Federal Register Vol. 80, No.49,

This rule has been determined to be significant for purposes of Executive Order 12866 and has been reviewed by the Office of Management and Budget (OMB). The Executive Order defines a “significant regulatory action” as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal Governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.

The Agency conducted a benefit-cost analysis to fulfill the requirements of EO 12866. This rule will not impose any new costs for the public (customers, applicants, borrowers, grantees, recipients and/or beneficiaries) of Rural Development's loan programs. This direct final rule permits the debt settlement policy to be uniform and consistent for all programs and will allow the Rural Development to process eligible debt settlement cases in a prompt and efficient manner.

The Catalog of Federal Domestic Assistance Program number assigned to the IRP is 10.767.

This document has been reviewed in accordance with 7 CFR, part 1940, subpart G, “Environmental Program.” Rural Development has determined that this action does not constitute a major Federal action significantly affecting the quality of the human environment and, in accordance with the National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. 4321 et seq., an Environmental Impact Statement is not required.

The program is subject to the provisions of Executive Order 12372, which requires intergovernmental consultation with State and local officials. Consultation will be completed at the time of the action performed.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. The Agency has determined that this rule meets the applicable standards provided in § 3 of the Executive Order. Additionally, (1) all State and local laws and regulations that are in conflict with this rule will be preempted; (2) no retroactive effect will be given to the rule; and (3) administrative appeal procedures, if any, must be exhausted before litigation against the Department or its agencies may be initiated, in accordance with the regulations of the National Appeals Division of USDA at 7 CFR part 11.

The policies contained in this rule do not have any substantial direct effect on 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. Nor does this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with States is not required.

Under section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Agency certifies that this rule will not have a significant economic impact on a substantial number of small entities. The Agency made this determination based on the fact that this regulation only impacts those who choose to participate in the program. Small entity applicants will not be impacted to a greater extent than large entity applicants.

This rule contains no Federal mandates (under the regulatory provisions of Title II of the Unfunded Mandates Reform Act of 1995) for State, local, and Tribal Governments or the private sector. Thus, this rule is not subject to the requirements of § s 202 and 205 of the Unfunded Mandates Reform Act of 1995.

This executive order imposes requirements on Rural Development (RD) in the development of regulatory policies that have tribal implications or preempt tribal laws. RD has determined that this rule does not have a substantial direct effect on one or more Indian tribe(s) or on either the relationship or the distribution of powers and responsibilities between the Federal Government and Indian tribes. Thus, this rule is not subject to the requirements of Executive Order 13175. If a tribe determines that this rule has implications of which RD is not aware and would like to engage with RD on this rule, please contact RD's Native American Coordinator at (720) 544-2911 or [email protected].

This rule contains no new reporting or recordkeeping requirements that would require approval under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).

Rural Development is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies, to provide increased opportunities for citizens to access Government information and services electronically.

The process of debt settlement is a time consuming process. Before a borrower in default can settle their indebtedness to the Agency, current regulations require four levels of review: The local/area office, the State Office, the National Office, and finally a United States Department of Justice (DOJ) review. This review process results in loans that are eligible for debt settlement, to continue to sit on the books much longer than necessary, incurring interest, and decreasing the likelihood that a borrower will exist to collect recoveries once the loan is finally sent to the Department of the Treasury.

The Agency has shown, through its use of the settlement authority in 7 U.S.C. 1981(b)(4) in its other loan programs, that it can judiciously and reasonably administer that authority on its own without the need for additional levels of review.

By revising its regulations governing the review process for debt settlement, the Agency will be able to process debt settlement claims in a more uniform, prompt, and efficient manner.

The Agency is proposing to modify several paragraphs in 7 CFR part 1951, subpart R and in 7 CFR part 1956, subpart C in order to allow the aforementioned loans to be settled under Agency policies and procedures for debt settlement as found in 7 CFR part 1956, subpart C, and to remove the requirement to send settlements to DOJ, allowing us to use the Federal Claims Collection Standards (31 CFR parts 900-904). This will permit the Agency to quickly and efficiently dispose of debt settlements. The specific changes are summarized below:

1. The Agency is proposing to modify § 1951.851(a) by adding a sentence to indicate that all debt settlement cases submitted under 7 CFR part 1951, subpart R, will be handled in accordance with 7 CFR part 1956, subpart C. The Agency is adding reference to the RMAP in the first sentence to indicate its inclusion.

2. The Agency is proposing to revise § 1951.894 to state that the debt settlement of all claims, which would now include RMAP, would be handled in accordance with 7 CFR 1956, subpart C. Specifically, the Agency is replacing the reference to Federal Claims Collection Standards, 4 CFR parts 101-105, with reference to “Subpart C of Part 1956 of this Chapter.”

3. The Agency is proposing to revise §§ 1956.101 so that debt settlement of RDLF loans, IRP loans and RMAP loans, will be under 7 CFR part 1956, subpart C (and will be handled by the Agency's Administrator) rather than under the Federal Claims Collection Standards as currently provided in the regulation.

4. The Agency is proposing to revise the introductory text to § 1956.147 to remove reference to RDLF loans and IRP loans. This is a conforming change that removes these loans from complying with the debt settlement provisions under the Federal Claims Collection Act.

For the reasons set forth in the preamble, chapter XVIII, title 7, of the Code of Federal Regulations is amended as follows:

History

On November 19, 2014 the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class E en route domestic airspace at Spokane, WA (79 FR 68809). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. One comment was received from the National Business Aviation Association in support of the proposal.

Class E airspace designations are published in paragraph 6006, of FAA Order 7400.9Y, dated August 6, 2014, and effective September 15, 2014, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.9Y, Airspace Designations and Reporting Points, dated August 6, 2014, and effective September 15, 2014. FAA Order 7400.9Y is publicly available as listed in the ADDRESSES section of this final rule. FAA Order 7400.9Y lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E en route domestic airspace extending upward from 1,200 feet above the surface at Spokane, WA. By this action, aircraft are contained while in IFR conditions under control of Seattle ARTCC by vectoring aircraft from en route airspace to terminal areas. This action enhances the safety and management of controlled airspace within the NAS.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at Spokane, WA.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

History

On December 12, 2014 the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class E airspace at the Maxwell VORTAC, Maxwell, CA (79 FR 73853). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. One comment was received from the National Business Aviation Association in support of the proposal. Subsequent to publication, the FAA found an inadvertent omission of exclusionary language regarding the 12-mile offshore territorial limit. This action makes the correction.

Class E airspace designations are published in paragraph 6006, of FAA Order 7400.9Y, dated August 6, 2014, and effective September 15, 2014, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.9Y, Airspace Designations and Reporting Points, dated August 6, 2014, and effective September 15, 2014. FAA Order 7400.9Y is publicly available as listed in the ADDRESSES section of this final rule. FAA Order 7400.9Y lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E en route domestic airspace extending upward from 1,200 feet above the surface at the Maxwell VORTAC navigation aid, Maxwell, CA. By this action, aircraft are contained while in IFR conditions under control of Oakland ARTCC by vectoring aircraft from en route airspace to terminal areas. This action enhances the safety and management of controlled airspace within the NAS.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at the Maxwell VORTAC, Maxwell, CA.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

History

On October 16, 2014 the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class E en route domestic airspace at the Rogue Valley VORTAC, Rogue Valley, OR (79 FR 62080). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. Two comments were received supporting the proposal, one from the National Business Aviation Association, and one by an anonymous individual. Subsequent to publication, the FAA found an inadvertent omission of exclusionary language regarding the 12-mile offshore territorial limit. This action makes the correction.

Class E airspace designations are published in paragraph 6006, of FAA Order 7400.9Y, dated August 6, 2014, and effective September 15, 2014, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.9Y, Airspace Designations and Reporting Points, dated August 6, 2014, and effective September 15, 2014. FAA Order 7400.9Y is publicly available as listed in the ADDRESSES section of this final rule. FAA Order 7400.9Y lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E en route domestic airspace extending upward from 1,200 feet above the surface at the Rogue Valley VORTAC navigation aid, Rogue Valley, OR. By this action, aircraft are contained while in IFR conditions under control of Seattle and Oakland ARTCCs by vectoring aircraft from en route airspace to terminal areas. This action enhances the safety and management of controlled airspace within the NAS.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at the Rogue Valley VORTAC, Rogue Valley, OR.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

History

On September 2, 2014 the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to amend the Class D and Class E airspace areas at Ernest A. Love Field, Prescott, AZ (79 FR 51920). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class D and E airspace designations are published in paragraph 5000, 6002, 6004, and 6005, respectively, of FAA Order 7400.9Y, dated August 6, 2014, and effective September 15, 2014, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.9Y, airspace Designations and Reporting Points, dated August 6, 2014, and effective September 15, 2014. FAA Order 7400.9Y is publicly available as listed in the ADDRESSES section of this final rule. FAA Order 7400.9Y lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by establishing Class E surface area airspace designated as an extension to Class D surface area within a 6-mile radius of Ernest A. Love Field, Prescott, Arizona, having a segment extending from the 6-mile radius of the airport to 11 miles southwest. Class E surface area airspace is amended by adding a segment from the 6-mile radius of the airport to 11 miles southwest. Class E airspace extending upward from 700 feet above the surface is modified to within a 18.7-mile radius of the airport; the Class E airspace area extending upward from 1,200 feet above the surface is modified to within a 22-mile radius of the airport clockwise east to west, and within a 38-mile radius of the airport to the north. Controlled airspace is necessary to accommodate RNAV (GPS) standard instrument approach procedures at the airport and enhances the safety and management of IFR operations. The geographic coordinates of the airport are updated to coincide with the FAA's aeronautical database for the respective Class D and Class E airspace areas. This action also corrects the airport name in the Class D and Class E surface area airspace descriptions from Prescott, Ernest A. Love Field to Ernest A. Love Field.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at Ernest A. Love Field, Prescott, AZ.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

History

On December 15, 2014 the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class E en route domestic airspace at the Hazen VORTAC, Hazen, NV (79 FR 74042). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. One comment was received from the National Business Aviation Association in support of the proposal.

Class E airspace designations are published in paragraph 6006, of FAA Order 7400.9Y, dated August 6, 2014, and effective September 15, 2014, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.9Y, Airspace Designations and Reporting Points, dated August 6, 2014, and effective September 15, 2014. FAA Order 7400.9Y is publicly available as listed in the ADDRESSES section of this final rule. FAA Order 7400.9Y lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E en route domestic airspace extending upward from 1,200 feet above the surface at the Hazen VORTAC navigation aid, Hazen, NV. By this action, aircraft are contained while in IFR conditions under control of Oakland ARTCC by vectoring aircraft from en route airspace to terminal areas. This action enhances the safety and management of controlled airspace within the NAS.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at the Hazen VORTAC, Hazen, NV.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

History

On November 19, 2014 the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class E en route domestic airspace at Seattle, WA (79 FR 68807). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. Two comments were received on the proposal, one from the National Business Aviation Association supporting the proposal and identifying a latitude typographical error, and one by Tim Gravelle, also identifying the same latitude typographical error. Subsequent to publication, the FAA found an inadvertent omission of exclusionary language regarding the 12-mile offshore territorial limit. These errors have been corrected in this document.

Class E airspace designations are published in paragraph 6006, of FAA Order 7400.9Y, dated August 6, 2014, and effective September 15, 2014, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.9Y, Airspace Designations and Reporting Points, dated August 6, 2014, and effective September 15, 2014. FAA Order 7400.9Y is publicly available as listed in the ADDRESSES section of this final rule. FAA Order 7400.9Y lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E en route domestic airspace extending upward from 1,200 feet above the surface at Seattle, WA. By this action, aircraft are contained while in IFR conditions under control of Seattle ARTCC by vectoring aircraft from en route airspace to terminal areas. This action enhances the safety and management of controlled airspace within the NAS.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at Seattle, WA.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

History

On November 26, 2014, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class E airspace at Harriman-and-West Airport, North Adams, MA, (79 FR 70477). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9Y dated August 6, 2014, and effective September 15, 2014, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.9Y, Airspace Designations and Reporting Points, dated August 6, 2014, and effective September 15, 2014. FAA Order 7400.9Y is publicly available as listed in the ADDRESSES section of this final rule. FAA Order 7400.9Y lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E airspace extending upward from 700 feet above the surface within a 9.5-mile radius of Harriman-and-West Airport, North Adams, MA. Controlled airspace is required to support the new RNAV (GPS) standard instrument approach procedures for Robertson Field Airport.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at Harriman-and-West Airport, North Adams, MA.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

History

On November 19, 2014 the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class E en route domestic airspace at Bend, OR (79 FR 68808). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. One comment was received from the National Business Aviation Association in support of the proposal. Subsequent to publication, the FAA found an inadvertent omission of exclusionary language regarding the 12-mile offshore territorial limit. This action makes the correction.

Class E airspace designations are published in paragraph 6006, of FAA Order 7400.9Y, dated August 6, 2014, and effective September 15, 2014, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.9Y, Airspace Designations and Reporting Points, dated August 6, 2014, and effective September 15, 2014. FAA Order 7400.9Y is publicly available as listed in the ADDRESSES section of this final rule. FAA Order 7400.9Y lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E en route domestic airspace extending upward from 1,200 feet above the surface at Bend, OR. By this action, aircraft are contained while in IFR conditions under control of Seattle ARTCC by vectoring aircraft from en route airspace to terminal areas. This action enhances the safety and management of controlled airspace within the NAS.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at Bend, OR.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

Background

On April 9, 2014, the Bureau of Industry and Security (BIS) published a proposed rule (79 FR 19552) (hereinafter, the “April 9 rule”) to revise the support document requirements of the Export Administration Regulations (EAR). This proposed rule was part of BIS's retrospective regulatory review being undertaken under Executive Order 13563, which requires each agency to “periodically review its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.” The EAR's support document requirements are largely premised on the Import Certificate/Delivery Verification (IC/DV) system. As described in the proposed rule, the IC/DV system, while intended to prevent diversion and increase awareness among participating countries of potential enforcement concerns, has limited utility today and imposes unnecessary burdens on license applicants and BIS.

To further the aims of Executive Order 13563, BIS proposed to streamline and clarify the support document requirements as well as reduce unnecessary burdens for license applicants by removing the requirement to obtain International Import Certificates (ICs) for applications and by increasing the value threshold for requiring a Statement by Ultimate Consignee and Purchaser for an application. In addition, BIS proposed to eliminate the agency's participation in issuing United States ICs, ICs with triangular transaction stamp, and DV certificates. The proposals to change BIS's participation in issuing U.S. ICs and DVs will be addressed in a subsequent final rule. In addition, any other changes that substantively affect information collection burden hour estimates under the Paperwork Reduction Act will also be addressed in the subsequent, final rule.

In response to the proposed rule, BIS received eight public comments. Generally, commenters believed that the proposed rule provided greater clarity and flexibility, streamlined requirements, and ended outdated and ineffective requirements under the IC/DV system. However, to address public comments and to further the aims of Executive Order 13563, BIS is making additional changes to the proposed rule, as described herein. This final rule changes the implementation of the IC/DV system. That system is not addressed in the Wassenaar Arrangement Initial Elements nor is there an applicable U.S. statutory requirement for the system. A summary of the public comments and changes made to the proposed rule are addressed below.

The April 9 rule would have eliminated the requirement to obtain an IC in conjunction with a BIS license application, and instead proposed the imposition of a requirement to obtain a Statement by Ultimate Consignee and Purchaser for certain license applications for commodities destined for countries (other than the People's Republic of China (PRC)) or territories not in the “Americas” (as proposed to be defined in § 772.1). This final rule maintains the elimination of Import Certificates but also limits the scope of applications requiring a Statement by Ultimate Consignee and Purchaser.

Commenters largely supported the proposal to eliminate the requirement to obtain ICs. They stated that the proposal would eliminate an outdated, burdensome requirement that creates red tape and obstacles for U.S. exporters that are not faced by exporters in other countries. One commenter, however, disagreed and stated that some U.S. exporters and their foreign affiliates have established timely procedures for obtaining ICs. Further, the commenter stated that the IC notifies the government that items controlled for national security reasons are being imported and that the government commits to take responsibility for any subsequent exports of the items. While some U.S. exporters may have developed efficient procedures for handling the IC requirement, such procedures do not justify the imposition of a burdensome requirement that provides little utility. In addition, BIS believes that the commenter overstates the purpose of the IC requirement. The IC only notifies the government of the importing country that the national security controlled items are planned to be imported into the country. Also, it is not the role of the government to take responsibility for subsequent exports; under U.S. law, the exporter must comply with any applicable requirements for the subsequent export of items subject to the EAR or other applicable regulations.

While commenters largely supported the elimination of the IC requirement, some commenters expressed concerns about requiring a Statement by Ultimate Consignee and Purchaser for commodities controlled for national security reasons valued over $50,000 and destined for a location not in the PRC or the “Americas.” Three commenters stated that the proposed requirement would still be more restrictive than the International Traffic in Arms Regulations (ITAR), 22 CFR parts 120-130. The commenters stated that under the ITAR, the DSP-83 Nontransfer and Use Certificate is the equivalent support document for license applications to the Department of State's Directorate of Defense Trade Controls (DDTC), and the DSP-83 is only required for significant military equipment (SME), as defined in § 120.7 of the ITAR. Thus, for 600 series items and 9x515 spacecraft items transitioning from the USML to the CCL, the proposed support document requirements would actually be more burdensome under the EAR than the ITAR. Further, one commenter also stated that requiring a Statement by Ultimate Consignee and Purchaser would prevent industry in allied countries from optimizing procurement of U.S. equipment for “long lead items or bulk procurement” in advance of identifying a customer. The commenter stated that such capability is necessary for affordability and timeliness of space and military assets for U.S. allies and that imposing a more strict support document requirement than the ITAR is inconsistent for items that have been deemed to not require the strictest controls of the ITAR.

In order to address these concerns, commenters provided different suggestions. Two commenters suggested requiring a Statement by Ultimate Consignee and Purchaser for items on the Wassenaar Very Sensitive List. One commenter suggested the requirement be tied to countries in Country Group D:5 and that the value threshold be raised to $1 million. Also, one commenter suggested amending the scope of locations subject to the requirement by pointing out that many allied countries, such as those in NATO, would be subject to the requirement as they are not part of the exclusion for the “Americas.”

BIS agrees that the EAR should not impose additional or more burdensome requirements than the ITAR, and has repeated this assertion in many Federal Register publications pertaining to Export Control Reform (see e.g., Proposed Revisions to the Export Administration Regulations: Implementation of Export Control Reform; Revisions to License Exceptions After Retrospective Regulatory Review, 77 FR 37524 (June 21, 2012); Revisions to the Export Administration Regulations: Initial Implementation of Export Control Reform, 78 FR 22660 (Apr. 16, 2013)).

The support document requirements should not hinder the benefits articulated under ECR by imposing more strict requirements for items moving to the EAR that do not warrant the controls of the ITAR. In addition, non-munitions items subject to the EAR should not have more onerous support document requirements than those items providing a critical military or intelligence capability that are listed on the USML. Consequently, in addition to removing the IC requirement, BIS is amending § 748.11(a)(1) to limit the requirement to obtain a Statement by Ultimate Consignee and Purchaser to commodities that are “600 Series Major Defense Equipment.” BIS agrees with the approach stated by one commenter that the requirement should match the ITAR in focusing on the type of item rather than situational parameters, such as value. BIS believes that using “600 Series Major Defense Equipment” best follows this approach and avoids requiring greater support document requirements for items subject to the EAR than items subject to the ITAR.

With this change to the requirement for providing a Statement by Ultimate Consignee and Purchaser, BIS is also eliminating the proposed $50,000 value threshold and the exclusion for locations in the “Americas.” All commodities that are “600 Series Major Defense Equipment,” as defined in § 772.1, will require a Statement by Ultimate Consignee and Purchaser to any destination other than the PRC, regardless of value. However, BIS will maintain discretion to require applicants to obtain a Statement by Ultimate Consignee and Purchaser for a license application that would not otherwise require one. Also, BIS may add, as a condition on a license, a requirement to obtain a Statement by Ultimate Consignee and Purchaser or a purchase order prior to shipment. Such requests may be common for license applications involving items controlled for Nuclear Nonproliferation, Chemical and Biological Weapons, or Missile Technology reasons to countries in Country Group D:2, D:3, or D:4, respectively. Additional changes to the proposed rule on the requirement to obtain a Statement by Ultimate Consignee and Purchaser are reflected below under changes to § 748.11.

Because this final rule removes the requirement to obtain an IC in conjunction with a license application submitted to BIS, this final rule also removes the requirement to obtain a DV in conjunction with a license application. This is reflected in the removal of text in prior § 748.13 and Supplement No. 4 to part 748. BIS did not receive any public comments on this topic.

The April 9 rule proposed to revise § 748.6(a) to provide greater clarity on general instructions for license applications and support documents, reference the specific requirements for support documents in proposed §§ 748.9 through 748.13, and refer to a new chart in Supplement No. 4 to part 748. BIS did not receive any public comments on § 748.6, and this final rule adopts that language with one exception. Because this final rule removes the proposed chart in Supplement No. 4 (as further explained herein), the sentence referencing the chart has been deleted.

In the proposed rule, § 748.9 described the scope of support document requirements for license applications; the type of applications requiring a support document (i.e., PRC End-User Statement, Statement by Ultimate Consignee and Purchaser, or Firearms Convention (FC) Import Certificate); exceptions to such requirements; content requirements; recordkeeping requirements; and other general requirements. This final rule largely adopts the description set forth in § 748.9 with additional modifications based on public comments and other changes, as described below.

Two commenters requested that BIS insert a clarifying note that applicants are not required to obtain support documents from end users. BIS did not accept this recommendation because the proposed rule did not include a requirement that applicants must obtain a support document from end users. However, if an end user is also an ultimate consignee on the license application, then that end user would be subject to applicable support document requirements. In addition, BIS notes that the agency may request additional information from any party listed on the license application, including end users.

Two commenters recommended that BIS delete the phrase, “for certain transactions” from proposed § 748.9(b)(1), which described the support document requirements for license applications involving the PRC. BIS does not accept this recommendation as not all license applications involving the PRC require a PRC End-User Statement. Thus, the qualifying phrase is needed. With respect to the scope of the requirements for a Statement by Ultimate Consignee and Purchaser and for an FC Import Certificate, two commenters recommended that the Organization of American States (OAS) be made new Country Group A:7 and that “Americas” be replaced with “destinations not identified in Country Group A:7.” BIS rejects these recommendations as the term “Americas” is removed under this final rule due to the changes to requirements for the Statement by Ultimate Consignee and Purchaser, as described above. Further, since the OAS is only used in conjunction with one requirement under the EAR, BIS believes it is inappropriate to make it a Country Group so this final rule continues to list the countries in § 748.12.

One commenter pointed out that proposed § 748.9(b)(1)-(b)(3) used the term “ultimately destined” with respect to the PRC End-User Statement and Statement by Ultimate Consignee and Purchaser, but only used “destined” for the FC Import Certificate. Under this final rule, this wording no longer appears in new § 748.9(b) because the description for the requirements to obtain a support document has been further streamlined. However, this final rule only uses “destined” in §§ 748.10(a), 748.11(a), and 748.12(a) when describing the requirements for the three support documents.

One commenter stated that the final rule should remove any ambiguity over whether support documents must be submitted as part of the license application, and the commenter cited to differing requirements in § 748.9(f), (g), and (i). Additionally, with respect to PRC End-User Statements, two commenters recommended that proposed § 748.10(d)(1) be revised to allow for applications requiring a PRC End-User Statement to be submitted to BIS prior to the PRC's issuance of the statement, and condition the license such that no items may be shipped under the license until the statement is obtained by the applicant.

BIS agrees that the final rule should remove ambiguity on this topic, but BIS only partially accepts the recommendation regarding the PRC End-User Statement. This final rule adds new § 748.9(e)(1), which applies to all support documents required under the EAR. Unless BIS informs an applicant that a support document must be submitted with a specific application, the applicant may submit an application prior to receipt of a copy of the support document. However, rather than conditioning the license, new § 748.9(e)(1) provides that the license holder may not ship items authorized on the license until obtaining a copy of the support document. Thus, for those applications BIS believes require support documentation in addition to that specified in part 748, BIS will have discretion to consider a support document contemporaneous with the license application. For all other applications, applicants may obtain the support document after submitting the application. However, applicants may not ship prior to receipt of a copy of the support document, and they must retain the original or a copy of the document in conformance with the recordkeeping requirements of the EAR (see further below for a discussion on allowing retention of copies).

One commenter noted that there was no exception to the support document requirements when the U.S. Government is an end user in a foreign country in proposed § 748.9(d)(1). BIS agrees that for transactions for which License Exception GOV is not available, the U.S. Government should not have to supply a support document. Therefore, this final rule adds a new exception in new § 748.9(c)(1) for when the purchaser or ultimate consignee is an “Agency of the United States Government,” as defined in § 740.11(b)(1). If another party listed on the license application is an ultimate consignee or purchaser and does not qualify for an exception listed under new § 748.9(c)(1), then such party is still subject to any applicable support document requirements.

One commenter requested guidance on a situation where a support document may be required under proposed § 748.9(d)(1)(i), which described the exception to support document requirements for foreign governments excluding the PRC. Under this final rule, if a license application involving the export of 600 series MDE lists a non-governmental entity as a purchaser and a foreign government agency (excluding an agency of the PRC) as an ultimate consignee and end user, then a Statement by Ultimate Consignee and Purchaser would be required from the purchaser but not the ultimate consignee. One commenter questioned whether the English translation requirement for proposed § 748.9(e)(1), should be included in that section. BIS confirms that the English translation requirement should be in § 748.9 as the requirement applies to all support documents.

For proposed § 748.9(f)(1), two commenters stated that obtaining an electronic copy of a support document should suffice and thus the requirement to obtain an original support document should be removed. BIS agrees and has removed references to obtaining an original version of the support document throughout this final rule. Two commenters recommended striking the reference to “import certificate” in proposed § 748.9(h). Proposed § 748.9(h) applied to the grace period for complying with the support document requirements following a regulatory change. Given that this final rule removes the requirement to obtain an IC for any license application, BIS is changing the reference from “import certificate” to “FC Import Certificate” since future regulatory changes may affect the requirements for that support document.

To further streamline and clarify the support document requirements, BIS is making additional changes to this section. First, since the final rule further simplifies the support document requirements, BIS eliminated much of the text in new § 748.9(b) to eliminate redundancy. The specific requirements triggering a support document requirement are now fully described in the applicable section applying to the specific support document. Also, this final rule adds a new note to § 748.9(b) to make more clear that BIS may request that an applicant obtain a support document for any application.

This final rule also removes the distinction for support document requirements applying to reexport and in-country transfer license applications. This change simplifies the requirements, and given the changes for ICs and Statements by Ultimate Consignee and Purchaser described above, the only impact would be to require a Statement by Ultimate Consignee and Purchaser for 600 series MDE destined for a country not in Country Group D:1 or E:1. New § 748.9(d)(2)(i), which addresses responsibility for full disclosure, has been revised from the proposed rule. As proposed, that provision indicated that support documents do not have to be submitted to BIS as part of the application unless the applicant is informed by BIS to do so. In addition to the revisions described above, that section has also been updated to provide that information contained in a support document obtained after submission of a license application and not submitted to BIS as part of the application cannot be construed as modifying the specific information supplied in a license application or a license. This change is made in accordance with BIS's policy on license conditions, which began on December 8, 2014. New § 748.9(h)(2) has been revised to indicate BIS retains discretion to require additional information for applications filed during the 45-day grace period for complying with the support document requirements.

As part of the simplification effort, this final rule also harmonizes certain support document requirements that varied slightly among the documents. New § 748.9(e)(2) describes the requirements to follow in SNAP-R for license applications requiring a support document, regardless of whether BIS has informed the applicant that the document must be submitted as part of the application. Further, new § 748.9(f) describes the recordkeeping requirements for all support documents, and this final rule removes references to original document requirements, random sampling of documents (which is redundant of other sections of the EAR that apply to BIS's ability to request documents), and returning support documents to foreign importers (which is now obsolete due to the ability to retain copies).

The proposed rule described the requirements for obtaining a PRC End-User Statement under § 748.10. This final rule largely adopts the requirements under the proposed rule, with the following changes described below.

Two commenters stated that it was unclear whether the value threshold requirement for any commodity requiring a license for any reason on the Commerce Control List (CCL) applies to one unit, line item value, or total license value in proposed § 748.10(a)(3). That value threshold requirement applies to the aggregate value for all commodities listed in the application that require a license to the PRC based on any reason on the CCL. To make this requirement clearer, BIS is revising that description, under new § 748.10(a)(3), to indicate that the license application includes “any commodity(ies) requiring a license to the PRC for any reason on the Commerce Control List, and the total value of such commodity(ies) requiring a license exceeds $50,000.”

One commenter recommended removing the last sentence in proposed § 748.10(b)(1) that required obtaining an original PRC End-User Statement. As described above, BIS accepts this comment throughout this final rule and has revised the text accordingly. Two commenters suggested putting the contact information for the PRC's Ministry of Commerce (MOFCOM) on the BIS Web site, which would be referred to by the EAR. BIS has added a reference to the BIS Web site in new § 748.10(b)(2) to obtain the current contact information for MOFCOM.

Two commenters stated that proposed § 748.10(d)(5), which required that the first application used in conjunction with a PRC End-User Statement be submitted within six months from the date the statement was signed does not take into account the impact of multi-year programs and MOFCOM's reluctance to issue new statements until all items identified in the original statement have been shipped. In place of the six-month validity period, the commenters requested that BIS use a validity period based on whether the quantities identified on the statement have been shipped. BIS accepts this recommendation, which is addressed in new § 748.10(d)(3). To reflect this change, BIS has also amended new § 748.10(d)(1), which describes the requirements for using a PRC End-User Statement for multiple applications.

One commenter recommended removing the requirement under proposed § 748.10(e)(1) to obtain an original support document, and two commenters suggested eliminating the requirement under proposed § 748.10(e)(2), which described the requirements for returning a PRC End-User Statement to the foreign importer. As previously addressed, BIS is removing the requirement to obtain an original support document, which makes the text in proposed §§ 748.10(e)(1)-(e)(2) and 748.9(f)(2) obsolete. Thus, this final rule removes those paragraphs. All recordkeeping requirements for PRC End-User Statements, as well as the other support documents, are now reflected in new § 748.9(f).

To further streamline and clarify the support document requirements, BIS is making additional changes to this section. First, all information regarding corrections, additions, or alterations has been moved to new § 748.10(d)(2), including a revised requirement that if the PRC End-User Statement contains any inaccuracies, then the applicant should note any necessary corrections in a statement on file with the applicant rather than submitting such a statement with the application. In addition, the requirement to provide a certification on quantities of items in Block 24 of the application when using a PRC End-User Statement with multiple applications has been removed. This requirement is redundant and unnecessary. Also, this rule revises the wording in new § 748.10(a)(1) and (a)(2) to clarify that the requirement for a PRC End-User Statement applies to 6A003 cameras and computers if there are any license requirements under the EAR for those commodities to the PRC, not just for reasons on the Commerce Control List. This revised text conforms to the prior requirements for PRC End-User Statements. Other changes to new § 748.10, including to recordkeeping and retention of original documents, are addressed above under new § 748.9.

The proposed rule put forward new requirements for obtaining a Statement by Ultimate Consignee and Purchaser. The proposed rule increased the value threshold for requiring a Statement by Ultimate Consignee and Purchaser from $5,000 to $50,000, and it proposed to require the statement in place of an IC for most license applications that currently require an IC. As addressed above, commenters expressed concerns that these changes would make the support document requirements of the EAR more burdensome than the ITAR. Consequently, this final rule limits the requirement to obtain a Statement by Ultimate Consignee and Purchaser to exports, reexports, or in-country transfers of “600 Series Major Defense Equipment,” regardless of value and destination (excluding the PRC). In addition to the comparison to the ITAR's support document requirements, commenters also raised additional concerns.

One commenter suggested that the permissive use of a Statement by Ultimate Consignee and Purchaser for the PRC, as described in proposed § 748.11(a)(2), be moved to § 748.10 so that all support document requirements pertaining to the PRC reside in one section. While BIS understands the concern, the agency did not accept this recommendation because the support document requirements are organized by document rather than by destination. However, this final rule adds a new note to new § 748.10(a) to provide a cross-reference to new § 748.11(a)(2).

Two commenters requested clarification or examples on proposed Note 2 to § 748.11(a). That proposed note, which is retained in this final rule, states that BIS has discretion to require a Statement by Ultimate Consignee and Purchaser for an application even though the EAR would not normally require one. For example, under this final rule, BIS may require a statement for an application not involving the PRC for items that are not “600 Series Major Defense Equipment.” BIS may make this request when additional information is needed to help verify the bona fides of a party involved in the transaction.

One commenter expressed concerns regarding proposed § 748.11(b)(5)(iii), which, inter alia, requires that the consignee and/or purchaser “promptly send a new statement to the applicant if changes in the facts or intentions contained in the statement(s) occur after the statement(s) have been forwarded to the applicant.” The commenter stated it was unclear which party is responsible for reporting changes to the license applicant, especially if the changes are a result of the actions of a different party involved in the transaction. BIS notes that an individual party is responsible for ensuring that its representations are true and correct to the best of the party's knowledge. Further, all parties participating in a transaction subject to the EAR must comply with the EAR, including the requirement that a party not proceed with a transaction with knowledge that a violation has occurred or is about to occur as a result of actions by another party.

Two commenters recommended moving proposed § 748.11(c), which describes the content requirements of the statement, to a new supplement to make § 748.11 easier to read. BIS accepts this recommendation and moved the information that was in proposed § 748.11(c) to newly revised Supplement No. 3 to part 748.

One commenter stated that the Form BIS-711 and the information required for a letter on company letterhead vary in the following ways: The letter allows for naming any country while the BIS-711 limits action to a single country (the country of residence of the ultimate consignee); the letter requires indicating whether the Statement by Ultimate Consignee and Purchaser is for a single transaction or multiple transactions while the BIS-711 does not require this; the letter requires identifying the name of the license applicant while the BIS-711 does not; and the letter does not require naming a party that assisted in preparing the letter while the BIS-711 does so in block 5. With respect to the country scope of the letter versus the BIS-711, BIS notes that the BIS-711 is not limited to a single country in that boxes B and D under block 2 allow for the identification of other countries, so BIS believes no changes are necessary to either the letter or BIS-711 requirements. The additional issues identified by the commenter will be addressed in a different rule. BIS will evaluate these concerns as part of the agency's separate review of Information Collection 0694-0021 under the Paperwork Reduction Act, which authorizes BIS to collect the information described in § 748.11. Any substantive changes to Information Collection 0694-0021 will be finalized under an additional rule.

Two commenters stated that the validity period for a Statement by Ultimate Consignee and Purchaser to be used for multiple license applications should be increased from two years to four years, which would correlate with the new license validity period in the EAR. BIS accepts this recommendation, which is reflected in new § 748.11(d)(1)(ii) and Supplement No. 3 to part 748. One commenter also suggested that the name “Statement by Ultimate Consignee and Purchaser” be changed to “Recipient Statement” to better identify the appropriate parties to make the relevant representations on the document. BIS does not accept this recommendation as part of this final rule. While using the term “recipient” would provide greater flexibility, it may also increase ambiguity since “recipient” is not a defined term, unlike both “ultimate consignee” and “purchaser.” BIS will, however, monitor the effects this final rule will have on support document requirements and will re-evaluate if further clarifications or changes are warranted.

To further streamline and clarify the support document requirements, BIS is making additional changes to this section. First, the term “sub-assemblies” has been replaced with “components” under new § 748.11(a)(2) since “components” is a defined term in part 772 and reflects the intent of the scope of “sub-assemblies.” Also, new § 748.11(d) has been revised to extend the validity period by allowing an applicant to submit the first license application within one year from the date the statement was signed rather than the prior six months. This change reflects the increased license validity period for BIS licenses and DDTC's practice of allowing purchase orders for DSP-5 licenses to be used within one year.

The proposed rule made no substantive changes to the scope of the support document requirements for firearms and related commodities, but it did propose changing certain submission requirements to recordkeeping requirements and clarifying the name of the support document as a Firearms Convention (FC) Import Certificate. BIS did not receive any public comments specific to the FC Import Certificate requirements, and this final rule largely adopts the proposed requirements in § 748.12, as well as references to the revised name in § 742.17. However, to further clarify and streamline the proposed rule, BIS is making additional changes in this final rule.

This final rule revises new § 748.12(b)(1) to reflect that obtaining a copy of the FC Import Certificate or equivalent official document is permissible and that the application may be submitted prior to receipt of the original or copy. New § 748.12(b)(2) has been revised to incorporate text on the procedure to follow if the government of the importing country will not issue a document; this information was previously in proposed § 748.12(d)(1)(ii). New § 748.12(d)(2) has been revised to incorporate similar wording in prior sections addressing alterations, and new § 748.12(d)(3) has been revised to more closely harmonize, to the extent possible, the validity period on an FC Import Certificate (or equivalent official document) to that of a Statement by Ultimate Consignee and Purchaser. Unless the Certificate or equivalent official document has an expiration date, the new validity period will be four years rather than the prior limit of one year. Multiple license applications may be submitted using the same Certificate or equivalent official document so long as the document is still valid.

The proposed rule suggested moving the information on granting exceptions to the support document requirements into § 748.13 and made no substantive changes to the existing text, which was previously in § 748.12(c) and (d). One commenter believed that the EAR's requirements for granting an exception are too onerous, and two commenters suggested replacing the process with a requirement for the applicant to keep a letter on file or provide such letter with the application describing why a required support document could not be obtained. BIS believes that a recordkeeping requirement would not be sufficient for utilizing an exception. However, this final rule revises new § 748.13 to streamline the process by requiring that information supporting the request be in or referred to in Block 24 of the application. Thus, a separate letter is not required. Additionally, this final rule revises new § 748.13 to give the agency greater discretion on adjudicating such requests.

Two commenters believed that the table in proposed Supplement No. 4 to part 744, which provided informal guidance on support document requirements, was confusing; one commenter believed that the proposed table was helpful. Because of changes described above to the requirements for obtaining a Statement by Ultimate Consignee and Purchaser, BIS believes that the support document requirements are sufficiently clear without the need for the table. Thus, this final rule removes the proposed table.

One commenter requested that BIS clarify the definition of “ultimate consignee” since it affects which party must fill out the Statement by Ultimate Consignee and Purchaser. The commenter further proposed a new definition for the term. BIS does not accept this comment as it is outside the scope of the proposed rule. The proposed changes to the support document requirements were premised on the existing definition of “ultimate consignee.” Moreover, any changes to the definition of that term should go through the proposed rulemaking process. Accordingly, at this time, BIS does not believe that such a proposal is warranted.

One commenter recommended that BIS add and define the term “support document” in part 772 to avoid inconsistency with the existing definition of “export control document.” BIS does not accept this recommendation. Support documents already fall under the definition of “export control document,” and BIS believes that new §§ 748.6(a)(3) and 748.9(a) provide sufficient guidance to applicants on the use of the term “support documents.”

Finally, due to the removal of Import Certificate and Delivery Verification requirements, as well as the revised name for FC Import Certificates, this rule finalizes the references to support document names in § 762.2.

Since August 21, 2001, the Export Administration Act of 1979, as amended, has been in lapse. However, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as amended by Executive Order 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013), and as extended by the Notice of August 7, 2014, 79 FR 46959 (August 11, 2014) has continued the EAR in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Export Administration Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222 as amended by Executive Order 13637.

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This final rule is part of BIS's retrospective regulatory review being undertaken under Executive Order 13563. This rule has been determined to be not significant for purposes of Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to respond to, nor is subject to a penalty for failure to comply with, a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid OMB control number. This final rule affects two collection numbers: Statement by Ultimate Consignee and Purchaser (0694-0021) and Import Certificates And End-User Certificates (0694-0093).

This final rule amends the requirements for support documents required in conjunction with a license application. Collection number 0694-0093 addresses Import Certificates and End-User Certificates, changes to Import Certificates and End-User Certificates, exception requests to Import Certificates and End-User Certificates, Delivery Verifications, exception requests to Delivery Verifications, and related recordkeeping. This final rule eliminates the requirement for obtaining a Delivery Verification in conjunction with a license application submitted to BIS. This results in an annual reduction in burden of 361 hours for Delivery Verifications and 0.5 hours for Delivery Verification exception requests. Also, this rule eliminates the requirement to obtain an Import Certificate in conjunction with a license application. This change results in the reduction of the following annual burden hour estimates: 354.5 hours for preparing the Import Certificate, 23.6 hours for recordkeeping related to the Import Certificate, 99 hours for changes to Import Certificates, and 7 hours for Import Certificate exception requests.

The changes to support documents required in conjunction with a license application also impact collection number 0694-0021, which addresses the Statement by Ultimate Consignee and Purchaser. This final rule limits the requirement to obtain a Statement by Ultimate Consignee and Purchaser to license applications involving “600 Series Major Defense Equipment,” as defined in part 772 of the EAR. Since Export Control Reform was initially implemented in October 2013, BIS has not received an application to export, reexport, or transfer (in-country) “600 Series Major Defense Equipment.” Therefore, BIS estimates this final rule will result in one application per year requiring a Statement by Ultimate Consignee and Purchaser. Based on the aggregate number of license applications in SNAP-R that have the entry for “Statement by Ultimate Consignee and Purchaser/BIS 711” checked, and those applications BIS believes were mistakenly checked as “Import Certificate or End User Certificate” but in fact were also Statements by Ultimate Consignee and Purchaser due to the destination of the application, BIS believes the changes in this final rule will decrease the burden hours measured under collection number 0694-0021 by approximately 1160.5 hours.

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

4. The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq., generally requires an agency to prepare an initial regulatory flexibility analysis (IRFA) for any rule subject to the notice and comment rulemaking requirements under the Administrative Procedure Act (5 U.S.C. 553) or any other statute. However, under section 605(b) of the RFA, if the head of an agency certifies that a rule will not have a significant impact on a substantial number of small entities, the RFA does not require the agency to prepare a regulatory flexibility analysis. BIS does not collect data on the size of entities that apply for and are issued export licenses. Although BIS is unable to estimate the exact number of small entities that would be affected by this rule, it acknowledges that this rule would affect some unknown number by reducing the burden of having to obtain certain support documents for certain license applications. Therefore, the impact on any affected small entities will be wholly positive. Pursuant to section 605(b), the Chief Counsel for Regulation, Department of Commerce, submitted a memorandum to the Chief Counsel for Advocacy, Small Business Administration, certifying that this final rule, will not have a significant impact on a substantial number of small entities. No comments were received on the certification and therefore no regulatory flexibility analysis is required. Pursuant to 5 U.S.C. 553(d)(1) good cause exists to waive the otherwise applicable 30 day delay in effectiveness. Because the information obtained through the pertinent support documents is collected elsewhere, there is no need for regulated entities to come into compliance with any regulatory requirements. Furthermore, there is a strong public interest in making these changes. The information contained in the support documents is collected in the license applications themselves, so there is no government or public interest in a duplicative collection. In addition, this rule decreases the burden on the regulated parties. A primary goal of the President's Export Control Reform Initiative is that the transition to jurisdiction under BIS should be no more burdensome under the EAR than the ITAR. However, under the existing regulations, the EAR's support document requirements are more restrictive than the ITAR, which control articles that provide the United States with a critical military or intelligence advantage or otherwise warrant more restrictive controls. There is no need for items subject to the EAR to have more restrictive requirements than defense articles under the ITAR. Indeed, any ongoing requirement that these documents be collected would undermine public policy goals.

There is also a public interest in moving this process along to ensure that entities that are transitioning from being regulated by the ITAR to being regulated by the EAR are not temporarily burdened by having to comply with a requirement that they did not previously have to comply with under the ITAR. For all these reasons, BIS finds good cause to waive the 30 day delay in effective date and implement this rule upon publication in the Federal Register.

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

Document Availability: In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through FERC's Home Page (http://www.ferc.gov) and in FERC's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE., Room 2A, Washington DC 20426.

From FERC's Web site on the Internet, this information is available in the eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field and follow other directions on the search page.

User assistance is available for eLibrary and other aspects of FERC's Web site during normal business hours. For assistance, contact FERC Online Support at [email protected] or toll free at (866) 208-3676, or for TTY, contact (202) 502-8659.

The Federal Energy Regulatory Commission (Commission) is issuing this notice to update filing fees that the Commission assesses for specific services and benefits provided to identifiable beneficiaries. Pursuant to 18 CFR 381.104, the Commission is establishing updated fees on the basis of the Commission's Fiscal Year 2014 costs. The adjusted fees announced in this notice are effective April 13, 2015. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget, that this final rule is not a major rule within the meaning of section 251 of Subtitle E of Small Business Regulatory Enforcement Fairness Act, 5 U.S.C. 804(2). The Commission is submitting this final rule to both houses of the United States Congress and to the Comptroller General of the United States.

The new fee schedule is as follows:

In consideration of the foregoing, the Commission amends Part 381, Chapter I, Title 18, Code of Federal Regulations, as set forth below.

1. By this final rule, the Federal Energy Regulatory Commission (Commission) is amending 18 CFR 375.203(b), which specifies the roles available to the public at the Commission's open meetings. This rule utilizes language from the Federal Communication Commission's (FCC) open meeting regulation, 47 CFR 0.602, and the Rural Telephone Bank's open meeting regulation, 7 CFR 1600.3, to clarify that the term “observe” does not include disruptive behavior. The rule also utilizes language from the FCC's open meeting regulation to clarify that communications made or presented by unscheduled presenters will not be considered by the Commission. Finally, the rule uses language similar to the Consumer Product Safety Commission's open meeting regulation, 16 CFR 1013.4, to clarify that members of the public may record open meetings in a non-disruptive manner. The rule imposes no new obligations on the public.

2. The Commission has recently experienced multiple disruptions to its open meetings from individual protesters. The disruptions have consisted of members of the public making unscheduled statements, standing up repeatedly, walking about the room, and displaying signs.

3. The Commission's regulations outline the roles available to the public at the Commission's open meetings. Specifically, 18 CFR 375.203(b) states that “[m]embers of the public are invited to listen and observe at open meetings.”

4. Like the Commission, other Federal agencies limit the conduct of the public at open meetings.1 Several other agencies have regulations on open meetings that expressly address disruptive conduct by members of the public and their removal for such conduct.2 The language of the rules of the FCC, EEOC, and the Rural Telephone Bank are particularly useful in clarifying the term “observe” as it appears in the Commission's regulations. The FCC, EEOC, and the Rural Telephone Bank define “observation” as not including disruptive conduct.3 Furthermore, the FCC's regulation addresses documents that an unscheduled presenter might seek to deliver at an open meeting, prohibiting their entry into the FCC's official record.

5. Another related topic is possible disruption stemming from observers' use of personal electronic recording devices at open meetings. The applicable provision of the Commission's regulations, 18 CFR 375.203(b), allows members of the public to record open meetings in a non-disruptive manner.4 Other agencies similarly permit the recording of open meetings in a non-disruptive manner.5 The language adopted by the Consumer Product Safety Commission, stating that “[t]o the extent their use does not interfere with the conduct of open meetings, cameras and sound-recording equipment may be used at open Commission meetings,” is particularly succinct in making this point.

6. The Commission is concerned about the impact of public disruptions on its ability to conduct open meetings. To ensure compliance with the Government in the Sunshine Act,6 it is essential that the Commission's open meetings focus on the items listed in the posted agenda. Members of the public do not have a right to disrupt open meetings or to raise extraneous issues.7

7. The Commission is issuing this Final Rule to clarify that the term “observe” used in § 375.203(b) of its regulation, has the same meaning as the term “observation” in the regulations of the FCC and the Rural Telephone Bank.8 Thus, this rule merely clarifies that the term “observe” as used in § 375.203(b) does not mean the right to disrupt.9 The rule gives the Commission no new authority, and it imposes no obligations on the public that do not currently exist. The public already has an obligation to avoid disruptive conduct at the Commission's open meetings.

8. The final rule also addresses the possibility that when disruptive conduct involves the reading of unscheduled statements, those statements could trigger potential violations of the Government in the Sunshine Act notice provisions, the ex parte communications provisions of the Administrative Procedure Act, and the Commission's ex parte communications rule, 18 CFR 385.2201. Specifically, incorporating language from Section 0.602(c) of the FCC's regulations into the Commission's regulations clarifies that disruptive statements, oral or written, will not be included in the record or considered by the Commission.

9. Finally, the Commission recognizes that its existing regulations concerning recording open meetings are unduly complex and out of date. The Commission is therefore amending its regulation to clarify that seated members of the public, or seated observers, may use electronic audio and visual recording equipment to record open meetings in a non-disruptive manner. In this regard, the Commission is utilizing language similar to that used by the Consumer Product Safety Commission.

10. Office of Management and Budget (OMB) regulations require OMB to approve certain information collection requirements imposed by agency rule.10 However, this instant Final Rule does not contain any information collection requirements. Therefore, compliance with OMB regulations is not required.

11. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.11 Issuance of this Final Rule does not represent a major federal action having a significant adverse effect on the human environment under the Commission's regulations implementing the National Environmental Policy Act of 1969. Part 380 of the Commission's regulations lists exemptions to the requirement to draft an Environmental Analysis or Environmental Impact Statement. Included is an exemption for procedural, ministerial, or internal administrative actions.12 This rulemaking is exempt under that provision.

12. The Regulatory Flexibility Act of 1980 (RFA) 13 generally requires a description and analysis of final rules that will have significant economic impact on a substantial number of small entities. This Final Rule concerns an interpretation of current Commission regulations and practices. The Commission certifies that it will not have a significant economic impact upon participants in Commission proceedings. An analysis under the RFA is not required.

13. In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through the Commission's Home Page (http://www.ferc.gov) and in the Commission's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE., Room 2A, Washington, DC 20426.

14. From the Commission's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.

15. User assistance is available for eLibrary and the Commission's Web site during normal business hours from FERC Online Support at (202) 502-6652 (toll free at 1-866-208-3676) or email at [email protected], or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659. Email the Public Reference Room at [email protected].

16. The Commission is issuing this rule as a Final Rule without a period for public comment. Under 5 U.S.C. 553(b)(3)(A), notice and comment procedures are unnecessary for “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice. . . .” This rule merely provides the public with guidance concerning the existing regulation and reminds the general public of the roles available to the public at the Commission's open meetings. The rule will not significantly affect regulated entities or the general public.

17. These regulations are effective April 13, 2015.

In consideration of the foregoing, the Commission amends Part 375, Chapter I, Title 18, Code of Federal Regulations, as follows:

I. Background

In the Federal Register of December 1, 2014 (79 FR 71156), we issued a final rule requiring nutrition labeling of standard menu items in restaurants and similar retail food establishments (the final rule). The final rule, which is codified at 21 CFR 101.11, is effective December 1, 2015.

We examined the economic implications of the final rule as required by the Regulatory Flexibility Act (5 U.S.C. 601-612) and determined that the final rule will have a significant economic impact on a substantial number of small entities. In compliance with section 212 of the Small Business Regulatory Enforcement Fairness Act (Pub. L. 104-121, as amended by Pub. L. 110-28), we are making available the SECG to explain the actions that a small entity must take to comply with the rule.

We are issuing the SECG consistent with our good guidance practices regulation (21 CFR 10.115(c)(2)). The SECG represents our current thinking on nutrition labeling of standard menu items in restaurants and similar retail food establishments. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.

This SECG refers to collections of information described in FDA's final rule that published in the Federal Register of December 1, 2014 (79 FR 71156), and that will be effective on December 1, 2015. As stated in the final rule, these collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (the PRA) (44 U.S.C. 3501-3520). In compliance with the PRA (44 U.S.C. 3507(d)), the Agency has submitted the information collection provisions of the final rule to OMB for review. FDA will publish a document in the Federal Register announcing OMB's decision to approve, modify, or disapprove the information collection provisions in this final rule. An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

Interested persons may submit either electronic comments regarding the SECG to http://www.regulations.gov or written comments to the Division of Dockets Management (see ADDRESSES). It is only necessary to send one set of comments. Identify comments with the docket number found in brackets in the heading of this document. Received comments may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday, and will be posted to the docket at http://www.regulations.gov.

Persons with access to the Internet may obtain the SECG at either http://www.fda.gov/Food/GuidanceRegulation/GuidanceDocumentsRegulatoryInformation/default.htm or http://www.regulations.gov. Use the FDA Web site listed in the previous sentence to find the most current version of the guidance.

FDA is amending the animal drug regulations to reflect approval actions for NADAs and ANADAs during November and December 2014, as listed in table 1. In addition, FDA is informing the public of the availability, where applicable, of documentation of environmental review required under the National Environmental Policy Act (NEPA) and, for actions requiring review of safety or effectiveness data, summaries of the basis of approval (FOI Summaries) under the Freedom of Information Act (FOIA). These public documents may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday. Persons with access to the Internet may obtain these documents at the CVM FOIA Electronic Reading Room: http://www.fda.gov/AboutFDA/CentersOffices/OfficeofFoods/CVM/CVMFOIAElectronicReadingRoom/default.htm. Marketing exclusivity and patent information may be accessed in FDA's publication, Approved Animal Drug Products Online (Green Book) at: http://www.fda.gov/AnimalVeterinary/Products/ApprovedAnimalDrugProducts/default.htm.

In addition, Pennfield Oil Co., 14040 Industrial Rd., Omaha, NE 68144, has transferred ownership of, and all rights and interest in, the following approved applications to Pharmgate LLC, 161 North Franklin Turnpike, Suite 2C, Ramsey, NJ 07446:

At this time, the regulations are being amended to reflect these changes of sponsorship. Following these changes of sponsorship, Pharmgate LLC will now be the sponsor of an approved application while Pennfield Oil Co. will no longer be the sponsor of an approved application. Also, Hikma Pharmaceuticals LLC, P.O. Box 182400, Bayader Wadi Seer, Amman, Jordan 11118, has informed FDA that it has changed its name to Hikma International Pharmaceuticals LLC. Accordingly, § 510.600 (21 CFR 510.600) is being amended to reflect these changes. In addition, FDA is amending § 510.600 and several sections of part 520 to reflect a correct drug labeler code for Akorn Animal Health, Inc. FDA is also amending the regulations in 21 CFR parts 520, 522, 556, and 558 to redesignate several sections to reflect alphabetical order and to make minor technical amendments. These corrections and technical amendments are being made to improve the accuracy of the animal drug regulations.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR parts 510, 520, 522, 524, 556, and 558 are amended as follows:

Section 1.6049-9 of the final regulations in this document requires a payor to report amortizable bond premium on taxable and tax-exempt debt instruments acquired on or after January 1, 2014, and acquisition premium on taxable debt instruments acquired on or after January 1, 2014. This information is required to enable the IRS to verify that a taxpayer is reporting the correct amount of interest (including OID) each year. In addition, because this information is used to report a taxpayer's adjusted basis in a debt instrument under section 6045(g), this information is required to enable the IRS to verify that a taxpayer is reporting the correct amount of gain or loss upon the sale of a debt instrument. The burden for the collection of information contained in § 1.6049-9 will be reflected in the burdens on Form 1099-INT (OMB control number 1545-0112) and Form 1099-OID (OMB control number 1545-0117) when revised to request the additional information in the regulations.

Section 1.6049-10T of the temporary regulations in this document requires a payor to report OID and acquisition premium on tax-exempt obligations acquired on or after January 1, 2017. This information is required to enable the IRS to verify that a taxpayer is reporting the correct amount of tax-exempt interest each year for alternative minimum tax and other purposes. In addition, because this information is used to report a taxpayer's adjusted basis in a debt instrument under section 6045(g), this information is required to enable the IRS to verify that a taxpayer is reporting the correct amount of gain or loss upon the sale of a tax-exempt obligation. The burden for the collection of information contained in § 1.6049-10T will be reflected in the burden on Form 1099-OID (OMB control number 1545-0117) when revised to request the additional information in the regulations.

Upon the transfer of a covered security, section 6045A and § 1.6045A-1 require the transferring broker to provide to the transferee broker a transfer statement containing certain information relating to the security. This transfer statement generally provides the transferee broker the information needed to determine a customer's adjusted basis and whether any gain or loss with respect to the security is long-term, short-term, or ordinary as required by section 6045(g). Prior to the issuance of § 1.6045A-1T in this document, a broker did not have to provide a transfer statement for a section 1256 option. In addition, a broker did not have to provide the last date on or before the transfer date that the broker made an adjustment for a particular item relating to a debt instrument. Section 1.6045A-1T, however, now requires a broker to transfer this information for a section 1256 option transferred on or after January 1, 2016, and for a debt instrument transferred on or after June 30, 2015.

The collection of information contained in § 1.6045A-1 relating to the furnishing of information in connection with the transfer of securities has been reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under control number 1545-2186. The collection of information in § 1.6045A-1T and the cross-reference notice of proposed rulemaking under § 1.6045A-1 is necessary to allow brokers that effect sales of transferred section 1256 options and debt instruments that are covered securities to determine and report the adjusted basis of these securities in compliance with section 6045(g). This collection of information is required to comply with the provisions of section 403 of the Energy Improvement and Extension Act of 2008, Division B of Public Law 110-343 (122 Stat. 3765, 3854 (2008)) (the Act). The collection of information contained in § 1.6045A-1T and the cross-reference notice of proposed rulemaking under § 1.6045A-1 is an increase in the total annual burden under control number 1545-2186. The likely respondents are brokers transferring section 1256 options and debt instruments that are covered securities.

Estimated total annual reporting burden is 3,333 hours.

Estimated average annual burden per respondent is 2 hours.

Estimated average burden per response is 4 minutes.

Estimated number of respondents is 7,500.

Estimated total frequency of responses is 200,000.

The holder of a debt instrument is permitted to make a number of elections that affect how basis is computed. To minimize the need for reconciliation between information reported by a broker to both a customer and the IRS and the amounts reported on the customer's tax return, a broker is required to take into account certain specified elections, including the election under § 1.1272-3 to treat all interest as OID and the election under section 1276(b)(2) to accrue market discount on a constant yield method, in reporting information to the customer. A customer, therefore, must provide certain information concerning an election to the broker in a written notification. A written notification includes a writing in electronic format. See § 1.6045-1(n)(5).

The collection of information contained in § 1.6045-1(n)(5) relating to the furnishing of information by a customer to a broker in connection with the sale or transfer of a debt instrument that is a covered security has been reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under control number 1545-2186. Under § 1.6045-1T(n)(11)(i)(A) of the temporary regulations in this document, unlike the rule in current § 1.6045-1(n)(5) adopted in 2013, a broker must not take into account the election under § 1.1272-3 in reporting a customer's adjusted basis in a debt instrument. Therefore, a customer is no longer required to notify the broker that the customer has made or revoked an election under § 1.1272-3. This change represents a decrease in the total annual burden under OMB control number 1545-2186. In addition, under § 1.6045-1T(n)(11)(i)(B), a broker must take into account the election under section 1276(b)(2) unless the customer timely notifies the broker that the customer has not make the election. The temporary regulations reverse the assumption in current § 1.6045-1(n)(5) adopted in 2013. Because the section 1276(b)(2) election results in a more taxpayer-favorable result than the default ratable method for accruing market discount in most cases, it is anticipated that more customers will want to use this method and these customers will no longer need to notify their brokers that they have made the election. As a result, this change represents a decrease in the total annual burden under OMB control number 1545-2186.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by the Office of Management and Budget.

Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by section 6103.

Section 6045 of the Internal Revenue Code (Code) generally requires a broker to report gross proceeds upon the sale of a security. Section 6045 was amended by section 403 of the Act to require the reporting of adjusted basis for a covered security and whether any gain or loss upon the sale of the security is long-term or short-term. In addition, the Act added section 6045A of the Code, which requires certain information to be reported in connection with a transfer of a covered security to another broker, and section 6045B of the Code, which requires an issuer of a specified security to file a return relating to certain actions that affect the basis of the security. Section 6049 of the Code requires the reporting of interest payments (including accruals of OID treated as payments).

On November 25, 2011, the Treasury Department and the IRS published in the Federal Register (76 FR 72652) proposed regulations (REG-102988-11) relating to information reporting by brokers, transferors, and issuers of securities under sections 6045, 6045A, and 6045B for debt instruments, options, and securities futures contracts (the 2011 proposed basis reporting regulations). On April 18, 2013, the Treasury Department and the IRS published in the Federal Register (TD 9616 at 78 FR 23116) final regulations under sections 6045, 6045A, and 6045B (the 2013 final basis reporting regulations). A number of commenters on the 2011 proposed basis reporting regulations requested that the rules for reporting interest income associated with a debt instrument acquired at a premium be conformed to the rules regarding basis reporting for these debt instruments. Accordingly, TD 9616 also contained temporary regulations relating to information reporting for bond premium and acquisition premium under section 6049 (the 2013 temporary interest reporting regulations). A notice of proposed rulemaking cross-referencing the 2013 temporary interest reporting regulations also was published in the Federal Register on April 18, 2013 (REG-154563-12 at 78 FR 23183) (the 2013 proposed interest reporting regulations).

No written comments were received on the 2013 proposed interest reporting regulations. No public hearing was requested or held. These final regulations adopt the provisions of the 2013 proposed interest reporting regulations with certain clarifications and one conforming change for acquisition premium. These final regulations also remove the corresponding 2013 temporary interest reporting regulations.

After the publication of the 2013 final basis reporting regulations in the Federal Register, the Treasury Department and the IRS received written comments on certain provisions of the 2013 final basis reporting regulations. In response to these written comments, this document contains final and temporary regulations under sections 6045 and 6045A relating to certain aspects of the 2013 final basis reporting regulations, as discussed in this preamble.

Under section 171, a taxpayer may elect to amortize bond premium on a taxable debt instrument and must amortize bond premium on a tax-exempt debt instrument. In general, a taxpayer amortizes bond premium by offsetting the qualified stated interest allocable to an accrual period by the amount of the bond premium allocable to the accrual period. This offset occurs when the taxpayer takes the qualified stated interest into account under the taxpayer's regular method of accounting. For example, the offset occurs when a cash method taxpayer receives a payment of qualified stated interest. See section 171(e) and § 1.171-2. As a result, only the portion of qualified stated interest that is not offset by the amortized bond premium is treated as interest for federal income tax purposes. A taxpayer's basis in a debt instrument acquired with bond premium is reduced by amortized bond premium. For purposes of section 6045, a broker is required to report the adjusted basis of a taxable debt instrument that is a covered security and that is acquired with bond premium by presuming that the taxpayer has elected to amortize bond premium unless the taxpayer notifies the broker in writing that the taxpayer does not want to amortize bond premium. See § 1.6045-1(n)(5) of the 2013 final basis reporting regulations.

Under section 1272(a)(7) and § 1.1272-2, a taxpayer who purchases a debt instrument with acquisition premium is required to reduce the amount of OID includible in income each year by the amount of acquisition premium allocable to the taxable year. In general, the amount of acquisition premium allocable to a taxable year is determined using a ratable method, although a taxpayer may elect under § 1.1272-3 to determine the amount of acquisition premium allocable to a taxable year based on a constant yield method. See § 1.1272-2(b)(5). A taxpayer's basis in a taxable debt instrument purchased with acquisition premium is increased by the amount of OID included in income by the taxpayer. A taxpayer's basis in a tax-exempt debt instrument purchased with acquisition premium is increased by the amount of OID that accrues in accordance with section 1272(a), including section 1272(a)(7). For purposes of section 6045, a broker currently is required to report the adjusted basis of a debt instrument that is a covered security using the ratable method for acquisition premium, unless the taxpayer notifies the broker in writing that the taxpayer has elected to determine the amount of acquisition premium allocable to a taxable year based on a constant yield method. See § 1.6045-1(n)(5) of the 2013 final basis reporting regulations. However, as explained in Part B.2.a in this preamble, under these final regulations, for a debt instrument acquired on or after January 1, 2015, a broker must use the ratable method to determine the amount of acquisition premium allocable to a taxable year for purposes of basis reporting under section 6045, regardless of any election under § 1.1272-3.

Under section 6049(a), the Secretary may prescribe regulations to implement the reporting of interest payments, which includes the determination of the amount of a payment that is reportable interest. Similarly, under section 6049(a) the Secretary may prescribe by regulations how to determine the amount reportable as OID.

Section 1.6049-9T of the 2013 temporary interest reporting regulations was issued by the Treasury Department and the IRS in response to comments suggesting that the rules under section 6049 for reporting interest income associated with a debt instrument acquired at a premium be conformed to the rules under section 6045 for basis reporting for these debt instruments. Section 6045 generally requires a broker to report on an information return, such as a Form 1099-B, the adjusted basis of a debt instrument that is a covered security, including basis adjustments attributable to amortized bond premium or acquisition premium. See § 1.6045-1(n) of the 2013 final basis reporting regulations. However, prior to the issuance of § 1.6049-9T, interest income (including OID) on a debt instrument acquired at a premium was reported under section 6049 without adjustment for amortized bond premium or acquisition premium. Consequently, a customer generally could not reconcile the interest income reported to the customer on Form 1099-INT or Form 1099-OID, whichever was applicable, with the adjusted basis reported to the customer on Form 1099-B upon the sale of the debt instrument. The Treasury Department and the IRS issued the 2013 temporary interest reporting regulations to coordinate the information reporting for income and basis. Under section 1.6049-9T of the 2013 temporary interest reporting regulations, a broker generally is required to report to a customer any amortized bond premium and acquisition premium on a debt instrument that is a covered security. The amount reported may either be a gross number for both stated interest and amortized bond premium (or OID and amortized acquisition premium) or a net number that reflects the offset of the stated interest (or OID) by the amortized bond premium (or amortized acquisition premium).

No comments were received on the 2013 proposed interest reporting regulations and the final regulations in this document generally adopt the provisions of the 2013 temporary interest reporting regulations. However, as explained in the final paragraph of this Part A in this preamble, the final regulations contain a change for the reporting of acquisition premium for a debt instrument acquired on or after January 1, 2015, to conform to the change in this document for reporting basis adjustments for acquisition premium under section 6045.

Under these final regulations, for purposes of section 6049, a broker is required to presume that a customer has elected to amortize bond premium on taxable debt instruments unless the broker has been notified that the customer does not want the broker to take into account the election or has revoked the election. This presumption applies only to the information reported by the broker to its customer. Thus, a customer that chooses not to make the section 171 election may report interest on the customer's income tax return unadjusted for bond premium because the information reporting rules do not change the substantive rules affecting amortizable bond premium (or any of the other rules pertaining to OID or acquisition premium). If a broker is required to report amounts reflecting amortization of bond premium, the final regulations allow a broker to report either a gross amount for both stated interest and amortized bond premium or a net amount of stated interest that reflects the offset of the stated interest payment by the amount of amortized bond premium allocable to the payment.

In addition, under these final regulations, unlike the 2013 temporary interest reporting regulations, a broker must report OID adjusted for acquisition premium based on the ratable method. Under these final regulations, for a debt instrument acquired on or after January 1, 2015, even if a customer has made an election to amortize acquisition premium based on a constant yield under § 1.1272-3, a broker must not take the election into account for reporting acquisition premium. This change conforms the rules for reporting OID with the rules for reporting adjustments to basis attributable to acquisition premium described in section B.2.a of this preamble. See § 1.6045-1T(n)(11)(i)(A). As in the 2013 temporary interest reporting regulations, the final regulations allow a broker to report either a gross amount for both OID and acquisition premium, or a net amount of OID that reflects the offset of the OID by the amount of amortized acquisition premium allocable to the OID.

After the publication of the 2013 final basis reporting regulations, commenters recommended a number of changes to the 2013 final basis reporting regulations. Upon consideration of these comments, the Treasury Department and the IRS have decided to make the following changes to the 2013 final basis reporting regulations and to add broker reporting for OID on tax-exempt obligations under section 6049.

Under the 2013 final basis reporting regulations, if a debt instrument requires a payment of either interest or principal in a currency other than the U.S. dollar or if the debt instrument is issued by a non-U.S. issuer, a broker is required to report the debt instrument's basis only if the instrument is acquired on or after January 1, 2016. See § 1.6045-1(n)(2)(ii)(D) and (G). The 2013 final basis reporting regulations delayed the applicability date for these types of debt instruments to address commenters' concerns that it would take extra time to build the systems to account for the complexity of these debt instruments (for example, brokers would be required to track and retain on a daily basis foreign exchange rates for translation purposes) and, in some cases, a lack of publicly available information.

Under the 2013 final basis reporting regulations, a broker is required to report gross proceeds and basis for certain options on a debt instrument granted or acquired on or after January 1, 2014. See § 1.6045-1(m). The 2013 final basis reporting regulations apply to an option on a debt instrument that requires a payment of either interest or principal in a currency other than the U.S. dollar or an option on a debt instrument issued by a non-U.S. issuer. Because a broker is not required to report basis for these types of debt instruments until January 1, 2016, one commenter requested a delay in the applicability date for reporting gross proceeds and basis for these types of options. The commenter stated that the data collection and computation difficulties related to the underlying debt instruments also exist for options on these types of debt instruments. Responding to this comment, the final regulations in this document delay until January 1, 2016, the applicability date for reporting gross proceeds and basis for options on debt instruments that provide for one or more payments denominated in a foreign currency and options on debt instruments issued by non-U.S. issuers.

Under the 2013 final basis reporting regulations, for purposes of reporting adjusted basis to a customer, a broker must take into account only the debt-related elections specified in § 1.6045-1(n)(4). If an election is not specified in § 1.6045-1(n)(4), a broker may not take the election into account for reporting adjusted basis to a customer. In general, a broker must take into account a specified election if a customer timely notifies the broker that the customer has made the election. Two of the specified elections are the election to treat all interest as OID under § 1.1272-3 and the election to accrue market discount based on a constant yield under section 1276(b)(2).

Under § 1.1272-3, a customer may elect to treat all interest on a debt instrument, adjusted by any amortizable bond premium or acquisition premium, as OID. If this election is made, the amount of interest (including any adjustment) that accrues during a period is based on a constant yield. This election is made on a debt instrument by debt instrument basis; however, if made, the election may affect other debt instruments with amortizable bond premium or market discount held by the customer even if the debt instrument is held in a separate account with the broker or any other broker.

One commenter on the 2013 final basis reporting regulations indicated that it was extremely difficult to program the election given its effects on other debt instruments. Another commenter argued that the results of the election could mostly be achieved by a combination of other debt elections that the brokers also must support. Also, according to the commenters, the types of customers who receive Forms 1099-B, such as individuals, partnerships, or S corporations, rarely make the election to treat all interest as OID.

In consideration of the comments received and the burden that the rule in the 2013 final basis reporting regulations would impose, these temporary and proposed regulations provide that a broker may not take into account the election under § 1.1272-3 when computing basis. The temporary and proposed regulations supersede the 2013 final basis reporting regulations relating to the broker's treatment of the election under § 1.1272-3.

In general, the amount of acquisition premium allocable to a taxable year is determined using a ratable method, unless the taxpayer elects under § 1.1272-3 to determine the amount of acquisition premium allocable to a taxable year based on a constant yield method. See § 1.1272-2(b)(4) and (5). As noted in the final paragraph in Part A in this preamble, to conform the rules for reporting OID with the rules for reporting adjustments to basis attributable to acquisition premium, a broker must report acquisition premium for purposes of section 6049 on the ratable method even if a customer has made the election under § 1.1272-3 to use a constant yield method.

The temporary regulations apply to a debt instrument acquired on or after January 1, 2015. A broker may, however, rely on the temporary regulations for a debt instrument acquired on or after January 1, 2014, and before January 1, 2015.

Under section 1276(b)(2), a customer may elect to accrue market discount on a constant yield method rather than a ratable method. The election may be made on a debt instrument by debt instrument basis and must be made for the earliest taxable year for which the customer is required to determine accrued market discount. The election may not be revoked once it has been made.

The 2011 proposed basis reporting regulations attempted to simplify broker reporting by requiring brokers to compute accrued market discount by assuming that a customer had made an election under section 1276(b)(2) to use a constant yield method. The use of a constant yield method to determine accruals of market discount backloads market discount and is therefore more taxpayer favorable than the use of a ratable method in most cases. A number of commenters to the 2011 proposed basis reporting regulations indicated a desire by brokers to support debt instrument election choices made by their customers rather than rely on assumptions provided in the regulations. In response to these comments, the 2013 final basis reporting regulations instructed brokers to assume that a customer did not make an election to determine accrued market discount using a constant yield method unless the broker received timely notification from the customer that the election had been or would be made.

After the 2013 final basis reporting regulations were published, the majority of commenters reconsidered their initial objections to the 2011 proposed basis reporting regulations requirement to use a constant yield method to determine accrued market discount. These commenters indicated that the use of the constant yield method would generally result in a more favorable tax result for most Form 1099-B recipients. The commenters therefore requested that the broker assumption for calculating accrued market discount be changed so that brokers will assume that a customer has made the election unless the customer timely notifies the broker otherwise. The Treasury Department and the IRS agree with the recommendation that brokers should assume the constant yield method for accruing market discount. Accordingly, the temporary regulations supersede the assumption in the 2013 final debt reporting regulations and provide that for a debt instrument acquired on or after January 1, 2015, brokers are required to assume that a customer has elected to determine accrued market discount using a constant yield method unless the customer notifies the broker otherwise. A customer that does not want to use a constant yield method to determine accrued market discount must, by the end of the calendar year in which the customer acquired the debt instrument in an account with the broker, notify the customer's broker in writing that the customer wants the broker to use the ratable method to determine accrued market discount.

Under § 1.6045A-1(a)(1)(vi) of the 2013 final basis reporting regulations, a transferring broker is not required to provide a transfer statement for the transfer of a section 1256 option. In response to the 2013 final basis reporting regulations, a number of commenters stated that brokers often treat the transfer of a section 1256 option in the same manner as transfers of equities or debt instruments and do not treat the transferred section 1256 option contract as being novated. Thus, commenters stated that a transfer statement, as provided for by section 6045A, is necessary to ensure that a receiving broker has all relevant data required to properly report information for section 1256 options.

In response to these comments, these temporary and proposed regulations supersede the exception for section 1256 options in the 2013 final basis reporting regulations and extend transfer reporting to section 1256 options. Because the 2013 final basis reporting regulations explicitly instruct brokers not to send transfer statements for section 1256 options, it is understood that brokers may need some additional time to modify their systems to generate the required transfer statements. The temporary regulations therefore provide that a transfer statement is required for the transfer of a section 1256 option that occurs on or after January 1, 2016. The temporary regulations also list the data specific to section 1256 options that must be provided in addition to the data required for the transfer of a non-section 1256 option.

Under § 1.6045A-1 of the 2013 final basis reporting regulations, brokers are required to provide to a receiving broker certain information relating to a transfer of a debt instrument that is a covered security. The preamble to the 2013 final basis reporting regulations indicated that the information required to be provided included the date through which the transferor broker made adjustments. However, several commenters on the 2013 final basis reporting regulations noted that this item of information was not included in the list of information required to be provided in the 2013 final basis reporting regulations. The temporary and proposed regulations correct this omission by adding the date through which the transferring broker made adjustments to the list of information required to be provided upon the transfer of a debt instrument that is a covered security. This change applies to a transfer that occurs on or after June 30, 2015.

The 2013 final basis reporting regulations require a broker to report the adjusted basis for a debt instrument that is a covered security, including a tax-exempt obligation. However, under Notice 2006-93 (2006-2 CB 798), for purposes of section 6049, a broker is not required to report OID on tax-exempt obligations until further guidance is issued.

Several commenters on the 2013 final basis reporting regulations pointed out that the section 6045 rules now require a broker to compute the OID on a tax-exempt obligation to properly report adjusted basis at the time of a transfer, sale, or other disposition of a tax-exempt obligation. These commenters requested that, similar to what was done in § 1.6049-9T for amortizable bond premium and acquisition premium on a debt instrument that is a covered security, reporting of OID under section 6049 be coordinated with reporting of basis for tax-exempt obligations.

To align the rules and improve consistency between OID reporting and basis reporting, § 1.6049-10T of the temporary regulations in this document provides that a payor must report under section 6049 the daily portions of OID on a tax-exempt obligation. The daily portions of OID are determined as if section 1272 and § 1.1272-1 applied to a tax-exempt obligation. A payor must determine whether a tax-exempt obligation was issued with OID and the amount that accrues for each relevant period. In addition, OID on a tax-exempt obligation is determined without regard to the de minimis rule in section 1273(a)(3) and § 1.1273-1(d). Because the temporary regulations require the reporting of OID, payors also must report amortized acquisition premium (which offsets OID) on a tax-exempt obligation. A broker may report either a gross amount for both OID and amortized acquisition premium, or a net amount of OID that reflects the offset of the OID by the amount of amortized acquisition premium allocable to the OID. To provide payors with time to adapt their systems to report this information, the temporary regulations apply to a tax-exempt obligation acquired on or after January 1, 2017.

The final regulations under section 6049 apply to a debt instrument that is a covered security (that is, a debt instrument described in § 1.6045-1(a)(15)(i)(C) acquired on or after January 1, 2014, or a debt instrument described in § 1.6045-1(a)(15)(i)(D) acquired on or after January 1, 2016). The temporary regulations under section 6049 apply to a tax-exempt obligation acquired on or after January 1, 2017. The temporary regulations under section 6045A apply to a transfer of a section 1256 option that occurs on or after January 1, 2016, and to a transfer of a debt instrument that occurs on or after June 30, 2015. The temporary regulations under section 6045 apply to a debt instrument acquired on or after January 1, 2015. The final regulations under section 6045 apply to an option on a debt instrument that provides for one or more payments denominated in a foreign currency or a debt instrument issued by a non-U.S. issuer if the option is granted or acquired on or after January 1, 2016.

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations.

It is hereby certified that the final regulations in this document will not have a significant economic impact on a substantial number of small entities. Therefore, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is not required. It is anticipated that the requirements in the final regulations in this document will fall only on financial services firms with annual receipts greater than the $38.5 million threshold and, therefore, on no small entities.

In addition, any economic impact is expected to be minimal because a broker already is required to determine the amortization of bond premium and acquisition premium for purposes of determining and reporting a customer's adjusted basis on Form 1099-B under section 6045. The information provided to a customer on Form 1099-INT or Form 1099-OID, whichever is applicable, generally will allow a customer to reconcile the interest information reported to the customer with the adjusted basis information reported to the customer on Form 1099-B. Moreover, any effect on small entities by the rules in the final regulations flows from section 6049 of the Code and section 403 of the Act.

Therefore, because the final regulations in this document will not have a significant economic impact on a substantial number of small entities, a regulatory flexibility analysis is not required.

For the applicability of the Regulatory Flexibility Act to the other regulations in this document, please refer to the cross-reference notice of proposed rulemaking published elsewhere in this issue of the Federal Register.

Pursuant to section 7805(f) of the Internal Revenue Code, the proposed regulations preceding the final regulations in this document were submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small businesses. No comments were received. In addition, the proposed regulations accompanying the temporary regulations in this document have been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business.

The principal author of these regulations is Pamela Lew, Office of Associate Chief Counsel (Financial Institutions and Products). However, other personnel from the IRS and the Treasury Department participated in their development.

Accordingly, 26 CFR part 1 is amended as follows:

PBGC's regulations on Allocation of Assets in Single-Employer Plans (29 CFR part 4044) and Benefits Payable in Terminated Single-Employer Plans (29 CFR part 4022) prescribe actuarial assumptions—including interest assumptions—for valuing and paying plan benefits under terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions in the regulations are also published on PBGC's Web site (http://www.pbgc.gov).

The interest assumptions in Appendix B to Part 4044 are used to value benefits for allocation purposes under ERISA section 4044. PBGC uses the interest assumptions in Appendix B to Part 4022 to determine whether a benefit is payable as a lump sum and to determine the amount to pay. Appendix C to Part 4022 contains interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using PBGC's historical methodology. Currently, the rates in Appendices B and C of the benefit payment regulation are the same.

The interest assumptions are intended to reflect current conditions in the financial and annuity markets. Assumptions under the asset allocation regulation are updated quarterly; assumptions under the benefit payments regulation are updated monthly. This final rule updates the benefit payments interest assumptions for April 2015 and updates the asset allocation interest assumptions for the second quarter (April through June) of 2015.

The second quarter 2015 interest assumptions under the allocation regulation will be 2.71 percent for the first 20 years following the valuation date and 2.78 percent thereafter. In comparison with the interest assumptions in effect for the first quarter of 2015, these interest assumptions represent no change in the select period (the period during which the select rate (the initial rate) applies), a decrease of 0.18 percent in the select rate, and a decrease of 0.34 percent in the ultimate rate (the final rate).

The April 2015 interest assumptions under the benefit payments regulation will be 0.75 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. In comparison with the interest assumptions in effect for March 2015, these interest assumptions represent an increase of 0.25 percent in the immediate annuity rate and are otherwise unchanged.

PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect current market conditions as accurately as possible.

Because of the need to provide immediate guidance for the valuation and payment of benefits under plans with valuation dates during April 2015, PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.

PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.

Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).

In consideration of the foregoing, 29 CFR parts 4022 and 4044 are amended as follows:

California Department of Transportation has requested a temporary change to the operation of the California Department of Transportation highway drawbridge across the Mokelumne River, mile 3.0, at East Isleton, CA. The drawbridge navigation span provides approximately 7 feet vertical clearance above Mean High Water in the closed-to-navigation position. In accordance with 33 CFR 117.175(a), the draw opens on signal from November 1 through April 30 from 9 a.m. to 5 p.m.; and from May 1 through October 31 from 6 a.m. to 10 p.m., except that during the following periods the draw need only open for recreational vessels on the hour, 20 minutes past the hour, and 40 minutes past the hour: Saturdays, 10 a.m. until 2 p.m.; Sundays, 11 a.m. until 6 p.m.; and Memorial Day, Fourth of July and Labor Day 11 a.m. until 6 p.m. At all other times the drawbridge shall open on signal if at least 4 hours notice is given. Navigation on the waterway is commercial and recreational.

The drawspan will be secured in the closed-to-navigation position from 5 a.m. on March 2, 2015 to 10 p.m. on May 29, 2015, due to replacement of bridge deck and rehabilitation of the bridge control house. This temporary deviation has been coordinated with the waterway users. Caltrans work plan and dates have been tailored to produce the least possible impacts to waterway traffic, land traffic, businesses and potential flood response plans, while allowing the work to be performed, to ensure dependable future operation of the drawbridge. Vessels able to pass through the drawbridge in the closed position may do so at any time. The drawbridge will not be able to open for emergencies. Alternative paths for recreational vessel traffic are available via Little Potato Slough and Georgiana Slough. Alternative paths for land traffic are also available. The Coast Guard will inform waterway users of this temporary deviation via our Local and Broadcast Notices to Mariners, to minimize resulting navigational impacts.

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

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the Coast Guard did not receive the necessary information from The City of Tuscaloosa of their intentions to conduct an air show on March 26-29, 2015 over a portion of the Black Warrior River, in Tuscaloosa, AL until January 29, 2015. The City of Tuscaloosa informed Coast Guard Sector Mobile that a Federal Aviation Administration (FAA) rule prohibits all vessel traffic and persons within the exclusion area where the air craft will be flying overhead and therefore, requested a safety zone to keep all vessels out of the exclusion area that crosses over the Black Warrior River. As a result, the Coast Guard did not have sufficient time to publish an NPRM and to receive public comments prior to the event. Any delay in the effective date of this rule would be contrary to public interest because immediate action is needed to protect persons and vessels from the safety hazards associated with the planned event. Additionally, delaying the safety zone for the NPRM process would unnecessarily interfere with the Tuscaloosa Regional Air Show flight schedule, compliance with federal regulations enforced by the FAA, and potential contractual obligations.

For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register.

The legal basis and authorities for this rule are found in 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1, 1 which collectively authorize the Coast Guard to propose, establish, and define regulatory safety zones.

The City of Tuscaloosa plans to conduct an air show for the public, over a portion of the Black Warrior River in Tuscaloosa, AL on March, 26-29, 2015 between the hours of 11:30 a.m. and 5 p.m. each day.

The hazards associated with the air show poses safety hazards to both vessels and mariners while airplanes fly over the Black Warrior River, in Tuscaloosa, AL. The (Captain of the Port) COTP Mobile is establishing a temporary safety zone encompassing the waters of the Black Warrior River between Mile Marker (MM) 335.8 to MM 336.3, in Tuscaloosa, AL, to protect persons and vessels, during the air show.

The COTP anticipates minimal impact on vessel traffic due to this regulation. However, this safety zone is deemed necessary for the protection of life and property within the COTP Mobile zone.

The Coast Guard is establishing a temporary safety zone encompassing the waters of the Black Warrior River between MM 335.8 to MM 336.3, in Tuscaloosa, AL. This temporary rule will protect the safety of life and property in this area. Entry into or transiting in this zone is prohibited to all vessels, mariners, and persons unless specifically authorized by the COTP Mobile or a designated representative. The COTP may be contacted by telephone at 251-441-5976.

The COTP Mobile or a designated representative will inform the public through broadcast notice to mariners (BNM) of changes in the effective period for the safety zone. This rule will be enforced from March 26-29, 2015 at 11:30 a.m. until 5 p.m. each day.

BNMs will be used to inform waterway users of the exact enforcement times and any changes in this safety zone or its enforcement prior to the Tuscaloosa Regional Air Show.

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

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

The safety zone listed in this rule will restrict vessel traffic from entering or transiting in a small portion of the Black Warrior River, in Tuscaloosa, AL. The effect of this regulation will not be significant for several reasons: (1) This rule will only affect vessel traffic for a short duration; (2) vessels may request permission from the COTP to transit through the safety zone; and (3) impacts on routine navigation are expected to be minimal. Notifications to the marine community will be made through BNMs. These notifications will allow the public to plan operations around the affected area.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit in the affected portions of the Black Warrior River during the Tuscaloosa Regional Air Show. This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. The zone is limited in size, is of short duration and vessel traffic may request permission from the COTP Mobile or a designated representative to enter or transit through the zone.

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, above.

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 Executive Order 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 does not have implications for federalism.

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.

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

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

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

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

This rule does not have tribal implications under Executive Order 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.

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

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

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 determined that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone on a waterway during the Tuscaloosa Regional Air Show and is not expected to result in any significant adverse environmental impact as described in NEPA. This rule is categorically excluded from further review under paragraph (34)(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a categorical exclusion determination will be made available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

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

Table of Acronyms DHS Department of Homeland Security FR Federal Register NPRM Notice of Proposed Rulemaking A. Regulatory History and Information

On December 24, 2014, the Coast Guard published an NPRM in the Federal Register which listed safety zones corresponding to annual marine events in the Sector Lake Michigan zone (79 FR 77415). This NPRM included the safety zone for the St. Patrick's Day Fireworks in Manitowoc, WI (the subject of this TFR). After the 30 day comment period for the NPRM closed, the Coast Guard published a corresponding Final Rule on February 18, 2015 (80 FR 8536).

Because the Manitowoc St. Patrick's Day Fireworks would occur within 30 days of the Final Rule's publication, the Coast Guard finds that good cause exists under 5 U.S.C. 553(d)(3), for making this rule effective less than 30 days after publication in the Federal Register. Waiting for a 30 day notice period to run would be impracticable, unnecessary, and contrary to the public interest because it would inhibit the Coast Guard's ability to protect vessels from the hazards associated with the Manitowoc St. Patrick's Day Fireworks on March 13, 2015, which are discussed further below.

The legal basis for this rule is the Coast Guard's authority to establish safety zones: 33 U.S.C. 1231; 33 CFR 1.05-1, 160.5; Department of Homeland Security Delegation No. 0170.1.

On March 13, 2015, the City of Manitowoc is expected to hold its annual St. Patrick's Day fireworks display. This fireworks display will be launched from the shore of the Manitowoc River. The Captain of the Port Lake Michigan has determined that this fireworks display will pose a significant risk to public safety and property. Such hazards include falling and/or flaming debris.

With the aforementioned hazards in mind, the Captain of the Port Lake Michigan has determined that this safety zone is necessary to ensure the safety of persons and vessels during the fireworks display on the shore of the Manitowoc River. This zone is effective and will be enforced from 6 p.m. until 8:30 p.m. on March 13, 2015. The safety zone will encompass all waters of the Manitowoc River within a 200 foot radius of an approximate launch position at 44°05.492′ N, 087°39.332′ W (NAD 83).

Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Lake Michigan or her designated on-scene representative. The Captain of the Port or her designated on-scene representative may be contacted via VHF Channel 16.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small and enforced for only one day. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered the impact of this rule on small entities. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in the affected portion of the Manitowoc River on March 13, 2015.

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. 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 above.

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

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.

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.

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

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

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

This rule does not have tribal implications under Executive Order 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.

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

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

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 determined 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 and therefore it is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination for this zone have been previously completed and are available via http://www.regulations.gov under Docket Number USCG-2014-1001. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

The PATH railroad bridge across the Hackensack River, mile 3.0, at Jersey City, New Jersey, has a vertical clearance in the closed position of 40 feet at mean high water and 45 feet at mean low water. The existing bridge operating regulations are found at 33 CFR 117.723.

The waterway is transited by seasonal recreational vessels and commercial vessels of various sizes.

The bridge owner, Port Authority Trans-Hudson (PATH), requested a temporary deviation from the normal operating schedule to facilitate structural repairs, replacement of the rails and ties, at the bridge.

Under this temporary deviation, the PATH railroad bridge may remain in the closed position for twenty six weekends, between 12:01 a.m. on Saturdays through 12:01 a.m. on Mondays from April 4, 2015 through September 27, 2015.

There are no alternate routes for vessel traffic; however, the vertical clearance at the bridge is 40 feet at mean high water and 45 feet at mean low water, which should allow most vessels that normally transit this bridge to pass under the closed draws during this repair period. The bridge may be opened in the event of an emergency.

The Coast Guard will inform the users of the waterways through our Local and Broadcast Notice to Mariners of the change in operating schedule for the bridges so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.

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

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because publishing an NPRM would be impracticable as delayed promulgation may result in injury or damage to the maritime public, vessel crews, the vessels themselves, and the facilities prior to conclusion of a notice and comment period.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Delaying the effective date until 30 days after publication would be contrary to public interest, as this delay would eliminate the safety zone's effectiveness and usefulness in protecting persons, property, and the safe navigation of maritime traffic before 30 days have elapsed.

Coast Guard Captains of the Port are granted authority to establish safety and security zones in 33 CFR 1.05-1(f) for safety and environmental purposes, described in 33 CFR part 165.

The State Route 520 Bridge is the longest floating bridge in the world that has a span of 1.4 miles across Lake Washington and is supported by 33 pontoons.

The State Route 520 Bridge is being replaced, and those efforts include upgrading the bridge's floating pontoons for larger ones. During the bridge replacement project, construction barges will occasionally need to block the waterway that runs beneath the east span of the bridge. As a result, the Coast Guard is establishing a temporary safety zone which is necessary to ensure the safety of the maritime public and workers involved in the bridge construction.

The Coast Guard is establishing a safety zone which encompasses all waters within 100 yards of the east span of the State Route 520 Bridge, located on Lake Washington at the following point: 47°38′16.4″ N, 122°14′31.4″ W.

Vessels wishing to enter the zone must request permission for entry by contacting the Joint Harbor Operations Center at 206-217-6001. Once permission for entry is granted vessels must proceed at a minimum speed for safe navigation.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. This rule is not a significant regulatory action as the safety zone is both limited in size and duration.

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 certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit the affected waterway during the period mentioned. This safety zone will not have a significant economic impact on a substantial number of small entities because the zone established in this rule is limited in size and duration.

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, above.

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. 3501-3State Route 520).

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

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.

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

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

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

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

This rule does not have tribal implications under Executive Order 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.

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

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

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 determined 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 a 100 yard temporary safety zone around the east span of the State Route 520 Bridge. The rule will prevent any vessel from approaching within 100 yards of the east span during periods of construction with permission of the Captain of the Port. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES.

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

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

On October 17, 2014, EPA published proposed (79 FR 62378) and direct final (79 FR 62352) rules approving revisions to the Illinois ozone SIP submitted on January 17, 2014, concerning the State's Stage II vapor recovery program requirements in Illinois. The rules also included amendments to 35 Ill. Adm. Code Parts 201, 218, and 219 to make necessary updates and to be consistent with the repeal of the Stage II program standards. A full list of the regulatory changes submitted by Illinois for EPA approval included:

• Revisions to 35 Ill. Adm. Code 201.146 and 201.302 adopted at 38 Ill. Reg. 1005, effective December 23, 2013.

• Revisions to 35 Ill. Adm. Code 218.112, 218.583, and 218.586 adopted at 38 Ill. Reg. 1032, effective December 23, 2013.

• Revisions to 35 Ill. Adm. Code 219.105, 219.112, and 218.583 adopted at 38 Ill. Reg. 1061, effective December 23, 2013.

EPA subsequently received adverse comments on the direct final rule and withdrew it on December 10, 2014 (79 FR 73202). The proposal was not withdrawn and remained in effect. In this action we are responding to the comments and taking final action to approve Illinois' SIP revision request submitted on January 17, 2004.

EPA only received one adverse comment on the October 17, 2014, proposed approval of this Illinois rule. We are responding to the commenter who disagreed with our action.

Comment. The commenter notes that the CAA section 110(l) demonstration submitted by Illinois is flawed and the commenter claims that there are in fact significant emission reduction losses resulting from the removal of the Stage II program requirements in Illinois. The commenter further claims that the increased emissions represent a significant environmental, health and safety risk.

The commenter's primary argument that Illinois' 110(l) demonstration is “flawed” is not directly supported in the comments submitted to EPA. The commenter does not provide any specific information outlining how or why he believes the state's 110(l) demonstration is unsound, or how approving the state's action would represent a significant environmental, health and safety risk. The state's SIP submittal, on the other hand, included an extensive analysis using state specific data demonstrating that beginning in 2014, on-board refueling vapor recovery (ORVR) systems alone would start providing greater reductions in refueling emissions than the simultaneous use of ORVR and Stage II in the Chicago ozone NAA. The commenter submitted only general calculations deriving the increase in refueling emissions, but the methodology and data used for calculating the stated emissions impacts are unexplained and appear to be based on incomplete assumptions that on their own are not acceptable for SIP demonstration purposes as they do not use state specific information, including vehicle miles traveled, fuel Reid vapor pressure, meteorological data, and vehicle population. Further, the commenter's calculations do not take into consideration the incompatibility issue between some Stage II systems and ORVR systems that is being addressed through the state's Stage II decommissioning process. EPA has provided guidance to states on how the compatibility factor should be incorporated into SIP revisions for Stage II programs. Specifically, EPA issued guidance including a document entitled “Guidance on Removing Stage II Gasoline Vapor Control Programs from State Implementation Plans and Assessing Comparable Measures,” EPA457/B-12-001 (August 7, 2012). IEPA's calculations are consistent with EPA guidance and take the compatibility factor into account. After considering the commenter's concerns and re-examining Illinois' SIP submittal, including the state's responses to similar issues raised by the commenter during the state's rule development process, EPA continues to find that IEPA's modeling demonstration supports phasing out the state's Stage II vapor recovery systems and complies with the CAA section 110(l) “anti-backsliding” provisions.

EPA is approving the revisions to the Illinois ozone SIP submitted on January 17, 2014, concerning the State's Stage II vapor recovery program standards in Illinois. EPA is also approving amendments to 35 Ill. Adm. Code Parts 201, 218, and 219 to make necessary updates and to be consistent with the repeal of the Stage II program standards. EPA finds that the revisions will not interfere with any applicable requirement concerning attainment, reasonable further progress or any other applicable CAA requirement.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 12, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

Background

The rule amendment published on November 6, 2014 (79 FR 65897), corrected the mailing and hand delivery addresses for the Environmental Appeals Board in § 22.5(a) to reflect the Board's relocation. The rule also revised § 22.30(a)(1) by adding a reference to the corrected addresses in § 22.5(a). This amendment, however, inadvertently did not omit the Board's incorrect addresses in the second and third sentences of § 22.30(a)(1).

As published on November 6, 2014 (79 FR 65897), the final regulation contains an error which may prove to be misleading and is in need of clarification.

Accordingly, 40 CFR part 22 is corrected by making the following correcting amendment:

In FR Doc. 2014-26182 of November 6, 2014 (79 FR 66120), there were technical and typographical errors that are identified and corrected in the Correction of Errors section below. The provisions in this correction document are effective as if they had been included in the document published on November 6, 2014. Accordingly, the corrections are effective March 13, 2015.

On page 66184 of the preamble, we have determined that there were errors in the performance standard, achievement threshold, and benchmark values presented in the Numerical Values for the Performance Standards for the Payment Year (PY) 2017 End-Stage Renal Disease (ESRD) Quality Incentive Program (QIP) Clinical Measures Using the Most Recently Available Data table for PY 2017 of the ESRD QIP (Table 23). Specifically, the numerical values published for the Standardized Readmission Ratio clinical measure were calculated using only 6 months of data from calendar year 2013 instead of the full 12 months, as specified under our finalized policy (79 FR 66183). Therefore, we are publishing this technical correction to ensure that these numerical standards align with the finalized policies for the PY 2017 ESRD QIP.

We ordinarily publish a notice of proposed rulemaking in the Federal Register to provide a period for public comment before the provisions of a rule take effect in accordance with section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). However, we can waive this notice and comment procedure if the Secretary finds, for good cause, that the notice and comment process is impracticable, unnecessary, or contrary to the public interest, and incorporates a statement of the finding and the reasons; therefore, in the notice.

Since this rule correction is simply correcting technical and typographical errors in the preamble, but does not make substantive changes to the policies or payment methodologies that were adopted in the final rule, it is unnecessary to follow the notice and comment procedure in this instance. Therefore, we believe that we have good cause to forego notice and a period for comment.

In FR Doc. 2014-26182 of November 6, 2014 (79 FR 66120) make the following corrections:

1. On page 66184, in Table 23 “Numerical Values for the Performance Standards for the PY 2017 ESRD QIP Clinical Measures Using the Most Recently Available Data”; in the fifth row titled “Standardized Readmission Ratio” remove the existing values and add the following values in their place:

HHS is adopting regulations (45 CFR part 18) describing its official logo and seal. HHS has developed a symbol, logo, and seal that signifies the authoritativeness of the item or document to which it is affixed as an official endorsement of HHS. Pursuant to 5 U.S.C. 553(b)(A), notice and comment are not required because this rule only impacts HHS' procedure and practice. In addition, pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive notice and comment as unnecessary, because this rule is non-controversial and merely describes HHS' official symbol, logo, and seal.

HHS previously published a Direct Final Rule on April 14, 2014 (79 FR 20801). In response, HHS received two public comments. Among other things, both comments argued that the rule violated the First Amendment. The commenters argued that restrictions in the Direct Final Rule violated the First Amendment by not including exceptions for certain uses of the seal (e.g., for illustrative purposes by the media). HHS withdrew this rule on June 4, 2014 (79 FR 32170). HHS is now publishing a Final Rule that merely describes the Department's symbol, seal, and logo.

This rule does not meet the criteria for a significant regulatory action under Executive Order 12866. Thus, review by the Office of Management and Budget is not required.

This rule will not have a significant economic impact on a substantial number of small entities. Therefore, a regulatory flexibility analysis as provided by the Regulatory Flexibility Act, as amended, is not required.

This rule does not contain any collections of information subject to the Paperwork Reduction Act.

For the reasons set out in the preamble, HHS adds Part 18 to Title 45, Subtitle A, subchapter A of the Code of Federal Regulations as follows:

This final rule concerning reasonable modification of transportation provider policies and practices is based on a notice of proposed rulemaking (NPRM) issued February 27, 2006 (71 FR 9761). The NPRM also concerned several other subjects, most notably nondiscriminatory access to new and altered rail station platforms. The Department issued a final rule on these other subjects on September 19, 2011 (76 FR 57924).

This final rule is needed to clarify that public transportation entities are required to make reasonable modifications/accommodations to their policies, practices, and procedures to ensure program accessibility. While this requirement is not a new obligation for public transportation entities receiving Federal financial assistance (see section 504 of the Rehabilitation Act), including the National Passenger Railroad Corporation (Amtrak), courts have identified an unintended gap in our Americans with Disabilities Act (ADA) regulations. This final rule will fill in the gap. The real-world effect will be that the nature of an individual's disability cannot preclude a public transportation entity from providing full access to the entity's service unless some exception applies. For example, an individual using a wheelchair who needs to access the bus will be able to board the bus even though sidewalk construction or snow prevents the individual from boarding the bus from the bus stop; the operator of the bus will need to slightly adjust the boarding location so that the individual using a wheelchair may board from an accessible location.

Reasonable modification/accommodation requirements are a fundamental tenet of disability nondiscrimination law—for example, they are an existing requirement for recipients of Federal assistance and are contained in the U.S. Department of Justice's (DOJ) ADA rules for public and private entities, the U.S. Department of Transportation's (DOT) ADA rules for passenger vessels, and DOT rules under the Air Carrier Access Act. In addition, section 504 has long been interpreted by the courts to require recipients of Federal financial assistance—virtually all public transportation entities subject to this final rule—to provide reasonable accommodations by making changes to policies, practices, and procedures if needed by an individual with a disability to enable him or her to participate in the recipient's program or activity, unless providing such accommodations are an undue financial and administrative burden or constitute a fundamental alteration of the program or activity. Among the Department's legal authorities to issue this rulemaking are section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794), and the Americans with Disabilities Act (ADA), 42 U.S.C. 12101-12213.

Public entities providing designated public transportation (e.g., fixed route, demand-responsive, and ADA complementary paratransit) service will need to make reasonable modifications/accommodations to policies and practices to ensure program accessibility subject to several exceptions. These exceptions include when the modification/accommodation would cause a direct threat to the health or safety of others, would result in a fundamental alteration of the service, would not actually be necessary in order for the individual with a disability to access the entity's service, or (for recipients of Federal financial assistance) would result in an undue financial and administrative burden. Appendix E of this final rule provides specific examples of requested modifications that public transportation entities typically would not be required to grant for one or more reasons.

Public entities providing designated public transportation service will need to implement their own processes for making decisions and providing reasonable modifications under the ADA to their policies and practices. In many instances, entities already have compliant processes in place. This final rule does not prescribe the exact processes entities must adopt or require DOT approval of the processes. However, DOT reserves the right to review an entity's process as part of its normal oversight. See 49 CFR 37.169.

The Department estimates that the costs associated with this final rule will be minimal for two reasons. First, modifications to policies, practices, and procedures, if needed by an individual with a disability to enable him or her to participate in a program or activity, are already required by other Federal law that applies to recipients of Federal financial assistance. Since virtually every entity subject to this final rule receives Federal financial assistance, each entity should already be modifying its policies, practices, and procedures when necessary. Second, the reasonable modification/accommodation requirements contained in this final rule are not very different from the origin-to-destination requirement already applicable to complementary paratransit service, as required by current DOT regulations at 49 CFR 37.129(a) and as described in its implementing guidance.

Through amendments to the Department's ADA regulations at 49 CFR 37.5 and 37.169, the NPRM proposed that transportation entities, including, but not limited to, public transportation entities required to provide complementary paratransit service, must make reasonable modifications to their policies and practices to avoid discrimination on the basis of disability and ensure program accessibility. Making reasonable modifications to policies and practices is a fundamental tenet of disability nondiscrimination law, reflected in a number of DOT (e.g., 49 CFR 27.11(c)(3), 14 CFR 382.7(c)) and DOJ (e.g., 28 CFR 35.130(b)(7)) regulations. Moreover, since at least 1979, section 504 has been interpreted to require recipients of Federal financial assistance to provide reasonable accommodations to program beneficiaries. See, e.g., Alexander v. Choate, 469 U.S. 287 (1985); Southeastern Community College v. Davis, 442 U.S. 397 (1979). In accordance with these decisions of the U.S. Supreme Court (e.g., Choate and Davis), the obligation to modify policies, practices, and procedures is a longstanding obligation under section 504, and the U.S. Department of Justice, which has coordination authority for section 504 pursuant to Executive Order 12250, is in agreement with this interpretation.

However, as the NPRM explained, DOT's ADA regulations do not include language specifically requiring regulated parties to make reasonable modifications to policies and practices. The Department, when drafting 49 CFR part 37, intended that § 37.21(c) would incorporate the DOJ provisions on this subject, by saying the following:

Under this language, provisions of the DOJ regulations concerning reasonable modifications of policies and practices applicable to public entities, such as 28 CFR 35.130(b)(7), could apply to public entities regulated by DOT, while provisions of DOJ regulations on this subject applicable to private entities (e.g., 28 CFR 36.302) could apply to private entities regulated by DOT. A 1997 court decision appeared to share the Department's intention regarding the relationship between DOT and DOJ requirements (Burkhart v. Washington Area Metropolitan Transit Authority, 112 F.3d 1207 (D.C. Cir. 1997)).

However, more recent cases that addressed the issue directly held that, in the absence of a DOT regulation explicitly requiring transportation entities to make reasonable modifications, transportation entities were not obligated to make such modifications under the ADA. The leading case on this issue was Melton v. Dallas Area Rapid Transit (DART), 391 F.3d 669 (5th Cir. 2004); cert. denied 125 S. Ct. 2273 (2005). In this case, the court upheld DART's refusal to pick up a paratransit passenger with a disability in a public alley behind his house, rather than in front of his house (where a steep slope allegedly precluded access by the passenger to DART vehicles). The DART argued that paratransit operations are not covered by DOJ regulations. “Instead,” as the court summarized DART's argument, “paratransit services are subject only to Department of Transportation regulations found in 49 CFR part 37. The Department of Transportation regulations contain no analogous provision requiring reasonable modification to be made to paratransit services to avoid discrimination.” 391 F.3d at 673.

The court essentially adopted DART's argument, noting that the permissive language of § 37.21(c) (“may be subject”) did not impose coverage under provisions of DOJ regulations which, by their own terms, provided that public transportation programs were “not subject to the requirements of [28 CFR part 35].” See 391 F.3d at 675. “It is undisputed,” the court concluded

Because the Department believed that, as in all other areas of disability nondiscrimination law, making reasonable modifications to policies and practices is a crucial element of nondiscriminatory and accessible service to people with disabilities, we proposed to fill the gap the courts had identified in our regulations. Consequently, the 2006 NPRM proposed amending the DOT rules to require that transportation entities, both fixed route and paratransit, make reasonable modifications in the provisions of their services when doing so is necessary to avoid discrimination or to provide program accessibility to services.

In § 37.5, the general nondiscrimination section of the ADA rule, the Department proposed to add a paragraph requiring all public entities providing designated public transportation to make reasonable modifications to policies and practices where needed to avoid discrimination on the basis of disability or to provide program accessibility to services. The language was based on DOJ's requirements and, like the DOJ regulation, would not require a modification if doing so would fundamentally alter the nature of the entity's service.

The NPRM also proposed to place parallel language in a revised § 37.169, replacing an obsolete provision related to over-the-road buses. Under the proposal, in order to deny a request for a modification, the head of a public entity providing designated public transportation services would have had to make a written determination that a needed reasonable modification created a fundamental alteration or undue burden. The entity would not have been required to seek DOT approval for the determination, but DOT could review the entity's action (e.g., in the context of a complaint investigation or compliance review) as part of a determination about whether the entity had discriminated against persons with disabilities. In the case where the entity determined that a requested modification created a fundamental alteration or undue burden, the entity would be obligated to seek an alternative solution that would not create such an undue burden or fundamental alteration.

The ADA and part 37 contain numerous provisions requiring transportation entities to ensure that persons with disabilities can access and use transportation services on a nondiscriminatory basis. Some of these provisions relate to the acquisition of vehicles or the construction or alteration of transportation facilities. Others concern the provision of service by public and private entities, in modes ranging from public demand-responsive service for the general public to private over-the-road buses. Still others concern the provision of complementary paratransit service.

In all of these cases, public transportation entities are likely to put policies and procedures in place to carry out applicable requirements. In order to achieve the objectives of the underlying requirements in certain individual cases, entities may need to depart from these otherwise acceptable policies. This final rule concerns the scope of situations in which such departures—i.e., reasonable modifications—are essential. The underlying provisions of the rule describe the “bottom line” of what transportation entities must achieve. This reasonable modification rule describes how transportation entities get to that “bottom line” in individual situations where entities' normal procedures do not achieve the intended result.

As comments to the NPRM made clear, an important concern of transportation entities is that the DOT final rule makes it possible to understand clearly what modifications are expected; in other words, which requested modifications would be “reasonable” and which would not. For example, in the fixed route context, we believe that stopping a bus a short distance from a bus stop sign to allow a wheelchair user to avoid an obstacle to boarding using a lift (e.g., a utility repair, a snowdrift) would generally be reasonable. Establishing a “flag stop” policy that allowed a passenger to board a bus anywhere, without regard to bus stop locations, would not. In the complementary paratransit context, the Department would expect, in many circumstances, that drivers would provide assistance outside a vehicle where needed to overcome an obstacle, but drivers would not have to provide personal services that extend beyond the doorway into a building to assist a passenger. Appendix E to this final rule addresses issues of this kind in greater detail.

In addition to the “modification of policies” language from the DOJ ADA rules, there are other features of those rules that are not presently incorporated in the DOT ADA rules (e.g., pertaining to auxiliary aids and services). The NPRM sought comment on whether it would be useful to incorporate any additional provisions from the DOJ rules into Part 37.

The Department received over 300 comments on the reasonable modification provisions of the NPRM. These comments were received during the original comment period, a public meeting held in August 2010, and a reopened comment period at the time of that meeting. The comments were polarized, with almost all disability community commenters favoring the proposal and almost all transit industry commenters opposing it.

The major themes in transit industry comments opposing the proposal were the following. Many transit industry commenters opposed the application of the concept of reasonable modification to transportation, and a few commenters argued that it was not the job of transit entities to surmount barriers existing in communities. Many transit commenters said that the rule would force them to make too many individual, case-by-case decisions, making program administration burdensome, leading to pressure to take unreasonable actions, creating the potential for litigation, and making service slower and less reliable. Some of these commenters also objected to the proposal that the head of an entity, or his designee, would be required to make the decision that a requested modification was a fundamental alteration or would result in an undue burden, and provide a written decision to the requestor, stating this requirement would take substantial staff time to complete. Many commenters provided examples or, in some cases, extensive lists, of the kinds of modifications they had been asked or might be asked to make, many of which they believed were unreasonable. A number of commenters said the rule would force paratransit operators to operate in a door-to-door mode, eliminating, as a practical matter, the curb-to-curb service option. A major comment from many transit industry sources was that reasonable modification would unreasonably raise the costs of providing paratransit. Per-trip costs would rise, various commenters said, because of increased dwell time at stops, the need for additional personnel (e.g., an extra staff person on vehicles to assist passengers), increased insurance costs, lower service productivity, increased need for training, or preventing providers from charging fees for what they would otherwise view as premium service. Some of these commenters attached numbers to their predictions of increased costs (e.g., the costs of paratransit would rise from 22-50 percent, nationwide costs would rise by $1.89-2.7 billion), though, with few exceptions, these numbers appeared to be based on extrapolations premised on assumptions about the requirements of the NPRM that were contrary to the language of the NPRM's regulatory text and preamble or on no analysis at all.

Commenters opposed to the proposal also raised safety issues, again principally in the context of paratransit. Making some reasonable modifications would force drivers to leave vehicles, commenters said. This could result in other passengers being left alone, which could expose them to hazards. Drivers leaving a vehicle would have to turn off the vehicle's engine, resulting in no air conditioning or heating for other passengers in the time the driver was outside the vehicle. The driver could be exposed to injury outside the vehicle (e.g., from a trip and fall).

A smaller number of commenters also expressed concern about the application of the reasonable modification concept to fixed route bus service. Some commenters said that the idea of buses stopping at other than a designated bus stop was generally unsafe and burdensome, could cause delays, and impair the clarity of service. A number of these commenters appeared to believe that the NPRM could require transit entities to stop anywhere along a route where a person with a disability was flagging a bus down, which they said would be a particularly burdensome practice.

Commenters also made legal arguments against the proposal. Some commenters supported the approach taken by the court in Melton. Others said that the Department lacks statutory authority under the ADA to require reasonable modification or that reasonably modifying paratransit policies and practices would force entities to exceed the “comparable” service requirements of the statute. Some of these commenters said that the proposal would push entities too far in the direction of providing individualized, human service-type transportation, rather than mass transit. A number of commenters also said that it was good policy to maintain local option for entities in terms of the service they provide. Others argued that the proposed action was inconsistent with statutes or Executive Orders related to unfunded mandates and Federalism.

A variety of commenters—in both the disability community and transportation industry—noted that a significant number of paratransit operators already either provide door-to-door service as their basic mode of service (some commenters said as many as 50 percent of paratransit operators provide door-to-door service) or follow what, in effect, is curb-to-curb with reasonable modification approach for paratransit, or allowed fixed route buses flexibility in terms of where they stop. Some of these commenters said that transit operators imposed conditions on the kind of modifications that could be made (e.g., drivers could only leave the vehicle for a limited time or distance).

In some cases, commenters said, while they use their discretion to make the kinds of modifications the NPRM proposed, they wanted these actions to remain discretionary, rather than being the subject of a Federal mandate. A smaller number of commenters asked for additional guidance on expectations under a reasonable modification rule or for clarification of an enforcement mechanism for the proposed requirement.

Disability community commenters were virtually unanimous in supporting the proposal, saying that curb-to-curb paratransit service was often inadequate for some people with disabilities, who, in some circumstances, could not make use of ADA-mandated paratransit service. For example, medical oxygen users should not have to use part of their supply waiting at the curb for a vehicle; blind passengers may need wayfinding assistance to get to or from a vehicle; or bad weather may make passage to or from a vehicle unduly difficult for wheelchair users. Some disability community commenters supported the inclusion in the rule of various other provisions of the DOJ ADA regulations (e.g., with respect to auxiliary aids and services).

Reasonable modification is a central concept of disability nondiscrimination law, based on the principle that it is essential for entities to consider individuals with disabilities as individuals, not simply as members of a category. The concept recognizes that entities may have general policies, legitimate on their face, that prevent nondiscriminatory access to entities' service, programs, or facilities by some individuals with disabilities under some circumstances. The concept calls on entities to make individual exceptions to these general policies, where needed to provide meaningful, nondiscriminatory access to services, programs, or facilities, unless making such an exception would require a fundamental alteration of an entity's programs.

Reasonable modification requirements are part of existing requirements for recipients of Federal financial assistance, DOJ ADA rules for public and private entities, DOT ADA rules for passenger vessels, and DOT rules under the Air Carrier Access Act. In none of these contexts has the existence of a reasonable modification requirement created a significant obstacle to the conduct of the wide variety of public and private functions covered by these rules. Nor has it led to noticeable increases in costs. At this point, surface transportation entities are the only class of entities not explicitly covered by an ADA regulatory reasonable modification requirement. Having reviewed the comments to this rulemaking, the Department has concluded that commenters failed to make a persuasive case that there is legal justification for public transportation entities to be treated differently than other transportation entities. Further, per the analysis above, section 504 requires entities receiving Federal financial assistance to make reasonable accommodations to policies and practices when necessary to provide nondiscriminatory access to services. This existing requirement applies to nearly all public transportation entities.

As stated in the NPRM, DOT recognizes that not all requests by individuals with disabilities for modifications of transportation provider policies are, in fact, reasonable. The NPRM recognized three types of modifications that would not create an obligation for a transportation provider to agree with a request: (1) Those that would fundamentally alter the provider's program, (2) those that would create a direct threat, as defined in 49 CFR 37.3, as a significant risk to the health or safety of others, and (3) those that are not necessary to enable an individual to receive the provider's services. The NPRM provided some examples of modifications that should be or need not be granted. Commenters from both the disability community and the transit industry provided a vastly larger set of examples of modifications that they had encountered or believed either should or should not be granted.

To respond to commenters' concerns that, given the wide variety of requests that can be made, it is too difficult to make the judgment calls involved, the Department has created an Appendix E to its ADA regulation that lists examples of types of requests that we believe, in most cases, either will be reasonable or not. This guidance recognizes that, given the wide variety of circumstances with which transportation entities and passengers deal, there may be some generally reasonable requests that could justly be denied in some circumstances, and some requests that generally need not be granted that should be granted in other circumstances. In addition, we recognize that no list of potential requests can ever be completely comprehensive, since the possible situations that can arise are far more varied than can be set down in any document. That said, we hope that this Appendix will successfully guide transportation entities' actions in a substantial majority of the kinds of situations commenters have called to our attention, substantially reducing the number of situations in which from-scratch judgment calls would need to be made, and will provide an understandable framework for transportation entities' thinking about specific requests not listed. Of course, as the Department learns of situations not covered in the Appendix, we may add to it.

The Department wants again to make clear that, as stated in the preamble to the last rulemaking:

Thus, achieving the objective of providing origin-to-destination service does not require entities to make door-to-door service their basic mode of service provision. It remains entirely consistent with the Department's ADA rule to provide ADA complementary paratransit in a curb-to-curb mode. When a paratransit operator does so, however, it would need to make exceptions to its normal curb-to-curb policy where a passenger with a disability makes a request for assistance beyond curb-to-curb service that is needed to provide access to the service and does not result in a fundamental alteration or direct threat to the health or safety of others. Given the large number of comments on this issue, and to further clarify the Department's position on this, we have added a definition of “origin-to-destination” in part 37.

As commenters noted, a significant number of paratransit operators already follow an origin-to-destination policy that addresses the needs of passengers that require assistance beyond the curb in order to use the paratransit service. This fact necessarily means that these providers can and do handle individual requests successfully. When a significant number of complementary paratransit systems already do essentially what this rule requires, or more, it is difficult to argue that it cannot be done without encountering insuperable problems.

To respond to commenters' concerns about an asserted onerous review process of requested modifications, the Department has removed the requirement that a response to a request be in writing, and is amending the complaint procedure in 49 CFR 27.13, and then mirroring that provision in a new section 37.17, to ensure it applies not just to recipients of Federal funds but to all designated public transportation entities. A person who is denied a modification may file a complaint with the entity, but the process would be the same as with any other complaint, so no separate complaint procedure is listed in 37.169.

With respect to fixed route bus service, the Department's position—elaborated upon in Appendix E—is that transportation providers are not required to stop at nondesignated locations. That is, a bus operator would not have to stop and pick up a person who is trying to flag down the bus from a location unrelated to or not in proximity to a designated stop, regardless of whether or not that person has a disability. On the other hand, if a person with a disability is near a bus stop, but cannot get to the precise location of the bus stop sign (e.g., because there is not an accessible path of travel to that precise location) or cannot readily access the bus from the precise location of the bus stop sign (e.g., because of construction, snow, or a hazard that makes getting onto the lift from the area of the bus stop sign too difficult or dangerous), then it is consistent both with the principle of reasonable modification and with common sense to pick up that passenger a modest distance from the bus stop sign. Doing so would not fundamentally alter the service or cause significant delays or degradation of service.

While it is understandable that commenters opposed to reasonable modification would support the outcome of Melton and cases that followed, it is important to understand that the reasoning of these cases is based largely on the proposition that, in the absence of a DOT ADA regulation, transportation entities could not be required to make reasonable modifications on the basis of DOJ requirements, standing alone. This final rule will fill the regulatory gap that Melton identified. While Melton stated that there was a gap in coverage with respect to public transportation and paratransit, as § 37.5(f) notes, private entities that were engaged in the business of providing private transportation services have always been obligated to provide reasonable modifications under title III of the ADA. Further, as stated above, reasonable accommodation is a requirement under section 504 of the Rehabilitation Act of 1973.

We do not agree with commenters who asserted that reasonable modification goes beyond the concept of comparable complementary paratransit found in the ADA, going too far in the direction of individualized, human services transportation, rather than mass transit. To the contrary, complementary paratransit remains a shared-ride service that must meet regulatory service criteria. Nothing in this final rule changes that. What the final rule does make clear is that in providing complementary paratransit service, transit authorities must take reasonable steps, even if case-by-case exceptions to general procedures, to make sure that eligible passengers can actually get to the service and use it for its intended purpose. ADA complementary paratransit remains a safety net for individuals with disabilities who cannot use accessible fixed route service. Adhering rigidly to policies that deny access to this safety net is inconsistent with the nondiscrimination obligations of transportation entities. Because transportation entities would not be required to make any modifications to their general policies that would fundamentally alter their service, the basic safety net nature of complementary paratransit service remains unchanged.

By the terms of the Unfunded Mandates Reform Act of 1995, as amended, requirements to comply with nondiscrimination laws, including those pertaining to disability, are not unfunded mandates subject to the provisions of the Act. 2 U.S.C. 1503. As a practical matter, for the vast majority of transportation entities subject to the DOT ADA regulation who receive FTA or other DOT financial assistance, compliance with any DOT regulations is, to a significant degree, a funded mandate. For both these reasons, comments suggesting that the proposal would impose an unfunded mandate were incorrect.

With respect to federalism, State and local governments were consulted about the rule, both by means of the opportunity to comment on the NPRM and a public meeting. Transportation authorities—many of which are likely to be State and local entities—did participate extensively in the rulemaking process, as the docket amply demonstrates. As stated previously, transportation industry commenters prefer to use their discretion to make the kinds of modifications the NPRM proposed, rather than being subject to a Federal mandate. These entities continue to have the discretion to grant or deny requests for reasonable modification, albeit in the context of Appendix E.

The effects of the final rule on fixed route service are quite modest, and comments did not assert the contrary. The issue of the cost impact of the reasonable modification focused almost exclusively on ADA complementary paratransit. There was little in the way of allegations that making exceptions to usual policies would increase costs in fixed route service.

In looking at the allegations of cost increases on ADA complementary paratransit, the Department stresses that all recipients of Federal financial assistance—which includes public transportation entities of complementary paratransit service—are already required to modify policies, practices, and procedures if needed by an individual with a disability to enable him or her to participate in the recipient's programs or activities, and this principle has been applied by Federal agencies and the courts accordingly. However, to provide commenters with a fuller response to their comments, the Department would further make three primary points. First, based on statements on transportation provider Web sites and other information, one-half to two-thirds of transit authorities already provide either door-to-door service as their basic mode of service or provide what amounts to curb-to-curb service with assistance beyond the curb as necessary in order to enable the passenger to use the service. The rule would not require any change in behavior, or any increase in costs, for these entities. Second, the effect of providing paratransit service in a door-to-door, or curb-to-curb, with reasonable modification, mode on per-trip costs is minimal. In situations where arrangements for reasonable modification are made in advance, which would be a significant portion of all paratransit modification requests, per-trip costs could even be slightly lower. The concerns expressed by commenters that per-trip costs would escalate markedly appear not to be supported by the data. Third, there could be cost increases, compared to current behavior, for paratransit operators that do not comply with existing origin-to-destination requirements of the rule. Suppressing paratransit ridership by preventing eligible individuals from using the service or making the use of the service inconvenient saves money for entities. Conversely, making service more usable, and hence more attractive, could increase usage. Because of the operating cost-intensive nature of paratransit service, providing service to more people tends to increase costs. The Department estimated that increased costs from increased ridership stemming from improved service could amount to $55 million per year nationwide for those public transportation entities who are not in compliance with the current DOT origin-to-destination regulations.

This estimate would be at the upper end of the range of possible ridership-generated cost increases, since it is not clear that transportation entities with a strict curb-to-curb policy never provide modifications to their service. Analysts made the assumption that transportation agencies with curb-to-curb policies did not make modifications when modifications were not mentioned on the entities' Web sites. Disability community commenters suggested that, as a practical matter, transportation entities often provide what amounts to modifications even if their formal policies do not call for doing so.

In addition, it should be emphasized that transportation entities who comply with the existing rule's origin-to-destination requirement will not encounter ridership-related cost increases. In an important sense, any paratransit operation that sees an increase in ridership when this rule goes into effect are experiencing increased costs at this time because of their unwillingness to comply with existing requirements over the past several years.

In amendments to 49 CFR part 27 (the Department's section 504 rule) and part 37 (the Department's ADA rule for most surface transportation), the Department is incorporating specific requirements to clarify that public transportation entities are required to modify policies, practices, procedures that are needed to ensure access to programs, benefits, and services.

With regard to the Department's section 504 rule at 49 CFR part 27, we are revising the regulation to specifically incorporate the preexisting reasonable accommodation requirement recognized by the U.S. Supreme Court (see, e.g., Choate and Davis). The revised section 27.7 will clarify that recipients of Federal financial assistance are required to provide reasonable accommodations to policies, practices, or procedures when the accommodations are necessary to avoid discrimination on the basis of disability unless making the modifications (1) would fundamentally alter the nature of the service, program, or activity, or (2) would result in undue financial and administrative burdens.

With regard to the Department's ADA regulations in part 37, we are revising the regulation to further clarify this requirement and to fill in the gap identified by the courts. Under our revised part 37 regulations, public transportation entities may deny requests for modifications to their policies and practices on one or more of the following grounds: Making the modifications (1) would fundamentally alter the nature of the service, program, or activity, (2) would result in a direct threat to the health or safety of others, or (3) without the requested modification, the individual with a disability is able to fully use the entity's services, programs, or activities for their intended purpose. Please note that under our section 504 regulations at part 27, there is an undue financial and administrative burden defense, which is not relevant to our ADA regulations at part 37.

This final rule revises section 37.169, which focuses on the reasonable modification obligations of public entities providing designated public transportation, including fixed route, demand-responsive, and complementary paratransit service. The key requirement of the section is that these types of transportation entities implement their own processes for making decisions on and providing reasonable modifications to their policies and practices. In many cases, agencies are handling requests for modifications during the paratransit eligibility process, customer service inquiries, and through the long-existing requirement in the Department's section 504 rule for a complaint process. Entities will need to review existing procedures and conform them to the new rule as needed. The Department is not requiring that the process be approved by DOT, and the shape of the process is up to the transportation provider, but it must meet certain basic criteria. The DOT can, however, review an entity's process as part of normal program oversight, including compliance reviews and complaint investigations.

First, the entity must make information about the process, and how to use it, readily available to the public, including individuals with disabilities. For example, if a transportation provider uses printed media and a Web site to inform customers about bus and paratransit services, then it must use these means to inform people about the reasonable modification process. Of course, like all communications, this information must be provided by means accessible to individuals with disabilities.1

Second, the process must provide an accessible means by which individuals with disabilities can request a reasonable modification/accommodation. Whenever feasible, requests for modifications should be made in advance. This is particularly appropriate where a permanent or long-term condition or barrier is the basis for the request (e.g., difficulty in access to a paratransit vehicle from the passenger's residence; the need to eat a snack on a rail car to maintain a diabetic's blood sugar levels; lack of an accessible path of travel to a bus stop, resulting in a request to have the bus stop a short distance from the bus stop location). In the paratransit context, it may often be possible to consider requests of this kind in conjunction with the eligibility process. The request from the individual with a disability should be as specific as possible and include information on why the requested modification is needed in order to allow the individual to use the transportation provider's services.

Third, the process must also provide for those situations in which an advance request and determination is not feasible. The Department recognizes that these situations are likely to be more difficult to handle than advance requests, but responding to them is necessary. For example, a passenger who uses a wheelchair may be able to board a bus at a bus stop near his residence but may be unable to disembark due to a parked car or utility repair blocking the bus boarding and alighting area at the stop near his destination. In such a situation, the transit vehicle operator would have the front-line responsibility for deciding whether to grant the on-the-spot request, though it would be consistent with the rule for the operator to call his or her supervisor for guidance on how to proceed.

Further, section 37.169 states three grounds on which a transportation provider could deny a requested modification. These grounds apply both to advance requests and on-the-spot requests. The first ground is that the request would result in a fundamental alteration of the provider's services (e.g., a request for a dedicated vehicle in paratransit service, a request for a fixed route bus to deviate from its normal route to pick up someone). The second ground is that fulfilling a request for a modification would create a direct threat to the health or safety of others (e.g., a request that would require a driver to engage in a highly hazardous activity in order to assist a passenger, such as having to park a vehicle for a prolonged period of time in a no-parking zone on a high-speed, high-volume highway that would expose the vehicle to a heightened probability of being involved in a crash). Third, the requested modification would not be necessary to permit the passenger to use the entity's services for their intended purpose in a nondiscriminatory fashion (e.g., the modification might make transportation more convenient for the passenger, who could nevertheless use the service successfully to get where he or she is going without the modification). Appendix E provides additional examples of requested modifications that transportation entities usually would not be required to grant for one or more of these reasons.

Where a transportation provider has a sound basis, under this section, for denying a reasonable modification request, the entity would still need to do all it could to enable the requester to receive the services and benefits it provides (e.g., a different work-around to avoid an obstacle to transportation from the one requested by the passenger). Transportation agencies that are Federal recipients are required to have a complaint process in place. The Department has added a new section 37.17 that extends the changes made to 49 CFR 27.13 to all public and private entities that provide transportation services, regardless of whether the entity receives Federal funds.

By requiring entities to implement a local reasonable modification process, the Department intends decisions on individual requests for modification to be addressed at the local level. The Department does not intend to use its complaint process to resolve disagreements between transportation entities and individuals with disabilities about whether a particular modification request should have been granted. However, if an entity does not have the required process, it is not being operated properly (e.g., the process is inaccessible to people with disabilities, does not respond to communications from prospective complainants), it is not being operated in good faith (e.g., virtually all complaints are routinely rejected, regardless of their merits), or in any particular case raising a Federal interest, DOT agencies may intervene and take enforcement action.

This final rule is not significant for purposes of Executive Orders 12866 and 13563 and the Department of Transportation's Regulatory Policies and Procedures. Therefore, it has not been reviewed by the Office of Management and Budget under Executive Order 12866 and Executive Order 13563. The costs of this rulemaking are expected to be minimal for two reasons. First, modifications to policies, practices, and procedures, if needed by an individual with a disability to enable him or her to participate in a program or activity, are already required by other Federal law that applies to recipients of Federal financial assistance. Since virtually every entity subject to this final rule receives Federal financial assistance, each entity should already be modifying its policies, practices, and procedures when necessary. Second, the reasonable modification/accommodation requirements contained in this final rule are not very different from the origin-to-destination requirement already applicable to complementary paratransit service, as required by current DOT regulations at 49 CFR 37.129(a) and as described in its implementing guidance. However, the Department recognizes that it is likely that some regulated entities are not complying with the current section 504 requirements and origin-to-destination regulation. In those circumstances only, the Department estimates that increased costs from increased ridership stemming from improved service could amount to $55 million per year nationwide for those public transportation entities who are not in compliance with the current DOT origin-to-destination regulations and section 504 requirements. Those costs are not a cost of this rule, but rather a cost of coming into compliance with current law.

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132. This final rule does not include any provision that (1) has substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various level of government; (2) imposes substantial direct compliance costs on State and local governments; or (3) preempts State law. Therefore, the rule does not have federalism impacts sufficient to warrant the preparation of a Federalism Assessment.

The final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13084. Because this final rule does not significantly or uniquely affect the communities of the Indian Tribal governments or impose substantial direct compliance costs on them, the funding and consultation requirements of Executive Order 13084 do not apply.

The Regulatory Flexibility Act (5 U.S.C. 601, et seq.) requires an agency to review regulations to assess their impact on small entities unless the agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities. The Department certifies that this rule will not have a significant economic impact on a substantial number of small entities. The rule may affect actions of some small entities (e.g., small paratransit operations). However, the bulk of paratransit operators are not small entities, and the majority of all paratransit operators already appear to be in compliance. There are not significant cost impacts on fixed route service at all, and the number of small grantees who operate fixed route systems is not large. Since operators can provide service in a demand-responsive mode (e.g., route deviation) that does not require the provision of complementary paratransit, significant financial impacts on any given operator are unlikely.

This rule imposes no new information reporting or recordkeeping necessitating clearance by the Office of Management and Budget.

The agency has analyzed the environmental impacts of this action pursuant to the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and has determined that it is categorically excluded pursuant to DOT Order 5610.1C, Procedures for Considering Environmental Impacts (44 FR 56420, Oct. 1, 1979). Categorical exclusions are actions identified in an agency's NEPA implementing procedures that do not normally have a significant impact on the environment and therefore do not require either an environmental assessment (EA) or environmental impact statement (EIS). See 40 CFR 1508.4. In analyzing the applicability of a categorical exclusion, the agency must also consider whether extraordinary circumstances are present that would warrant the preparation of an EA or EIS. Id. Paragraph 3.c.5 of DOT Order 5610.1C incorporates by reference the categorical exclusions for all DOT Operating Administrations. This action is covered by the categorical exclusion listed in the Federal Highway Administration's implementing procedures, “[p]romulgation of rules, regulations, and directives.” 23 CFR 771.117(c)(20). The purpose of this rulemaking is to provide that transportation entities are required to make reasonable modifications/accommodations to policies, practices, and procedures to avoid discrimination and ensure that their programs are accessible to individuals with disabilities. The agency does not anticipate any environmental impacts, and there are no extraordinary circumstances present in connection with this rulemaking.

There are a number of other statutes and Executive Orders that apply to the rulemaking process that the Department considers in all rulemakings. However, none of them is relevant to this rule. These include the Unfunded Mandates Reform Act (which does not apply to nondiscrimination/civil rights requirements), Executive Order 12630 (concerning property rights), Executive Order 12988 (concerning civil justice reform), and Executive Order 13045 (protection of children from environmental risks).

For the reasons set forth in the preamble, the Department of Transportation amends 49 CFR parts 27 and 37, as follows:

This regulation, under the Marine Mammal Protection Act (MMPA; 16 U.S.C. 1361 et seq.), establishes a framework for authorizing the take of marine mammals incidental to the Marine Corps' military training operations at the Brant Island Bombing Target (BT-9) and Piney Island Bombing Range (BT-11) located within the Marine Corps' Cherry Point Range Complex in Pamlico Sound, North Carolina.

The Marine Corps conducts military training to meet its statutory responsibility to organize, train, equip, and maintain combat-ready forces. The Marine Corps training activities include air-to-ground weapons delivery, weapons firing, and water-based training occurring at the BT-9 and BT-11 bombing targets located within the Marine Corps' Cherry Point Range Complex in Pamlico Sound, North Carolina. The Marine Corps' training activities are military readiness activities under the MMPA as defined by the National Defense Authorization Act for Fiscal Year 2004 (NDAA; Public Law 108-136).

NMFS received an application from the Marine Corps requesting 5-year regulations and one 5-year Letter of Authorization to take marine mammals, specifically bottlenose dolphins (Tursiops truncatus), by harassment, injury, and mortality incidental to training operations at BT-9 and BT-11 bombing targets. NMFS has determined that these operations, which constitute a military readiness activity, have the potential to cause behavioral disturbance and injury to marine mammals.

Section 101(a)(5)(A) of the MMPA directs the Secretary of Commerce (Secretary) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if, after notice and public comment, the agency makes certain findings and issues regulations.

This regulation would establish a framework to authorize the take of marine mammals incidental to the Marine Corps' training exercises through NMFS' issuance of one 5-year Letter of Authorization to the Marine Corps, which would contain mitigation, monitoring, and reporting requirements.

Section 101(a)(5)(A) of the MMPA and our implementing regulations at 50 CFR part 216, subpart I provide the legal basis for issuing the 5-year regulations and subsequent Letter of Authorization. In the case of military readiness activities, such as those proposed to be conducted by the Marine Corps, the specified geographical region and small numbers provisions of section 101(a)(5)(A) do not apply.

The following provides a summary of some of the major provisions within this rulemaking for the Marine Corps' training exercises at Brant Island Bombing Target—BT-9 and Piney Island Bombing Range—BT-11 in Pamlico Sound, North Carolina. First, this final rulemaking authorizes take by harassment and injury only; it does not authorize take by mortality. Second, NMFS has determined that the Marine Corps' adherence to the proposed mitigation, monitoring, and reporting measures would achieve the least practicable adverse impact on the affected marine mammals. These measures include:

• Required pre- and post-exercise monitoring of the training areas to detect the presence of marine mammals during training exercises.

• Required monitoring of the training areas during active training exercises with required suspensions/delays of training activities if a marine mammal enters within any of the designated mitigation zones.

• Required reporting of stranded or injured marine mammals in the vicinity of the BT-9 and BT-11 bombing targets located within the Marine Corps' Cherry Point Range Complex in Pamlico Sound, North Carolina to the NMFS Marine Mammal Stranding Network.

• Required research on a real-time acoustic monitoring system to automate detection of bottlenose dolphins in the training areas.

This final rule, specific only to the Marine Corps' training activities in BT-9 and BT-11 bombing targets, is not significant under Executive Order 12866-Regulatory Planning and Review.

In 2009, the Marine Corps prepared an Environmental Assessment (EA) titled, “Environmental Assessment MCAS Cherry Point Range Operations,” in accordance with the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) and the regulations published by the Council on Environmental Quality. The EA is available at: http://www.nmfs.noaa.gov/pr/permits/incidental/military.htm. In 2009, the Marine Corps issued a Finding of No Significant Impact (FONSI) for its activities, which is also available at the same internet address.

After evaluating the Marine Corps' application and the 2009 EA, NMFS determined that there were changes to the proposed action (i.e., increased ammunitions levels) and new environmental impacts (i.e., the use of revised thresholds for estimating potential impacts on marine mammals from explosives) not addressed in the 2009 EA. In 2015, NMFS conducted a new analysis per NEPA, augmenting the information contained in the Marine Corps' 2009 EA, on the issuance of a MMPA rulemaking and subsequent LOA. In February 2015, NMFS determined that the issuance of this regulation and subsequent LOA would not have a significant effect on the quality of the human environment and issued a FONSI. In February 2015, the Marine Corps issued a new FONSI for their activities under the MMPA regulations and subsequent LOA.

Section 101(a)(5)(A) of the MMPA directs the Secretary to allow, upon request, the incidental, but not intentional taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if, after notice and public review, NMFS makes certain findings and issues regulations.

NMFS shall grant authorization for the incidental takings if the agency finds that the total taking will have a negligible impact on the species or stock(s), and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant). Further, the authorization for incidental takings must set forth the permissible methods of taking; other means of effecting the least practicable adverse impact on the species or stock and its habitat; and requirements pertaining to the mitigation, monitoring, and reporting of such taking.

NMFS has defined “negligible impact” in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

The National Defense Authorization Act of 2004 (NDAA; Pub. L. 108-136) removed the “small numbers” and “specified geographical region” limitations indicated earlier and amended the definition of harassment as it applies to a “military readiness activity” to read as follows: (i) Any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild [Level A Harassment]; or (ii) any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered [Level B Harassment].

On January 28, 2013, NMFS received an application from the Marine Corps requesting a rulemaking and subsequent Letter of Authorization for the take of marine mammals incidental to training exercises conducted at Brant Island Bombing Target (BT-9) and Piney Island Bombing Range (BT-11) bombing targets at the USMC Cherry Point Range Complex located within Pamlico Sound, North Carolina.

On March 29, 2013, per the regulations at 50 CFR 216.104(b)(1)(i), NMFS began the public review process by publishing a Notice of Receipt in the Federal Register (78 FR 19224). After the close of the public comment period and review of comments, NMFS published a proposed rule in the Federal Register on July 15, 2014 (79 FR 41373) to authorize the take of marine mammals per the Marine Corps' training activities and solicited public comments.

The Marine Corps would conduct weapons delivery training exercises (air-to-surface and surface-to-surface) at the two water-based bombing targets located within the Cherry Point Range Complex in North Carolina. The military readiness activities would occur between March 2015 and March 2020, year-round, day or night. The Marine Corps proposes to use small arms, large arms, bombs, rockets, grenades, and pyrotechnics for the air-to-surface and surface-to-surface training exercises, which qualify as military readiness activities. NMFS anticipates that take, by Level B (behavioral) and Level A harassment of individuals of Atlantic bottlenose dolphin (Tursiops truncatus) would result from the training exercises.

The regulations would establish a framework for authorizing incidental take in a 5-year Letter of Authorization (LOA) which would authorize the take of Atlantic bottlenose dolphins (Tursiops truncatus) by Level A and Level B (behavioral) harassment only.

NMFS has issued three one-year Incidental Harassment Authorizations to the Marine Corps under section 101(a)(5)(D) of the MMPA for the conduct of similar training exercises from 2010 to 2014 (75 FR 72807, November 26, 2010; 77 FR 87, January 3, 2012; and 78 FR 42042, July 15, 2013). The Marine Corps' last Incidental Harassment Authorization expired in 2014.

NMFS is committed to the use of the best available science in its decision making. NMFS uses an adaptive, transparent process that allows for both timely scientific updates and public input into agency decisions regarding the use of acoustic research and thresholds. NMFS is currently in the process of re-evaluating acoustic thresholds based on the best available science, as well as how NMFS applies these thresholds under the MMPA to all activity types. This re-evaluation could potentially result in changes to the acoustic thresholds or their application as they apply to future Marine Corps training activities at BT-9 and BT-11. However, it is important to note that while changes in acoustic thresholds may affect the enumeration of “takes,” they do not necessarily change the evaluation of population level effects or the outcome of the negligible impact analysis. In addition, while acoustic criteria may also inform mitigation and monitoring decisions, the Marine Corps will implement an adaptive management program that will address new information allowing for the modification of mitigation and/or monitoring measures as appropriate.

The Marine Corps must meet its statutory responsibility to organize, train, equip, and maintain combat-ready Marine Corps forces at the BT-9 and BT-11 bombing targets in Pamlico Sound, North Carolina. The bombing targets provide unique training environments and are of vital importance to the readiness of Marine Corps forces.

The types of ordnances proposed for use at the BT-9 and BT-11 bombing targets include gun ammunition (small and large arms), rockets, grenades, bombs, and pyrotechnics. Training for any activity may occur year-round, day or night, with no seasonal restrictions. Active sonar is not a component of these specified training exercises.

The Marine Corps' activities would occur between March 2015 and March 2020. Each type of training exercise described in more detail later in this rule may occur year-round, day or night. Approximately 15 percent of the activities would occur at night.

NMFS notes that the proposed rule in the Federal Register (79 FR 41373, July 15, 2014) discussed that the Marine Corps' activities would occur in a five-year period between September 2014 and September 2019. Although the dates have changed between the proposed rule and the final rule, the underlying analysis occurs on an annual basis and accounts for seasonal variation (winter and spring) over a five-year span.

The Marine Corps administers and uses the BT-9 and BT-11 bombing targets (See Figure 1), located at the convergence of the Neuse River and Pamlico Sound, North Carolina, for the purpose of training military personnel in the skill of ordnance delivery by aircraft and small watercraft.

The BT-9 area is a water-based bombing target and mining exercise area located approximately 52 kilometers (km) (32.3 miles (mi)) northeast of Marine Air Corps Station Cherry Point. The U.S. Army Corps of Engineers, Wilmington District has defined a danger zone (prohibited area) by a 6 statute-mile (sm) diameter boundary around BT-9 (33 CFR 334.420). This restriction prohibits non-military vessels within the designated area. The BT-9 target area ranges in depth from 1.2 to 6.1 meters (m) (3.9 to 20 feet (ft)), with the shallow areas concentrated along the Brandt Island Shoal. The target itself consists of three ship hulls grounded on Brant Island Shoals, located approximately 4.8 km (3.0 mi) southeast of Goose Creek Island.

The BT-11 area encompasses a total of 50.6 square kilometers (km2) (19.5 square miles (mi2)) on Piney Island located in Carteret County, NC. The target prohibited area, at a radius of 1.8 sm, is roughly centered on Rattan Bay and includes approximately 9.3 km2 (3.6 mi2) of water and water depths range from 0.3 m (1.0 ft) along the shoreline to 3.1 m (10.1 ft) in the center of Rattan Bay. Water depths in the center of Rattan Bay range from approximately 2.4 to 3 m (8 to 10 ft) with bottom depths ranging from 0.3 to 1.5 m (1 to 5 ft) adjacent to the shoreline of Piney Island. The BT-11 in-water, stationary target consists of a barge and patrol boat located in roughly the center of Rattan Bay. The Marine Corps also use on an intermittent basis for strafing at water- and land-based targets, a second danger zone, with an inner radius of 1.8 sm and outer radius of 2.5 sm and also roughly centered on Rattan Bay.

The Marine Corps conducts all inert and live-fire exercises at BT-9 and BT-11 so that all ammunition and other ordnances strike and/or fall on the land or water-based targets or within the existing danger zones or water restricted areas. The Marine Corps would close danger zones to the public on an intermittent or full-time basis for hazardous operations such as target practice and ordnance firing. They also prohibit or limit public access to water restricted areas to provide security for government property and/or to protect the public from the risks of injury or damage that could occur from the government's use of that area (33 CFR 334.2). Surface danger zones are designated areas of rocket firing, target practice, or other hazardous operations (33 CFR 334.420). The surface danger zone (prohibited area) for BT-9 is a 4.8 km (3.0 mi) radius centered on the south side of Brant Island Shoal. The surface danger zone for BT-11 is a 2.9 km (1.8 mi) radius centered on a barge target in Rattan Bay.

The following sections describe the training activities that have the potential to affect marine mammals present within the BT-9 and BT-11 bombing targets. These activities fall into two categories based on the ordnance delivery method: (1) Surface-to-surface gunnery exercises; and (2) air-to-surface bombing exercises.

Gunnery exercises are the only category of surface-to-surface activity currently conducted within BT-9 or BT-11. Surface-to-surface gunnery firing exercises typically involve Special Boat Team personnel firing munitions from a machine gun and 40 mm grenade launchers at a water-based target or throwing concussion grenades into the water (e.g., not at a specific target) from a small boat. The number and type of boats used depend on the unit using the boat and the particular training mission. These include: small unit river craft, combat rubber raiding craft, rigid hull inflatable boats, and patrol craft. These boats may use inboard or outboard, diesel or gasoline engines with either propeller or water jet propulsion systems.

The Marine Corps propose to use a maximum of six boats ranging in size from 7.3 to 26 m (24 to 85 ft) to conduct surface-to-surface firing activities. Each boat would travel between 0 to 20 knots (kts) (0 to 23 miles per hour (mph)) with an average of two vessels to approach and engage the intended targets. The boats typically travel in linear paths and do not operate erratically.

Boat sorties would occur in all seasons and the number of sorties conducted at each range may vary from year to year based on training needs and worldwide operational tempo. The majority of boat sorties at BT-9 originate from Marine Corps Air Station Cherry Point's boat docks, but they may also originate from the State Port in Morehead City, NC, Marine Corps Base Camp Lejeune, and U.S. Coast Guard Station Hobucken in Pamlico Sound. The majority of boat sorties at BT-11 originate from launch sites within the range complex.

There is no specific schedule associated with the use of BT-9 or BT-11 by the small boat teams. However, the Marine Corps schedules the exercises for 5-day blocks with exercises at various times throughout the year. Variables such as deployment status, range availability, and completion of crew-specific training requirements influence the exercise schedules. Table 1 in this document outlines the number of surface-to-surface exercises that occurred between 2011 and 2013 by bombing target area.

The direct-fire gunnery exercises (i.e., all targets are within the line of sight of the military personnel) at BT-9 would typically use 7.62 millimeter (mm) or .50 caliber (cal) machine guns; 40 mm grenade machine guns; or G911 concussion hand grenades. The proposed exercises at BT-9 are usually live-fire exercises. At times, Marine Corps personnel would use blanks (inert ordnance) so that the boat crews could practice ship-handling skills during training without being concerned with the safety requirements involved with live weapons.

The Marine Corps estimates that it could conduct up to approximately 354 vessel-based sorties annually at BT-9. This estimate includes the highest number of sorties conducted during 2010 through 2013 (322) plus an additional 10 percent increase (32) in sorties to account for interannual variation based on future training needs and worldwide operational tempo.

The direct-fire gunnery exercises at BT-11 would include the use of small arms, large arms, bombs, rockets, and pyrotechnics. All munitions fired within the BT-11 range are non-explosive with the exception of the small explosives in the single charges. No live firing occurs at BT-11. The Marine Corps estimates that it could conduct up to approximately 117 vessel-based sorties annually at BT-11. This estimate includes the highest number of sorties conducted during 2010 through 2013 (106) plus an additional 10 percent increase (11) in sorties to account for interannual variation based on future training needs and worldwide operational tempo.

Air-to-surface training exercises involve fixed-, rotary-, or tilt-wing aircraft firing munitions at targets on the water's surface or on land (as in the case of BT-11). There are four types of air-to-surface activities conducted within BT-9 and BT-11. They include: Mine laying, bombing, gunnery, or rocket exercises. Table 2 in this document outlines the number of air-to-surface exercises that occurred in 2011, 2012, and 2013 by bombing target area.

The Marine Corps estimates that it could conduct up to approximately 1,709 air-based based sorties annually at BT-9. This estimate includes the highest number of sorties conducted during 2010 through 2013 (1,554) plus an additional 10 percent increase (155) in sorties to account for interannual variation based on future training needs and worldwide operational tempo.

For the BT-11 area, the Marine Corps estimates that it could conduct up to approximately 12,877 air-based based sorties annually. This estimate includes the highest number of sorties conducted during 2010 through 2013 (11,706) plus an additional 10 percent increase (1,171) in sorties to account for interannual variation based on future training needs and worldwide operational tempo.

The following sections provide more detail on each exercise type that the Marine Corps proposes to conduct from 2015 through 2020.

Mine laying exercises are simulations only, meaning that mine detonations would not occur during training. These exercises, regularly conducted at the BT-9 bombing target, involve the use of fixed-wing aircraft (F/A-18F Hornet Strike Fighter, P-3 Orion, or P-8 Poseidon) flying undetected to the target area using either a low- or high-altitude tactical flight pattern. When the aircraft reaches the target area, the pilot would deploy a series of inert mine shapes in an offensive or defensive pattern into the water. The aircraft would make multiple passes along a pre-determined flight azimuth dropping one or more of the inert shapes each time.

The mine-laying exercises at BT-9 would include the use of MK-62, MK-63, MK-76, BDU-45, and BDU-48 inert training shapes. Each inert shape weighs 500, 1000, 25, 500, and 10 pounds (lbs), respectively.

Pilots train to destroy or disable enemy ships or boats during bombing exercises. These exercises, conducted at BT-9 or BT-11, normally involve the use of two to four fixed-wing aircraft (i.e., an F/A-18F Hornet Strike Fighter or AV-8 Harrier II) approaching the target area from an altitude of approximately 152 m (500 ft) up to 4,572 m (15,000 ft). When the aircraft reach the target area, they establish a predetermined racetrack pattern relative to the target and deliver the bombs. Participating aircraft follow the same flight path during subsequent target ingress, ordnance delivery, target egress, and downwind pattern. The Marine Corps uses this type of pattern to ensure that only one aircraft releases ordnance at any given time.

The pilots deliver the bombs against targets at BT-9 or BT-11, day or night; the average time to complete this type of exercise is approximately one hour. There is no set level or pattern of amount of sorties conducted and there are no cluster munitions authorized for use during bombing exercises.

The bombing exercises would typically use unguided MK-76, BDU-45, MK-82, and MK-83 inert training bombs (25, 500, 500, and 1,000 lbs, respectively); precision-guided munitions consisting of laser-guided bombs (inert); and laser-guided training rounds (inert, but contains a small impact-initiated spotting charge).

For unguided munitions, the typical release altitudes are 914 m (3,000 ft) or above 4,572 m (15,000 ft). The typical release altitude for precision-guided munitions is 1.8 km (1.1 mi) or greater in altitude. For laser-guided munitions, onboard laser designators, laser designators from support aircraft, or ground support personnel, use lasers to illuminate the certified targets. For either weapons delivery system, the lowest minimum altitude for ordnance delivery (inert bombs) would be 152 m (500 ft).

During air-to-surface gunnery exercises with cannons, pilots train to destroy or disable enemy ships, boats, or floating/near-surface mines from aircraft with mounted cannons equal to or larger than 20 mm. The Marine Corps proposes to use either fixed-wing (F/A-18F Hornet Strike Fighter or an AV-8 Harrier II) or rotary-wing (AH-1 Super Cobra), tilt-rotor (V-22), and other aircraft to conduct gunnery exercises at BT-9 or BT-11. During the exercise (i.e., strafing run), two aircraft would approach the target area from an altitude of approximately 914 m (3,000 ft) and within a distance of 1,219 m (4,000 ft) from the target, begin to fire a burst of approximately 30 rounds of munitions before reaching an altitude of 305 m (1,000 ft) to break off the attack. Each aircraft would reposition for another strafing run until each aircraft expends its exercise ordnance of approximately 250 rounds (approximately 8-12 passes per aircraft per exercise). This type of gunnery exercise would typically use a Vulcan M61A1/A2, 20 mm cannon or a GAU-12, 25 mm cannon. The Marine Corps proposes to use inert munitions for these exercises. The aircraft deliver the ordnance against targets at BT-9 or BT-11, day or night. The average time to complete this type of exercise is approximately one hour.

During air-to-surface gunnery exercises with machine guns, pilots train to destroy or disable enemy ships, boats, or floating/near-surface mines with aircraft using mounted machine guns. The Marine Corps proposes to use rotary-wing (CH-52 Super Stallion, UH-1 Iroquois Huey, CH-46 Sea Knight, MV-22 Osprey, or H-60 Hawk series, and other types) aircraft to conduct gunnery exercises at BT-9 or BT-11. During the exercise an aircraft would fly around the target area at an altitude between 15 and 30 m (50 and 100 ft) in a 91 m (300 ft) racetrack pattern around the water-based target. Each gunner would expend approximately 400 rounds of 7.62 mm ammunition and 200 rounds of .50 cal ammunition in each exercise. The aircraft deliver the ordnance against the bombing targets at BT-9 or BT-11, day or night. The average time to complete this type of exercise is approximately one hour.

The Marine Corps proposes to conduct rocket exercises similar to the bombing exercises. Fixed- and rotary-wing aircraft crews would launch rockets at surface maritime targets, day and night, to train for destroying or disabling enemy ships or boats. These operations employ 2.75-inch and 5-inch rockets (4.8 and 15.0 lbs net explosive weight, respectively). Generally, personnel would deliver an average of approximately 14 rockets per sortie. As with the bombing exercises, there is no set level or pattern of amount of sorties conducted.

Pyrotechnics are non-explosive devices that use chemical reactions to produce heat, light, gas, smoke, and/or sound to simulate threat conditions during exercises (DoN, 2009). The Marine Corps proposes to use chaff, LUU-2, LUU-19, MI27 A1-parachute flare, self-protection flares, signal illuminations, simulated booby traps, Smokey Sams, artillery simulators, and ground bursts.

Tables 3 and 4 in this document provide a list and expenditure levels of the live and inert ordnance proposed for use at BT-9 and BT-11, respectively.

There are several varieties of ordnance and net explosive weights (for live munition used at BT-9) can vary according to type. All practice bombs are inert but simulate the same ballistic properties of service type bombs. They are either solid cast metal bodies or thin sheet metal containers. Since practice bombs contain no explosive filler, a practice bomb signal cartridge (smoke) serves as a visual observation of weapon target impact.

When a high explosive detonates, the explosive fill within the weapon case converts almost instantly into a gas at very high pressure and temperature. Under the pressure of the gases generated, the weapon case expands and breaks into fragments. The air surrounding the casing compresses and transmits a shock (blast) wave. Typical initial values for a high-explosive weapon are 200 kilobars of pressure (1 bar = 1 atmosphere) and 5,000 degrees Celsius (9,032 degrees Fahrenheit). The Marine Corps proposes to use five types of explosive sources at BT-9: 2.75-inch Rocket High Explosives, 5-inch Rocket High Explosives, 30 mm High Explosives, 40 mm High Explosives, and G911 grenades. All munitions proposed for use at BT-11 are inert (not live).

The Marine Corps estimates that the 5-year level of expended ordnance at BT-9 and BT-11 (both surface-to-surface and air-to-surface) would be approximately 6,193,070 and 6,273,420 rounds, respectively. The approximate annual quantities of ordnance listed in Tables 3 and 4 represent conservative figures, meaning that the volume of each type of inert and explosive ordnance proposed is the largest number that personnel could expend annually.

The Marine Corps realizes that its evolving training programs, linked to real world events, necessitate flexibility regarding the amounts of ordnance used in air-to-surface and surface-to-surface exercises. Thus, this rule would account for inter-annual variability in ordnance expenditures over the course of the five years. NMFS refers the reader to Table 2-2 of the Marine Corps' application for a complete list of munitions authorized for use at the Marine Corps Air Station Cherry Point Range Complex.

Noise generated by live or inert ordnance impacting the water and associated detonations from live ordnance may present some risk to bottlenose dolphins. Estimates of the noise fields generated in water by the impact of non-explosive (inert) ordnance indicate that the energy radiated is about one to two percent of the total kinetic energy of the impact. This energy level (and likely peak pressure levels) is well below the thresholds for predicting potential physical impacts from underwater pressure waves, because the firing of an inert projectile does not create an explosion even at 1 m (3 ft) from the impact. Therefore, NMFS and the Marine Corps do not expect that the noise generated by the in-water impact of inert ordnance would have the potential to take marine mammals within the action area. Thus, NMFS will not consider the acoustic impacts of inert ordnance further in this document.

However, live ordnance detonated underwater introduces loud, impulsive broadband (producing sound over a wide frequency band) sounds into the marine environment and does have the potential to take marine mammals. Broadband explosives produce significant acoustic energy across several frequency decades of bandwidth. Propagation loss is sufficiently sensitive to frequency as to require model estimates at several frequencies over such a wide band. Three source parameters influence the effect of an explosive: The weight of the explosive material, the type of explosive material, and the detonation depth. The net explosive weight (or NEW) accounts for the first two parameters. The ordnance's NEW is the weight of trinitrotoluene (TNT) that produces an equivalent explosive power. The detonation depth of an explosive is particularly important due to a propagation effect known as surface-image interference. For sources located near the sea surface, a distinct interference pattern arises from the coherent sum of the two paths that differ only by a single reflection from the pressure-release surface. As the source depth and/or the source frequency decreases, these two paths increasingly and destructively interfere with each other, reaching total cancellation at the surface (barring surface-reflection scattering loss).

For this final rulemaking, the Marine Corps proposes to use five types of explosive sources: 2.75-inch rocket high explosives, 5-inch rocket high explosives, 30 mm high explosives, 40 mm high explosives, and G911 grenades.

The firing sequence for some of the munitions consists of a number of rapid bursts, often lasting a second or less. The maximum firing time is 10 to 15 second bursts. Due to the tight spacing in time, the Marine Corps considers each burst as a single detonation. For the energy metrics, the Marine Corps considers the impact area of a burst using a source energy spectrum that is the source spectrum for a single detonation scaled by the number of rounds in a burst. For the pressure metrics, the impact area for a burst is the same as the impact area of a single round. For all metrics, the cumulative impact area of an event consisting of a certain number of bursts is the product of the impact area of a single burst and the number of bursts, as would be the case if the bursts are sufficiently spaced in time or location as to insure that each burst is affecting a different set of marine wildlife.

Table 5 provides a comparison of the live explosive ordnance proposed for use during 2015 through 2020. Table 5 lists the number of rounds per burst by ordnance; the acoustic characteristics of the proposed ordnance including the peak one-third octave (OTO) source level (SL); and the approximate frequency at which the peak occurs.

For ordnance detonated at shallow depths, often the source level of the explosion may breech the surface with some of the acoustic energy escaping the water column. The source levels presented in Table 5 do not account for possible venting of the acoustic energy through the water surface which the Marine Corps expects to be minor because of the low source net explosive weights and detonation depth of 1.2 m (3.9 ft).

There is one species of marine mammal with possible or confirmed occurrence in the area of the specified activity: The Atlantic bottlenose dolphin (Tursiops truncatus) which routinely frequents Pamlico Sound (Lefebvre et al, 2001; DoN 2003). The region of influence for the proposed project includes estuarine waters, and does not include offshore waters.

Four designated coastal stocks for bottlenose dolphins may occur within the proposed activity area. They include: the Western North Atlantic Northern Migratory Coastal; Western North Atlantic Southern Migratory; Northern North Carolina Estuarine System; and the Southern North Carolina Estuarine System stocks. Dolphins encountered at BT-9 and BT-11 would most likely belong to the Northern North Carolina Estuarine System and the Southern North Carolina Estuarine System stocks.

Table 6 in this document presents information on the abundance, status, and distribution of the four stocks. The reader may also refer to Section 4 of the Marine Corps' application, their 2014 application addendum, and Chapter 3 of the Marine Corps' EA for more detailed information. NMFS summarizes this information and presents updated information on the species' abundance, status, and distribution from the 2013 NMFS Stock Assessment Report for the U.S. Atlantic and Gulf of Mexico (Waring et al., 2014). The publication is available at http://www.nmfs.noaa.gov/pr/sars/region.htm.

The bottlenose dolphin is one of the most well-known species of marine mammals. They have a robust body and a short, thick beak. Their coloration ranges from light gray to black with lighter coloration on the belly. Inshore and offshore individuals vary in color and size. Inshore animals are smaller and lighter in color, while offshore animals are larger, darker in coloration and have smaller flippers.

Bottlenose dolphins range in lengths from 1.8 to 3.8 m (6.0 to 12.5 ft) with males slightly larger than females. Adults weight from 300-1,400 lbs (136-635 kg). Generally, the species has a lifespan of 40 to 45 years for males and more than 50 years for females.

Sexual maturity varies by population and ranges from five to 13 years for females and 9 to 14 years for males. Calves, born after a 12-month gestation period, generally wean at 18 to 20 months. On average, calving occurs every 3 to 6 years.

Bottlenose dolphins are generalists and feed on a variety of prey items “endemic” to their habitat, foraging individually and cooperatively. Like other dolphins, bottlenose dolphins use high frequency echolocation to locate and capture prey. Coastal animals prey on benthic invertebrates and fish, and offshore animals feed on pelagic squid and fish.

Western North Atlantic Northern Migratory Coastal (NMC) Stock: This stock is not listed as threatened or endangered under the Endangered Species Act (ESA; 16 U.S.C. 1531 et seq.); however, it is categorized as depleted (and thus strategic) under the MMPA. The best available abundance estimate for the NMC stock is 11,548 animals (Waring et al., 2014). However, there is insufficient data to determine the population trends for this stock.

Based on aerial survey data, tag-telemetry studies, photo-identification data, and genetic studies, the NMC stock of bottlenose dolphins occurs along the North Carolina coast and as far north as Long Island, New York (CETAP, 1982; Kenney, 1990; Garrison et al., 2003; Waring et al., 2014). During summer months (July-September), this stock occupies coastal waters from the shoreline to approximately the 25-m (82-ft) isobath between the Chesapeake Bay mouth and Long Island, New York. During the winter months (January-March), the stock moves south to waters of North Carolina and occupies coastal waters from Cape Lookout, North Carolina to the Virginia-North Carolina border (Barco and Swingle, 1996; Waring et al., 2014).

Western North Atlantic Southern Migratory Coastal (SMC) Stock: This stock is not listed as threatened or endangered under the ESA; however, it is categorized as depleted (and thus strategic) under the MMPA. The best available abundance estimate for the SMC stock is 9,173 animals (Waring et al., 2014). However, there is insufficient data to determine the population trends for this stock.

Based on tag-telemetry studies, the SMC stock of bottlenose dolphins occurs in coastal waters between southern North Carolina and Georgia, but the stock's migratory movements and spatial distribution are the most poorly understood of the coastal stocks (Waring et al., 2014). During the fall (October-December), this stock occupies waters of southern North Carolina (South of Cape Lookout) where it overlaps spatially with the Southern North Carolina Estuarine System stock in coastal waters. In winter months (January-March), the SMC stock moves as far south as northern Florida where it overlaps spatially with the South Carolina/Georgia and Northern Florida Coastal stocks. In spring (April-June), the stock moves north to waters of North Carolina where it overlaps with the Southern North Carolina Estuarine System stock and the Northern North Carolina Estuarine System stock. In summer months (July-September), the stock most likely occupies coastal waters north of Cape Lookout, North Carolina, to the eastern shore of Virginia (Waring et al., 2014).

Northern North Carolina Estuarine System (NNCES) Stock: This stock is not listed as threatened or endangered under the ESA; however, it is categorized as strategic (but not depleted) under the MMPA. The best available abundance estimate for the NNCES stock is 950 animals (Waring et al., 2014). However, there is insufficient data to determine the population trends for this stock.

Based on photo-identification studies, the NNCES stock of bottlenose dolphins occurs in the estuarine waters of Pamlico Sound (Waring et al., 2014). The ranging patterns of bottlenose dolphins in those studies support the presence of a group of dolphins within these waters that are distinct from both dolphins occupying estuarine and coastal waters in southern North Carolina and animals in the NMC and SMC stocks that occupy coastal waters of North Carolina at certain times of the year (Read et al., 2003; NMFS, 2001; NMFS, unpublished data).

During summer and fall months (July-October), the NNCES stock occupies waters of Pamlico Sound and nearshore coastal (less than 1 km (3,280 ft) from shore) and estuarine waters of central and northern North Carolina to Virginia Beach and the lower Chesapeake Bay (Waring et al., 2014). It likely overlaps with animals from the SMC stock in coastal waters during these months. During late fall and winter (November-March), the NNCES stock moves out of estuarine waters and occupies nearshore coastal waters between the New River and Cape Hatteras (Waring et al., 2013). It overlaps with the NMC stock during this period, particularly between Cape Lookout and Cape Hatteras. It appears that the region near Cape Lookout including Bogue Sound and Core Sound is an area of overlap with the Southern North Carolina Estuarine System stock during late summer (Waring et al., 2014).

Southern North Carolina Estuarine System (SNCES) Stock: This stock is not listed as threatened or endangered under the ESA; however, it is categorized as strategic (but not depleted) under the MMPA. The best available abundance estimate for the SNCES stock is 188 animals (Waring et al., 2014). However, there is insufficient data to determine the population trends for this stock.

Based on photo-identification studies, the SNCES stock of common bottlenose dolphins occupies estuarine and nearshore coastal waters (less than 3 km from shore) between the Little River Inlet Estuary, including the estuary and the New River (Waring et al., 2014). During summer and fall months (July-October), the SNCES stock occupies estuarine and nearshore coastal waters (less than 3 km (1.7 mi) from shore) between the North Carolina-South Carolina border and Core Sound. It likely overlaps with the NNCES stock in the northern portion of its range (i.e., southern Pamlico Sound) during late summer (Waring et al., 2014). During late fall through spring, the SNCES stock moves south to waters near Cape Fear. In coastal waters, it overlaps with the SMC stock during this period (Waring et al., 2014).

In Pamlico Sound, bottlenose dolphins concentrate in shallow water habitats along shorelines, and few, if any, individuals are present in the central portions of the sounds (Gannon, 2003; Read et al., 2003a, 2003b). The dolphins utilize shallow habitats, such as tributary creeks and the edges of the Neuse River, where the bottom depth is less than 3.5 m (11.5 ft) (Gannon, 2003). Fine-scale distribution of dolphins seems to relate to the presence of topography or vertical structure, such as the steeply-sloping bottom near the shore and oyster reefs. Bottlenose dolphins may use these features to facilitate prey capture (Gannon, 2003).

In 2000, Duke University Marine Lab (Duke) conducted a boat-based mark-recapture survey throughout the estuaries, bays and sounds of North Carolina (Read et al., 2003). The 2000 boat-based survey produced an estimate of 919 dolphins for the northern inshore waters divided by an estimated 5,015 km2 (1,936 mi2) survey area.

In a follow-on aerial study (July, 2002 to June, 2003) specifically in and around BT-9 and BT-11, Duke reported one sighting in the restricted area surrounding BT-9, two sightings in proximity to BT-11, and seven sightings in waters adjacent to the bombing targets (Maher, 2003). In total, the study observed 276 bottlenose dolphins ranging in group size from two to 70 animals.

Results of a passive acoustic monitoring effort conducted from 2006-2007 by Duke University researchers detected that dolphin vocalizations in the BT-11 vicinity were higher in August and September than vocalization detection at BT-9 (Read et al., 2007). Additionally, detected vocalizations of dolphins were more frequent at night for the BT-9 area and during early morning hours at BT-11 (Read et al., 2007).

The endangered West Indian manatee (Trichechus manatus), under the jurisdiction of the U.S. Fish and Wildlife Service, rarely occurs in the area (Lefebvre et al., 2001; DoN 2003). The U.S. Fish and Wildlife Service has jurisdiction over the manatee; therefore, NMFS would not include a proposed authorization to harass manatees and does not discuss this species further in this final rule.

Based on the best available information, there are no observations of the endangered North Atlantic right whale (Eubalaena glacialis) or other large whales within Pamlico Sound or in vicinity of the bombing targets (Kenney, 2006). No suitable habitat exists for these species in the shallow Pamlico Sound or bombing target vicinity; therefore, because NMFS does not expect these species to be present in the action area, there is no potential for take (NMFS, 2012). Thus, NMFS will not discuss these species further.

Other dolphins, such as Atlantic spotted (Stenella frontalis) and the common dolphin (Delphinus delphis), have an oceanic distribution and do not venture into the shallow, brackish waters of southern Pamlico Sound. Because these species are rare and/or have extralimital occurrence in the bombing target area, NMFS will not discuss these species further in this final rule.

The surface-to-surface and air-to-surface training exercises proposed for taking of marine mammals under these regulations have the potential to take marine mammals by exposing them to impulsive noise and pressure waves generated by live ordnance detonation at or near the surface of the water. Exposure to energy, pressure, or direct strike by ordnance has the potential to result in non-lethal injury (Level A harassment), disturbance (Level B harassment), serious injury, and/or mortality. In addition, NMFS also considered the potential for harassment from vessel and aircraft operations.

In the Potential Effects of the Specified Activity on Marine Mammals section of the proposed rule (79 FR 41373, July 15, 2014), NMFS included a qualitative discussion of the different ways that the Marine Corps' activities may potentially affect marine mammals without consideration of mitigation and monitoring measures (see 79 FR 41373, July 15, 2014; pages 41383-41391). Marine mammals may experience direct physiological effects (e.g., threshold shift and non-acoustic injury, acoustic masking, impaired communication, stress responses, behavioral disturbance, stranding, behavioral responses from vessel movement, and injury or death from vessel collisions). The information contained in this section in the proposed rule has not changed and NMFS does not repeat that information here in this document.

This section did not consider the specific manner in which the Marine Corps would carry out the proposed activity, what mitigation measures the Marine Corps would implement, and how either of those would shape the anticipated impacts from this specific activity. The “Estimated Take by Incidental Harassment, Injury, or Mortality” section later in this document will include a quantitative analysis of the number of individuals that NMFS expects the Marine Corps to take during this activity. The “Negligible Impact Analysis” section will include the analysis of how this specific activity would impact marine mammals. NMFS will consider the content of the following sections: (1) Estimated Take by Incidental Harassment, Injury, or Mortality; (2) Mitigation; and (3) Anticipated Effects on Marine Mammal Habitat, to draw conclusions regarding the likely impacts of this activity on the reproductive success or survivorship of individuals—and from that consideration—the likely impacts of this activity on the affected marine mammal populations or stocks.

In the Anticipated Effects Habitat section of the proposed rule (79 FR 41373, July 15, 2014), we included a qualitative discussion of the different ways that the Marine Corps' activities may potentially affect marine mammals marine mammal habitat (see 79 FR 41373, July 15, 2014; page 41391). The information contained in this section in the proposed rule has not changed and NMFS does not repeat that information here in this document.

Impacts on marine mammal habitat are part of the consideration in making a finding of negligible impact on the species and stocks of marine mammals. Habitat includes rookeries, mating grounds, feeding areas, and areas of similar significance. NMFS does not anticipate that the operations would result in any temporary or permanent effects on the habitats used by the marine mammals in the area, including the food sources they use (i.e., fish and invertebrates). Although NMFS anticipates that the specified activity may result in marine mammals avoiding certain areas due to temporary ensonification, this impact to habitat is temporary and reversible.

The Marine Corps complied with the mitigation and monitoring required under the previous authorizations (2010-2013). The Marine Corps submitted final monitoring reports, which described the activities conducted and observations made. For the 2010 period, the Marine Corps did not observe any marine mammals during training exercises. The only recorded observations—which were bottlenose dolphins—occurred on two occasions by maintenance vessels engaged in target maintenance. Personnel did not observe marine mammals during range sweeps, air-to-ground or surface-to-surface activities (small boats), or during ad hoc monitoring via range cameras.

For the 2012 period, the total amount of ordnance expended at BT-9 and BT-11 was 301,687 and 955,528 rounds, respectively. During the period of the 2012 IHA, the Marine Corps did not fire any high explosive (live) munitions at BT-9. The Marine Corps do not permit high explosive (live) munitions within BT-11. Maintenance vessels engaged in target maintenance observed marine mammals on two occasions during the 2012 reporting period. Flight crews conducting range sweeps identified dolphins within the confines of Rattan Bay at BT-11 on two separate occasions: February 10, 2012 and August 16, 2012. When the sightings occurred during range sweeps, the Marine Corps suspended military training until the dolphins exited the mouth of the embayment, per Marine Corps Air Station Cherry Point Range standard operating procedures. There were no observations of marine mammals during the air-to surface or surface-to-surface activities (small boats), or during ad hoc monitoring via range cameras other than during follow-up on the two occasions of sightings made during the pre-exercise range sweeps.

For the 2013 period, the total amount of ordnance expended at BT-9 and BT-11 was 821,516 and 1,217,824 rounds, respectively. During the period of the 2013 IHA, the Marine Corps did not fire any high explosive (live) munitions at BT-9. The Marine Corps do not permit high explosive (live) munitions within BT-11.

During the 2013 reporting period, a small boat crew observed a pod of eight dolphins within Rattan Bay (BT-11) while conducting surface-to-surface exercises. The Marine Corps suspended all small arms, live-fire activities until the pod departed Rattan Bay. On one other occasion, flight crews conducting range sweeps and observed dolphins within the confines of Rattan Bay at BT-11 prior to live-fire activities. The Marine Corps suspended the start of all training activities until the dolphins exited the mouth of the embayment, per MCAS Cherry Point Range standard operating procedures. For BT-9 during the 2013 period, there were no observations of marine mammals during the air-to surface or surface-to-surface activities (small boats), or during ad hoc monitoring via range cameras or maintenance vessels.

In summary, no instances of mortality, serious injury, or Level A harassment occurred during the conduct of training activities during the course of the previous three incidental harassment authorizations.

In order to issue an incidental take authorization under section 101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and the availability of such species or stock for taking for certain subsistence uses (where relevant).

The NDAA of 2004 amended the MMPA as it relates to military-readiness activities and the incidental take authorization process such that “least practicable adverse impact” shall include consideration of personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.

NMFS and the Marine Corps have worked to identify potential practicable and effective mitigation measures, which include a careful balancing of the likely benefit of any particular measure to the marine mammals with the likely effect of that measure on personnel safety, practicality of implementation, and impact on the “military-readiness activity.” NMFS refers the reader to Appendix B of the Marine Corps' application for more detailed information on the proposed mitigation measures which include the following:

1. Visual Monitoring: Range operators will conduct or direct visual surveys to monitor BT-9 or BT-11 for protected species before and after each exercise. Range operation and control personnel would monitor the target area through tower mounted safety and surveillance cameras. The remotely operated range cameras are high-resolution cameras that allow viewers to see animals at the surface and breaking the surface, but not underwater. The camera system has night vision (IR) capabilities. Lenses on the camera system have a focal length of 250 mm to 1500 mm, with view angles of 2.2° x 1.65° (in wide-view) and 0.55° x 41° (in narrow-view) respectively. Using the night-time capabilities, with a narrow view, an observer could identify a 1-by-1 meter target out to three kilometers.

In the event that the Marine Corps sight a marine mammal within 914 m (3,000 ft) of the BT-9 target area, personnel would declare the area as fouled and cease training exercises. Personnel would commence operations in BT-9 only after the animal moves beyond and on a path away from the 914-m (3,000-ft) radius around the target area.

For BT-11, in the event that a marine mammal is sighted anywhere within the confines of Rattan Bay, personnel would declare the water-based targets within Rattan Bay as fouled and cease training exercises. Personnel would commence operations in BT-11 only after the marine mammal has left the confines of Rattan Bay.

2. Range Sweeps: The VMR-1 squadron, stationed at Marine Corps Air Station Cherry Point, includes three specially equipped HH-46D helicopters. The primary mission of these aircraft, known as PEDRO, is to provide search and rescue for downed 2nd Marine Air Wing aircrews. On-board are a pilot, co-pilot, crew chief, search and rescue swimmer, and a medical corpsman. Each crew member has received extensive training in search and rescue techniques, and is therefore particularly capable at spotting objects floating in the water.

The PEDRO crew would conduct a range sweep the morning of each exercise day prior to the commencement of range operations. The crew would also conduct post-exercise sweeps. The primary goal of the pre-exercise sweep is to ensure that the target area is clear of fisherman, other personnel, and protected species. Generally, the weekly monitoring events would include a maximum of five pre-exercise and four post-exercise sweeps. The maximum number of days that would elapse between pre- and post-exercise monitoring events would be approximately 3 days, and would normally occur on weekends.

The sweeps would occur at 100 to 300 meters (328 to 984 ft) above the water surface, at airspeeds between 60 to 100 knots (69 to 115 mph). The path of the sweep runs down the western side of BT-11, circles around BT-9 and then continues down the eastern side of BT-9 before leaving. The sweep typically takes 20 to 30 minutes to complete.

The PEDRO crew communicates directly with range personnel and can provide immediate notification to range operators of a fouled target area due to the presence of protected species. The PEDRO aircraft would remain in the area of a marine mammal sighting until the animal clears the area, if possible, or as mission requirements dictate.

If the crew sights marine mammals during a range sweep, they would collect sighting data and immediately provide the information to range personnel who would take appropriate management action. Range staff would relay the sighting information to training Commanders scheduled on the range after the observation. Range personnel would enter the data into the Marine Corps' sighting database, web-interface, or report generator. Sighting data includes the following (collected to the best of the observer's ability): (1) Species identification; (2) group size; (3) the behavior of marine mammals (e.g., milling, travel, social, foraging); (4) location and relative distance from the bombing target; (5) date, time and visual conditions (e.g., Beaufort sea state, weather) associated with each observation; (6) direction of travel relative to the bombing target; and (7) duration of the observation.

3. Aircraft Cold Pass: Standard operating procedures for waterborne targets require the pilot to perform a visual check prior to ordnance delivery to ensure the target area is clear of unauthorized civilian boats and personnel, and protected species such as turtles and marine mammals. This is a “cold” or clearing pass. Pilots requesting entry onto the BT-9 and BT-11 airspace must perform a low-altitude, cold first pass (a pass without any release of ordnance) immediately prior to ordnance delivery at the bombing targets both day and night.

Pilots would conduct the cold pass with the aircraft (helicopter or fixed-winged) flying straight and level at altitudes of 61 to 914 m (200 to 3,000 ft) over the target area. The viewing angle is approximately 15 degrees. A blind spot exists to the immediate rear of the aircraft. Based upon prevailing visibility, a pilot can see more than one mile forward upon approach. If marine mammals are present in the target area, the Range Controller may deny ordnance delivery to the target as conditions warrant. If marine mammals are not present in the target area, the Range Controller may grant ordnance delivery as conditions warrant.

4. Delay of Exercises: The Marine Corps would consider an active range as fouled and not available for use if a marine mammal is present within 914 m (3,000 ft) of the target area at BT-9 or anywhere within the confines of Rattan Bay (BT-11). Therefore, if Marine Corps personnel observe a marine mammal within 914 m (3,000 ft) of the target at BT-9 or anywhere within Rattan Bay at BT-11 during the cold pass or from range camera detection, they would delay training until after the animal moves beyond and on a path away from the 914-m (3,000-ft) radius around the target area at BT-9 or has moved out of Rattan Bay at BT-11. This mitigation measure applies to both air-to-surface and surface-to-surface exercises during the day or night.

5. Vessel Operations: All vessels used during training operations would abide by NMFS' Southeast Regional Viewing Guidelines designed to prevent harassment to marine mammals (http://www.nmfs.noaa.gov/pr/education/southeast/).

6. Stranding Network Coordination: The Marine Corps would coordinate with the local NMFS Stranding Coordinator to discuss observations of any unusual marine mammal behaviors, strandings, or any beached live/dead, or floating marine mammals at any time during training activities or within 24 hours after completion of training.

NMFS has carefully evaluated the Marine Corps' mitigation measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. NMFS' evaluation of potential measures included consideration of the following factors in relation to one another:

• The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;

• The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and

• The practicability of the measure for applicant implementation.

Any mitigation measure(s) prescribed by NMFS should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed here:

1. Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).

2. A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to training exercises that we expect to result in the take of marine mammals (this goal may contribute to goal 1 or to reducing harassment takes only).

3. A reduction in the number of times (total number or number at biologically important time or location) individuals would be exposed to training exercises that we expect to result in the take of marine mammals (this goal may contribute to goal 1 or to reducing harassment takes only).

4. A reduction in the intensity of exposures (either total number or number at biologically important time or location) to training exercises that we expect to result in the take of marine mammals (this goal may contribute to goal 1 or to reducing the severity of harassment takes only).

5. Avoidance or minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/disturbance of habitat during a biologically important time.

6. For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.

Based on the evaluation of the Marine Corps' mitigation measures, which includes consideration of the results from past monitoring reports required under the 2010-2013 Authorizations, NMFS has determined that the mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance while also considering personnel safety, practicality of implementation, and the impact of effectiveness of the military readiness activity.

In order to issue a Letter of Authorization for an activity, section 101(a)(5)(A) of the MMPA states that we must set forth “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for an authorization must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and our expectations of the level of taking or impacts on populations of marine mammals present in the action area.

As part of its application, the Marine Corps provided a monitoring plan for assessing impacts to marine mammals from military training activities at BT-9 and BT-11 in Pamlico Sound, NC. This plan is similar, if not identical, to those conducted in previously issued Incidental Harassment Authorizations for the Marine Corps' activities from 2010-2013. The Marine Corps' suggested means of accomplishing the necessary monitoring and reporting under these regulations includes the following:

1. Protected Species Observer Training: Operators of small boats, and other personnel monitoring for marine mammals from watercraft shall be required to take the Department of the Navy's Marine Species Awareness Training. The Marine Corps shall instruct those pilots conducting range sweeps on marine mammal observation techniques during routine Range Management Department briefings. This training would make personnel knowledgeable of marine mammals, protected species, and visual cues related to the presence of marine mammals and protected species.

2. Pre- and Post-Exercise Monitoring: The Marine Corps would conduct pre-exercise monitoring the morning of an exercise and post-exercise monitoring the morning following an exercise, unless an exercise occurs on a Friday, in which case the post-exercise sweep would take place the following Monday. Weekly monitoring events would include a maximum of five pre-exercise and four post-exercise sweeps. The maximum number of days that would elapse between pre- and post-exercise monitoring events would be approximately three days, and would normally occur on weekends. If the Marine Corps observe marine mammals during this monitoring, personnel would record sighting data identical to those collected by the PEDRO crew.

3. Long-term Monitoring: The Marine Corps awarded Duke University Marine Lab (Duke) a contract to obtain abundance, group dynamics (e.g., group size, age census), behavior, habitat use, and acoustic data on the bottlenose dolphins which inhabit Pamlico Sound, specifically those around BT-9 and BT-11. Duke began conducting boat-based surveys and passive acoustic monitoring of bottlenose dolphins in Pamlico Sound in 2000 (Read et al., 2003) and specifically at BT-9 and BT-11 in 2003 (Mayer, 2003). To date, boat-based surveys indicate that bottlenose dolphins may be resident to Pamlico Sound and use the BT-9 and BT-11 restricted areas on a frequent basis. Passive acoustic monitoring (PAM) provides more detailed insight into how dolphins use the two ranges, by monitoring for their vocalizations year-round, regardless of weather conditions or darkness. In addition to these surveys, the Marine Corps and Duke's scientists continue to test a real-time passive acoustic monitoring system at BT-9 that will allow automated detection of bottlenose dolphin whistles, providing yet another method of detecting dolphins prior to training operations.

4. Reporting: The Marine Corps will submit an annual report to NMFS by June 1st of each year starting in 2016. The first report will cover the time period from issuance of the March 13, 2015 Letter of Authorization through March 12, 2016. Each annual report after that time will cover the time period from March 13 through March 12, annually.

The Marine Corps will submit a draft final comprehensive report to NMFS no later than 180 days prior to expiration of these regulations. This report must summarize the findings made in all previous reports and assess both the impacts at each of the bombing targets and the cumulative impact on bottlenose dolphin from the specified activities.

The draft final comprehensive report will summarize the type and amount of training exercises conducted, all marine mammal observations made during monitoring, and if mitigation measures were implemented. The draft final comprehensive report will also address the effectiveness of the monitoring plan in detecting marine mammals. The draft comprehensive report will be subject to review and comment by NMFS. Prior to acceptance by NMFS, the Marine Corps must address any recommendations made by NMFS, within 60 days of its receipt, in the final comprehensive report.

The Marine Corps will systematically observe training operations for injured or disabled marine mammals. In addition, the Marine Corps will monitor the principal marine mammal stranding networks and other media to correlate analysis of any dolphin strandings that could potentially be associated with BT-9 or BT-11 training operations.

Marine Corps personnel will ensure that they notify NMFS immediately or as soon as clearance procedures allow if personnel find an injured, stranded, or dead marine mammal during or shortly after, and in the vicinity of, any training operations. The Marine Corps will provide NMFS with species or description of the animal(s), the condition of the animal(s) (including carcass condition if the animal is dead), location, time of first discovery, observed behaviors (if alive), and photo or video (if available).

In the event that an injured, stranded, or dead marine mammal is found by Marine Corps personnel that is not in the vicinity of, or found during or shortly after operations, the Marine Corps personnel will report the same information as listed above as soon as operationally feasible and clearance procedures allow.

In the event of a vessel strike, at any time or place, the Marine Corps shall do the following:

• Immediately report to us the species identification (if known), location (lat/long) of the animal (or the strike if the animal has disappeared), and whether the animal is alive or dead (or unknown);

• Report to us as soon as operationally feasible the size and length of the animal, an estimate of the injury status (e.g., dead, injured but alive, injured and moving, unknown, etc.), vessel class/type and operational status;

• Report to NMFS the vessel length, speed, and heading as soon as feasible; and

• Provide us a photo or video, if equipment is available.

NMFS has included an adaptive management component in the regulations governing the take of marine mammals incidental to the Marine Corps' activities at BT-9 and BT-11. In accordance with 50 CFR 216.105(c), NMFS must base the regulations on the best available information. As the Marine Corps develops new information, through monitoring, reporting, or research, NMFS may modify the regulations, in whole or in part, after notice and opportunity for public review. The use of adaptive management will allow NMFS to consider new information from different sources to determine if NMFS should modify mitigation or monitoring measures (including additions or deletions) if new data suggest that such modifications are appropriate for subsequent LOAs. NMFS may modify or augment the existing mitigation or monitoring measures (after consulting with the Marine Corps regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of mitigation and monitoring set forth in the preamble of these regulations. Following are some of the possible sources of new data that could contribute to the decision to modify the mitigation or monitoring measures:

1. Results from the Marine Corps' monitoring from the previous year.

2. Results from marine mammal and/or sound research or studies; or

3. Any information which reveals that marine mammals may have been taken in a manner, extent, or number not authorized by these regulations or subsequent Letters of Authorization.

In addition, NMFS may withdraw or suspend the LOA, if, after notice and opportunity for public comment, the Assistant Administrator finds, among other things, that the Marine Corps are not substantially complying with the regulations or the taking allowed is having more than a negligible impact on the species or stock, as allowed for in 50 CFR 216.106(e). That is, should monitoring and reporting indicate that the operations and activities from the Marine Corps' activities at BT-9 and BT-11 are having more than a negligible impact on marine mammals, then NMFS reserves the right to modify the regulations and/or withdraw or suspend an LOA after public review.

The Marine Corps has funded surveys performed by Duke University researchers and provided financial support to augment surveys conducted by the NMFS Southeast Fisheries Science Center. Information and knowledge gained from the Marine Corps-funded research has contributed significantly to the understanding of bottlenose dolphin stocks, including their distribution and movement, in Pamlico Sound, NC.

The Marine Corps, in collaboration with Duke scientists, are in the process of developing and testing a real-time passive acoustic monitoring system that will allow automated detection of bottlenose dolphin whistles (Appendix C in the application). The Marine Corps and Duke have performed the work in two phases. Phase I was the development of an automated signal detector (a software program) to recognize the whistles of dolphins at BT-9 and BT-11. Phase II, currently in progress, is the assembly and deployment of a prototype real-time monitoring unit on one of the towers in the BT-9 range. The success of this effort will help direct future research initiatives and activities within the Marine Corps Air Station Cherry Point Range Complex. As funding becomes available and research opportunities arise, the Marine Corps will continue to fund and participate in studies that will enhance the understanding of the life history of marine mammals in Pamlico Sound.

On July 15, 2014, NMFS published a proposed rule (79 FR 41374) in response to the Marine Corps' request to take marine mammals incidental to military training activities at BT-9 and BT-11 in Pamlico Sound. In that Federal Register notice, NMFS requested comments, information, and suggestions concerning the request. During the 30-day public comment period, we received comments from the following: The Marine Mammal Commission (Commission), the Center for Biological Diversity (CBD), and 12 comments from private citizens. Following is a summary of the substantive comments and NMFS' responses.

Comment 1: The CBD requested that NMFS not issue regulations authorizing serious injury and mortality of up to 30 dolphins during the course of the five-year rule, stating that NMFS' analysis shows that the take of bottlenose dolphins will be more than negligible, specifically for the Southern and Northern North Carolina Estuarine System stocks.

Response: NMFS acknowledges CBD's concerns regarding the Marine Corps' training activities on the Southern and Northern North Carolina Estuarine System stocks of bottlenose dolphins. NMFS has reassessed the estimates of bottlenose dolphins that the Marine Corps could potentially take during the course of the training activities and will not authorize take of bottlenose dolphins by mortality or serious injury in these regulations.

NMFS reanalyzed the take estimates presented in the Marine Corps' 2014 application addendum and Tables 10 and 11 of the proposed rulemaking (79 FR 41374, July 14, 2014, page 41397), and has determined that these estimates overestimated the number of marine mammals that could potentially be taken by mortality and serious injury. First, in the proposed rule, NMFS rounded up the annual take estimates that were less than 0.5 to the nearest whole number (1). Instead, NMFS should have presented the annual take estimates for mortality and serious injury that were less than 0.5 as zero takes, which is the standard practice in calculating take estimates and recommended by the Marine Mammal Commission when estimating incidental take for military readiness activities (MMC, 2015). Generally, one should round down if less than 0.50 and round up if greater than or equal to 0.50.

Second, NMFS inadvertently included estimated take by slight lung injury within the annual estimated take by serious injury category in Table 10 of the proposed rulemaking (79 FR 41374, July 14, 2014, page 41397). NMFS classifies slight lung injury as Level A harassment, not serious injury. Thus, this error of commission led NMFS to inaccurately state the number of takes by serious injury that could potentially occur in the absence of mitigation. Tables 10 and 11 of this final rule present the corrected take estimates for serious injury and mortality in the absence of mitigation. In summary, NMFS now estimates that, in the absence of mitigation, the Marine Corps could potentially take up to zero animals by mortality and potentially take up to two animals by serious injury on an annual basis.

However, as stated in the proposed rule, in consideration of the effectiveness of the mitigation measures, NMFS does not expect take by serious injury or mortality to occur. NMFS believes it has sufficient information about the Marine Corp's activities and the effectiveness of the mitigation measures to reasonably conclude that the activities are not likely to result in any serious injury or mortality. NMFS notes that over the course of the previous incidental harassment authorizations issued to the Marine Corps for the same activities, there were no reported incidents of serious injury to or mortality of any marine mammal. NMFS believes that the mitigation measures that will be implemented by the Marine Corps (e.g., conservative exclusion zones for marine mammals; pre- and post-exercise monitoring, range sweeps, cold passes, delay of exercises, visual monitoring with high-resolution cameras with night vision capabilities, and passive acoustic monitoring) would reduce the amount and severity of the potential impacts from the activity, making it unlikely that any take by serious injury or morality would occur. Therefore, NMFS is not authorizing take by serious injury or mortality.

In making a negligible impact determination, NMFS considers a variety of factors, including but not limited to: (1) The number of anticipated serious injuries and mortalities; (2) the number and nature of anticipated injuries (Level A harassment); (3) the number, nature, and intensity, and duration of Level B harassment; (4) the status of stock or species of marine mammals; (5) the context in which the takes occur; and (6) the effectiveness of monitoring and mitigation measures. Taking into consideration the historically low concentrations of bottlenose dolphins present within the BT-9 and BT-11 areas; the small scale and spatial footprint of the proposed detonations within the target areas; the relatively short duration and intermittent nature of the training activities; and the incorporation of proven mitigation and monitoring measures to lessen adverse effects, NMFS expects the activities to affect a small number of marine mammals on an infrequent basis to the degree that it would have a negligible impact on the one species of bottlenose dolphins or any of the four stocks of bottlenose dolphins in the action area.

Comment 2: The CBD commented that the proposed regulations would authorize mortality for the Southern and Northern North Carolina Estuarine System strategic stocks of bottlenose dolphins at a rate above the Potential Biological Removal (PBR) for the stocks under the MMPA. They further state that any additional mortalities proposed for authorization above PBR for the North Caroline Estuarine System stock would slow that stock's recovery rate and preclude the species from reaching its optimum sustainable population and that any additional mortalities authorized above PBR for the Southern North Carolina Estuarine System stock would affect annual rates of recruitment or survival.

Response: See NMFS' response to Comment 1. For reasons stated previously in the response to Comment 1, NMFS will not authorize the take of bottlenose dolphins by serious injury or mortality in these regulations. No takes by serious injury or mortality occurred during NMFS' previous authorizations to the Marine Corps. Based on the Marine Corps' compliance with previous authorizations for the same activities, NMFS expects the required mitigation and monitoring measures to minimize the potential risk for serious injury or mortality and does not expect these types of takes to occur.

In addition, NMFS has included an adaptive management component in the regulations governing the take of marine mammals incidental to the Marine Corps' activities at BT-9 and BT-11. The use of adaptive management will allow NMFS to consider new information from different sources to determine whether mitigation or monitoring measures should be modified. NMFS may modify or augment the existing mitigation or monitoring measures (after consulting with the Marine Corps regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of mitigation and monitoring set forth in the preamble of these regulations.

Comment 3: The CBD states that NMFS should not issue regulations authorizing harassment and mortality of the North Carolina Estuarine System bottlenose dolphins because the additional mortality associated with the Unusual Mortality Event (UME) in the mid-Atlantic Ocean.

Response: For reasons stated previously in the response to Comment 1, NMFS would not authorize the take of bottlenose dolphins by serious injury or mortality in these regulations. See our responses to Comments 1 and 2 regarding NMFS' determinations of the expected level of mortality and serious injury that could potentially occur in BT-9 and BT-11 given the required mitigation and monitoring measures in this final rule.

NOAA has declared an UME for bottlenose dolphins in the mid-Atlantic Ocean from early July 2013 through the present. Elevated strandings of bottlenose dolphins have occurred in North Carolina. However, none have occurred in BT-9 or BT-11.

All age classes of bottlenose dolphins are involved and strandings range from a few live animals to mostly dead animals with many very decomposed (NMFS, 2015). Based upon preliminary diagnostic testing and discussion with disease experts, the tentative cause of this UME could be cetacean morbillivirus (NMFS, 2015). However the investigation is still ongoing and additional contributory factors to the UME are under investigation including other pathogens, biotoxins, range expansion, etc. (NMFS, 2015).

Comment 4: The Commission recommends the NMFS require the Marine Corps to use either direct strike or dynamic Monte Carlo models to determine the probability of ordnance strike.

Response: NMFS considers the Marine Corps' model for direct strike to be the best available information. Although the Commission recommended “direct strike or dynamic Monte Carlo methods,” it noted that the result of using a new risk probability model would likely provide negligible changes from the model described in the application. Because NMFS also believes that any change would be negligible and that the Marine Corps' existing model is the best available information, NMFS disagrees that the alternative modeling suggested by the Commission is necessary.

Comment 5: The Commission also requested that we require the Marine Corps to implement a plan to evaluate the effectiveness of all of its sensor-based monitoring systems (i.e., the remote-camera passive acoustic monitoring systems).

Response: NMFS worked closely with the Marine Corps to develop proper mitigation, monitoring, and reporting requirements designed to minimize and detect impacts from the specified activities. This includes a Marine Mammal and Protected Species Monitoring Plan (Plan) that satisfies the requirements of the MMPA.

The Marine Corps has collaborated with Duke University to develop and test a real-time passive acoustic monitoring system that will allow automated detection of bottlenose dolphin whistles. Duke University is performing the work in two phases. Phase I was the development of an automated signal detector (a software program) to recognize the whistles of dolphins at BT-9 and BT-11. Phase II, currently in progress, is the assembly and deployment of a prototype real-time monitoring unit on one of the towers in the BT-9 range. Through the adaptive management component of the regulations, NMFS and the Marine Corps will continue evaluate the effectiveness of all of the sensor-based monitoring systems in BT-9 and BT-11.

Comment 6: Several individuals expressed general opposition to the Marine Corps' activities and to NMFS' proposed issuance of MMPA regulations because of the danger of killing or harassing marine life.

Response: NMFS appreciates the commenters' concerns for the marine life in the areas of the proposed activities. We note that over the course of the previous incidental harassment authorizations issued to the Marine Corps for the same activities, there were no reported incidents of injury to or mortality of any marine mammal. NMFS does not expect take by serious injury or mortality to occur. Again, taking into consideration the historically low concentrations of bottlenose dolphins present within the BT-9 and BT-11 areas; the small scale and spatial footprint of the proposed detonations within the target areas; the relatively short duration of the activities; and the incorporation of proven mitigation and monitoring measures to lessen adverse effects, NMFS expects the activities to have a negligible impact on marine mammals.

NMFS' analysis identified the lethal responses, physiological responses, and behavioral responses that could potentially result from exposure to underwater explosive detonations. In this section, NMFS will relate the potential effects to marine mammals from underwater detonation of explosives and direct strike by ordnance to the MMPA regulatory definitions of Level A and Level B harassment, serious injury, and mortality. This section will also quantify the effects that might occur from the military readiness activities in BT-9 and BT-11.

The NDAA removed the “small numbers” and “specified geographic region” limitations indicated earlier in this document and amended the definition of harassment as it applies to a “military readiness activity” to read as follows: (i) Any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild [Level A Harassment]; or (ii) any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered [Level B Harassment].

Of the potential effects described in the proposed rule, the following are the types of effects that fall into the Level B harassment category:

Behavioral Harassment—Behavioral disturbance that rises to the level described in the above definition, when resulting from exposures to non-impulsive or impulsive sound, is Level B harassment. Some of the lower level physiological stress responses discussed earlier would also likely co-occur with the predicted harassments, although these responses are more difficult to detect and fewer data exist relating these responses to specific received levels of sound. When predicting Level B harassment based on estimated behavioral responses, those takes may have a stress-related physiological component.

Acoustic Masking and Communication Impairment—NMFS considers acoustic masking to be Level B harassment, as it can disrupt natural behavioral patterns by interrupting or limiting the marine mammal's receipt or transmittal of important information or environmental cues.

Temporary Threshold Shift (TTS)—As discussed previously, TTS can affect how an animal behaves in response to the environment, including conspecifics, predators, and prey. NMFS classifies TTS (when resulting from exposure to explosives and other impulsive sources) as Level B harassment, not Level A harassment (injury).

Of the potential effects that were described in the proposed rule, the following are the types of effects that fall into the Level A Harassment category:

Permanent Threshold Shift (PTS)—PTS (resulting either from exposure to explosive detonations) is irreversible and NMFS considers this to be an injury.

Physical Disruption of Tissues Resulting from Explosive Shock Wave— NMFS classifies physical damage of tissues resulting from a shock wave (from an explosive detonation) as an injury.

NMFS considers direct strike by ordnance associated with the specified activities to be serious injury or mortality.

NMFS has identified three potential levels of take for the Marine Corps' training exercises: Level B harassment; Level A harassment; and mortality (or serious injury leading to mortality). We present the acoustic thresholds for impulse sounds in this section.

Table 7 summarizes the marine mammal impulsive sound explosive thresholds used for the Marine Corps' acoustic impact modeling for marine mammal take in its application and 2009 EA. Several standard acoustic metrics (Urick, 1983) describe the thresholds for predicting potential physical impacts from underwater pressure waves. They are:

• Total energy flux density or Sound Exposure Level (SEL). For plane waves (as assumed here), SEL is the time integral of the instantaneous intensity, where the instantaneous intensity is defined as the squared acoustic pressure divided by the characteristic impedance of sea water. Thus, SEL is the instantaneous pressure amplitude squared, summed over the duration of the signal. Standard units are dB referenced to 1 re: μPa2-s.

• 1/3-octave SEL. This is the SEL in a 1/3-octave frequency band. A 1/3-octave band has upper and lower frequency limits with a ratio of 21:3, creating bandwidth limits of about 23 percent of center frequency.

• Positive impulse. This is the time integral of the initial positive pressure pulse of an explosion or explosive-like wave form. Standard units are Pa-s or psi-ms.

• Peak pressure. This is the maximum positive amplitude of a pressure wave, dependent on charge mass and range. Standard units are psi, μPa, or Bar.

NMFS previously developed the explosive thresholds for assessing impacts of explosions on marine mammals shown in Table 7 for the shock trials of the USS Seawolf and USS Winston S. Churchill. However, at NMFS' recommendation, the Marine Corps has updated the thresholds used for onset of temporary threshold shift (TTS; Level B Harassment) and onset of permanent threshold shift (PTS; Level A Harassment) to be consistent with the thresholds outlined in the Navy's report titled, “Criteria and Thresholds for U.S. Navy Acoustic and Explosive Effects Analysis Technical Report,” on which the Navy coordinated with NMFS. NMFS believes that the thresholds outlined in the Navy's report represent the best available science. The report is available on the Internet at: http://aftteis.com/Portals/4/aftteis/Supporting%20Technical%20Documents/Criteria_and_Thresholds_for_US_Navy_Acoustic_and_Explosive_Effects_Analysis-Apr_2012.pdf.

Table 8 in this document outlines the revised acoustic thresholds used by NMFS for this rulemaking when addressing noise impacts from explosives.

The Marine Corps conservatively modeled that all explosives would detonate at a 1.2 m (3.9 ft) water depth despite the training goal of hitting the target, resulting in an above water or on land explosion. For sources detonated at shallow depths, it is frequently the case that the explosion may breech the surface with some of the acoustic energy escaping the water column. Table 9 provides the estimated maximum range or radius, from the detonation point to the various thresholds described in Table 8.

The Marine Corps bases its method to estimate the number of marine mammals potentially affected using bottlenose dolphin densities (summer and winter), the amount/type of ordnance proposed, and distances to NMFS' harassment threshold criteria.

In 2000, Duke conducted a boat-based mark-recapture survey throughout the estuaries, bays and sounds of North Carolina (Read et al., 2003). The 2000 boat-based survey yielded a dolphin density of 0.183 per square kilometer (km2) (0.071 square mile (mi2)) based on an estimate of 919 dolphins for the northern inshore waters divided by an estimated 5,015 km2 (1,936 mi2) survey area.

In a follow-on aerial study (July 2002-June 2003) specifically in and around BT-9 and BT-11, Duke reported one sighting in the restricted area surrounding BT-9, two sightings in proximity to BT-11, and seven sightings in waters adjacent to the bombing targets (Maher, 2003). In total, 276 bottlenose dolphins were sighted ranging in group size from two to 70 animals with mean dolphin density in BT-11 more than twice as large as the density of any of the other areas; however, the daily densities were not significantly different (Maher, 2003). The researchers calculated the estimated dolphin density at BT-9 and BT-11 based on these surveys to be 0.11 dolphins/km2, and 1.23 dolphins/km2, respectively.

For the regulations, the Marine Corps chose to estimate take of dolphins based on the higher density reported from the summer 2000 surveys (0.183/km2). Although the researchers conducted the aerial surveys year round and provided seasonal density estimates, the average year-round density from the aerial surveys is 0.0936, lower than the 0.183/km2 density chosen to calculate take for purposes of these proposed regulations. Additionally, Goodman et al. (2007) acknowledged that boat based density estimates may be more accurate than the uncorrected estimates derived from the aerial surveys.

In order to calculate take from ordnance, the Marine Corps considered the distances to which animals could be harassed along with dolphin density (0.183 km2) and based take calculations for munitions firing on 100 percent water detonation. Because the goal of training is to hit the targets and not the water, NMFS considers these take estimates based on 100 percent water detonation of munitions to be conservative.

Table 10 presents the annual estimated take of bottlenose dolphins from exposure to explosive ordnance based on current thresholds. The Marine Corps has requested, and NMFS proposes to authorize, the incidental take of 323 bottlenose dolphins from Level B Harassment (behavioral and TTS) and 34 bottlenose dolphins from Level A Harassment (PTS) annually.

Table 10 also includes an estimated annual take of 2 bottlenose dolphins by mortality (or serious injury leading to mortality) as a result of exposure to impulsive sound explosions. However, in consideration of the effectiveness of the mitigation measures, NMFS does not expect take by serious injury or mortality related to exposure to explosive ordnance to occur, and is not authorizing serious injury or mortality. The Marine Corps has conducted gunnery and bombing training exercises at BT-9 and BT-11 for several years and, to date, the monitoring reports do not indicate that dolphin injury, serious injury, or mortality has occurred as a result of the training exercises. Also, the Marine Corps has a history of notifying the NMFS stranding network when any injured or stranded animal comes ashore or is spotted by personnel on the water. The stranding responders have examined each of the stranded animals, confirming that it was unlikely that the Marine Corps' exercises resulted in the death or injury of the stranded marine mammal.

Table 11 presents the annual estimated take of bottlenose dolphins from direct strike by ordnance, which is zero for each location. In consideration of the effectiveness of the mitigation measures, NMFS does not expect take by serious injury or mortality related to direct strike to occur.

The Marine Corps conducted modeling for the bombing targets to determine the total surface area needed to contain 99.99 percent of initial and ricochet impacts (95 percent confidence interval) for each aircraft and ordnance type. It then generated the surface area or footprints of weapon impact areas associated with air-to-ground ordnance delivery and estimated that at both BT-9 and BT-11 the probability of deployed ordnance landing in the impact footprint is essentially 1.0, since the footprints were designed to contain 99.99 percent of impacts, including ricochets. However, only 36 percent of the weapon footprint for BT-11 is over water in Rattan Bay. Water depths in Rattan Bay range from 3 m (10 ft) in the deepest part of the bay to 0.5 m (1.6 ft) close to shore.

The Marine Corps calculated the probability of hitting a bottlenose dolphin at the bombing targets by multiplying the dolphin's dorsal surface area by the density estimate of dolphins in the area. It estimated that the dorsal surface area of a bottlenose dolphin was approximately 1.425 m2 (15.3 ft2) with an average length and width of 2.85 m (9.3 ft) and 0.5 m (1.6 ft), respectively. Then using the density estimate of 0.183 km2, it calculated the probability of direct strike in the waters of BT-9 as 2.61 × 10−7 and the probability of direct strike in the waters of BT-11 as 9.4 × 10−8. The probability for BT-11 is 64 percent lower, because only 36 percent of the weapons footprint occurs over the water column. This method is the best available information for estimating the probability of ordnance striking a marine mammal in BT-9 or BT-11.

Interactions with vessels are not a new experience for bottlenose dolphins in Pamlico Sound. Pamlico Sound is heavily used by recreational, commercial (fishing, daily ferry service, tugs, etc.), and military (including the Navy, Air Force, and Coast Guard) vessels year-round. The NMFS' Southeast Regional Office has developed marine mammal viewing guidelines to educate the public on how to responsibly view marine mammals in the wild and avoid causing a take(http://www.nmfs.noaa.gov/pr/education/southeast/). The guidelines recommend that vessels should remain a minimum of 50 yards (45.7 m; 150 ft) from a dolphin, operate in a predictable manner, avoid excessive speed or sudden changes in speed or direction in the vicinity of animals, and not pursue, chase, or separate a group of animals. The Marine Corps would abide by these guidelines to the fullest extent practicable. The Marine Corps would not engage in high speed exercises if personnel detect a marine mammal within the immediate area of the bombing targets prior to training commencement and would never closely approach, chase, or pursue dolphins. Personnel monitoring on the vessels, marking success rate of target hits, and monitoring the remote camera would facilitate detection of marine mammals within the bombing targets.

Based on the description of the action, the other activities regularly occurring in the area, the species that may be exposed to the activity and their observed behaviors in the presence of vessel traffic, and the implementation of measures to avoid vessel strikes, NMFS has determined that it is unlikely that the small boat maneuvers during surface-to-surface maneuvers would result in the take of any marine mammals, in the form of either behavioral harassment, injury, serious injury, or mortality.

Negligible impact is “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of Level B harassment takes, alone, is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” through behavioral harassment, NMFS must consider other factors, such as the likely nature of any responses (their intensity, duration, etc.), the context of any responses (critical reproductive time or location, migration, etc.), as well as the number and nature of estimated Level A harassment takes, the number of estimated mortalities, and effects on habitat.

NMFS would authorize Level A and Level B harassment only of bottlenose dolphins over the course of a 5-year period. The Marine Corps has described its specified activities based on best estimates of the number of sorties that it proposes to conduct training exercises at BT-9 and BT-11. The exact number of ordnance expenditures may vary from year to year, but will not exceed the 5-year total of ordnance expenditures based on the information in Tables 3 and 4. NMFS does not anticipate that the take totals proposed for authorization would exceed the 5-year totals indicated in Tables 10 and 11.

Depending on the intensity of the shock wave and size, location, and depth of the animal, an animal can exhibit tolerance from hearing the blast sound. However, tolerance effects on bottlenose dolphins within the bombing target areas are difficult to assess given their affinity for the area. Scientific boat-based surveys conducted throughout Pamlico Sound conclude that dolphins use the areas around the BTs more frequently than other portions of Pamlico Sound (Maher, 2003), despite the Marine Corps actively training in a manner identical to the specified activities described here for years. Because of the low concentration of bottlenose dolphins present within the BT-9 and BT-11 areas, the incorporation of mitigation measures to lessen effects, and the short durations of the missions, NMFS expects that tolerance effects would be minimal and would affect a small number of marine mammals on an infrequent basis.

For reasons stated previously in the proposed rule, NMFS expects masking effects from ordnance detonation to be minimal because masking is typically of greater concern for those marine mammals that utilize low frequency communications, such as baleen whales. While it may occur temporarily, NMFS does not expect auditory masking to result in detrimental impacts to an individual's or population's survival, fitness, or reproductive success. Dolphin movement is not restricted within the BT-9 or BT-11 ranges, allowing for movement out of the area to avoid masking impacts.

The Level B harassment takes would likely result in dolphins being temporarily affected by bombing or gunnery exercises. However, the probability that detonation events will overlap in time and space with marine mammals is low, particularly given the densities of marine mammals in the vicinity of BT-9 and BT-11 and the implementation of monitoring and mitigation measures. Moreover, NMFS does not expect animals to experience repeat exposures to the same sound source, as bottlenose dolphins would likely move away from the source after being exposed. In addition, NMFS expects that these isolated exposures, when received at distances of Level B behavioral harassment, would cause brief startle reactions or short-term behavioral modification by the animals. These brief reactions and behavioral changes would disappear when the exposures cease.

Read et al. (2003) concluded that dolphins rarely occur in open waters in the middle of North Carolina sounds and large estuaries, but instead are concentrated in shallow water habitats along shorelines. However, no specific areas have been identified as vital reproduction or foraging habitat.

NMFS and the Marine Corps have estimated that individuals of bottlenose dolphins may sustain some level of temporary threshold shift (TTS) from underwater detonations. TTS can last from a few minutes to days, be of varying degree, and occur across various frequency bandwidths. Although the degree of TTS depends on the received noise levels and exposure time, studies show that TTS is reversible. NMFS expects the animals' sensitivity to recover fully in minutes to hours based on the fact that the proposed underwater detonations are small in scale and isolated. In summary, we do not expect that these levels of received impulse noise from detonations would affect annual rates of recruitment or survival.

NMFS expects short-term effects such as stress during underwater detonations, as repeated exposure to sounds from underwater explosions may cause physiological stress that could lead to long-term consequences for the individual such as reduced survival, growth, or reproductive capacity. However, the time scale of individual explosions is very limited, and the Marine Corps disperses its training exercises in space and time.

Consequently, repeated exposure of individual bottlenose dolphins to sounds from underwater explosions is not likely and most acoustic effects are expected to be short-term and localized. NMFS does not expect long-term consequences for populations because the BT-9 and BT-11 areas continue to support bottlenose dolphins in spite of ongoing missions. The best available data do not suggest that there is a decline in the Pamlico Sound population due to these exercises.

NMFS believes that many marine mammals would deliberately avoid exposing themselves to the received levels of explosive ordnance necessary to induce injury by moving away from or at least modifying their path to avoid a close approach. Also, in the unlikely event that an animal approaches the bombing target at a close distance, NMFS believes that the mitigation measures (i.e., the delay/postponement of missions) would typically ensure that animals would not be exposed to injurious levels of sound. As discussed previously, the Marine Corps utilizes both aerial and passive acoustic monitoring in addition to personnel on vessels to detect marine mammals for mitigation implementation. The potential for permanent hearing impairment and injury is low due to the incorporation of the proposed mitigation measures specified in this final rule.

As stated previously, NMFS would not authorize take by mortality (or serious injury leading to mortality). There have been no recorded incidents of mortality or serious injury of marine mammals resulting from previous missions in BT-9 or BT-11 to date. Based on the Marine Corps' compliance with previous authorizations for the same activities, NMFS expects the proposed mitigation and monitoring measures to minimize the potential risk for serious injury or mortality and does not expect these types of takes to occur.

The Marine Corps has conducted gunnery and bombing training exercises at BT-9 and BT-11 for several years and, to date, the monitoring reports do not indicate that dolphin injury, serious injury, or mortality has occurred as a result of its training exercises. Also, the Marine Corps has a history of notifying the NMFS stranding network when any injured or stranded animal comes ashore or is spotted by personnel on the water. The stranding responders have examined each of the stranded animals, confirming that it was unlikely that the Marine Corps' exercises resulted in the death or injury of the stranded marine mammal.

As described in the Affected Species section of this final rule, bottlenose dolphin stock segregation is complex with stocks overlapping throughout the coastal and estuarine waters of North Carolina. It is not possible for the Marine Corps to determine to which stock any individual dolphin taken during training activities belongs, as this can only be accomplished through genetic testing. However, it is likely that many of the dolphins encountered would belong to the Northern or Southern North Carolina Estuarine System stocks. These stocks have abundance estimates of 950 and 188 animals, respectively, and are not listed as threatened or endangered under the ESA.

In addition, the potential for temporary or permanent hearing impairment and injury is low and through the incorporation of the proposed mitigation measures specified in this document would have the least practicable adverse impact on the affected species or stocks. The information contained in the Marine Corps' application, the 2009 EA, and this document support NMFS' finding that impacts will be mitigated by implementation of a conservative safety range for marine mammal exclusion in Rattan Bay, incorporation of platform and aerial survey monitoring efforts both prior to and after detonation of explosives, and delay/postponement/cancellation of detonations whenever marine mammals or other specified protected resources are either detected within the bombing target areas or enter the bombing target areas at the time of detonation, or if weather and sea conditions preclude adequate surveillance.

The Marine Corps has complied with the requirements of the previous incidental harassment authorizations issued for similar activities, and reported few observed takes of marine mammals incidental to these training exercises.

Based on the best available information, NMFS authorizes: take by Level B harassment of 1,615 bottlenose dolphins and take by Level A harassment of 170 bottlenose dolphins only. This represents an overestimate of the number of individuals harassed over the duration of the final rule and LOA because these totals represent much smaller numbers of individuals that may be harassed multiple times. There are no stocks known from the action area listed as threatened or endangered under the ESA. Two bottlenose dolphin stocks designated as strategic under the MMPA may be affected by the Marine Corps' activities. In this case, under the MMPA, strategic stock means a marine mammal stock for which the level of direct human-caused mortality exceeds the potential biological removal level. These include the Southern North Carolina Estuarine System and Northern North Carolina Estuarine System Stocks. NMFS does not expect the this action to result in long-term impacts such as permanent abandonment or reduction in presence at BT-9 or BT-11. No impacts are expected at the population or stock level.

Taking into account information presented in this final rule, the Marine Corps' application and 2014 application addendum, the 2009 EA, and results from previous monitoring reports, NMFS has determined that the total level of take incidental to authorized training exercises over the 5-year effective period of the regulations would have a negligible impact on the marine mammal species and stocks affected at BT-9 and BT-11 in Pamlico Sound, NC.

There are no relevant subsistence uses of marine mammals implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.

For the reasons explained above, this action will not affect any ESA-listed species or designated critical habitat under NMFS' jurisdiction. Therefore, there is no requirement for NMFS to consult under Section 7 of the ESA on the issuance of an Authorization under section 101(a)(5)(A) of the MMPA.

On February 11, 2009, the Marine Corps issued a Finding of No Significant Impact for its Environmental Assessment (EA) on MCAS Cherry Point Range Operations. Based on the analysis of the EA, the Marine Corps determined that the proposed action would not have a significant impact on the human environment.

After evaluating the Marine Corps' application and the 2009 EA, NMFS determined that there were changes to the proposed action (i.e., increased ammunitions levels) and new environmental impacts (i.e., the use of revised thresholds for estimating potential impacts on marine mammals from explosives) not addressed in the 2009 EA. In 2015, NMFS conducted a new analysis per NEPA, augmenting the information contained in the Marine Corps' 2009 EA, on the issuance of MMPA rulemaking and a subsequent LOA. In February 2015, NMFS determined that the issuance of this regulation and subsequent LOA would not have a significant effect on the quality of the human environment and issued a FONSI. In 2015, the Marine Corps issued a new FONSI for their activities under the regulations and subsequent LOA.

This action does not contain any collection of information requirements for purposes of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).

The Office of Management and Budget has determined that this final rule is not significant for purposes of Executive Order 12866.

Pursuant to the Regulatory Flexibility Act, the Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration at the proposed rule stage, that this rule, if adopted, would not have a significant economic impact on a substantial number of small entities. NMFS published the certification in the Federal Register notice of the proposed rulemaking on July 15, 2014. NMFS received no comments about the certification. Accordingly, a final regulatory flexibility analysis is not required and NMFS has not prepared one for this rulemaking.

The Assistant Administrator for Fisheries has determined that there is good cause under the Administrative Procedure Act (5 U.S.C. 553(d)(3)) to waive the 30-day delay in effective date of the measures contained in the final rule. The Marine Corps has a compelling national policy reason to continue military readiness activities without interruption to the routine training at Marine Corps Air Station Cherry Point Range Complex.

This rulemaking began after our receipt of the Marine Corps' revised application for take authorization in May 2014. Since that time, NMFS has prepared an EA for the rulemaking and subsequent LOA for the Marine Corps' activities. Both agencies seriously considered all public comments and worked together to ensure an outcome that satisfied both the Marine Corps purpose and need and our statutory responsibilities under the MMPA.

The Marine Corps has a compelling national policy reason to continue military readiness activities without interruption to their military training activities. Under these circumstances, it was not possible to finalize the MMPA rulemaking and the NEPA obligations with sufficient time to allow for the 30-day delay in effectiveness date.

As discussed below, suspension/interruption of the Marine Corps' ability to conduct training exercises disrupts adequate and realistic testing of military equipment, weapons, and sensors for proper operation and suitability for combat essential to national security.

In order to meet its national security objectives, the Marine Corps must continually maintain its ability to train and operate. To meet these objectives, the Marine Corps must identify, develop, and procure defense systems by continually integrating test and evaluation support throughout the defense acquisition process and providing essential information to decision-makers. Such testing and evaluation is critical in determining that defense systems perform as expected and whether these systems are operationally effective, suitable, survivable, and safe for their intended use.

In order to effectively fulfill its national security mission, the Marine Corps has a need to conduct training activities covered by this final rule as soon as possible. A 30-day delay further reduces the amount of time the Marine Corps has available to plan for and execute an activity covered by this rule. Further, should an immediate national security issue arise; the 30-day delay would prevent the Marine Corps from meeting its mission, which would have adverse national security consequences. Waiver of the 30-day delay of the effective date of the final rule will allow the Marine Corps to continue training marines quickly, while also ensuring compliance with the MMPA.

For reasons set forth in the preamble, 50 CFR part 218 is amended as follows: