quota has been filled. During that period, the bluefin tuna accounting requirements of the IBQ Program do not apply to those vessels. Once the NED quota is filled, Longline category permitted vessels may fish or continue to fish in the NED, but the permitted vessels must then abide by the applicable requirements of the IBQ program, which requires individual vessel accounting for bluefin tuna bycatch using quota allocation available to the vessel (either through its own quota share or leasing allocation from another vessel). Bluefin tuna must be accounted for as described at § 635.15(b)(4) and (5).

Based on Atlantic bluefin tuna dealer data and IBQ system data, as of November 10, 2015, 33,484 lb (15.2 mt) of bluefin tuna has been landed, and 90 lb (<0.1 mt) of bluefin tuna has been discarded dead in the NED; an additional 36 bluefin tuna have been reported as retained through Vessel Monitoring System (VMS) bluefin tuna catch reports. These 36 retained bluefin tuna reported via VMS equate to approximately 17,460 lb (7.9 mt) of additional catch, which brings the total estimated bluefin tuna catch from the NED to 51,034 lb (23.2 mt). Based on this data, NMFS has determined that the 25 mt set-aside will be filled on November 12, 2015.

Because the NED the quota has been reached, vessels are notified that they must account for any bycatch of bluefin tuna (landings and/or dead discards) in the NED using IBQ allocation as specified in the regulations at § 635.15(b)(8). Vessel owners will have to account retroactively for their bluefin tuna bycatch with IBQ to the date that the separate quota was reached. NMFS currently anticipates that date will be November 12, 2015, but will notify relevant vessel owners of the precise date when we have complete NED catch data.

With respect to quota accounting for the fishery as whole, bluefin bycatch (landings and dead discards) from the NED beyond the 25 mt set-aside will count toward the Longline category annual baseline subquota. For 2015, NMFS delayed certain regulatory requirements requiring vessels with pelagic longline gear to have a minimum amount of IBQ quota before departing on fishing trips, thus allowing such vessels to fish with pelagic longline gear even if they have quota debt. However, we specified that quota debt will accrue throughout the 2015 fishing year, and vessels will be responsible for accounting for all of their bluefin bycatch at the end of the year. If, by the end of 2015, a permit holder does not have adequate IBQ allocation to settle their vessel's quota debt, the vessel's allocation will be reduced in the amount equal to the quota debt in the subsequent year or years until the quota debt is fully accounted for. Vessels with a negative balance will have to satisfy the quota debt before departing on any trips in 2016.

NMFS will continue to monitor bluefin tuna bycatch by vessels fishing with pelagic longline gear using VMS and dealer data, as well as monitor the accounting for such catch in the IBQ system, to ensure that vessels are accountable for their bluefin bycatch and that quotas are managed consistent with the 2006 Consolidated HMS FMP and our international quota obligations. For fishery updates, fishermen may call the Atlantic Tunas Information Line at (888) 872-8862 or (978) 281-9260, access the following internet address: www.hmspermits.gov.

Background

The purpose of this rule is to reduce interactions between ESA-listed seabirds and groundfish longline gear. This final rule amends the regulations governing the Pacific Coast Groundfish Fishery (fishery) to require seabird avoidance measures—specifically, the use of streamer lines and related provisions similar to those currently mandated in the Alaskan groundfish fishery—by vessels 55 ft LOA or greater in the bottom longline fishery.

This rule is needed to minimize takes of endangered short-tailed albatross and comply with a 2012 Biological Opinion (Opinion) issued by the U.S. Fish and Wildlife Service.

In sum, the rule:

• Requires the use of streamer lines in the commercial longline fishery of the Pacific Coast Groundfish Fishery for non-tribal vessels 55 feet in length or greater;

• Requires vessels to deploy one or two streamer lines depending on the type of longline gear being set;

• Requires that streamer lines meet technical specifications and be available for inspection; and

• Allows for a rough weather exemption from using streamer lines for safety purposes. The threshold for the rough weather exemption is a Gale Warning as issued by the National Weather Service.

The rule is designed to be consistent with the requirements of the Opinion and responsive to issues raised through the public process and consultation with experts.

NMFS solicited public comment on the proposed seabird avoidance measures (79 FR 53401, September 9, 2014). The comment period ended October 9, 2014. NMFS received seven comment letters from individuals or organizations. The letters are available in their entirety from NMFS (see ADDRESSES) or at the following web address: http://www.regulations.gov/#!docketBrowser;rpp=25;po=0;dct=PS;D=NOAA-NMFS-2014-0099. For clarity in responding, comments have been organized into the following categories, which are addressed in turn below: Monitoring, Gear Specification and Performance, Scope, Environmental Assessment, and Other.

Comment 1: Observers or Electronic Monitoring should be used to monitor compliance with performance and materials standards in order for the seabird avoidance regulations to be effective.

Response: NMFS agrees. The West Coast Groundfish Observer Program (WCGOP) developed and implemented a sampling protocol in 2009 and 2010 to characterize the longline fleet and its use of seabird avoidance gear. The protocol was designed to provide data on the types of streamer lines being deployed and the performance of the streamers insofar as it can be determined visually. For example, observers recorded the number of streamer lines deployed; where the streamer lines were deployed relative to sinking hooks; the deployment of towed objects on the end of streamer lines; the extent of streamer lines relative to the water surface; the number of streamers on each line; the color and material of the streamers; the distance between streamers; the distance from the stern to the first streamer; and a range of measurements associated with the design and performance of streamer lines. The information can be used by managers to assess the performance of streamer lines at sea. Observers currently record the type of seabird avoidance gear being used. In 2015, this will include a distinction between single and double streamer lines. Observers also record the catch of seabirds which is the ultimate determinant of the performance of seabird avoidance measures. In response to this comment and the ongoing need to characterize the use of seabird avoidance gear, WCGOP will refine the sampling protocol for implementation in 2016 or earlier as opportunity allows.

Comment 2: NMFS should use either human observers or electronic means to monitor seabird interactions in the at-sea hake fishery because there is a high overlap of fishing areas with albatross occurrence; and, the fleet's practice of continuous offal discharge may attract birds. It is known that bird strikes with trawl cables cause high mortality of albatross in other regions.

Response: As described in the BiOp, seabirds are attracted to offal plumes and can strike trawl cables, sonar cables, or become entangled on nets at or near the surface. Such interactions are unlikely to be detected as they do not show up on the deck to be sampled under normal observer protocols. NMFS agrees with the need to characterize seabird mortality in the at-sea hake fishery and is committed to developing a monitoring plan; however, there are significant issues associated with both the observer program and electronic monitoring that make it premature to choose a specific course of action at this time.

Regarding the observer program, observer duties are carefully prescribed according to priorities developed to support fishery management decisions. The main priority is to monitor catch composition—including seabirds that come up with the trawl. Each processing vessel carries two observers. Observers subsample the catch to collect data used to estimate catch composition. In addition, the observers collect biological data from groundfish, protected species including seabirds, and prohibited species. Observers are required to be in the factory, below deck, for the majority of their sampling. Observation of trawl and sonar cables would occur on deck and take a significant amount of time away from catch composition sampling.

Electronic monitoring is in a developmental stage for West Coast groundfish fisheries and significant research is necessary before it is practicable to apply to seabird monitoring in the at-sea hake fishery. Similar to observers, electronic monitoring is being developed to monitor catch composition. There have not been formal investigations into the effectiveness and practicability of training cameras away from the deck to monitor trawl and sonar cables.

NMFS will pursue a monitoring plan by working through the Council and its appropriate committees, such as the Council's ESA Working Group that was established specifically to implement the Opinion; and, ad hoc committees composed to advise the Council on the development of electronic monitoring. Such committees offer a formal opportunity to engage the Council in monitoring and conservation issues and is the most appropriate opportunity to develop an effective and practicable monitoring plan.

Comment 3: Observers should record wind speed to associate weather data with seabird interactions in order to assess impacts associated with the rough weather exemption.

Response: NMFS agrees. Observers currently record weather conditions using the Beaufort scale for any sighting or take of an ESA-listed species, including short-tailed albatross. Weather observations are currently made at the time the observer encounters the animal which, in longline fisheries, is usually during the retrieval of gear. The weather conditions during retrieval may be different from when the mortality event occurred, which is typically as gear is being set. For this reason, and in response to this comment, NMFS will modify WCGOP sampling protocols so that observers record weather conditions as longlines are being set for at least a subset of hauls. The modified protocol may not be fully effective until 2016 due to program logistics.

Comment 4: NMFS should monitor the free streamer line program to determine if lines are being used properly, ensure plastic components of the streamer lines are not illegally discarded at sea, and to avoid wasteful spending of U.S. tax dollars that are funding the program.

Response: NMFS agrees. Consistent with the response to Comment 1 above, observers are monitoring the performance of streamer lines at sea. Observers also monitor for violations of the International Convention for the Prevention of Pollution from Ships (MARPOL) that prohibits the at-sea disposal of all plastics. Observers document compliance infractions and suspected violations in their logbook and complete a written statement during debriefing.

Comment 5: NMFS should exempt the requirement to use streamer lines during longline sets that take place at night. Based on 20 years of personal experience, I have never encountered a seabird on a night set. Requiring streamer lines during night sets imposes a safety risk and inconvenience without reducing seabird mortality.

Response: To address this comment, NMFS conducted an analysis to determine if seabird catch rates differ when the longline gear is set in the dark versus the light. The analysis shows a reduction in the seabird bycatch when the gear is set at night and could provide an option for fishermen to not use streamer lines at night in the future. At this time, NMFS has determined that providing a night-setting exemption is outside the scope of the proposed rule. NMFS received comments from the Council on including an exemption for night setting, including comments from the U.S. Coast Guard representative, which supported the exemption but requested further investigation into an exemption rather than inclusion in the regulations at this time.

Comment 6: The proposed rule is inadequate and ineffective as a seabird bycatch mitigation measure. Best practices, as adopted by the Agreement on the Conservation of Albatrosses and Petrels (ACAP), do not support only using streamer lines to deter seabirds. Streamer lines should be used in conjunction with other measures such as weighting the line to maximize sink rates; actively deterring birds from baited hooks by using bird scaring lines; and, setting at night.

Response: NMFS disagrees that the proposed rule is inadequate; however, NMFS agrees that the full range of best practices described by ACAP is an important component of effective seabird conservation. NMFS and the Council considered alternatives that would have implemented the full suite of ACAP best practices in the EA (see ADDRESSES). The measures described in the comment (other than streamer lines) are being pursued by non-regulatory means. NMFS and partner organizations are working with fishermen to encourage voluntary implementation of measures consistent with ACAP best practices, including sinking hooks quickly, night setting, and managing discharge of offal and bait. Fishermen on the West Coast have a significant incentive to avoid seabirds in order to ensure baited hooks are available to catch fish. A hook with a seabird on it precludes that opportunity and impacts the profitability of fishing operations. For this reason and as analyzed in the EA, NMFS and the Council determined that a non-regulatory approach to the full suite of best practices was the most appropriate at this time. This does not preclude regulatory approaches in the future should monitoring indicate that voluntary efforts are not sufficient. To that end, NMFS has worked to establish the ESA Working Group to consider new information and formulate advice on adaptive management to the Council.

Comment 7: The proposed streamer line specifications are inadequate and ineffective. The specifications used under the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) should be adopted, including: (1) Minimum of height at stern of 7 m; (2) minimum streamer line length of 150 m and the use of a drogue; (3) no rough weather exemption; and, (4) the aerial extent of streamer lines should be stipulated as a performance standard (100 m is suggested).

Response: NMFS disagrees that the proposed streamer line specifications are inadequate and ineffective. The CCAMLR regulations reflect the development of seabird avoidance measures designed for the specific fisheries and seabird assemblages. The sub-Antarctic fisheries governed under CCAMLR include primarily Patagonia toothfish (Dissostichus eleginoides), which is fished with the Spanish method of bottom longlining, where the gear is more buoyant than that used on the West Coast. The majority of the vessels are large (30-50 m) and deploy gear from the stern at speeds of 10-13 knots. The prevalent seabirds incidentally taken are albatrosses and petrels species, many of which dive to foraging depths that are substantially deeper than the North Pacific albatross and other species that occur off the West Coast.

In contrast, West Coast groundfish fisheries target primarily sablefish, which is a demersal species fished with bottom gear consisting of groundlines to which relatively short gangions are attached. In general, vessels deploy gear from the stern. The prevalent seabird species incidentally taken are fulmars, gulls, and albatrosses.

The CCAMLR streamer line specifications are designed to provide more aerial coverage than is necessary or appropriate for West Coast groundfish fisheries. The minimum stern height, line length, and aerial extent specifications cover a greater area because longlines used in those fisheries are more buoyant and extend further behind the vessel than occurs in fisheries covered under this rule, and because the seabird species taken in CCAMLR fisheries dive to deeper depths than those on the West Coast. The specifications in this rule were recommended based on extensive research that demonstrated them to be effective in Alaskan groundfish fisheries, where the targeted fish species, vessels, and seabirds are similar and, in some cases, identical. More information on this research and the effectiveness of the streamer line specification in this final rule is available in the Opinion or EA (see ADDRESSES).

NMFS notes however that preliminary research by Washington Sea Grant indicates that some vessels in West Coast groundfish fisheries are using floats on gangions to avoid predation by non-marketable bottom fish (i.e., hagfish). The floats may reduce the effectiveness of these streamer line specifications by keeping baited hooks in the water column past the extent of streamer lines. It is unclear at this time how widespread the use of floats is, how much it influences seabird catch rates, and what alternatives are appropriate if floats are determined to be a significant issue affecting seabird catch rates. Because the research is preliminary, and because the streamer line specifications in this final rule have been demonstrated to be effective in reducing seabird mortality and are required by the Opinion, NMFS is finalizing this rule and will continue to monitor its effectiveness to determine if future changes are warranted. NMFS is also continuing to support Washington Sea Grant in conducting this research and has worked to establish the ESA Working Group to consider new information and formulate advice on adaptive management to the Council.

Comment 8: Vessels should not be permitted to take excessive numbers of seabirds. Vessels should be required to move to night setting for the remainder of the fishing season if seabird bycatch exceeds 0.01 seabirds per 1000 hooks in a set, or until the vessel is able to demonstrate a line sink rate of a minimum of 0.3 m/second to 15 m depth. Applying a performance standard quickly halts lax and ineffective fishing practices.

Response: A system does not currently exist within NMFS to hold individual vessels accountable for seabird mortality in real time. Similarly, it is not feasible for NMFS to monitor and enforce sink rates of longline gear on individual vessels. More importantly, NMFS does not believe such a system is necessary given that the final regulations are designed to effectively reduce seabird bycatch in the fleet where most of the seabirds are taken.

Comment 9: Vessels smaller than 55 ft should be required to use seabird avoidance measures to minimize the chance that such vessels will take ESA-listed short-tailed albatross and other seabirds.

Response: NMFS agrees that there may be a risk to short-tailed albatross from longline vessels under 55 ft; however, it would be premature to require that they use seabird avoidance gear at this time. The Opinion specifies that this rule apply to larger vessels for the following reasons: (1) Vessels under 55 ft have not been observed to interact with short-tailed albatross; (2) vessels under 55 ft are being encouraged through formal outreach described in the EA (see ADDRESSES) to deploy seabird avoidance measures on a voluntary basis; and, (3) NMFS does not have an appropriate technical specification for streamer lines proven to be safe for smaller vessels. To address the latter, Washington Sea Grant is conducting research to determine safe and effective seabird avoidance measures for vessels under 55 ft. In limiting the requirement specified in the Opinion to vessels 55 ft and over, USFWS further required NMFS to adapt management as appropriate in response to that research and ongoing monitoring. NMFS is committed to review new information as it becomes available to determine if these regulations should be adapted to cover smaller vessels. To that end, NMFS has worked to establish the ESA Working Group to consider new information and formulate advice on adaptive management to the Council.

Comment 10: NMFS should require that seabird avoidance measures be deployed in the at-sea hake fishery because there is a high overlap of fishing areas with albatross occurrence and the fleet's practice of continuous offal discharge that may attract birds. It is known that bird strikes with trawl cables cause high mortality of albatross in other regions.

Response: NMFS agrees that there is a potential threat to seabirds associated with the at-sea hake fishery; however, it is premature to regulate that fishery at this time. As described in the response to Comment 2 above, NMFS will pursue a monitoring plan to assess the level of threat and appropriate responses. Regulating the at-sea hake fishery is outside the scope of this rule, which is focused on implementing requirements stipulated by USFWS in the Opinion. USFWS recognized the potential for interaction between seabirds and the at-sea hake fishery but determined that the focus of seabird avoidance measures should be the longline fleet. In doing so, USFWS further required NMFS to adapt management as appropriate in response to new information. NMFS is committed to reviewing new information as it becomes available to determine if these regulations should be adapted to other fisheries such as the at-sea hake fishery. To that end, NMFS has worked to establish the ESA Working Group to consider new information and formulate advice on adaptive management to the Council.

Comment 11: The EA must analyze whether short-tailed albatross are at higher risk of entanglement during high wind events.

Response: NMFS agrees. The EA, in Section 4.1.1, acknowledges the uncertainty regarding seabird behavior during rough weather and concludes the exemption is not expected to significantly influence the overall reduction in seabird bycatch. NMFS is not aware of additional information pertinent to assessing the effects of rough weather on seabird encounters by longline vessels but will continue to monitor observer data and adapt management as new information becomes available. To that end, NMFS has worked to establish the ESA Working Group to consider new information and formulate advice on adaptive management to the Council.

Comment 12: The EA does not adequately assess the effects of vessels under 55 ft on short-tailed albatross.

Response: NMFS disagrees. Consistent with the response to Comment 9, the EA acknowledges there may be a risk to short-tailed albatross from vessels under 55 ft and incorporates voluntary conservation and ongoing research into analysis of the status quo alternative (See ADDRESSES).

Comment 13: The groundfish fishery operates in important seabird foraging habitat as well as critical habitat of leatherback sea turtles and green sturgeon. Streamer lines may have unintended consequences if they are lost overboard. Streamers should be made of plant-based materials in order to minimize the biological risks associated with ingestion by marine animals.

Response: In response to this comment, NMFS consulted with NOAA's Marine Debris Program to determine if there is evidence for streamer lines as marine debris in areas such as Alaska and Hawaii, where there are existing requirements for longline vessels to use them. Streamers (the plastic component of streamer lines) have been observed during shoreline clean-ups in Alaska; however, the quantity relative to other marine debris is very low. Reports from shoreline cleanups in Hawaii have not noted the presence of streamers. Given the low incidence of observed streamers, it would not be reasonable to change design specifications at this time. Streamer lines are constructed of materials, including plastics, sufficient to withstand at-sea conditions. A change in the material specifications would require significant research to ensure streamer lines would continue to function by reducing seabird entanglement. Such research is not practicable at this time. NMFS notes that intentional disposal at sea is unlikely because fishermen are subject to MARPOL, which prohibits the at-sea disposal of plastics.

Comment 14: NMFS should ensure authorization of fisheries complies with the Migratory Bird Treaty Act (MBTA).

Response: NMFS agrees. The final regulations are consistent with the MBTA.

Comment 15: NMFS should provide, and crewmembers should be required to attend, workshops to identify and distinguish short-tailed albatross from other albatrosses and also to safely release live short-tailed albatrosses.

Response: NMFS agrees that education and outreach is an important component of seabird conservation; however, NMFS disagrees that it should be required. NMFS has provided funding for Washington Sea Grant to conduct outreach that has included mailings to all fixed-gear permit holders, port meetings with fishermen, an internet site, and educational exhibits at trade shows. The material includes information on seabird avoidance, species identification, and how to handle hooked albatross. NMFS believes that these efforts have been successful in educating fishermen on issues related to seabird bycatch.

Comment 16: A number of commenters were in support of the proposed regulations.

Response: NMFS acknowledges this comment.

There are no substantial changes from the proposed rule. NMFS made one modification to re-locate the regulatory text so that it is grouped with other groundfish regulations. The goal of this change is to locate the seabird avoidance program regulations near other programs that apply to multiple sectors of the groundfish fishery.

Pursuant to section 304(b)(1)(A) of the MSA, the NMFS Assistant Administrator has determined that this final rule is consistent with the Pacific Coast Groundfish FMP, other provisions of the MSA, and other applicable law.

NMFS and the Council prepared a final Environmental Assessment (EA) for this regulation and concluded that there would not be a significant impact on the human environment as a result of this rule. A copy of the EA is available from NMFS (see ADDRESSES).

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

The Regulatory Flexibility Act requires Federal agencies to conduct a full RFAA unless the agency can certify that the proposed and/or final rule would not have a significant economic impact on a substantial number of small entities.

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

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a public notice that also serves as small entity compliance guide (the guide) was prepared. Copies of this final rule are available from the West Coast Regional Office, and the guide will be posted on the NMFS West Coast Region Web site and emailed to the groundfish fishery listserve. The guide and this final rule will be available upon request.

NMFS issued Biological Opinions under the Endangered Species Act (ESA) on August 10, 1990, November 26, 1991, August 28, 1992, September 27, 1993, May 14, 1996, and December 15, 1999, pertaining to the effects of the Groundfish FMP fisheries on Chinook salmon (Puget Sound, Snake River spring/summer, Snake River fall, upper Columbia River spring, lower Columbia River, upper Willamette River, Sacramento River winter, Central Valley spring, California coastal), coho salmon (Central California coastal, southern Oregon/northern California coastal), chum salmon (Hood Canal summer, Columbia River), sockeye salmon (Snake River, Ozette Lake), and steelhead (upper, middle and lower Columbia River, Snake River Basin, upper Willamette River, central California coast, California Central Valley, south/central California, northern California, southern California). These biological opinions have concluded that implementation of the FMP is not expected to jeopardize the continued existence of any endangered or threatened species under the jurisdiction of NMFS, or result in the destruction or adverse modification of critical habitat.

NMFS issued a Supplemental Biological Opinion on March 11, 2006, concluding that neither the higher observed bycatch of Chinook in the 2005 whiting fishery nor new data regarding salmon bycatch in the groundfish bottom trawl fishery required a reconsideration of its prior “no jeopardy” conclusion. NMFS also reaffirmed its prior determination that implementation of the FMP is not likely to jeopardize the continued existence of any of the affected ESUs. Lower Columbia River coho (70 FR 37160, June 28, 2005) and Oregon Coastal coho (73 FR 7816, February 11, 2008) were relisted as threatened under the ESA. The 1999 biological opinion concluded that the bycatch of salmonids in the Pacific whiting fishery were almost entirely Chinook salmon, with little or no bycatch of coho, chum, sockeye, and steelhead.

On December 7, 2012, NMFS completed a biological opinion concluding that the groundfish fishery is not likely to jeopardize non-salmonid marine species including listed eulachon, green sturgeon, humpback whales, Steller sea lions, and leatherback sea turtles. The opinion also concluded that the fishery is not likely to adversely modify critical habitat for green sturgeon and leatherback sea turtles. An analysis included in the same document as the opinion concluded that the fishery is not likely to adversely affect green sea turtles, olive ridley sea turtles, loggerhead sea turtles, sei whales, North Pacific right whales, blue whales, fin whales, sperm whales, Southern Resident killer whales, Guadalupe fur seals, or the critical habitat for Steller sea lions.

West Coast pot fisheries for sablefish are considered Category II fisheries under the Marine Mammal Protection Act (MMPA), indicating occasional interactions. All other West Coast groundfish fisheries, including the trawl fishery, are considered Category III fisheries under the MMPA, indicating a remote likelihood of or no known serious injuries or mortalities to marine mammals. MMPA section 101(a)(5)(E) requires that NMFS authorize the taking of ESA-listed marine mammals incidental to U.S. commercial fisheries if it makes the requisite findings, including a finding that the incidental mortality and serious injury from commercial fisheries will have a negligible impact on the affected species or stock. As noted above, NMFS concluded in its biological opinion for the 2012 groundfish fisheries that these fisheries were not likely to jeopardize Steller sea lions or humpback whales. The eastern distinct population segment of Steller sea lions was delisted under the ESA on November 4, 2013 (78 FR 66140). On September 4, 2013, based on its negligible impact determination dated August 28, 2013, NMFS issued a permit for a period of 3 years to authorize the incidental taking of humpback whales by the sablefish pot fishery (78 FR 54553).

NMFS has reinitiated section 7 consultation on the Pacific Coast Groundfish FMP with respect to its effects on listed salmonids. In the event the consultation identifies either reasonable and prudent alternatives to address jeopardy concerns, or reasonable and prudent measures to minimize incidental take, NMFS would coordinate with the Council to put additional alternatives or measures into place, as required. After reviewing the available information, NMFS has concluded that, consistent with sections 7(a)(2) and 7(d) of the ESA, this action will not jeopardize any listed species, would not adversely modify any designated critical habitat, and will not result in any irreversible or irretrievable commitment of resources that would have the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures.

On November 21, 2012, the U.S. Fish and Wildlife Service (FWS) issued a biological opinion concluding that the groundfish fishery will not jeopardize the continued existence of the short-tailed albatross. The 2012 Opinion evaluated the risks of continued operation of the Pacific Coast groundfish fishery on ESA-listed seabirds, including short-tailed albatross. The 2012 Opinion included a Term and Condition requiring NMFS to promulgate regulations mandating the use of streamer lines by longline vessels 55 feet LOA or greater, patterned on the Alaska streamer line regulations. Accordingly, for the fishery to be exempt from the ESA section 9 prohibition regarding take of a listed species, NMFS must initiate implementation of streamer line regulations by November 21, 2014. The 2012 Opinion anticipates the yearly average take of one short-tailed albatross killed from longline hooks or trawl cables. As the short-tailed albatross population is expanding, it is expected to result in more interactions with the Pacific Coast Groundfish Fisheries. This action would implement one of the Terms and Conditions of the 2012 Opinion and reduce the risk of exceeding the take limits of short-tailed albatross, which in turn would reduce the risk of economic harm to the fishing industry that could result from the incidental take limit being exceeded. The FWS also concurred that the fishery is not likely to adversely affect the marbled murrelet, California least tern, southern sea otter, bull trout, or bull trout critical habitat.

This final rule does not contain a collection-of-information requirement subject to review and approval by OMB under the Paperwork Reduction Act (PRA).

This final rule was developed after meaningful collaboration, through the Council process, with the tribal representative on the Council. The regulations have no direct effect on the tribes and were deemed by the Council as “necessary or appropriate” to implement the FMP as amended.

Administrative practice and procedure, American Samoa, Fisheries, Fishing, Guam, Hawaiian natives, Indians, Northern Mariana Islands, Reporting and recordkeeping requirements.

For the reasons stated in the preamble, 50 CFR part 660 is amended as follows: