Federal Register Vol. 81, No.100,

Executive Summary

The U.S. Nuclear Regulatory Commission (NRC) anticipates that it will soon receive license applications for light-water small modular reactors (SMR). In fiscal year 2008, the NRC staff determined that the annual fee structure for part 171 of title 10 of the Code of Federal Regulations fees, which was established in 1995, should be reevaluated to address potential inequities for future SMRs, due to their anticipated design characteristics. These characteristics include modular design, factory component fabrication, and thermal power capacities of 1,000 megawatts thermal or less per module. These SMRs may also include safety and security design features that could ultimately result in a lower regulatory oversight burden for this type of reactor. Despite these significant differences, an SMR would be required to pay the same annual fee as a current operating reactor under the NRC's current fee structure. The Omnibus Budget Reconciliation Act of 1990, as amended (OBRA-90) instructs the NRC to “establish, by rule, a schedule of charges fairly and equitably allocating” various generic agency regulatory costs “among licensees” and, “[t]o the maximum extent practicable, the charges shall have a reasonable relationship to the cost of providing regulatory services and may be based on the allocation of the Commission's resources among licensees or classes of licensees.” Because of the significant anticipated differences between SMRs and the existing reactor fleet, applying the current fee structure to SMRs could be contrary to OBRA-90's requirement that the NRC's fees be “fairly and equitably” allocated among its licensees. Therefore, the NRC is implementing a variable annual fee structure for SMR licensees that would include a minimum fee, a variable fee, and a maximum fee based on an SMR site's cumulative licensed thermal power rating.

The NRC prepared a regulatory analysis for this final rule (see Section XIV, “Availability of Documents”).

Over the past 40 years, the U.S. Nuclear Regulatory Commission (NRC) has assessed, and continues to assess, fees to applicants and licensees to recover the cost of its regulatory program. The NRC's fee regulations are governed by two laws: (1) The Independent Offices Appropriations Act of 1952 (IOAA) (31 U.S.C. 9701); and (2) the Omnibus Budget Reconciliation Act of 1990, as amended (OBRA-90) (42 U.S.C. 2214). Under the OBRA-90 framework, the NRC must recover approximately 90 percent of its annual budget authority through fees, not including amounts appropriated for waste incidental to reprocessing activities, amounts appropriated for generic homeland security activities, amounts appropriated from the Nuclear Waste Fund, and amounts appropriated for Inspector General services for the Defense Nuclear Facilities Safety Board.

The NRC assesses two types of fees to meet OBRA-90's requirements. First, the NRC assesses licensing and inspection fees under the IOAA to recover the NRC's cost of providing specific benefits to identifiable applicants and licensees—these fees are in part 170 of Title 10 of the Code of Federal Regulations (10 CFR). The NRC also assesses annual fees to recover any generic regulatory costs that are not otherwise recovered through 10 CFR part 170 fees during the fiscal year—these annual fees are in 10 CFR part 171.

The current annual fee structure in 10 CFR part 171 would require SMRs to pay the same annual fee as those paid by the operating reactor fee class. For the operating reactor fee class, the NRC allocates 10 CFR part 171 annual fees equally among the operating power reactor licensees to recover those budgetary resources expended for rulemaking and other generic activities that benefit the entire fee class. If 10 CFR part 171, in its current form, is applied to SMRs, then each SMR reactor would pay the same flat annual fee as an existing operating reactor, even though SMRs are expected to be considerably smaller in size and may utilize designs that could reduce the NRC's regulatory costs per reactor.

Additionally, the current annual fee structure would assess multimodule nuclear plant annual fees on a per-licensed-module basis (rather than a site basis). For example, an SMR site with 12 licensed SMR modules (each with low thermal power ratings) would have to pay 12 times the annual fee paid by a single large operating reactor, even if that single reactor had higher thermal power rating than the cumulative power rating of the 12 SMR modules. This disparity raises fairness and equity concerns under OBRA-90. The SMR licensees could apply for fee exemptions to lower their annual fees. However, fee exemption are appropriate only for unanticipated or rare situations. The OBRA-90 statute requires the NRC to establish, by rule, a schedule of charges fairly and equitably allocating annual fees among its licensees. If the NRC anticipates up front that its annual fee schedule will not be fair and equitable as applied to a particular class of licensees, then amending the fee schedule, rather than planning to rely on the exemption process, is the better course of action for complying with OBRA-90.

To address potential inequities, the NRC re-evaluated its annual fee structure as it relates to SMRs. In March 2009, the NRC published an Advance Notice of Proposed Rulemaking (ANPR) (74 FR 12735) for a variable annual fee structure for power reactors in the Federal Register. Although the ANPR nominally addressed the fee methodology used for all power reactors, its principal focus was on how to best adapt the existing fee methodology for future SMRs.

The NRC received 16 public comments on the ANPR from licensees, industry groups, and private individuals. These comments provided a wide range of input for agency consideration. Nine commenters supported adjusting the current power reactor annual fee methodology for small and medium-sized power reactors by some means. These commenters suggested basing the annual fee on either: (1) A risk matrix, (2) the thermal power ratings (in megawatts thermal, MWt), (3) the cost of providing regulatory service, or (4) an amount proportional to the size of the system based on megawatt (MW) ratings compared to a fixed baseline. Three commenters, representing small reactor design vendors, supported a variable fee rate structure as a means to mitigate the impacts of the existing fee structure on potential customers of their small reactor designs.

Commenters who did not support a variable annual fee structure recommended the following changes to the fee methodology: (1) Reinstatement of reactor size as a factor in evaluating fee exemption requests under 10 CFR 171.11(c), (2) establishment of power reactor subclasses, or (3) performance of additional analysis before making any changes to the current fee structure. Two commenters expressed an unwillingness to subsidize operating SMRs at the expense of their own businesses and believed that the flat-rate methodology provided regulatory certainty and assisted the ability to make ongoing financial plans.

In September 2009, the NRC staff submitted SECY-09-0137, “Next Steps for Advance Notice of Proposed Rulemaking on Variable Annual Fee Structure for Power Reactors,” (ML092660166) to the Commission for a notation vote. The paper summarized the comments that the NRC received in response to the ANPR, and it requested Commission approval to form a working group to analyze the commenters' suggested methodologies. The Commission approved the NRC staff's recommendation in the October 13, 2009, Staff Requirements Memorandum (SRM) for SECY-09-0137. (ML092861070)

The NRC subsequently formed a working group to analyze the ANPR comments (ML14307A812), as well as position papers submitted to the NRC from the Nuclear Energy Institute (NEI), “NRC Annual Fee Assessment for Small Reactors,” (ML103070148) dated October 2010; and from the American Nuclear Society (ANS), “Interim Report of the American Nuclear Society President's Special Committee on Small and Medium Sized Reactor (SMR) Generic Licensing Issues,” (ML110040946) dated July 2010.

Four possible alternatives emerged from the working group's analysis of the public comments and the two position papers:

1. Continue the existing annual fee structure, but define a modular site of up to 12 reactors or 4,000 megawatts thermal (MWt) licensed power rating as a single unit for annual fee purposes.

2. Create fee classes for groups of reactor licensees and distribute the annual fee costs attributed to each fee class equally among the licensees in that class.

3. Calculate the annual fee for each licensed power reactor as a function of potential risk to public health and safety using a risk matrix.

4. Calculate the annual fee for each licensed power reactor as a function of its licensed thermal power rating.

The NRC staff further concluded that Alternative 3, which calculated the annual fee for each SMR as a function of its potential risk to public health and safety using a risk matrix, did not warrant further consideration and analysis because of the technical complexities and potential costs of developing the probalistic risk assessments necessary to implement this alternative.

The working group examined the alternatives and informed the NRC's Chief Financial Officer (CFO) that Alternative 4 was the working group's preferred recommendation because it allows SMRs to be assessed specific fee amounts based on their licensed thermal power ratings (measured in MWt) on a variable scale with a minimum fee and a maximum fee. Additionally, the variable portion of the fee allows for multiple licensed SMR reactors on a single site up to 4,000 MWt to be treated as a single reactor for fee purposes. The working group determined that these attributes best aligned with OBRA-90's fairness and equity requirements.

The CFO submitted the final recommendations to the Commission in an informational memorandum dated February 7, 2011, “Resolution of Issue Regarding Variable Annual Fee Structure for Small and Medium-Sized Nuclear Power Reactors.” (ML110380251) The memorandum described the results of the working group's efforts and its recommendation that the annual fee structure for SMRs be calculated for each newly licensed power reactor as a function of its licensed thermal power rating. The memorandum indicated that the NRC staff intended to obtain Commission approval for the planned approach during the process for developing the proposed rule.

In fiscal year (FY) 2014, the NRC staff reviewed the analysis and recommendations in the 2011 memorandum and determined that they remained sound. However, the working group identified one additional area for consideration related to the maximum thermal power rating eligible for a single annual fee.

In the FY 2011 memorandum, the CFO proposed an upper threshold of 4,000 MWt for multi-module power plants to be allocated a single annual fee. This value was comparable to the largest operating reactor units at the time (Palo Verde Nuclear Generating Station, Units 1, 2, and 3 at 3,990 MWt each). A subsequent power uprate was approved by the NRC for Grand Gulf Nuclear Station, Unit 1, which raised the maximum licensed thermal power rating to 4,408 MWt. Therefore, the 2014 working group recommended setting the single-fee threshold for a multi-module nuclear plant at 4,500 MWt on the SMR variable annual fee structure scale so that the maximum fee remains aligned with the largest licensed power reactor.

With this change, the NRC staff submitted final recommendations to the Commission and requested approval to proceed with a proposed rulemaking for an SMR annual fee structure in SECY-15-0044, dated March 27, 2015, “Proposed Variable Annual Fee Structure for Small Modular Reactors.” (ML15051A092) The Commission approved the NRC staff's request to proceed with a proposed rulemaking on May 15, 2015, Staff Requirements Memorandum—SECY-15-0044, “Proposed Variable Annual Fee Structure for Small Modular Reactors.” (ML15135A427)

Separately, under Project Aim, the agency is working to improve the transparency of its fees development and invoicing processes and to improve the timeliness of NRC communications on fee changes. More information about this effort can be found in the Federal Register (81 FR 15352; March 22, 2016).

The NRC is creating a variable annual fee structure for SMRs. As detailed in the regulatory analysis, the NRC determined the current annual fee structure may not be fair and equitable for assessing fees to SMRs based on the unique size and characteristics of SMRs. The NRC published, for a 30-day public comment period, a proposed rule on November 4, 2015, to address these issues. The NRC developed this final rule based on the comments received on the proposed rule. The comments are discussed in Section IV, “Public Comment Analysis,” of this document. Because the annual regulatory cost associated with an SMR is inherently uncertain before such a licensed facility is operational, the NRC intends to reevaluate the variable annual fee structure at the appropriate time to ensure the continuing satisfaction of OBRA-90 requirements. This reevalulation will occur once one or more SMR facilities becomes operational and sufficient regulatory cost data becomes available.

As explained in Section I, “Background,” of this document, the NRC staff previously solicited public input regarding an annual fee structure for SMRs via an ANPR, and the NRC staff submitted two papers to the Commission discussing alternative annual fee structures, which resulted in the recommendation of the variable annual fee structure as the preferred approach for SMRs. For this final rule and regulatory analysis, the NRC staff examined the following four refined alternatives including a “no action alternative” which served as a baseline to compare all other alternatives:

1. No action.

2. Continue the existing annual fee structure for all reactors but allow for “bundling” of SMR reactor modules up to a total of 4,500 MWt as a single SMR “bundled unit.”

3. Continue the existing annual fee structure for the current fleet of operating power reactors but establish a third fee class for SMRs with fees commensurate with the budgetary resources allocated to SMRs.

4. Continue the existing annual fee structure for the current fleet of operating power reactors but calculate the annual fee for each SMR site as a multi-part fee which includes minimum fee, variable fee and maximum fee.

As explained in the regulatory analysis for this final rule, the NRC staff analyzed Alternative 1 (the no action alternative) and concluded that this alternative continues to be a fair, equitable and stable approach for the existing fleet of reactors. This is because previous agency efforts to manage cost and fee allocations at a more granular level were labor intensive and resulted in minimal additional benefits to licensees when compared to the flat-fee approach (60 FR 32230; June 20, 1995). For SMRs, however, the current fee structure could produce such a large disparity between the annual fees paid by a licensee and the economic benefits that the licensee could gain from using the license that it would be contrary to OBRA-90's requirement to establish a fair and equitable fee schedule. For example, a hypothetical SMR site with 12 SMR reactor modules would have to pay 12 times the annual fee paid by a single current operating reactor—almost $54 million per year based on FY 2015 fee rule data. By comparison, Fort Calhoun, the smallest reactor in the current operating fleet, would pay approximately $4.5 million in annual fees. Such a result would be contrary to OBRA-90's requirement to establish a fair fee schedule, and therefore the no action alternative is unacceptable.

Small modular reactor licensees could apply for annual fee exemptions under 10 CFR 171.11(c). The fee exemption criteria consider the age of the reactor, number of customers in the licensee's rate base, how much the annual fee would add to the per kilowatt-hour (kWh) cost of electricity, and other relevant issues. But, as described in SECY-15-0044, there are no guarantees that an exemption request would be approved, decreasing regulatory certainty. The OBRA-90 statute also requires the NRC to establish, by rule, a schedule of charges fairly and equitably allocating annual fees among its licensees. Therefore, if the NRC anticipates up-front that its annual fee schedule will not be fair and equitable as applied to a particular class of licensees, then amending the fee schedule, rather than planning to rely on the exemption process, is the far better course for complying with OBRA-90.

The NRC staff also evaluated Alternative 2, which continues the existing annual fee structure for all reactors and allows for the bundling of the thermal ratings of SMRs on a single site up to total licensed thermal power rating of up to 4,500 MWt, which is roughly equivalent to the licensed thermal power rating of the largest reactor in the current fleet. Alternative 2 provides more fairness to SMRs than Alternative 1 because it allows SMR licensees to bundle their SMRs on a single site. However, for smaller SMR facilities, Alternative 2 would still create great disparities among SMR facilities in terms of the annual fees they would pay relative to the economic benefits they stand to gain from their NRC licenses. Consider, for illustrative purposes, an SMR site with only one NuScale reactor module. The licensee for this site would be required to pay the full annual fee, but could only spread the fee over 160 MWt—about $31,123 per MWt. In contrast, the licensee for an SMR site featuring 12 NuScale reactor modules would pay only $2,594 per MWt in annual fees. Alternative 2, therefore, only goes part of the way toward addressing the fairness and equity concerns that prompted this rulemaking. As with Alternative 1, smaller SMR licensees could apply for annual fee exemptions under 10 CFR 171.11(c). There are no guarantees that an exemption would be approved, decreasing regulatory certainty. For these reasons, and as further explained in the regulatory analysis, the NRC staff finds Alternative 2 to be an unacceptable approach.

Alternative 3 entails creating a separate fee class for SMRs, with fees commensurate with the budgetary resources allocated to SMRs, similar to the operating reactor and research and test reactor fee classes. This alternative would establish a flat annual fee assessed equally among SMR licensees. Although this approach is fair and equitable for the current operating reactor fee class, applying a flat fee approach to SMRs poses fairness problems due to the potential various sizes and types of SMR designs. In particular, a single per-reactor fee could prove unduly burdensome to SMRs with low thermal power ratings (such as 160 MWt for a single NuScale SMR) when compared to SMRs with higher-rated capacities (such as 800 MWt for a single Westinghouse SMR). Additionally, Alternative 3 is similar to the “no action” alternative in the sense that fees are based per licensed reactor or module rather than on the cumulative licensed thermal power rating. This alternative, therefore, fails to address the fee disparity created for SMRs using multiple small modules rather than fewer, larger reactors with a similar cumulative licensed thermal power rating. It is the NRC's intent to select an SMR fee alternative that is fair and equitable for the broadest possible range of SMR designs. Flat-rate alternatives such as this one are inconsistent with the “fair and equitable” requirements of OBRA-90 when applied to a fee class with the wide range of SMR thermal power capacities as described by reactor designers to date. As with the previous alternatives, SMR licensees could apply for annual fee exemptions under 10 CFR 171.11(c); however, there are no guarantees that an exemption would be approved, decreasing regulatory certainty. For these reasons, and as further explained in the regulatory analysis, Alternative 3 is an unacceptable approach.

Ultimately, the NRC staff analyzed the mechanics of the variable annual fee structure under Alternative 4 and determined that it is the best approach for assessing fees to SMRs in a fair and equitable manner under OBRA-90. Unlike the current fee structure, this approach recognizes the anticipated unique characteristics of SMRs in relation to the existing fleet. Unlike Alternative 2, this approach ensures that all SMRs are treated fairly, including those SMRs whose licensed thermal power rating are outside the 2,000 MWt-4,500 MWt range. Unlike Alternative 3, the variable annual fee structure assesses a range of annual fees to SMRs based on licensed thermal power rating, rather than assessing a single flat fee that could potentially apply to a very wide range of SMRs.

The SMR variable annual fee structure under Alternative 4 computes SMR annual fees on a site basis, considering all SMRs on the site—up to a total licensed thermal power rating of up to 4,500 MWt—to be a single “bundled unit” that would pay the same annual fee as the current operating reactor fleet. The SMR fee structure has three parts: A minimum fee (the average of the research and test reactor fee class and the spent fuel storage/reactor decommissioning fee class), a variable fee charged on a per-MWt basis for bundled units in a particular size range, and a maximum fee equivalent to the flat annual fee charged to current operating fleet reactors.

Bundled units with a total licensed thermal power rating at or below 250 MWt would only pay a minimum fee; for example, based on FY 2015 fee rule data, that minimum fee would be $153,250. This minimum fee is consistent with the principle that reactor-related licensees in existing low-fee classes may not generate substantial revenue, yet still derive benefits from NRC activities performed on generic work. Therefore, they must pay more than a de minimis part of the NRC's generic costs. By calculating the minimum fee for SMRs within the range of annual fees paid by other low-fee reactor classes, this methodology satisfies the OBRA-90 fairness and equity requirements because it ensures consistent NRC treatment for low-power and low-revenue reactors.

Fees for bundled units with a total licensed thermal power rating greater than 250 MWt and less than or equal to 2,000 MWt would be computed as the minimum fee plus a variable fee based on the bundled unit's cumulative licensed thermal power rating. The variable fee should generally correlate with the economic benefits the licensee is able to derive from its NRC license and will ensure that similarly rated SMRs pay comparable fees.

For a bundled unit with a licensed thermal power rating comparable to a typical large light-water reactor—i.e., greater than 2,000 MWt and less than or equal to 4,500 MWt—the annual fee assessed to that bundled unit would be the same annual flat fee that is paid by a power reactor licensee in the current operating fleet. This approach ensures comparable fee treatment of facilities that stand to derive comparable economic benefits from their NRC-licensed activities.

For SMR sites with a licensed thermal power rating that exceeds 4,500 MWt, the licensee would be assessed the maximum fee for the first bundled unit, plus a variable annual fee for the portion of the thermal rating above the 4,500 MWt level and less than or equal to 6,500 MWt for the second bundled unit (the licensee would not incur a second minimum fee for the same SMR site, because minimum fees are only assessed on a per-site basis). If a site rating exceeds the 6,500 MWt level, and also is less than or equal to 9,000 MWt, then a second maximum fee would be assessed for the second bundled unit. The NRC considered eliminating the second variable portion of the fee structure and simply doubling the maximum fee for the second bundled unit, but this would produce an unfair result if the site's second bundled unit had a small licensed thermal power rating. Similar to the other three alternative fee structures, this method—doubling the maximum fee for the second bundled unit—would not have addressed the inequities that arise when a very small bundled unit pays a very large annual fee.

Therefore, as demonstrated in the regulatory analysis, the NRC staff concludes that the variable annual fee structure allows SMRs to pay an annual fee that is commensurate with the economic benefit received from its license and that appropriately accounts for the design characteristics and current expectations regarding regulatory costs. This complies with OBRA-90's requirement to establish a fee schedule that fairly and equitably allocates NRC's fees.

Section I B., “Background” of this document discusses the ANPR and the public comments that helped to shape the proposed rule, “Variable Annual Fee Structure for Small Modular Reactors,” that NRC published in the Federal Register on November 4, 2015 (80 FR 68268), for a 30-day public comment period. The rule proposed to implement a variable annual fee structure for small modular reactors given their unique design features that would meet the requirements of OBRA-90 as it relates to the fairness and equity of fees. The public comment period for the proposed rule closed on December 4, 2015. The NRC received nine public comment submissions that are discussed in Section IV, “Public Comment Analysis,” of this document.

The NRC held a category 3 public meeting on the proposed rule and draft regulatory analysis (ML15226A588) during the comment period, specifically, on November 16, 2015, to promote transparency and obtain feedback from industry representatives, licensees and other external stakeholders. During the meeting, NRC staff addressed questions pertaining to the 10 CFR parts 170 and 171 definitions, the fee methodology for the bundled unit and out-of-scope comments such as life-cycle costs of SMRs, the charging of fees to future licensees for the monitoring of both air and water emitted around nuclear facilities, and the nuclear waste fee.

The NRC received nine comment submissions on the proposed rule. The comments are posted on www.regulations.gov under Docket ID NRC-2008-0664. The majority of commenters support a variable annual fee structure for small modular reactors based on the total cumulative licensed thermal power rating. Some commenters suggested that the proposed rulemaking be expanded to non-light water SMRs and that the proposed definitions and regulations be modified as applicable under 10 CFR parts 170 and 171. Another commenter believed the proposed rule could be more fair to the existing fleet. The commenters are listed and classified in the following table:

Comment: One commenter was unclear as to why the definitions “small modular reactor,” “small modular reactor site,” and “bundled unit” being proposed to 10 CFR part 170 were necessary, because these definitions did not appear to be related to the fees charged in this section. The commenter further stated that the NRC should delete the definition for bundled unit, small modular reactor, and small modular reactor site, but keep the definition for small modular reactor under 10 CFR part 170 if necessary. (NEI, UAMPS and UPower Technologies)

Response: The NRC agrees with the commenter that the bundled unit definition should be removed from 10 CFR part 170 because the term is used solely for the purpose of calculating annual fees for SMRs. However, the NRC will retain the definitions of SMR and SMR site under 10 CFR part 170 to make transparent that SMRs and SMR sites can be charged hourly fees under 10 CFR part 170 for specific services performed by the NRC for these licensees. A change was made to the final rule in response to this comment.

Comment: One commenter stated, “. . . the rule language is not entirely clear on the relationship between SMR licenses, SMR modules, SMR plants, the SMR site (which may include several SMR modules, plants, and licenses), and bundled units (which serve as the basis for the calculation of the annual fee).” The commenter suggested that the NRC modify the definition of “bundled unit” to mean, “A measure of the cumulative licensed thermal power rating for one or more SMRs located on a single site. One bundled unit is less than or equal to 4,500 MWt. An additional bundled unit is not established until the preceding bundled unit reaches the cumulative 4,500 MWt rating. The thermal rating of a module can be split between two bundled units for the purposes of assessing annual fees under § 171.15(e).” (NEI).

Response: The NRC agrees with the commenter that the definitions as identified by the commenter and their relationships under the SMR fee structure methodology could be made more clear. The language in § 171.3, Scope, identifies the licensees and others subject to annual fees. For the purposes of this rule, any SMR module, reactor, plant, or site licensed for operation by the NRC is subject to annual fees under 10 CFR part 171. For the purposes of this rule, the SMR module is a reactor. As noted in the regulatory analysis, the NRC defines the building that houses co-located SMR reactor modules sharing common systems as a “plant,” and the geographically bounded area that houses single or multiple plants as a “site.” Finally, the definition of a “bundled unit” has been reworded to provide more clarity while addressing the commenter's concerns. A change was made to the final rule in response to this comment.

Comment: The same commenter stated that the § 171.15(e)(1) proposed language regarding the annual fee paid for each license held could be misinterpreted to mean that the determination of a bundled unit is limited to the SMR modules covered by a single license, regardless of the number of licenses that comprise a single SMR plant or the number of SMR plants on a single SMR site. The commenter suggested that the NRC should modify § 171.15(e)(1), Annual Fees, by stating, “Each person holding an operating license for a small modular reactor issued under part 50 of this chapter or that holds a combined license issued under part 52 of this chapter, after the Commission has made the finding under 10 CFR 52.103(g) shall pay the annual fee for all licenses held for an SMR site during the fiscal year in which the fee is due.” (NEI)

Response: The NRC agrees with the commenter that the rule language could be more clear regarding the relationship between the NRC's assessment of annual fees to SMRs and SMR licenses. The final language in this section has been clarified to indicate that the bundled unit concept—which is used to compute annual fees—applies on a site-wide basis and is independent of the number of actual SMR licenses or the sequencing of the SMR licenses issued for that site. A change was made to § 171.15(e)(1) and to § 171.5 in the final rule as a result of this comment.

Comment: The same commenter stated that the current rule language in § 171.15(e)(1) and the definition of “bundled unit” does not make clear that a bundled unit can be comprised of modules from more than one SMR plant, and that an additional bundled unit is not established before the preceding bundled unit reaches the cumulative 4,500 MWt rating. (NEI)

Response: The NRC agrees with the commenter that the proposed bundled unit definition and proposed language for § 171.15(e)(1) could be more clear regarding the transition from the first bundled unit to additional bundled units. As explained in the previous comment, a change was made to § 171.15(e)(1) and to § 171.5 in the final rule as a result of this comment.

Comment: One commenter stated that the proposed rule does not explicitly state that the annual fee assessed for SMRs, a type of power reactor, is in lieu of annual fees assessed for power reactors under § 171.15(b). This could lead to the misinterpretation that SMRs are assessed both sets of annual fees. The commenter stated the NRC should revise § 171.15(e)(3) to read, “(3) The annual fee for an SMR collected under paragraph (e) of this section is in lieu of any fee otherwise required under paragraph (b) of this section. The annual fee under paragraph (e) of this section covers the same activities listed for the power reactor base annual fee and spent fuel storage/reactor decommissioning reactor fee.” (NEI)

Response: The NRC agrees with the commenter that the proposed language could imply that an SMR licensee would be charged a base annual fee and spent fuel storage/reactor decommissioning annual fee in addition to an SMR annual fee. A change was made to the final rule in response to this comment. Specifically, the language in § 171.15(e)(3) has been revised to read, “(3) The annual fee for an SMR collected under paragraph (e) of this section is in lieu of any fee otherwise required under paragraph (b) of this section. The annual fee under paragraph (e) of this section covers the same activities listed for the power reactor base annual fee and spent fuel storage/reactor decommissioning reactor fee.”

Comment: One commenter stated that the definition of “variable rate” could be simplified because it is difficult to determine how the variable rate applies to additional bundled units, and it appears inconsistent with the proposed definition of a bundled unit. The commenter suggested that NRC redefine the variable rate definition by stating, “Variable rate means a per-MWt fee factor applied to all bundled units on a site. For the first bundled unit with a licensed thermal power rating greater than 250 MWt and less than or equal to 2,000 MWt, the factor is based on the difference between the maximum fee and the minimum fee, divided by 1,750 MWt (the variable fee licensed thermal rating range). For additional bundled units with a licensed thermal power rating greater than 0 and less than or equal to 2,000 MWt, the factor is based on the maximum fee divided by 2,000 MWt.” (NEI)

Response: The NRC agrees with the commenter that the proposed variable rate definition is inconsistent with the proposed definition of bundled unit. The NRC has redefined the variable rate based on the commenter's suggestion and revised the bundled unit definition for clarity. A change was made to the final rule in response to this comment.

Comment: One commenter believes the description of additional bundled units in the table § 171.15(e)(2) is confusing and unnecessary. The same commenter believes it is inconsistent with the proposed definition of “bundled unit,” which states that a “bundled unit is less than or equal to 4,500 MWt.” The table can be interpreted to mean that the range of thermal capacity is describing the SMR site thermal power rating totals, and not an additional bundled unit. Additionally, including SMR site thermal power rating totals in the table unnecessarily complicates the bundled approach. The table can also be interpreted to mean the first 4,500 MWt of additional bundled units (e.g., the second bundled unit) is not assessed an annual fee. The description could also be interpreted to unnecessarily limit the SMR site total thermal rating to 9,000 MWt. The same commenter is not aware of any other fee-based requirement that would limit a site's total thermal output, but notes there is at least one nuclear facility in the U.S. with almost a 12,000 MWt total thermal rating. The rule should clarify the following: (1) If any bundled unit would exceed 4,500 MWt, an additional bundle would exist for the portion of the thermal rating above 4,500 MWt; and (2) the same bundled fee schedule should apply to any successive bundle. The commenter suggested the NRC revise the description of addition bundled units in the thermal rating power rating scale by replacing “>4,500 MWt ≤ 6,500 MWt” with “>0 MWt ≤ 2,000 MWt” and replacing “>6,500 ≤9,000 MWt” with “>2,000 MWt.” (NEI)

Response: The NRC agrees with the commenter that the proposed table and the bundled unit definition could be interpreted to read that licensees are limited to bundled units less than 9,000 MWt, yet the proposed definition of bundled unit allows for bundled units to exceed 9,000 MWt. Therefore, the NRC has revised the table for § 171.15(e)(2) and bundled unit definition for clarity based on the commenter's concerns. A change was made to the final rule in response to this comment. The bundled unit definition has been revised as mentioned in our previous response and the table for § 171.15(e)(2) has been revised to read as follows: (2) The annual fees for a small modular reactor(s) located on a single site to be collected by September 30 of each year, are as follows:

Comment: One commenter stated that the new fee structure must be fair to both SMRs and the current operating fleet. The current operating fleet should not subsidize SMR's regulatory costs and that the proposed rule could be made fairer in this regard. (Westinghouse)

Response: The NRC agrees in part and disagrees in part with this comment. The NRC agrees that the new structure must be fair to both SMRs and to the current operating fleet. As discussed, OBRA-90 requires this fairness, and the NRC has worked through a variety of competing interests to attain the most balanced approach possible.

With respect to the degree of fairness achieved by the rule, the NRC disagrees with the comment. The OBRA-90 statutes require the NRC to collect annual fees from licensees, including licensees from the operating reactor fee class. Therefore, adding a new SMR to the reactor fleet would result in a greater base of operating reactors over which to spread the required 10 CFR part 171 annual fee collection; this, in turn, leads to a lower 10 CFR part 171 fee amount per reactor. Under the variable annual fee structure, SMRs with a bundled unit rating below 2,000 MWt will pay less in 10 CFR part 171 fees than a current operating reactor. Therefore, the addition of an SMR would result in a slightly smaller fee reduction than would have been realized for the addition of a large light-water reactor. Using FY15 data, this difference in fee reduction is, at most, about one percent of the 10 CFR part 171 annual fee for each current operating reactor. The NRC believes this is a fair result because SMRs should pay annual fees that are commensurate with the economic benefit received from their license, and this rule achieves that objective without altering the existing fee structure for operating reactors. As previously explained, this rule also achieves this objective with minimal impacts to the existing fleet. No change was made to the final rule in response to this comment.

Comment: One commenter believes that linking the fees paid by research and test reactors (RTRs) to fees paid by smaller SMRs under the Alternative 4 appears to violate the fairness test required by OBRA-90. The commenter further states RTRs are used for training and research which provides benefits to the entire industry. The commenter points out that RTRs do not sell power nor do they compete with the current fleet of reactors. The same commenter, therefore, suggests that the NRC not link the minimum SMR fee to RTR fees, but instead develop an estimate of the minimum costs of the regulatory services that it expects to provide to an SMR. This method would reduce the likelihood that the fees would have to be substantially altered after an SMR has been operating and is in alignment with OBRA-90 as it pertains to assessed charges having a reasonable relationship to the cost of providing regulatory services. (Westinghouse)

Response: The NRC disagrees with the comment. At this time, the NRC is unable to develop an estimate of the minimum costs of regulatory services that it expects to provide to an SMR due to lack of cost data and operating experience. Therefore, the minimum fee is calculated by averaging annual fees for both the research and test reactor fee class and the spent fuel storage/reactor decommissioning fee class. The minimum fee ensures that even the smallest SMRs bear some of the annual 10 CFR part 171 fee burden. Although a size and purpose disparity exists between the smallest currently proposed SMRs and RTRs, the minimum fee calculation was not intended to equate the regulatory support requirements of SMRs and RTRs. Rather, the calculation was intended to identify current fees for low power reactor fee classes to set an initial minimum fee value. The NRC believes the lower power reactor fee classes serving as the threshold for the minimum fee satisfies the requirements of OBRA-90 as it relates to the fairness and equitable distribution of fees because it establishes consistency between low-power SMRs and other low-power reactor fee classes; once quantifiable data for SMRs becomes available, the NRC will then reevaluate its minimum fee methodology to ensure that it remains sound. No change was made to the rule in response to this comment.

Comment: One commenter states that it appears the NRC has concluded that some SMRs may not be economically viable if they pay for the regulatory services they consume; and this is not a compelling reason for the NRC to seek to subsidize the regulatory cost of SMRs with increased fees on another fee class. The commenter encourages the NRC staff to consider alternatives that more clearly align the proposed annual fee for SMRs with the regulatory services they use. The commenter suggests that the NRC create a fee class combining alternatives 3 and 4 from the draft regulatory analysis or create a separate fee class as described in Alternative 3, but with the sliding fee scale described in Alternative 4. The latter alternative would address the NRC staff's primary concern that all SMRs pay the same fee regardless of output. (Westinghouse)

Response: The NRC disagrees with the comment. First, the NRC did not state that SMRs may not be economically viable if they pay for the regulatory services they consume. Rather, the NRC's proposed rule and proposed regulatory analysis explained that charging large and flat annual fees to very small SMRs may not satisfy OBRA-90's requirement to establish a fair and equitable fee schedule. The variable fee methodology selected in this final rule offers the best means of satisfying those OBRA-90 requirement for all operating reactors, including future SMRs. Further, the commenter's proposal to combine features of Alternatives 3 (a separate fee class) and 4 (a sliding fee scale) by creating a new fee class is not a viable option at this time. As mentioned elsewhere in this document and in the regulatory analysis, the NRC lacks quanititative data that shows the estimated costs of providing generic regulatory services to SMRs. Right now, the NRC must establish the variable sliding fee scale within the operating reactor fee class—thereby linking SMR fees to the existing fleet's fees—because the absence of this data means that the NRC cannot anchor SMR fees in any other way. As cost data and operating experience for SMRs are accumulated, the NRC will propose adjustments to fees as needed to make sure that the fees charged to SMRs (and to all operating reactors) are commensurate with the regulatory support services provided by the NRC to meet the requirements of OBRA-90. At that time, it may be be necessary to “de-link” SMR fees from the existing fleet's fees and establish a brand new variable fee class similar to what the commenter proposed. No change was made to the rule in response to this comment.

Comment: One commenter stated that, in the draft regulatory analysis, an equation on page 16 of the calculation is not clear and could be interpreted to be inconsistent with the detailed process for calculating the maximum fee, which is described in more detail in Attachment A. The commenter suggested that the NRC revise the numerator of the equation to calculate the “maximum fee” to read, “Total Part 171 Annual Fee (less all minimum and variable SMR fees).” (NEI)

Response: The NRC agrees with commenter that the equations on page 16 of the RA were not clearly aligned with the Attachment A description of the step-by-step 10 CFR part 171 annual fee process. As further described in the regulatory analysis, calculating the maximum fee to be paid by the operating fleet reactors and SMR bundled units rated > 2,000 MWt is an iterative, dynamic process. Because the equations on page 16 of the RA did not accurately reflect the dynamic nature of these calculations, the NRC removed those equations to eliminate potential confusion between the original simplified equations and the iterative calculation process referenced in Attachment A. Further, the NRC refined the step-by-step calculation process in Attachment A to achieve greater clarity. These changes bring the descriptive text and calculation process into closer alignment with the conceptual fee representation in Figure 3 of the regulatory analysis. A change was made to the regulatory analysis in response to this comment.

Comment: The commenter believes that the regulatory analysis should explain in more detail NRC's assumption that SMRs, through a combination of simplicity, advanced safety features, and modular construction methods, will require less oversight and regulatory services than the current fleet of reactors. (Westinghouse)

Response. The NRC disagrees that the regulatory analysis should provide more detail on NRC's assumptions for SMRs and believes that the commenter has overstated the NRC's basis for promulgating the proposed rulemaking. The Executive Summary of the proposed rule discussed potential SMR characteristics, and stated, “These characteristics include modular design, factory component fabrication, and thermal power capacities of 1,000 megawatts thermal (MWt) or less per module. These SMRs also may include safety and security design in a lower regulatory oversight burden for this type of reactor.” In fact, the lack of operational data on costs for these future reactor plants was the main reason for using a qualitative approach in the regulatory analysis. The NRC staff agrees with the commenter that the SMR variable annual fee rule should be re-assessed once operational cost data is accumulated. To this end, the NRC staff proposed periodic assessments of the actual costs associated with licensed SMRs so that the NRC could make adjustments to the SMR fee structure, if necessary. As the industry and the NRC gathers operating experience with SMRs, a better understanding of “. . . how design features may be translated into annual fee reductions,” as mentioned by the commenter, should become more apparent. SMR operating experience data should provide insights that could confirm correlations between design features and the level of NRC oversight typically needed for these new types of power plants; and provide indications of whether further fee adjustments for SMRs are required. No change was made to the regulatory analysis in response to this comment.

Comment: Several commenters encouraged prompt finalization of the proposed rule. (UPower Technologies, NuScale, NEI, UAMPS)

Response: The NRC agrees with the commenters. No change was made to the final rule in response to this comment.

Comment: Most commenters support the NRC's proposal to assess annual fees for SMRs licensees based on the total thermal power output of the facility because it is a reasonable approach for providing a fair and equitable fee structure for SMRs in absence of data on regulatory costs on oversight for SMRs. (University of California—Berkeley, MIT, UPower Technologies, UAMPS, Nuscale, NEI)

Response: No response required. No change was made to the final rule in response to this comment.

Comment: One commenter stated that the proposed use of cumulative thermal power rating provides the most appropriate basis for establishing the fee because the rate of the production of fission product which creates the most important hazard associated with fission power is directly proportional to cumulative reactor thermal power, and therefore to the total source term that might be mobilized in a reactor accident. The SMRs provide higher intrinisic safety because this source term is divided into smaller quantities, reducing the maximum release possible if an accident occurs in a reactor unit. The same commenter stated SMR designs also can be expected to make more extensive use of intrinsic feedback and passive safety features, significantly reducing the complexity and inspection requirements for reactor safety systems compared to existing large light water reactors. (University of California—Berkeley)

Response: The NRC agrees that SMRs could have some or all of the design and operational advantages identified by the commenter. However, the NRC has not yet received any SMR application for review. Therefore, we have no basis on which to correlate or assess the SMR attributes and potential advantages cited in the comment with a specific SMR design. No change was made to the final rule in response to this comment.

Comment: Some commenters stated that the proposed rule provides a more equitable basis for assessing 10 CFR part 171 fees for SMRs that incorporate enhanced and design safety features which are expected to lower generic regulatory and oversight costs. (NEI, NuScale, UAMPS)

Response: No response required. No change was made to the final rule in response to this comment.

Comment: One commenter stated that the current disparity in annual fees between current light water reactors and small modular reactors is a key business consideration affecting the overall economics of the Carbon Free Power Project. (UAMPS)

Response: No response required. No change was made to the final rule in response to this comment.

Comment: One commenter believes the rulemaking provides clarity on 10 CFR part 171 fees that support near-term business decisions regarding submittal of combined license applications for NuScale's customers, the first of which is anticipated in late 2017 or early 2018. (Nuscale)

Response: No response required. No change was made to the final rule in response to this comment.

Comment: Several commenters stated the NRC should state in the final rulemaking package (e.g., in the statements of consideration or in a separately issued Commission paper) its commitment to reviewing data on costs of oversight for SMRs as it becomes available and adjusting the SMR variable fee structure to ensure the annual fees equitably align with the cost of oversight of this class of reactors. One commenter stated that the appropriate timeframe for revisiting 10 CFR part 171 fees may be approximately three years after commercial operation date for the first reactor. The commenter believes this timeframe, with the deployment of a NuScale design with 12 reactors, would provide the operational experience of having undertaken 12 refuelings and would better inform the level of regulatory oversight required by the NRC for this type of design. Another commenter stated that the NRC should, in the “Final Regulatory Basis for Proposed Changes to 10 CFR part 171,” clearly and explicitly identify assumptions important to forming the basis for the final variable fee rule for SMRs. Another commenter suggested reevaluation of the fee structure for advanced reactors may be warranted as cost of oversight information becomes available. (NEI, NuScale, UAMPS, UPower Technologies)

Response: The NRC agrees that it will be necessary to reevaluate the variable annual fee structure for SMRs as an SMR becomes operational and regulatory cost data becomes available to ensure the continuing satisfaction of OBRA-90 requirements. Because the NRC cannot anticipate with certainty when sufficient information will be available, the NRC is unable to estimate the precise time period when this reevaulation will occur. The type of information that the NRC will likely need to reevaluate the variable fee structure may include data on the initial licensing of an SMR facility, performance of refueling outages, performance of onsite inspections, and licensing actions and other regulatory services provided to an operational SMR. No change was made to the final rule or regulatory analysis in response to this comment.

Comment: Two commenters suggested the the NRC expand the small modular reactor definition of light water reactor to include all types of new fission reactor (e.g. sodium cooled, molten salt, etc.) One of the commenters suggested that if the NRC were to include non-light water reactors in the definition, the NRC should look to the Gen IV International Forum for a better one as the United States, International Atomic Energy Agency and the Organisation for Economic Co-operation and Development's Nuclear Energy Agency are all members of the Gen IV International Forum. (MIT, University of CA, Berkeley)

Response: The NRC disagrees with the comment. The NRC has chosen to limit the scope of this proposed rule to light-water SMRs. This is because the light-water SMR designs that have been discussed with the NRC in pre-application discussions to date are similar to the current U.S. operating fleet of reactors in terms of physical configuration, operational characteristics, and applicability to the NRC's existing regulatory framework. The NRC may consider the inclusion of non-light water SMRs in a future rulemaking once the agency has increased understanding of these factors with respect to non-light water designs. No change was made to the final rule in response to this comment.

Comment: The NRC should consider seeking limited legislative relief from OBRA-90. SMRs are not anticipated to be licensed for another decade, and the NRC would have to time find other legislative solutions. (Westinghouse)

Response: The NRC considers this comment to be outside the scope of this rulemaking amending the current annual fee structure for SMRs. Additionally, the NRC considers this technical rulemaking to be an inappropriate vehicle for seeking legislative relief for SMRs under the requirements of OBRA-90. Apart from this rulemaking, the NRC annually promulgates a rulemaking to adjust its fees without changing the underlying principles of its fee policy to comply with the statutory requirements for cost recovery in OBRA-90 and the AEA. Small modular reactors may require lower regulatory oversight burden compared to the existing fleet due to potentially unique design features and safety attributes. Because the NRC is implementing a variable annual fee structure for SMRs which would comply with the fairness and equitable distribution of fees' requirement under OBRA-90, a request for legislative relief by the NRC is unnecessary. Finally, as discussed in SECY-15-0044, the staff's recommended alternative for establishing an SMR variable annual fee rule supports the agency's goals of transparency and providing regulatory certainty to potential SMR applicants. The commenter's recommendation of finding other legislative solutuions would likely take considerable additional time and decrease regulatory certainty for these potential applicants. Therefore, no change was made to the final rule in response to this comment.

Comment: One commenter stated because of the ongoing decommissioning of a large number of U.S. power reactors and the uncertain production of SMR units, the NRC should ask Congress to change their funding system. Instead of relying heavily on fees from power plant operators, a significant portion of the funding should be allocated by Congress. The same commenter believes collecting operating reactor fees creates a conflict of interest. As more aging reactors shut down, there is a potential for budget shortfall, yet the NRC's workload will increase for supervising decommissioning and defunct nuclear sites that fall under its authority. (Private Citizen)

Response: The NRC considers this comment to be outside the scope because this final rule does not seek to change the fee collection requirements under OBRA-90. Instead, this final rule is implementing a variable annual fee structure that is fair and equitable to SMRs, unlike the current annual fee structure. The requirements in OBRA-90 authorize the NRC to collect approximately 90 percent of its budget authority through fees assessed to licensees and applicants for services provided by the NRC. Additonally, OBRA-90 instructs the NRC to “establish, by rule, a schedule of charges fairly and equitably allocating” various generic agency regulatory costs “among licensees” and, “[t]o the maximum extent practicable, the charges shall have a reasonable relationship to the cost of providing regulatory services and may be based on the allocation of the Commission's resources among licensees or classes of licensees.” The hourly fees assessed to an operating reactor licensee which could include a decommissioning reactor recoup the NRC's cost for services such as licensing and inspection activities which benefit the licensee. The annual fees assessed to the operating reactor fleet recoup the NRC's cost for services such as research and other generic activities which benefit the entire fee class. Regarding a potential budget shortfall, the NRC requests from Congress only those resources necessary to conduct programs and activities which are efficient and effective to comply with the agency's mission. No change was made to the final rule in response to this comment.

Comment: One commenter mentioned that ThorCon signed a memorandum of understanding with Indonesia to build their Gen-4 molten salt reactor prototype in that nation, and it would be shameful if a trend began where several SMRs were initially developed within the USA, but tested and built in other countries. Importing our own technology is not what made the USA a great nation. (Private Citizen)

Response: The NRC considers this comment to be outside the scope of this rulemaking amending the current annual fee structure for SMRs. This final rule addresses the assessment of annual fees for future SMRs (defined as light-water reactors for the purposes of this rulemaking) using the implementation of a variable annual fee structure for SMRs Therefore, this comment, which is based on the fee treatment of future non-LWRs, is not applicable in this context. No change was made to the final rule in response to this comment.

Comment: One commenter believes NRC's Project Aim is the best near-term option to reduce fees for classes of NRC licensees and encourage NRC's timely completion of this initiative. (Westinghouse)

Response: The NRC considers this comment to be outside the scope of this rulemaking because this final rule is limited to the assessment of annual fees to SMRs only as it relates to OBRA-90. Therefore, the NRC's efforts under Project Aim such as improving transparency and simplification of how the NRC computes fees are not being considered under this final rule. No change was made to the final rule in response to this comment.

The following paragraphs describe the specific changes made by this rulemaking.

The NRC is adding definitions for “small modular reactor (SMR),” and “small modular reactor site (SMR site).”

The NRC is adding definitions for “bundled unit,” “maximum fee,” “minimum fee,” “small modular reactor (SMR),” “small modular reactor site (SMR site),” “variable fee,” and “variable rate.”

The NRC is redesignating current paragraph (e) as new paragraph (f) and adding new paragraphs (e)(1), (e)(2), and (e)(3) to define activities that comprise SMR annual fees and the time period in which the NRC must collect annual fees from SMR licensees.

Under the Regulatory Flexibility Act (5 U.S.C. 605(b)), the NRC certifies that this rule does not have a significant economic impact on a substantial number of small entities. This final rule affects only the licensing and operation of nuclear power plants. The companies that own these plants do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act or the size standards established by the NRC (10 CFR 2.810).

The NRC has prepared a regulatory analysis for this final rule. The analysis examines the costs and benefits of the alternatives considered by the NRC. The regulatory analysis is available as indicated in the “Availability of Documents” section of this document.

The NRC has determined that the backfit rule, 10 CFR 50.109, does not apply to this final rule and that a backfit analysis is not required. A backfit analysis is not required because these amendments do not require the modification of, or addition to, systems, structures, components, or the design of a facility, or the design approval or manufacturing license for a facility, or the procedures or organization required to design, construct, or operate a facility.

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

The NRC has determined that this final rule is the type of action described in 10 CFR 51.22(c)(1). Therefore, neither an environmental impact statement nor environmental assessment has been prepared for this final rule.

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

This final rule is a rule as defined in the Congressional Review Act (5 U.S.C. 801-808). However, the Office of Management and Budget has not found it to be a major rule as defined in the Congressional Review Act.

The National Technology Transfer and Advancement Act of 1995, Public Law 104-113, requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this final rule, the NRC will revise its licensing, inspection, and annual fee regulations to establish a variable annual fee structure for SMRs. This action does not constitute the establishment of a standard that contains generally applicable requirements.

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

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR parts 170 and 171:

I. Authority and Rulemaking Background

As amended by the Energy Independence and Security Act of 2007 (“EISA 2007”), Public Law 110-140 (December 19, 2007), the Energy Policy and Conservation Act (“EPCA” or, in context, “the Act”) authorizes DOE to issue a direct final rule (i.e., a “direct final rule”) establishing an energy conservation standard for a product on receipt of a statement submitted jointly by interested persons that are fairly representative of relevant points of view (including representatives of manufacturers of covered products, States, and efficiency advocates) as determined by the Secretary of Energy (“Secretary”). That statement must contain recommendations with respect to an energy or water conservation standard that are in accordance with the provisions of 42 U.S.C. 6295(o) or 42 U.S.C. 6313(a)(6)(B), as applicable. A notice of proposed rulemaking (“NOPR”) that proposes an identical energy efficiency standard must be published simultaneously with the direct final rule and a public comment period of at least 110 days provided. See 42 U.S.C. 6295(p)(4). This provision also applies to the equipment at issue in this direct final rule. See 42 U.S.C. 6316(b)(1) Not later than 120 days after issuance of the direct final rule, if DOE receives one or more adverse comments or an alternative joint recommendation is received relating to the direct final rule, the Secretary must determine whether the comments or alternative recommendation may provide a reasonable basis for withdrawal under 42 U.S.C. 6295(o) or other applicable law. If the Secretary makes such a determination, DOE must withdraw the direct final rule and proceed with the simultaneously-published NOPR, and publish in the Federal Register the reason why the direct final rule was withdrawn. Id.

During the rulemaking proceedings to consider amending the energy conservation standards for small, large, and very large air-cooled commercial package air conditioning and heating equipment (referred to herein as air-cooled commercial unitary air conditioners and heat pumps (“CUACs” and “CUHPs”)) and commercial warm air furnaces (“CWAFs”), interested parties commented that DOE should convene a negotiated rulemaking to develop standards that will result in energy savings using technology that is feasible and economically justified. In addition, AHRI and ACEEE submitted a joint letter to the Appliance Standards and Rulemaking Federal Advisory Committee (“ASRAC”) requesting that it consider approving a recommendation that DOE initiate a negotiated rulemaking for air-cooled commercial package air conditioners and commercial furnaces. (EERE-2013-BT-STD-0007-0080) ASRAC carefully evaluated this request and the Committee voted to charter a working group to support the negotiated rulemaking effort requested by these parties.

Subsequently, after careful consideration, DOE determined that, given the complexity of the CUAC/CUHP rulemaking and the logistical challenges presented by the related CWAF proposal, a combined effort to address these equipment types was necessary to ensure a comprehensive vetting of all issues and related analyses that would be necessary to support any final rule setting standards for this equipment. To this end, while highly unusual to do so after issuing a proposed rule, DOE solicited the public for membership nominations to the working group that would be formed under the ASRAC charter by issuing a Notice of Intent to Establish the Commercial Package Air Conditioners and Commercial Warm Air Furnaces Working Group To Negotiate Potential Energy Conservation Standards for Commercial Package Air Conditioners and Commercial Warm Air Furnaces. 80 FR 17363 (April 1, 2015). The CUAC/CUHP-CWAF Working Group (in context, “the Working Group”) was established under ASRAC in accordance with the Federal Advisory Committee Act and the Negotiated Rulemaking Act—with the purpose of discussing and, if possible, reaching consensus on a set of energy conservation standards to propose or finalize for CUACs, CUHPs and CWAFs. The Working Group was to consist of fairly representative parties having a defined stake in the outcome of the proposed standards, and would consult, as appropriate, with a range of experts on technical issues.

DOE received 17 nominations for membership. Ultimately, the Working Group consisted of 17 members, including one member from ASRAC and one DOE representative.1 The Working Group met six times (five times in-person and once by teleconference). The meetings were held on April 28, May 11-12, May 20-21, June 1-2, June 9-10, and June 15, 2015.2 As a result of these efforts, the Working Group successfully reached consensus on energy conservation standards for CUACs, CUHPs, and CWAFs. On June 15, 2015, it submitted a Term Sheet to ASRAC outlining its consensus recommendations, which ASRAC subsequently adopted.3

After carefully considering the consensus recommendations submitted by the Working Group and adopted by ASRAC related to amending the energy conservation standards for CUACs, CUHPs, and CWAFs, DOE determined that these recommendations, which were submitted in the form of a single Term Sheet from the Working Group, comprised a statement submitted by interested persons who are fairly representative of relevant points of view on this matter. In reaching this determination, DOE took into consideration the fact that the Working Group, in conjunction with ASRAC members who approved the recommendations, consisted of representatives of manufacturers of the covered equipment at issue, States, and efficiency advocates—all of which are groups specifically identified by Congress as relevant parties to any consensus recommendation. (42 U.S.C. 6295(p)(4)(A)) As delineated above, the Term Sheet was signed and submitted by a broad cross-section of interests, including the manufacturers who produce the equipment at issue, trade associations representing these manufacturers and installation contractors, environmental and energy-efficiency advocacy organizations, and electric utility companies. Although States were not direct signatories to the Term Sheet, the ASRAC Committee approving the Working Group's recommendations included at least two members representing States—one representing the National Association of State Energy Officials (“NASEO”) and one representing the State of California.4 Moreover, DOE does not read the statute as requiring a statement submitted by all interested parties before the Department may proceed with issuance of a direct final rule. By explicit language of the statute, the Secretary has the discretion to determine when a joint recommendation for an energy or water conservation standard has met the requirement for representativeness (i.e., “as determined by the Secretary”).

Pursuant to 42 U.S.C. 6295(p)(4), the Secretary must also determine whether a jointly-submitted recommendation for an energy or water conservation standard satisfies 42 U.S.C. 6295(o) or 42 U.S.C. 6313(a)(6)(B), as applicable. As stated in the direct final rule, in making this determination, DOE conducted an analysis to evaluate whether the potential energy conservation standards under consideration would meet these requirements. This evaluation is the same comprehensive approach that DOE typically conducts whenever it considers potential energy conservation standards for a given type of product or equipment. DOE applies the same principles to any consensus recommendations it may receive to satisfy its statutory obligation to ensure that any energy conservation standard that it adopts achieves the maximum improvement in energy efficiency that is technologically feasible and economically justified and will result in the significant conservation of energy. Upon review, the Secretary determined that the Term Sheet submitted in the instant rulemaking comports with the standard-setting criteria set forth under 42 U.S.C. 6313(a)(6)(B). Accordingly, the consensus-recommended efficiency levels, included as the “recommended trial standard level (TSL)” for CUACs/CUHPs and as TSL 2 for CWAFs were adopted as the amended standard levels in the direct final rule. 81 FR at 2422.

In sum, as the relevant statutory criteria were satisfied, the Secretary adopted the consensus-recommended amended energy conservation standards for CUACs, CUHPs, and CWAFs set forth in the direct final rule. The standards for CUACs and CUHPs are set forth in Table 1, with the CUAC and CUHP cooling efficiency standards presented in terms of an integrated energy efficiency ratio (“IEER”) and the CUHP heating efficiency standards presented as a coefficient of performance (“COP”). The IEER metric will replace the currently used energy efficiency ratio (“EER”) metric on which DOE's standards are currently based. The two-phase standards and compliance dates apply to all equipment listed in Table 1 manufactured in, or imported into, the United States starting on the dates shown in that table. For CWAFs, the amended standards, which prescribe the minimum allowable thermal efficiency (“TE”), are shown in Table 2. These standards apply to all equipment listed in Table 2 manufactured in, or imported into, the United States starting on January 1, 2023. These compliance dates were set forth in the direct final rule published in the Federal Register on January 15, 2016 (81 FR 2420). For a detailed discussion of DOE's analysis of the benefits and burdens of the amended standards pursuant to the criteria set forth in EPCA, please refer to the relevant sections of the direct final rule. (81 FR 2420 (January 15, 2016))

As required by EPCA, DOE also simultaneously published an SNOPR proposing the identical standard levels contained in the direct final rule. DOE considered whether any adverse comment received during the 110-day comment period following the direct final rule provided a reasonable basis for withdrawal of the direct final rule and continuation of this rulemaking under the SNOPR. As noted in the direct final rule, it is the substance, rather than the quantity, of comments that will ultimately determine whether a direct final rule will be withdrawn. To this end, DOE weighs the substance of any adverse comment(s) received against the anticipated benefits of the Consensus Agreement and the likelihood that further consideration of the comment(s) would change the results of the rulemaking. DOE notes that to the extent an adverse comment had been previously raised and addressed in the rulemaking proceeding, such a submission will not typically provide a basis for withdrawal of a direct final rule.

The California Investor Owned Utilities (“IOUs”),5 the Joint Efficiency Advocates,6 and Lennox International, Inc. (“Lennox”) supported the Term Sheet recommendations and DOE's adoption of the standard levels in the direct final rule. (California IOUs, No. 116 at pp. 1-3; Joint Efficiency Advocates, No. 119 at p. 1; Lennox, No. 121 at pp. 1-2) 7

The Joint Efficiency Advocates also noted that the Term Sheet recommended that DOE initiate a test procedure rulemaking for CUACs and CUHPs by January 1, 2016 and issue a final rule by January 1, 2019, with the primary focus of the rulemaking being to better represent fan energy use. The Joint Efficiency Advocates requested that DOE give some public indication of its commencement of work on the test procedure. (Joint Efficiency Advocates, No. 119 at pp. 1-2) The California IOUs also commented that while the January 1, 2016 initiation date has passed, DOE should initiate this test procedure rulemaking as soon as possible to address fan energy use and the lack of high ambient test conditions above 95 degrees Fahrenheit (°F) to account for conditions regularly experienced in the desert Southwest. (California IOUs, No. 116 at p. 2)

DOE appreciates these comments regarding the CUAC/CUHP test procedure and is considering these potential changes to the test procedure in a future rulemaking. DOE notes that any amendments adopted in this future test procedure rulemaking would not be required for use to determine compliance with the energy conservation standards promulgated by this direct final rule.

The California IOUs commented that as DOE conducts future standards and test procedure rulemakings for these equipment, it should explore different options for standards that will improve efficiency and also contribute to peak load reduction for CUACs and CUHPs. The California IOUs stated that DOE could consider the following actions in future rulemakings: Revisiting the possibility of a dual metric for EER and IEER; an IEER test point at an ambient temperature above 95 °F; and using energy modeling software to predict equipment performance at peak conditions. (California IOUs, No. 116 at p. 3)

The Air-Conditioning, Heating, and Refrigeration Institute (“AHRI”) submitted a letter committing to continue to certify and publish EER values (at 95 °F) for CUAC and CUHP equipment covered under this rulemaking in its directory of certified products once the IEER metric becomes the new Federal energy efficiency descriptor. AHRI noted that this commitment was not part of the term sheet and should not be considered as a comment to the SNOPR. (AHRI, No. 118 at p. 1) The California IOUs and Joint Efficiency Advocates both supported AHRI's commitment to continue publishing full-load EER test values, as this information is important for the design and implementation of utility incentive programs that incentivize consumers to purchase equipment that has high performance in both part load and peak load conditions. (Joint Efficiency Advocates, No. 119 at p. 2)

DOE appreciates these comments regarding CUAC and CUHP full-load efficiency. DOE notes that AHRI's commitment to continuing to require verification and reporting of EER was discussed and agreed upon by interested parties during the ASRAC Working Group meetings. However, DOE noted that it could not be included as part of the Term Sheet because it was not a recommendation for a specific DOE action. (ASRAC Public Meeting, No. 102 at pp. 79-83, 113-116) DOE recognizes that AHRI's commitment to continuing to require verification and reporting of EER for its certification program would allow utilities, and others, to consider full-load efficiency in their energy efficiency programs. DOE will review its statutory authority at the time it conducts a future standards rulemaking for CUACs and CUHPs to explore options to separately consider full-load efficiency.

DOE also received two comments that discussed the market failures addressed by the direct final rule and made suggestions for actions that would complement the standards. Arthur Laciak commented that by establishing more stringent energy efficiency standards, DOE addressed the principal-agent problem (i.e. where a building manager purchases the equipment, but the tenants pay the energy bill), but the consumer is no better informed about the energy savings of more efficient equipment than the minimum standards. He stated that DOE should encourage Congress to provide DOE greater authority to disseminate information regarding CUACs and CUHPs to better inform consumers of the cost savings of purchasing more efficient equipment. (Laciak, No. 120 at pp. 7-8) Paul Melmeyer commented that DOE's economic analysis and justification for the updated standards are cogent and convincing, but he pointed to various ways that DOE can ensure that the direct final rule accomplishes the stated statutory and regulatory objectives. These include programs of labeling or consumer education, formulating plans to ensure low-income individuals are not adversely affected, and crafting a plan to conduct retrospective analysis on various DOE predictions. (Melmeyer, No. 122 at pp. 10-11) DOE acknowledges the suggestions made by the commenters.

EPCA directs DOE to consider any lessening of competition that is likely to result from new or amended standards. It also directs the Attorney General of the United States (“Attorney General”) to determine the impact, if any, of any lessening of competition likely to result from a proposed standard and to transmit such determination to the Secretary within 60 days of the publication of a proposed rule, together with an analysis of the nature and extent of the impact. See 42 U.S.C. 6295(o)(2)(B)(i)(V) and (B)(ii). See also 42 U.S.C. 6316(b)(1) (applying 42 U.S.C. 6295(o) to CUACs, CUHPs, and CWAFs). DOE published an SNOPR containing energy conservation standards identical to those set forth the direct final rule and transmitted a copy of the direct final rule and the accompanying technical support document (“TSD”) to the Attorney General, requesting that the U.S. Department of Justice provide its determination on this issue. DOE has published DOJ's comments at the end of this notice.

DOJ reviewed the amended standards in the direct final rule and the final TSD provided by DOE. As a result of its analysis, DOJ concluded that the amended standards issued in the direct final rule are unlikely to have a significant adverse impact on competition.

Pursuant to the National Environmental Policy Act of 1969 (“NEPA”), DOE has determined that the rule fits within the category of actions included in Categorical Exclusion (“CX”) B5.1 and otherwise meets the requirements for application of a CX. See 10 CFR part 1021, App. B, B5.1(b); 1021.410(b) and App. B, B(1)-(5). The rule fits within the category of actions because it is a rulemaking that establishes energy conservation standards for consumer products or industrial equipment, and for which none of the exceptions identified in CX B5.1(b) apply. Therefore, DOE has made a CX determination for this rulemaking, and DOE does not need to prepare an Environmental Assessment or Environmental Impact Statement for this rule. DOE's CX determination for this rule is available at http://energy.gov/nepa/categorical-exclusion-cx-determinations-cx.

In summary, based on the discussion above, DOE has determined that the comments received in response to the direct final rule for amended energy conservation standards for CUACs, CUHPs, and CWAFs do not provide a reasonable basis for withdrawal of the direct final rule. As a result, the amended energy conservation standards set forth in the direct final rule became effective on May 16, 2016. Compliance with these amended standards is required for small, large, and very large CUACs and CUHPs starting on January 1, 2018, for the first set of standards and January 1, 2023, for the second set of standards. Compliance with the amended standards established for CWAFs is required starting on January 1, 2023.

The objective of this regulation is to adjust the maximum CMPs for inflation with an initial “catch-up” adjustment through an interim final rulemaking (IFR) to retain the deterrent effect of such penalties.

Section 3(2) of the 1990 Act, as amended, defines a civil monetary penalty 1 as any penalty, fine, or other sanction that: (1) Either is for a specific monetary amount as provided by Federal law or has a maximum amount provided for by Federal law; (2) is assessed or enforced by an agency pursuant to Federal law; and (3) is assessed or enforced pursuant to an administrative proceeding or a civil action in the Federal courts.2

The FCA imposes and enforces CMPs through the Farm Credit Act and the Flood Disaster Protection Act of 1973, as amended. FCA's regulations governing CMPs are found in 12 CFR parts 622 and 623. Part 622 establishes rules of practice and procedure applicable to formal and informal hearings held before the FCA, and to formal investigations conducted under the Farm Credit Act. Part 623 prescribes rules with regard to persons who may practice before the FCA and the circumstances under which such persons may be suspended or debarred from practice before the FCA.

The Farm Credit Act provides that any Farm Credit System (System) institution or any officer, director, employee, agent, or other person participating in the conduct of the affairs of a System institution who violates the terms of a cease-and-desist order that has become final pursuant to section 5.25 or 5.26 of the Farm Credit Act must pay up to a maximum daily amount of $1,000 3 during which such violation continues. This CMP maximum was set by the Farm Credit Amendments Act of 1985, which amended the Farm Credit Act. Orders issued by the FCA under section 5.25 or 5.26 of the Farm Credit Act include temporary and permanent cease-and-desist orders. In addition, section 5.32(h) of the Farm Credit Act provides that any directive issued under sections 4.3(b)(2), 4.3A(e), or section 4.14A(i) of the Farm Credit Act “shall be treated” as a final order issued under section 5.25 of the Farm Credit Act for purposes of assessing a CMP.

Section 5.32(a) of the Farm Credit Act also states that “[a]ny such institution or person who violates any provision of the [Farm Credit] Act or any regulation issued under this Act shall forfeit and pay a civil penalty of not more than $500 4 per day for each day during which such violation continues.” This CMP maximum was set by the Agricultural Credit Act of 1987, which was enacted in 1988, and amends the Farm Credit Act. Current, inflation-adjusted CMP maximums are set forth in existing § 622.61 of FCA regulations.5

The FCA also enforces the Flood Disaster Protection Act of 1973,6 as amended by the National Flood Insurance Reform Act of 1994,7 which requires FCA to assess CMPs for a pattern or practice of committing certain specific actions in violation of the National Flood Insurance Program. The existing maximum CMP for a violation under the Flood Disaster Protection Act of 1973 is $2,000.8

Under 13 CFR 121.104(d), the average annual receipts size of a business concern with affiliates is calculated by adding the average annual receipts of the business concern with the average annual receipts of each affiliate. However, in adding the receipts of a concern with its affiliate, SBA excludes “proceeds from transactions between a concern and its domestic or foreign affiliates,” under 13 CFR 121.104(a). These transactions are commonly referred to as interaffiliate transactions. The intent of this exclusion is to avoid counting the same receipts twice when determining the size of a particular concern. This Statement of Policy explains how SBA will apply the exclusion.

Recent SBA size determinations and decisions of the Office of Hearings and Appeals have limited the exclusion by applying it only to transactions between affiliates that are eligible to file a consolidated tax return. This interpretation has been supported by reference to a parenthetical that was included with section 121.104(a) from 1996 to 2004, providing that the exclusion would apply to interaffiliate amounts “(if also excluded from gross or total income on a consolidated return filed with the IRS). . . .” 13 CFR 121.104(a)(1) (1996); 61 FR 3280 (Jan. 31, 1996). While this parenthetical was in place, SBA excluded only those interaffiliate transactions that were also excluded from consolidated tax returns filed by a concern and its affiliate. This policy necessarily required that the transaction occur between two firms that filed consolidated returns.

SBA deleted the parenthetical in 2004. In the preamble to the final rule issued May 21, 2004, SBA stated that it was deleting the parenthetical because “[w]hether a consolidated return is filed should have no bearing on whether properly documented interaffiliate transactions are excluded from annual receipts.” 69 FR 29192, 29196 (May 21, 2004). Thus, since May 2004, the regulation has provided for an exclusion from receipts for “proceeds from transactions between a concern and its domestic or foreign affiliates.” 13 CFR 121.104(a). The regulation does not include a limitation on the types of affiliates for which interaffiliate transactions can be excluded, and in no way ties the exclusion to a concern's ability to file a consolidated tax return with the identified affiliate.

SBA believes that the current regulatory language is clear on its face. It specifically excludes all proceeds from transactions between a concern and its affiliates, without limitation. Moreover, the regulatory history supports the position that the exclusion for interaffiliate transactions is available regardless of the manner of affiliation between a concern and its affiliate. SBA recognized that excluding interaffiliate transactions only when they are identified on a consolidated tax return often perpetuated the double-counting of receipts. By saying that “[w]hether a consolidated return is filed should have no bearing on whether properly documented interaffiliate transactions are excluded from annual receipts,” SBA did not mean to imply that a concern and its affiliate must be able to file a consolidated tax return in order to receive the exclusion from double-counting interaffiliate transactions. Conversely, SBA was attempting to make clear that it did not support the practice of double-counting receipts between affiliates generally.

Because the regulatory text does not contain a restriction, a regulatory change is not necessary. SBA will consider comments submitted regarding this policy.

SBA will not restrict the exclusion for interaffiliate transactions to transactions between a concern and a firm with which it could file a consolidated tax return. The exclusion for interaffiliate transactions may be applied to interaffiliate transactions between a concern and a firm with which it is affiliated under the principles in 13 CFR 121.103. Where SBA is conducting a size determination, SBA requires that exclusions claimed under section 121.104(a) be specifically identified by the concern whose size is at issue and be properly documented. This policy is effective immediately.

On April 6, 2016, the FAA published the “Change of Newark Liberty International Airport (EWR) Designation” document in order to redesignate Newark Liberty International Airport as a Level 2 schedule-facilitated airport under the International Air Transport Association Worldwide Slot Guidelines effective for the winter 2016 scheduling season, which begins on October 30, 2016.1

On April 5, 2016, the FAA posted a copy of a draft of Env Rev Attach A in the docket associated with the April 6, 2016 document. The FAA has corrected this action by posting the final CATEX documents (the signed CATEX declaration and final Attachment A: Environmental Review of Proposed Change of Operating Authorization Requirement at Newark Liberty International Airport) to the docket.

Availability of Rulemaking Documents

You may obtain an electronic copy using the Internet by:

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

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

(3) Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html.

You also may obtain a copy by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to identify the amendment number or docket number of this rulemaking.

From 1968, the FAA limited the number of arrivals and departures at JFK during the peak afternoon demand period (corresponding to transatlantic arrival and departure banks) through the implementation of the High Density Rule (HDR).1 By statute enacted in April 2000, the HDR's applicability to JFK operations terminated as of January 1, 2007.2 Using AIR-21 exemptions and the HDR phase-out, U.S. air carriers serving JFK significantly increased their domestic scheduled operations throughout the day. This increase in operations resulted in significant congestion and delays that negatively impacted the National Airspace System (NAS). In January 2008, the FAA placed temporary limits on scheduled operations at JFK to mitigate persistent congestion and delays at the airport.3 With a temporary schedule limit order in place, the FAA proposed a long-term rule that would limit the number of scheduled and unscheduled operations at JFK.4 On October 10, 2008, the FAA published the Congestion Management Rule for John F. Kennedy International Airport and Newark Liberty International Airport, which would have become effective on December 9, 2008.5 That rule was stayed by the U.S. Court of Appeals for the District of Columbia Circuit and subsequently rescinded by the FAA.6 The FAA extended the January 18, 2008, Order placing temporary limits on scheduled operations at JFK on October 7, 2009,7 on April 4, 2011,8 on May 14, 2013,9 and on March 26, 2014.10

Under the Order, as amended, the FAA (1) maintains the current hourly limits on 81 scheduled operations at JFK during the peak period; (2) imposes an 80 percent minimum usage requirement for Operating Authorizations (OAs) with defined exceptions; (3) provides a mechanism for withdrawal of OAs for FAA operational reasons; (4) establishes procedures to allocate withdrawn, surrendered, or unallocated OAs; and (5) allows for trades and leases of OAs for consideration for the duration of the Order.

The reasons for issuing the Order have not changed appreciably since it was implemented. Demand for access to JFK remains high and the average weekday hourly flights in the busiest morning, afternoon, and evening hours are generally consistent with the limits under this Order. The FAA has reviewed the on-time and other performance metrics in the peak May to August 2014 and 2015 months and found continuing improvements relative to the same period in 2007, even with runway construction at JFK in 2015.11 Without the operational limitations imposed by this Order, the FAA expects severe congestion-related delays would occur at JFK and at other airports throughout the NAS. The FAA will continue to monitor performance and runway capacity at JFK to determine if changes are warranted.

On January 8, 2015, the DOT and FAA published a notice of proposed rulemaking “Slot Management and Transparency at LaGuardia Airport, John F. Kennedy International Airport, and Newark Liberty International Airport.” 12 The DOT and FAA proposed to replace the Orders limiting scheduled operations at JFK, limiting scheduled operations at Newark Liberty International Airport (EWR), and limiting scheduled and unscheduled operations at LaGuardia Airport (LGA) with a more permanent system for managing slots. The NPRM included certain proposed changes to how slots are currently managed in the New York City area in order to increase transparency and address issues considering anti-competitive behavior. Since the FAA and DOT first initiated this rulemaking effort there have been significant changes in circumstances affecting New York City area airports, including changes in competitive effects from ongoing industry consolidation, slot utilization and transfer behavior, and actual operational performance at the three airports. Furthermore, the FAA recently announced that slot controls are no longer needed at EWR (81 FR 19861). In light of the changes in market conditions and operational performance at the New York City area airports, the Department is withdrawing the NPRM by Federal Register notice published May 16, 2016 (81 FR 30218), to allow for further evaluation of these changes. Accordingly, the FAA has concluded it is necessary to extend the expiration date of this Order until October 27, 2018. This expiration date coincides with the extended expiration date for the Order limiting scheduled operations at LGA, as also extended by action published in today's Federal Register.13 No amendments other than the expiration date have been made to this Order.

The FAA finds that notice and comment procedures under 5 U.S.C. 553(b) are impracticable and contrary to the public interest. The FAA further finds that good cause exists to make this Order effective in less than 30 days.

The Order, as amended, is recited below in its entirety.

1. This Order assigns operating authority to conduct an arrival or a departure at JFK during the affected hours to the U.S. air carrier or foreign air carrier identified in the appendix to this Order. The FAA will not assign operating authority under this Order to any person or entity other than a certificated U.S. or foreign air carrier with appropriate economic authority and FAA operating authority under 14 CFR part 121, 129, or 135. This Order applies to the following:

a. All U.S. air carriers and foreign air carriers conducting scheduled operations at JFK as of the date of this Order, any U.S. air carrier or foreign air carrier that operates under the same designator code as such a carrier, and any air carrier or foreign-flag carrier that has or enters into a codeshare agreement with such a carrier.

b. All U.S. air carriers or foreign air carriers initiating scheduled or regularly conducted commercial service to JFK while this Order is in effect.

c. The Chief Counsel of the FAA, in consultation with the Vice President, System Operations Services, is the final decisionmaker for determinations under this Order.

2. This Order governs scheduled arrivals and departures at JFK from 6 a.m. through 10:59 p.m., Eastern Time, Sunday through Saturday.

3. This Order takes effect on March 30, 2008, and will expire when the final Rule on Slot Management and Transparency for LaGuardia Airport, John F. Kennedy International Airport, and Newark Liberty International Airport becomes effective but not later than October 29, 2016.

4. Under the authority provided to the Secretary of Transportation and the FAA Administrator by 49 U.S.C. 40101, 40103 and 40113, we hereby order that:

a. No U.S. air carrier or foreign air carrier initiating or conducting scheduled or regularly conducted commercial service at JFK may conduct such operations without an Operating Authorization assigned by the FAA.

b. Except as provided in the appendix to this Order, scheduled U.S. air carrier and foreign air carrier arrivals and departures will not exceed 81 per hour from 6 a.m. through 10:59 p.m., Eastern Time.

c. The Administrator may change the limits if he determines that capacity exists to accommodate additional operations without a significant increase in delays.

5. For administrative tracking purposes only, the FAA will assign an identification number to each Operating Authorization.

6. A carrier holding an Operating Authorization may request the Administrator's approval to move any arrival or departure scheduled from 6 a.m. through 10:59 p.m. to another half hour within that period. Except as provided in paragraph seven, the carrier must receive the written approval of the Administrator, or his delegate, prior to conducting any scheduled arrival or departure that is not listed in the appendix to this Order. All requests to move an allocated Operating Authorization must be submitted to the FAA Slot Administration Office, facsimile (202) 267-7277 or email [email protected], and must come from a designated representative of the carrier. If the FAA cannot approve a carrier's request to move a scheduled arrival or departure, the carrier may then apply for a trade in accordance with paragraph seven.

7. For the duration of this Order, a carrier may enter into a lease or trade of an Operating Authorization to another carrier for any consideration. Notice of a trade or lease under this paragraph must be submitted in writing to the FAA Slot Administration Office, facsimile (202) 267-7277 or email [email protected], and must come from a designated representative of each carrier. The FAA must confirm and approve these transactions in writing prior to the effective date of the transaction. The FAA will approve transfers between carriers under the same marketing control up to five business days after the actual operation, but only to accommodate operational disruptions that occur on the same day of the scheduled operation. The FAA's approval of a trade or lease does not constitute a commitment by the FAA to grant the associated historical rights to any operator in the event that slot controls continue at JFK after this order expires.

8. A carrier may not buy, sell, trade, or transfer an Operating Authorization, except as described in paragraph seven.

9. Historical rights to Operating Authorizations and withdrawal of those rights due to insufficient usage will be determined on a seasonal basis and in accordance with the schedule approved by the FAA prior to the commencement of the applicable season.

a. For each day of the week that the FAA has approved an operating schedule, any Operating Authorization not used at least 80% of the time over the time-frame authorized by the FAA under this paragraph will be withdrawn by the FAA for the next applicable season except:

i. The FAA will treat as used any Operating Authorization held by a carrier on Thanksgiving Day, the Friday following Thanksgiving Day, and the period from December 24 through the first Saturday in January.

ii. The Administrator of the FAA may waive the 80% usage requirement in the event of a highly unusual and unpredictable condition which is beyond the control of the carrier and which affects carrier operations for a period of five consecutive days or more.

b. Each carrier holding an Operating Authorization must forward in writing to the FAA Slot Administration Office a list of all Operating Authorizations held by the carrier along with a listing of the Operating Authorizations and:

i. The dates within each applicable season it intends to commence and complete operations.

A. For each winter scheduling season, the report must be received by the FAA no later than August 15 during the preceding summer.

B. For each summer scheduling season, the report must be received by the FAA no later than January 15 during the preceding winter.

ii. The completed operations for each day of the applicable scheduling season:

A. No later than September 1 for the summer scheduling season.

B. No later than January 15 for the winter scheduling season.

iii. The completed operations for each day of the scheduling season within 30 days after the last day of the applicable scheduling season.

10. In the event that a carrier surrenders to the FAA any Operating Authorization assigned to it under this Order or if there are unallocated Operating Authorizations, the FAA will determine whether the Operating Authorizations should be reallocated. The FAA may temporarily allocate an Operating Authorization at its discretion. Such temporary allocations will not be entitled to historical status for the next applicable scheduling season under paragraph 9.

11. If the FAA determines that an involuntary reduction in the number of allocated Operating Authorizations is required to meet operational needs, such as reduced airport capacity, the FAA will conduct a weighted lottery to withdraw Operating Authorizations to meet a reduced hourly or half-hourly limit for scheduled operations. The FAA will provide at least 45 days' notice unless otherwise required by operational needs. Any Operating Authorization that is withdrawn or temporarily suspended will, if reallocated, be reallocated to the carrier from which it was taken, provided that the carrier continues to operate scheduled service at JFK.

12. The FAA will enforce this Order through an enforcement action seeking a civil penalty under 49 U.S.C. 46301(a). A carrier that is not a small business as defined in the Small Business Act, 15 U.S.C. 632, will be liable for a civil penalty of up to $25,000 for every day that it violates the limits set forth in this Order. A carrier that is a small business as defined in the Small Business Act will be liable for a civil penalty of up to $10,000 for every day that it violates the limits set forth in this Order. The FAA also could file a civil action in U.S. District Court, under 49 U.S.C. 46106, 46107, seeking to enjoin any air carrier from violating the terms of this Order.

13. The FAA may modify or withdraw any provision in this Order on its own or on application by any carrier for good cause shown.

This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part § 97.20. The applicable FAA forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.

The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPs, Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure, and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPS as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as Amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C 553(d), good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26,1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:

This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained on FAA form documents is unnecessary. This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.

The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, Part 97, (14 CFR part 97), is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:

In Business Conduct Standards for Security-Based Swap Dealers and Major Security-Based Swap Participants (FR Doc. 2016-10918), published in the Federal Register on May 13, 2016, the following corrections are made:

1. On page 30090, in the third column, under the heading “1. Verification of Status,” the second sentence is hereby deleted and replaced with the sentence: “As noted above, Rule 15Fh-3(a)(3) differs from the CFTC's rule, which instead includes an opt-in for plans “defined in” ERISA, but not subject to Title I of ERISA.” Footnote 1529 remains as published.

2. Also on page 30090, in the third column, in the fourth sentence under the same heading, the phrase “complying with the rules, as adopted,” is replaced with the phrase “complying with Rules 15Fh-3(a)(1) and (2)”.

3. On page 30091, in the first column, under the same heading, a new paragraph begins after footnote 1531, beginning with the sentence “We do not anticipate any ongoing burdens with respect to this rule.”

4. Also on page 30091, in the first column, under the same heading, the following sentence is added to the end of the last paragraph under this heading: “We also anticipate that all 55 SBS Entities will incur, on average, an initial internal burden of 30 minutes to prepare the notice required pursuant to Rule 15Fh-3(a)(3) for counterparties defined in Rule 15Fh-2(d)(4), for an aggregate total of 27.5 hours.”

5. On page 30110, in the first column, in the first sentence of the sixth paragraph under the heading “C. Costs and Benefits of Business Conduct Rules, 1. Verification of Status and Know Your Counterparty Rules,” the estimate for the direct costs of compliance is corrected to “$28,050” from “$17,600”.

6. Footnote 1655 on page 30110, is corrected to: “Initial outside counsel cost: $500 * (20 non-CFTC registered SBS Entities) = $10,000. Initial adherence letter and notification burden: (In-house attorney at $380 per hour) × 47.5 hours = $18,050.”

7. On page 30120, in the first column, in the fourth paragraph under the heading “4. Special Entities, a. Scope and Verification,” the third sentence is corrected to: “Out of 3,635 special entities subscribed to the ISDA August 2012 DF Protocol, 1,453 market participants (approximately 40%) are special entities not defined in Rule 15Fh-2(d)(3).”

Background

We use the listings in appendix 1 to subpart P of part 404 of 20 CFR at the third step of the sequential evaluation process to evaluate claims filed by adults and children for benefits based on disability under the title II and title XVI programs.1 20 CFR 404.1520(d), 416.920(d), 416.924(d). The listings are in two parts: Part A has listings criteria for adults and Part B has listings criteria for children. If you are age 18 or over, we apply the listings criteria in part A when we assess your impairment or combination of impairments. If you are under age 18, we first use the criteria in part B of the listings when we assess your impairment(s). If the criteria in part B do not apply, we may use the criteria in part A when those criteria give appropriate consideration to the effects of your impairment(s). 20 CFR 404.1525(b), 416.925(b).

In this final rule, we are extending the dates on which the listings for the following two body systems will no longer be effective as set out in the following chart:

We continue to revise and update the listings on a regular basis, including those body systems not affected by this final rule.2 We intend to update the two listings affected by this final rule as quickly as possible, but may not be able to publish final rules revising these listings by the current expiration dates. Therefore, we are extending the expiration dates listed above.

We follow the Administrative Procedure Act (APA) rulemaking procedures specified in 5 U.S.C. 553 in promulgating regulations. Section 702(a)(5) of the Social Security Act, 42 U.S.C. 902(a)(5). Generally, the APA requires that an agency provide prior notice and opportunity for public comment before issuing a final regulation. The APA provides exceptions to the notice-and-comment requirements when an agency finds there is good cause for dispensing with such procedures because they are impracticable, unnecessary, or contrary to the public interest.

We determined that good cause exists for dispensing with the notice and public comment procedures. 5 U.S.C. 553(b)(B). This final rule only extends the date on which two body system listings will no longer be effective. It makes no substantive changes to our rules. Our current regulations 3 provide that we may extend, revise, or promulgate the body system listings again. Therefore, we have determined that opportunity for prior comment is unnecessary, and we are issuing this regulation as a final rule.

In addition, for the reasons cited above, we find good cause for dispensing with the 30-day delay in the effective date of this final rule. 5 U.S.C. 553(d)(3). We are not making any substantive changes to the listings in these body systems. Without an extension of the expiration dates for these listings, we will not have the criteria we need to assess medical impairments in these two body systems at step three of the sequential evaluation processes. We therefore find it is in the public interest to make this final rule effective on the publication date.

We consulted with the Office of Management and Budget (OMB) and determined that this final rule does not meet the requirements for a significant regulatory action under Executive Order 12866, as supplemented by Executive Order 13563. Therefore, OMB did not review it. We also determined that this final rule meets the plain language requirement of Executive Order 12866.

We certify that this final rule does not have a significant economic impact on a substantial number of small entities because it affects only individuals. Therefore, a regulatory flexibility analysis is not required under the Regulatory Flexibility Act, as amended.

These rules do not create any new or affect any existing collections and, therefore, do not require Office of Management and Budget approval under the Paperwork Reduction Act.

For the reasons set out in the preamble, we are amending part 404 of chapter III of title 20 of the Code of Federal Regulations as set forth below.

This rule adds a new part 147, which implements Section 508 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794d) (“Section 508”), as it applies to programs and activities conducted by the Department of State (“the Department”).

Sections 147.1 and 147.2 provide that these rules are intended to implement Section 508, consistent with that statute and the regulations promulgated by the Access Board, at 36 CFR part 1194 (“Part 1194”). This rule applies to all development, procurement, maintenance, and use of electronic and information technology by the Department of State. Section 147.3 provides the definitions of “The Department,” “Section 508”, “Section 508 complaint”, and “the Secretary”, and adopts the definitions in 36 CFR 1194.4.

Section 147.4 provides that the Department will ensure that its employees, applicants for employment, and members of the public are provided with adequate notice of the Department's obligations under Section 508, part 1194, and these rules.

Sections 147.5 and 147.6 generally reiterate the requirements of Section 508 regarding the prohibition against discrimination, and the requirement for ensuring that EIT is accessible (in accordance with part 1194), unless an undue burden would be imposed on the Department—in which case an alternative means of access must be provided.

Section 147.7 provides procedures for filing a complaint under Section 508. The procedures included therein are substantially the same procedures the Department has established in implementing Section 504 of the Rehabilitation Act of 1973 (22 CFR part 144). The relevant procedures are repeated in this rulemaking, for convenience. A Section 508 complaint must be filed with the Department's Office of Civil Rights, must be in writing, and submitted by fax, email, mail, or hand-delivery. The final, approved complaint form, designated DS-4282, is accessible and fillable and is available on the following page: https://eforms.state.gov/searchform.aspx. The Department's analysis and notice pursuant to the Paperwork Reduction Act are included in the “Regulatory Analysis,” below. The DS-4282 will be used for complaints not only under Section 508, but under Section 504 and Title VI of the Civil Rights Act. This is reflected in the Paperwork Reduction Act analysis, below.

An individual with a disability alleging a violation of Section 508 must file a complaint not later than 180 days after the date the complainant knew, or should have known, of the alleged violation of Section 508. Once the Department receives the complaint, it must conduct an investigation and, within 180 days of receiving the complaint, shall notify the complainant of the results of the investigation in a letter containing findings of fact and conclusions of law; a description of a remedy for each violation found; and a notice of the right to appeal within 90 days of the complainant's receipt of the notice from the Department. The Department will notify the complainant of the results of the appeal within 60 days of the receipt of the appeal request.

Section 147.8 provides that a decision from the Department on the merits of a complaint, or no notification in writing from the Department within 180 days of filing the complaint, will constitute exhaustion of the complainant's administrative remedies for purposes of 5 U.S.C. 701, et seq. This provision does not yet have a counterpart in the Department's Section 504 implementing procedures; however, the Department is considering adding a parallel provision to 22 CFR part 144 in the near future.

The Department published a proposed rule on January 4, 2016. See 81 FR 44. The Department received one comment in response to the Paperwork Reduction Act notice, expressing support for the information collection, and received no comments on the proposed rule.

The Department of State published this rulemaking as a proposed rule, with 60-day provision for public comment. The final rule will be in effect 30 days after publication.

This rule is not a major rule as defined by 5 U.S.C. 804 for the purposes of Congressional review of agency rulemaking under the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801-808).

This rule will not result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million in any year; and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

The Department has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not pre-empt tribal law. Accordingly, the requirements of Executive Order 13175 do not apply to this rulemaking.

The Department of State certifies that this rulemaking will not have an impact on a substantial number of small entities. A regulatory flexibility analysis is not required under the Regulatory Flexibility Act (5 U.S.C. 601, et seq.).

The Department of State has provided this final rule to the Office of Management and Budget (OMB) for its review. The Department has also reviewed the rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866, and finds that the benefits of the rule (in providing mechanisms for individuals to submit complaints of discrimination) outweigh any costs to the public, which are minimal. The Department of State has also considered this rulemaking in light of Executive Order 13563, and affirms that this proposed regulation is consistent with the guidance therein.

The Department of State has reviewed this rule in light of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

This rule will not have substantial direct effect on the states, on the relationships between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. Executive Order 12372, regarding intergovernmental consultation on federal programs and activities, does not apply to this regulation.

The information collection contained in this rule is pursuant to the Paperwork Reduction Act, 44 U.S.C. Chapter 35 and, although not yet in use, has been assigned an OMB Control Number. The Department submitted an information collection request to OMB for the review and approval of the Discrimination Complaint Form, DS-4282, under the PRA.

This information collection will provide a way for employees and members of the public to submit a complaint of discrimination under Section 508 and other federal statutes relating to discrimination, as described below.

The Department of State has submitted the information collection described below to OMB for approval. Direct request for additional information regarding the collection listed herein, including requests for copies of the proposed collection instrument and supporting documents, to the Office of the Legal Adviser (L/M), ATTN: Section 508 Final Rule, Suite 4325, U.S. Department of State, 2200 C Street NW., Washington DC 20520; email [email protected].

• Title of the Collection: Complaint of Discrimination Under Section 504, Section 508 or Title VI.

• OMB Control No.: 1405-0220.

• Type of Request: New collection.

• Originating Office: Office of Civil Rights, U.S. Department of State.

• Form Number: Form DS-4282, Discrimination Complaint Form.

• Respondents: This information collection will be used by any Federal employee or member of the public who wishes to submit a complaint of discrimination under Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d); or Sections 504 or 508 of the Rehabilitation Act of 1973 (29 U.S.C. 794 and 794d).

• Estimated number of respondents and responses: The Department estimates a total of 10 respondents, with one response per respondent, per year.

• An estimate of the total annual public burden (in hours) associated with the collection: The average burden associated with this information collection is estimated to be 1 hour per respondent. Therefore, the Department estimates the total annual burden for this information collection to be 10 hours.

• Frequency: On occasion.

• Obligation to Respond: Voluntary.

Abstract of proposed collection:

The form created by this information collection (DS-4282) will be used to present complaints of discrimination under Title VI of the Civil Rights Act of 1964; or Sections 504 or 508 of the Rehabilitation Act of 1973 (29 U.S.C. 794 and 794d).

Methodology:

The form will be downloaded from https://eforms.state.gov/searchform.aspx. After completion, the form may be submitted by email, mail, fax, or hand-delivery.

For the reasons set forth in the preamble, 22 CFR part 147 is added to subchapter O to read as follows:

The Board is updating its mailing address because of new centralized mail procedures. This document amends 38 CFR parts 14 and 20 to update the Board's mailing address and titles of certain individuals and offices to whom mail is addressed. The purpose of these revisions is to ensure that the information contained in 38 CFR parts 14 and 20 is current and correct.

The new centralized mail procedures are consistent with paperless VA claims and appeals processing. The purpose of these procedures is to increase efficiency of mail processing. Centralized mail processing allows Board staff to electronically review mail related to appeals and upload that mail to a Veteran's electronic claims file in the Veterans Benefits Management System (VBMS).

Centralized mail processing allows for electronic processing of the Board's appeals-related mail. The Board also receives mail not intended to be associated with a Veteran's claims file for consideration in a specific case. For example, as indicated above, an individual seeking additional information regarding this rulemaking may contact the Board's Chief Counsel for Operations, via mail. The Board also distributes a Board of Veterans' Appeals Hearing Survey Card, VA Form 0745, which allows an appellant to provide anonymous feedback regarding his or her Board hearing. The Board Hearing Survey Card includes an attached Business Reply Mail envelope addressed to the Board. Additionally, the Board's incoming mail includes various periodicals.

The Board is presently only utilizing centralized mail procedures to process mail related to appeals, which should be mailed to the Board's new post office box. Other types of mail should continue to be mailed to the Board at 810 Vermont Avenue NW., Washington, DC 20420. VA is amending 38 CFR 20.100(c), to distinguish between these two different mailing addresses for these two different types of mail.

These changes to 38 CFR parts 14 and 20 are being published without regard to notice-and-comment procedures of 5 U.S.C. 553(b) because they involve only matters of agency organization, procedure, or practice, which are exempted from such procedures by virtue of 5 U.S.C. 553(b)(A). Further, because these changes do not involve substantive rules, they are not subject to the provisions of 5 U.S.C. 553(d) providing for a 30-day delay in the effective date of substantive rules.

Although this action contains provisions constituting collections of information at 38 CFR 20.608, 20.702, and 20.704, under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), no new or proposed revised collections of information are associated with this final rule. The information collection requirements for §§ 20.608, 20.702, and 20.704 are currently approved by the Office of Management and Budget (OMB) and have been assigned OMB control number 2900-0085.

The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-612). This final rule will directly affect only individuals and will not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the final regulatory flexibility analysis requirements of section 604.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action” requiring review by OMB, unless OMB waives such review, as “any regulatory action 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 economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined, and it has been determined not to be a significant regulatory action under Executive Order 12866. VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's Web site at http://www.va.gov/orpm/, by following the link for “VA Regulations Published From FY 2004 Through Fiscal Year to Date.”

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in an expenditure by State, local, and tribal governments, in the aggregate, or by the private sector of $100 million or more (adjusted annually for inflation) in any one year. This final rule will have no such effect on State, local, and tribal governments, or on the private sector.

The Catalog of Federal Domestic Assistance program numbers and titles for this rule are 64.100, Automobiles and Adaptive Equipment for Certain Disabled Veterans and Members of the Armed Forces; 64.101, Burial Expenses Allowance for Veterans; 64.103, Life Insurance for Veterans; 64.104, Pension for Non-Service-Connected Disability for Veterans; 64.105, Pension to Veterans Surviving Spouses, and Children; 64.106, Specially Adapted Housing for Disabled Veterans; 64.109, Veterans Compensation for Service-Connected Disability; 64.110, Veterans Dependency and Indemnity Compensation for Service-Connected Death; 64.114, Veterans Housing-Guaranteed and Insured Loans; 64.115, Veterans Information and Assistance; 64.116,Vocational Rehabilitation for Disabled Veterans; 64.117, Survivors and Dependents Educational Assistance; 64.118, Veterans Housing-Direct Loans for Certain Disabled Veterans; 64.119, Veterans Housing-Manufactured Home Loans; 64.120, Post-Vietnam Era Veterans' Educational Assistance; 64.124, All-Volunteer Force Educational Assistance; 64.125, Vocational and Educational Counseling for Servicemembers and Veterans; 64.126, Native American Veteran Direct Loan Program; 64.127, Monthly Allowance for Children of Vietnam Veterans Born with Spina Bifida; and 64.128, Vocational Training and Rehabilitation for Vietnam Veterans' Children with Spina Bifida or Other Covered Birth Defects.

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Robert D. Snyder, Chief of Staff, Department of Veterans Affairs, approved this document on March 31, 2016, for publication.

For the reasons set forth in the preamble, VA amends 38 CFR parts 14 and 20 as follows:

I. Background and Overview

On June 22, 2010 (75 FR 35520), EPA revised the primary SO2 NAAQS to an hourly standard of 75 parts per billion (ppb) based on a 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations. Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. Section 110(a)(2) requires states to address basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. States were required to submit such SIPs for the 2010 1-hour SO2 NAAQS to EPA no later than June 2, 2013.1

In a proposed rulemaking published on March 7, 2016 (81 FR 11717), EPA proposed to approve portions of South Carolina's 2010 1-hour SO2 NAAQS infrastructure SIP submission submitted on May 8, 2014. The details of South Carolina's submission and the rationale for EPA's actions are explained in the proposed rulemaking. Comments on the proposed rulemaking were due on or before April 6, 2016. EPA received no adverse comments on the proposed action.

With the exception of interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states and visibility protection requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4), EPA is taking final action to approve South Carolina 's infrastructure submission submitted on May 8, 2014, for the 2010 1-hour SO2 NAAQS. EPA is taking final action to approve South Carolina's infrastructure SIP submission for the 2010 1-hour SO2 NAAQS because the submission is consistent with section 110 of the CAA.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. See 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, this action for the state of South Carolina does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). The Catawba Indian Nation Reservation is located within the State of South Carolina. Pursuant to the Catawba Indian Claims Settlement Act, South Carolina statute 27-16-120, “all state and local environmental laws and regulations apply to the [Catawba Indian Nation] and Reservation and are fully enforceable by all relevant state and local agencies and authorities.” However, EPA has determined that this rule does not have substantial direct effects on an Indian Tribe because this action is not approving any specific rule, but rather approving that South Carolina's already approved SIP meets certain CAA requirements. EPA notes this action will not impose substantial direct costs on Tribal governments or preempt Tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. 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 July 25, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

40 CFR part 52 is amended as follows:

I. Background and Overview

Regional haze is visibility impairment that is produced by a multitude of sources and activities which are located across a broad geographic area and emit fine particles (e.g., sulfates, nitrates, organic carbon, elemental carbon, and soil dust) and their precursors (e.g., sulfur dioxide (SO2), nitrogen oxides (NOX), and in some cases, ammonia and volatile organic compounds). In section 169A of the 1977 Amendments to the CAA, Congress created a program for protecting visibility in the nation's national parks and wilderness areas. In the 1990 CAA Amendments, Congress amended the visibility provisions in the CAA to focus attention on the problem of regional haze.

In 1999, EPA promulgated the regional haze rule (RHR), which requires states to develop and implement SIPs to ensure reasonable progress toward improving visibility in Class I areas by reducing emissions that cause or contribute to regional haze. See 64 FR 35713 (July 1, 1999). The RHR requires each state, the District of Columbia, and the Virgin Islands to each submit a regional haze SIP no later than December 17, 2007. Under 40 CFR 51.308(e), the SIP must contain emission limitations representing BART and schedules for compliance with BART for each BART-eligible source, unless the SIP demonstrates that an emissions trading program or other alternative (BART Alternative) will achieve greater reasonable progress toward natural visibility conditions than would have resulted from the installation and operation of BART at all sources subject to BART and covered by the BART Alternative. An approvable BART Alternative must meet the criteria in 40 CFR 51.308(e)(2).

North Carolina submitted its regional haze SIP on December 17, 2007, the regional haze SIP submittal deadline. Fully consistent with EPA's regulations at the time, the SIP relied on CAIR to satisfy NOX and SO2 BART requirements for CAIR-subject EGUs in the State and to partially satisfy the requirement for a long-term strategy sufficient to achieve the State-adopted reasonable progress goals. EPA finalized a limited disapproval of North Carolina's regional haze SIP on June 7, 2012 (77 FR 33642), triggering the requirement for EPA to promulgate a Federal Implementation Plan (FIP) unless EPA approves a SIP revision that corrects the deficiency. EPA finalized a limited approval of North Carolina's regional haze SIP on June 27, 2012 (77 FR 38185), as meeting the remaining applicable regional haze requirements set forth in the CAA and the RHR. On October 31, 2014, NC DENR submitted a revision to North Carolina's regional haze SIP to correct the deficiencies identified in the June 7, 2012, limited disapproval by replacing reliance on CAIR with reliance on a BART Alternative to satisfy NOX and SO2 BART requirements for EGUs formerly subject to CAIR.

In a notice of proposed rulemaking (NPRM) published on April 5, 2016 (81 FR 19519), EPA proposed to approve North Carolina's October 31, 2014, BART Alternative regional haze SIP revision; to determine that final approval of the SIP revision would correct the deficiencies that led to EPA's limited disapproval of the State's regional haze SIP; and to convert EPA's limited approval of the State's regional haze SIP to a full approval, thereby eliminating the need for EPA to issue a FIP to remedy the deficiencies. The details of North Carolina's submission and the rationale for EPA's actions are explained in the NPRM. Comments on the proposed rulemaking were due on or before April 26, 2016.

EPA received one set of comments supporting the proposed actions and no adverse comments. The supporting comments were provided by Duke Energy. Table 1 in EPA's NPRM indicates that Units 5-9 at Duke Energy's Buck power plant were converted from coal to natural gas. See 81 FR 19521 (April 5, 2016). Duke Energy's supporting comments clarify that these five EGUs were retired from operation in 2011 and 2012 and that the units have been replaced by two new natural gas-fired combined cycle turbines equipped with Selective Catalytic Reduction for NOX control. This clarification does not impact EPA's conclusions because it does not alter the analysis supporting the BART Alternative.

EPA is finalizing approval of North Carolina's October 31, 2014, regional haze SIP revision because EPA has determined that the BART Alternative contained therein meets the requirements of 40 CFR 51.308(e)(2). EPA is also converting EPA's June 27, 2012, limited approval of North Carolina's regional haze SIP to a full approval because EPA finds that final approval of the State's October 31, 2014, regional haze SIP revision corrects the deficiencies that led to EPA's limited disapproval of the State's regional haze SIP.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. See 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, these actions merely approve state law as meeting federal requirements and do not impose additional requirements beyond those imposed by state law. For that reason, these actions:

• Are 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);

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

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

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

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

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

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

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

• do 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).

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 as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing these actions 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. These actions are 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 these actions must be filed in the United States Court of Appeals for the appropriate circuit by July 25, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of these actions 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. These actions may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

40 CFR part 52 is amended as follows:

HHS issued the Patient Safety Rule to implement the Patient Safety Act. AHRQ administers the provisions of the Act and Rule relating to the listing and operation of PSOs. OCR, within HHS, is responsible for interpretation, administration and enforcement of the confidentiality protections and disclosure permissions of the Patient Safety Act and Patient Safety Rule.

The Patient Safety Act is part of a larger framework envisioned by the Institute of Medicine and designed to balance two goals: 1) To improve patient safety and reduce medical errors by creating a “culture of safety” to share and learn from information related to patient safety events, and 2) to promote health care providers' accountability and transparency through mechanisms such as oversight by regulatory agencies and adjudication in the legal system. As discussed in “To Err Is Human,” in respect to reporting systems, “they can hold providers accountable for performance or, alternatively, they can provide information that leads to improved safety. Conceptually, these purposes are not incompatible, but in reality, they can prove difficult to satisfy simultaneously.” 1

The Patient Safety Act promotes the goal of improving patient safety and reducing medical errors by establishing a system in which health care providers can voluntarily collect and report information related to patient safety, health care quality, and health care outcomes to PSOs. The PSOs aggregate and analyze this information and give feedback to the providers to encourage learning and prevent future errors. The providers are motivated to report such information to PSOs because the Patient Safety Act provides broad privilege and confidentiality protections for information meeting the definition of PSWP, which alleviates concerns about such information being used against a provider, such as in litigation.

At the same time, providers are subject to legitimate external obligations regarding certain records about patient safety to ensure their accountability and transparency. For example, the Centers for Medicare & Medicaid Services (CMS) Hospital Condition of Participation (CoP) for Quality Assessment and Performance Improvement require hospitals to track adverse patient events.2 State health care regulatory agencies typically have their own separate requirements for different types of providers, with more than half of the states operating adverse event reporting systems.3 The legal system provides another course to pursue accountability for medical errors. If a patient is injured while under a provider's care, the tort system offers an avenue to compensate the patient for his injury. However, while a successful medical malpractice claim may help compensate one patient for his specific injury, the general threat of litigation provides a disincentive to providers from voluntarily sharing information about their mistakes.

The intent of the system established by the Patient Safety Act is to protect the additional information created through voluntary patient safety activities, not to protect records created through providers' mandatory information collection activities.4 For example, a provider may have an external obligation to maintain certain records about serious adverse events that result in patient harm. The document the provider prepares to meet its requirement about such adverse events is not PSWP. As such, the Patient Safety Act recognizes the goal of accountability and transparency, and it attempts to balance this goal with that of improving patient safety and reducing medical errors. While Congress was aware of the chilling effect the fear of being sued had on providers, the Patient Safety Act was not designed to prevent patients who believed they were harmed from obtaining the records about their care that they were able to obtain prior to the enactment of the Patient Safety Act.5 Nor was the Patient Safety Act intended to insulate providers from demonstrating accountability through fulfilling their external obligations.6 Therefore, when interpreting the Patient Safety Act and Patient Safety Rule, HHS does so with the objective of maintaining balance between these two policy goals, consistent with the intent of the Patient Safety Act.

Both the Notice of Proposed Rulemaking (NPRM) and the Preamble to the Patient Safety Rule (Preamble) discuss the definition of PSWP and provide examples of what information would and would not meet the definition.7 Because there continues to be confusion about this definition, the prior discussion will be reiterated and further clarified here. The definition of PSWP sets forth three basic ways that certain information can become PSWP: (1) The information is prepared by a provider for reporting to a PSO and it is reported to the PSO, (2) the information is developed by a PSO for the conduct of patient safety activities,8 or, (3) the information identifies or constitutes the deliberations or analysis of, or identifies the fact of reporting pursuant to, a patient safety evaluation system (PSES).9 The first way—sometimes referred to as the “reporting pathway”—is how providers generally create most of their PSWP. According to the Patient Safety Act, in order for information to become PSWP through the reporting pathway, it must be information that could improve patient safety, health care quality, or health care outcomes and be assembled or developed by a provider for reporting to a PSO and be reported to a PSO. Another way of saying that the information is assembled or developed for reporting to a PSO is that the information is prepared for the purpose of reporting it to the PSO.10 Under the Patient Safety Rule, the reporting pathway allows for information that is documented as collected within the provider's PSES to be PSWP and thus privileged and confidential before it is reported to a PSO. As explained in the Preamble, this interpretation addresses the concerns of significant administrative burden and an indiscriminate race to report information to the PSO if information only became protected after it was reported to a PSO.11 Nevertheless, a provider should only place information in its PSES if it intends to report that information to the PSO.12

The definition of PSWP also describes information that is not PSWP. Specifically excluded from the definition of PSWP is, “a patient's medical record, billing and discharge information, or any other original patient or provider information.” 13 The Patient Safety Act and Rule also exclude from the PSWP definition “information that is collected, maintained, or developed separately, or exists separately, from a patient safety evaluation system.” 14 Put another way, information prepared for purposes other than reporting to a PSO is not PSWP under the reporting pathway.15

Within the category of information prepared for a purpose other than reporting to a PSO, information that is prepared for external obligations has generated many questions. External obligations include, but are not limited to, mandatory requirements placed upon providers by Federal and state health regulatory agencies.16 Both the NPRM and Preamble clearly state that PSWP cannot be used to satisfy such external obligations. “As the Patient Safety Act states more than once, these external obligations must be met with information that is not patient safety work product, and, in accordance with the confidentiality provisions, patient safety work product cannot be disclosed for these purposes.” 17 In the Preamble, HHS repeatedly stated that PSWP cannot be used to fulfill external obligations.18

As such, uncovering the purpose for which information is prepared can be a critical factor in determining whether the information is PSWP. Since some types of information can be PSWP or not depending upon why the information was assembled or developed, it is important for providers to be aware of whether information is prepared for reporting to a PSO. The chart below includes some examples.

The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. We recognize that some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue to be eligible for the sale of NFIP flood insurance. A notice withdrawing the suspension of such communities will be published in the Federal Register.

In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities. The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA's initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment procedures under 5 U.S.C. 553(b), are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Considerations. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, Section 1315, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless remedial action takes place.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This rule meets the applicable standards of Executive Order 12988.

Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Accordingly, 44 CFR part 64 is amended as follows:

Background

The Service's International Wildlife Trade Program convened a freshwater turtle workshop in St. Louis, Missouri, in September 2010, to discuss the pressing management, regulatory, scientific, and enforcement needs associated with the harvest and trade of freshwater turtles in the United States. In response to one of the recommendations put forth at the St. Louis workshop, in November 2011, the Service hosted a workshop in Baton Rouge, Louisiana, to develop best management practices for turtle farms operating in the United States. All 16 States with turtle farms attended the 2011 workshop. Information on these workshops can be found on our Web site at http://www.fws.gov/international/animals/freshwater-turtles.html or from the Service's International Wildlife Trade Program (see FOR FURTHER INFORMATION CONTACT).

On October 30, 2014, we published in the Federal Register (79 FR 64553) a document proposing listing the common snapping turtle (Chelydra serpentina), Florida softshell turtle (Apalone ferox), smooth softshell turtle (Apalone mutica), and spiny softshell turtle (Apalone spinifera), including their subspecies, except Apalone spinifera atra, which is already included in Appendix I of CITES, in Appendix III of CITES. We accepted public comments on that proposal for 60 days, ending December 29, 2014. We have reviewed and considered all public comments we received on the proposal (see the Summary of Comments and Our Responses section, below). Our final decision reflects consideration of the information and opinions we have received.

The common snapping turtle (Chelydra serpentina, Linnaeus 1758) is the second-largest freshwater turtle species native to the United States. Currently, two subspecies are widely recognized: C. s. osceola (Stejneger, 1918), distributed in the Florida peninsula, and C. s. serpentina (Linnaeus, 1758), distributed throughout the remainder of the species' range, which encompasses most of the eastern two-thirds of the United States and portions of southern Canada, including Nova Scotia. The species has been introduced into the wild outside its range both within and outside the United States, including in China and Taiwan, where it is also bred on turtle farms. The common snapping turtle is easily recognized by a roughly textured black to grey carapace (top shell), a long tail studded with large saw-toothed tubercles, large claws, and a large head with strong jaws and a sharp beak.

The species is readily distinguished from the alligator snapping turtle (Macrochelys temminckii) because the latter has a larger head, hooked beak, a smooth tail, and three distinct keels on the carapace. There are other morphological differences as well. The common snapping turtle inhabits a wide variety of freshwater habitats, including rivers, ponds, lakes, swamps, and marshes, although it prefers slow-moving aquatic habitats with mud or sand bottoms, abundant vegetation, and submerged tree branches, trunks, and brush. Common snapping turtles feed on a wide variety of both plants and animals (Ernst and Lovich 2009, pp. 9, 132-133).

The Florida softshell turtle (Apalone ferox, Schneider 1783) is one of three species of softshell turtle native to the United States. The Florida softshell, the largest North American softshell turtle, occurs from southern South Carolina, through southern Georgia and Florida, and west into the extreme southern portions of Alabama. No subspecies are currently recognized. Females may reach a maximum carapace length (SCLmax) of 67.3 centimeters, over twice the size of males, which may reach 32.4 centimeters SCLmax. The leathery skin-covered carapace has rough, rounded tubercles (bumps) on its front edge; the limbs are grey to brown with lighter-colored mottling. The feet are webbed, and the species has an extended nose tip. In large specimens, the head can grow disproportionately large compared to the body. The Florida softshell inhabits calm waters, including rivers, swamps, marshes, lakes, and ponds. The species may spend extended periods of time submerged, buried in the silty or sandy bottom. The Florida softshell is largely carnivorous, eating a variety of aquatic and sometimes terrestrial animals, although it may also consume vegetation (Ernst and Lovich 2009, p. 611).

The smooth softshell turtle (Apalone mutica, Le Sueur 1827) is the smallest of the three softshell species native to the United States. The species is generally found in streams, rivers, and channels. It inhabits the Ohio River drainage (Ohio, Indiana, and Illinois), the upper Mississippi River watershed (Minnesota and Wisconsin), the Missouri River in the Dakotas, south through the watershed and eventually spreading to the western Florida Panhandle, and west to Central Texas (including all States between these areas). The smooth softshell is considered extirpated in Pennsylvania, where it previously inhabited the Allegheny River. An isolated population exists in New Mexico's Canadian River drainage. Two subspecies are recognized: The smooth softshell turtle (A. m. mutica; Le Sueur 1827) and the Gulf Coast smooth softshell turtle (A. m. calvata; Webb 1959). Females may reach 35.6 centimeters SCLmax, and males may reach 26.6 centimeters SCLmax. The carapaces of males may have blotchy dark markings, and a yellow stripe is present on each side of the head; females have darkly mottled carapaces, and the yellow head stripe may be faint or nonexistent in older animals. The smooth softshell has webbed feet and an extended nose tip. The species is fully aquatic, only leaving the water to nest or bask. Smooth softshells consume insect larvae, other aquatic invertebrates, small fish, and plant material (Ernst and Lovich 2009, pp. 619-620).

The spiny softshell turtle (Apalone spinifera, Le Sueur 1827) is a small softshell with webbed feet and large claws. It has a leathery shell colored from brown to sand to grey, with dark black ocelli or blotches and a pair of light stripes on the side of its head. Limbs are grey and may have dark streaks or spots. The population of the spiny softshell in the United States is divided into six subspecies: The spiny softshell turtle (A. s. spinifera, Le Sueur 1827), Gulf Coast spiny softshell (A. s. aspera, Agassiz 1857), Texas spiny softshell (A. s. emoryi, Agassiz 1857), Guadalupe spiny softshell (A. s. guadalupensis, Webb 1962), western spiny softshell (A. s. hartwegi, Conant and Goin 1948), and pallid spiny softshell (A. s. pallida, Webb 1962). An additional subspecies, the Cuatro Cienegas spiny softshell (A. s. atra [=Apalone atra], Webb and Legler 1960), occurs in Mexico and is listed in Appendix I of CITES and as endangered under the U.S. Endangered Species Act (as Trionyx ater) (see title 50 of the Code of Federal Regulations (CFR) at § 17.11(h)).

The spiny softshell inhabits the largest range of the three softshell turtles of North America, occurring from New York, south to Florida, west through Texas to New Mexico, and over most of the midwestern United States, including the States bordering the Great Lakes, and extreme southern portions of Canada, and naturally in northern portions of Mexico. It has also been introduced widely in other parts of Mexico. Disjunct populations also are found from New Mexico to California and in Montana and Wyoming. Isolated populations are found in several States. The spiny softshell inhabits creeks and rivers, but also occurs in other types of water bodies, including artificial bodies, as long as the bottom is sandy or muddy to support its burrowing behavior. The species is almost entirely aquatic and largely carnivorous; its reported list of food items is extensive and includes insects, molluscs, and other invertebrates, fish, amphibians, and small snakes. It will also consume plant material (Ernst and Lovich 2009, pp. 632-633).

For further information on these species, including their subspecies, you may refer to our proposed rule published in the Federal Register on October 30, 2014 (79 FR 64553).

CITES, an international treaty, regulates the import, export, re-export, and introduction from the sea of certain animal and plant species. Currently 181 countries and the European Union have ratified, accepted, approved, or acceded to CITES; these 182 entities are known as Parties.

The text of the Convention and the official list of all species included in its three Appendices are available from the CITES Secretariat's Web site at http://www.cites.org or upon request from the Division of Management Authority at the address provided in FOR FURTHER INFORMATION CONTACT, above.

Section 8A of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.), designates the Secretary of the Interior as the U.S. Management Authority and U.S. Scientific Authority for CITES. These authorities have been delegated to the U.S. Fish and Wildlife Service. The original U.S. regulations implementing CITES took effect on May 23, 1977 (42 FR 10465, February 22, 1977), after the first meeting of the Conference of the Parties (CoP) was held. The CoP meets every 2 to 3 years to vote on proposed resolutions and decisions that interpret and implement the text of the Convention and on amendments to the list of species in the CITES Appendices. The last major revision of U.S. CITES regulations was in 2014 (79 FR 30399, May 27, 2014) and incorporated provisions from applicable resolutions and decisions adopted at meetings of the Conference of the Parties up to and including the fifteenth meeting (CoP15), which took place in 2010. The U.S. CITES implementing regulations are codified at 50 CFR part 23.

Species covered by the Convention are listed in one of three Appendices. Appendix I includes species threatened with extinction that are or may be affected by international trade, and are generally prohibited from commercial trade. Appendix II includes species that, although not necessarily threatened with extinction now, may become so unless the trade is strictly controlled. It also lists species that must be regulated so that trade in other listed species may be brought under effective control (e.g., because of similarity of appearance to other listed species). Appendix III includes native species, identified by any Party, that are regulated domestically to prevent or restrict exploitation, where the Party requests the help of other Parties to monitor and control the trade of the species.

To include a species in or remove a species from Appendices I or II, a Party must propose an amendment to the Appendices for consideration at a meeting of the CoP. The adoption of such a proposal requires approval of at least two-thirds of the Parties present and voting. However, a Party may add a native species to Appendix III independently at any time, without the vote of other Parties, under Articles II and XVI of the Convention. Likewise, if the status of an Appendix-III species improves or new information shows that it no longer needs to be listed, the listing country can remove the species from Appendix III without consulting the other CITES Parties.

Inclusion of native U.S. species in Appendix III provides the following benefits:

(1) An Appendix-III listing ensures the assistance of the other CITES Parties, through the implementation of CITES permitting requirements in controlling international trade in these species.

(2) Listing these species in Appendix III enhances the enforcement of State and Federal conservation measures enacted for the species by regulating international trade in the species. Shipments containing CITES-listed species receive greater scrutiny from border officials in both the exporting and importing countries. Many foreign countries have limited legal authority and resources to inspect shipments of non-CITES-listed wildlife. Appendix-III listings for U.S. species will give these importing countries the legal basis to inspect such shipments, and to deal with CITES and national violations when they detect them.

(3) Another practical outcome of listing a species in Appendix III is that better records are kept and international trade in the species is better monitored. We will gain and share improved information on such trade with State fish and wildlife agencies, and others who have jurisdiction over resident populations of the Appendix-III species. They will then be able to better determine the impact of trade on the species and the effectiveness of existing State management activities, regulations, and cooperative efforts. International trade data and other relevant information gathered as a result of an Appendix-III listing will help policymakers determine whether we should propose the species for inclusion in Appendix II, or remove it from or retain it in Appendix III.

(4) When any live CITES-listed species (including an Appendix-III species) is exported (or imported), it must be packed and shipped according to the International Air Transport Association (IATA) Live Animals Regulations or the CITES Guidelines for the non-air transport of live wild animals and plants (available from the CITES Secretariat's Web site at https://www.cites.org/eng/resources/transport/index.php) to reduce the risk of injury and cruel treatment. This requirement helps to ensure the survival and health of the animals when they are shipped internationally.

Article II, paragraph 3, of CITES states that “Appendix III shall include all species which any Party identifies as being subject to regulation within its jurisdiction for the purpose of preventing or restricting exploitation, and as needing the cooperation of other Parties in the control of trade.” Article XVI, paragraph 1, of the Convention states further that “any Party may at any time submit to the Secretariat a list of species which it identifies as being subject to regulation within its jurisdiction for the purpose mentioned in paragraph 3 of Article II. Appendix III shall include the names of the Parties submitting the species for inclusion therein, the scientific names of the species so submitted, and any parts or derivatives of the animals or plants concerned that are specified in relation to the species for the purposes of subparagraph (b) of Article I.”

At the ninth meeting of the Conference of the Parties to CITES (CoP9), held in the United States in 1994, the Parties adopted Resolution Conf. 9.25 (amended at the 10th, 14th, 15th, and 16th meetings of the CoP), which provides further guidance to Parties for the listing of their native species in Appendix III. The Resolution, which is the basis for our criteria for listing species in Appendix III provided in our regulations at 50 CFR 23.90(c), recommends that a Party:

(a) Ensure that (i) the species is native to its country; (ii) its national regulations are adequate to prevent or restrict exploitation and to control trade, for the conservation of the species, and include penalties for illegal taking, trade, or possession and provisions for confiscation; and (iii) its national enforcement measures are adequate to implement these regulations;

(b) Determine that, notwithstanding these regulations and measures, circumstances indicate that the cooperation of the Parties is needed to control illegal trade; and

(c) Inform the Management Authorities of other range States, the known major importing countries, the Secretariat, and the Animals Committee or the Plants Committee that it is considering the inclusion of the species in Appendix III and seek their opinion on the potential effects of such inclusion.

Therefore, we apply the following criteria in deciding to list U.S. species in Appendix III as outlined at 50 CFR 23.90(c):

(1) The species must be native to the United States.

(2) The species must be protected under State, tribal, or Federal regulations to prevent or restrict exploitation and control trade, and the laws or regulations are being implemented.

(3) The species is in international trade, and circumstances indicate that the cooperation of other Parties would help to control illegal trade.

(4) We must inform the Management Authorities of other range countries, the known major importing countries, the Secretariat, and the Animals Committee or the Plants Committee that we are considering the listing and seek their opinions on the potential effects of the listing.

We have complied with the criteria outlined at 50 CFR 23.90(c) as follows:

§ 23.90(c)(1): These four freshwater turtle species (including their subspecies, except Apalone spinifera atra, which is already included in Appendix I of CITES) are native to the United States.

§ 23.90(c)(2): These four native U.S. freshwater turtle species are regulated by State laws and regulations throughout their ranges to prevent or restrict exploitation and control trade, and the laws and regulations are being implemented. For further information on the conservation status of these species, including their subspecies, you may refer to our proposed rule published in the Federal Register on October 30, 2014 (79 FR 64553). In response to our proposed rule (October 30, 2014; 79 FR 64553), 10 of the comments we received were from State agencies (see the Summary of Comments and Our Responses section, below). Our final decision reflects consideration of the additional information and opinions we have received from those State agencies.

§ 23.90(c)(3): We have documented these four native U.S. freshwater turtle species in international trade. In our proposed rule published in the Federal Register on October 30, 2014 (79 FR 64553), we describe recent trends in exportations of: Live common snapping turtles and meat, live Florida softshell turtles and eggs, live smooth softshell turtles, and live spiny softshell turtles. We update that information as follows:

Although a significant proportion of the exported live specimens originated from turtle farms, the need for increased cooperation from other parties to control illegal trade is based upon the following:

• Despite varying export levels of the species from year to year, there is potential for significant increases in export demands in the future.

• Even with extensive turtle farming operations, the harvest pressure on wild turtle populations remain high (see Issue 30 and Issue 33 below).

• Increased cooperation will help the U.S. better understand temporal trends and the source of exported turtles.

• The level of wild harvest utilized to maintain turtle farm production is unknown.

§ 23.90(c)(4): We have consulted with the CITES Secretariat and the Animals Committee regarding our proposal to list these four native U.S. freshwater turtle species in Appendix III. The Secretariat and the Animals Committee have informed us that our proposal to list these four native U.S. freshwater turtle species in Appendix III is consistent with Resolution Conf. 9.25 (Rev. CoP16), and they have not raised any objections to this proposed listing. Further, we have also informed the Management Authorities of other range countries. Mainland China and Hong Kong are the major importers of these species from the United States. Accordingly, we have sought out their views on the potential effects of including these species in CITES Appendix III. Mainland China referred our request to Hong Kong and Hong Kong replied that they have “no strong view” on our proposal to list these four native U.S. freshwater turtle species in Appendix III. Hong Kong suggested that we consider that visual identification guides and protocols for genetic testing on these four native U.S. freshwater turtle species be available (and preferably shared with the Parties) in advance of the listing.

For further information about the listing process, you may refer to our proposed rule published in the Federal Register on October 30, 2014 (79 FR 64553).

The export of an Appendix-III species listed by the United States requires an export permit issued by the Service's Division of Management Authority (DMA). DMA will issue a permit only if: The applicant obtained the specimen(s) legally, in compliance with applicable U.S. laws, including relevant State and tribal wildlife laws and regulations; and live specimens are packed and shipped in accordance with the IATA Live Animals Regulations or the CITES Guidelines for the non-air transport of live wild animals and plants (available from the CITES Secretariat's Web site at https://www.cites.org/eng/resources/transport/index.php) to reduce the risk of injury, damage to health, or cruel treatment. DMA, in determining if an applicant legally obtained a specimen, may consult relevant State, tribal, and Federal agencies. Because the conservation and management of these species is primarily under the jurisdiction of State and tribal agencies, we may consult those agencies to ensure that specimens destined for export were obtained in compliance with State and tribal laws and regulations. Unlike species listed in Appendices I and II, no non-detriment finding is required from the Service's Division of Scientific Authority (DSA) for export of an Appendix-III species. However, DSA will monitor and evaluate the trade, to decide if there is a conservation concern that would require any further action on our part. With a few exceptions, any shipment containing wildlife must enter or exit the United States at a designated port for wildlife, must be declared to a Service Office of Law Enforcement (OLE) Wildlife Inspector upon import, export, or re-export, and must comply with all applicable regulations.

To apply for a CITES permit, an individual or business is required to submit a completed CITES export permit application to DMA (with check or money order to cover the application fee). You may obtain information about CITES permits from our Web site at http://www.fws.gov/international/ or from DMA (see ADDRESSES, above). We will review the application to decide if the export meets the applicable criteria at 50 CFR 23.60.

In addition, live animals must be shipped to reduce the risk of injury, damage to health, or cruel treatment. We carry out this CITES requirement by stating clearly on all CITES permits that shipments must comply with the IATA Live Animals Regulations or the CITES Guidelines for the non-air transport of live wild animals and plants (available from the CITES Secretariat's Web site at https://www.cites.org/eng/resources/transport/index.php). The Service's Office of Law Enforcement (OLE) is authorized to inspect shipments of CITES-listed species at the time of export to ensure that they comply with these regulations. Additional information on permit requirements is available from DMA (see ADDRESSES, above). Additional information on designated ports for wildlife, declaration of shipments, inspection, and clearance of shipments is available upon request from OLE; contact the port in which shipment will obtain clearance (http://www.fws.gov/le/inspection-offices.html); email: [email protected]; Web site: http://www.fws.gov/le.

Under section 3372(a)(1) of the Lacey Act Amendments of 1981 (16 U.S.C. 3371-3378), it is unlawful to import, export, transport, sell, receive, acquire, or purchase any wildlife taken, possessed, transported, or sold in violation of any law, treaty, or regulation of the United States or in violation of any Indian tribal law. This prohibition applies, for example, in instances where these four native U.S. freshwater turtle species were unlawfully collected from Federal lands, such as those Federal lands within the range of these four native U.S. freshwater turtle species that are managed by the U.S. Forest Service, the National Park Service, the U.S. Fish and Wildlife Service, or another Federal agency.

It is unlawful under section 3372(a)(2)(A) of the Lacey Act to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce any wildlife taken, possessed, transported, or sold in violation of any law or regulation of any State or in violation of any foreign law.

These four native U.S. freshwater turtle species are protected to varying degrees by State and Tribal laws within the United States, with significant differences in levels and types of protection which we summarized in our proposed rule (79 FR 64553) and clarified in some instances with this final rule (see the Summary of Comments and Our Responses section, below). Because many State laws and regulations regulate the take of these four native U.S. freshwater turtle species, certain acts (import, export, transport, sell, receive, acquire, purchase) with these four native U.S. freshwater turtle species taken unlawfully under State law could result in a violation of the Lacey Act Amendments of 1981 and thus provide for Federal enforcement action due to a violation of State law.

We requested comments on our October 30, 2014, proposed rule (79 FR 64553) for 60 days, ending December 29, 2014. We received a total of 26,343 comments during the comment period. Of these, 26,271 were form letters that voiced support for the proposed action, but did not provide significant supporting information for the proposed CITES Appendix-III listing of these four native U.S. freshwater turtle species.

For the 72 comments we received that were not form letters, 10 of the comments were from State agencies, 9 were from nongovernmental organizations, and 53 were from private individuals. These comments are summarized and responded to below.

Regarding the State agency comments, five State agencies generally supported listing all four of these native U.S. freshwater turtle species in Appendix III, and one State agency generally supported listing the common snapping turtle, smooth softshell turtle, and spiny softshell turtle species in Appendix III, while having no opinion of including the Florida softshell turtle. One State agency generally supported listing the common snapping turtle and spiny softshell turtle species in Appendix III, while having no opinion of including the smooth softshell turtle and the Florida softshell turtle. One State agency generally supported listing the common snapping turtle in Appendix III, but was opposed to including all three softshell turtle species in Appendix III. One State agency was opposed to listing all four of these native U.S. freshwater turtle species in Appendix III, and one State agency did not explicitly express support or opposition for the proposal, but rather concern about how the listing would create additional permitting requirements, expenses, potential loss of revenue, and export processing time.

Regarding the comments from nongovernmental organizations and private individuals, 44 generally supported the proposal to list all four of these native U.S. freshwater turtle species in Appendix III, and 18 generally opposed the proposal to list these four native U.S. freshwater turtle species in Appendix III.

We have considered all substantive information specifically related to the proposed rule that was provided to us during the open comment period. Several of the comments included opinions or information not directly related to the proposed rule, such as views expressing interest in increasing habitat for these species. We have not addressed those comments, as they do not have direct bearing on the Appendix-III listing of these turtles and their subspecies. We have summarized the relevant comments, grouped them into general issues, and provided our responses to these issues below. Public comments and comments from State agencies regarding these issues are grouped separately. Some commenters submitted additional reports and references for our consideration, which we reviewed and considered as appropriate.

Issue 1: Several commenters provided supporting data and information regarding the biology, range, distribution, life history, threats, and current conservation efforts affecting these four native U.S. freshwater turtle species.

Our Response: We thank all the commenters for their interest in the conservation of these four native U.S. freshwater turtle species and thank those commenters who provided information for our consideration in making this CITES Appendix-III listing determination. Some information submitted was duplicative of the information contained in the proposed rule; some comments contained information that provided additional clarity or support for information contained in the proposed rule.

Issue 2: Because these species are not endangered or threatened, the proposed rule is an unnecessary tax on turtle farmers. This proposed rule appears to be an attempt to regulate a legitimate business rather than to help a species in peril. Listing these animals should not adversely affect breeders using captive-bred turtles that have millions of dollars invested in their farms and earn a living producing these animals. Captive breeding of these species is sustainable and economically important. The cost of permits could be prohibitive to small businesses. Delays in permitting could have serious economic consequences. Increased Federal regulation will only increase government presence and be an undue tax burden.

Our Response: Our intent is to implement an Appendix-III permitting system for these species that will not be burdensome to U.S. turtle farmers or exporters, while ensuring that persons engaging in illegal trade are stopped. We will also use the listing to gather data on trade in these species, to better quantify the level of trade and the impact of trade on these species. These data will be made available to State wildlife management agencies, to improve management programs and further the conservation of these species.

Issue 3: The proposed listing is an example of over-regulation and has no purpose other than to determine if it is even necessary. The government has to justify it as a fact- finding regulation. The Service fails to address why the current Declaration of Wildlife Export Form (FWS Form 3-177) is insufficient to monitor international trade and whether exports are occurring legally with respect to State law. The proposed rule does not distinguish export of these species as captive-bred or wild-caught when this information is required by FWS Form 3-177. If monitoring these species is what the Service needs to improve, there are other ways available other than adding these species to protected lists. It is not clear what additional information the Service will gain by listing these species in Appendix III.

Our Response: Many importing and re-exporting countries do not have national legislation that requires inspection of all wildlife, particularly if the species in question is not listed under CITES. One reason for listing these species is to improve enforcement of Federal and State laws by enlisting the support of other CITES Parties. An Appendix-III listing will increase inspection and reporting of imports, exports, and re-exports of these four native U.S. freshwater turtle species by all CITES Parties, not just the United States. The listing will also improve the quantity of turtle export data. It will help us detect trade trends and, in consultation with the States, implement pro-active conservation or trade management measures that better control exports and detect illegal trade.

Issue 4: Protecting these species may be more successful if international trade was banned completely by listing them in Appendix I of CITES.

Our Response: The CITES Parties meet periodically to review what species in international trade should be regulated and to consider other aspects of the implementation of CITES. To include a species in or remove a species from Appendices I or II, a Party must propose an amendment to the Appendices for consideration at a meeting of the CoP. The adoption of such a proposal requires approval of at least two-thirds of the Parties present and voting. However, a Party may add a native species to Appendix III independently at any time, without the approval of the Parties, under Articles II and XVI of the Convention. Prior to a CoP, we solicit recommendations for amending Appendices I and II, as well as recommendations for resolutions, decisions, and agenda items for discussion at the CoP. We invite such recommendations via a notice published in the Federal Register that includes a public comment period. The appropriate time to request inclusion of the species in Appendix I or II is during that public comment period. Our regulations governing this public process are found at 50 CFR 23.87. CoP17 is scheduled to be held in Johannesburg, South Africa, from September 24, 2016, to October 5, 2016. In the interim, international trade data and other relevant information gathered as a result of a CITES Appendix-III listing will help us determine whether we should propose the species for inclusion in Appendix I or II, remove it from Appendix III, or retain it in Appendix III. If, after monitoring the trade of any U.S. CITES Appendix-III species and evaluating its status, we determine that the species meets the CITES criteria for listing in Appendix I or II, based on the criteria set forth at 50 CFR 23.89, we will consider whether to propose the species for inclusion in Appendix I or II.

Issue 5: We support adding these turtle species to CITES Appendix III. However, we encourage the Service to add these turtle species to CITES Appendix II.

Our Response: See our response to Issue 4.

Issue 6: There are large numbers of Americans who enjoy eating turtles; legitimate turtle farms should not be over-regulated.

Our Response: This listing will allow us to monitor and evaluate the export of these species from the United States. The goal is to insure that the trade is legal, which we hope will minimize adverse impacts on wild populations. These listings are intended to support implementation of existing laws and control illegal trade. These listings will assist State and tribal agencies by ensuring that only those specimens that were collected or produced legally are permitted for export.

Issue 7: CITES is not the proper avenue for taking action on these species at this time. The International Union for Conservation of Nature (IUCN) considered these species to be of “Least Concern.”

Our Response: The criteria for listing species in CITES Appendix III are different from the criteria used by the IUCN in evaluating species for the Red List. The criteria for deciding to list U.S. species in Appendix III are provided at 50 CFR 23.90. As detailed above, we have applied these criteria in deciding to list these four species in Appendix III.

Issue 8: Population harvest control of the common snapping turtle should be regulated by the States. Each State is able to protect its interests by adopting appropriate regulations to protect these turtle species and ensure trade is legal and sustainable.

Our Response: The conservation and management of these species is primarily under the jurisdiction of State and tribal agencies. However, we will monitor and evaluate the international trade in these species, to decide if there is a conservation concern that would require any further action on our part. These listings will assist State and tribal agencies by ensuring that only those specimens that were collected or produced legally are permitted for export.

Issue 9: The proposal presents no scientific evidence that this action is warranted, but rather is using the CITES listing as a means to gather information. The science used to make a determination of the effects of exports on the wild population should be obtained by less draconian measures. Adding these turtles and their subspecies to CITES Appendix III would only hurt the already struggling turtle farmers. A study to collect and assess the current status and practices should be conducted before this action is taken.

Our Response: We refer the commenter to the discussion under Listing a Native U.S. Species in Appendix III, above which includes new information on exportation of these species for 2012-2014. We have carefully considered the threats facing these species (described in our October 30, 2014, proposed rule) and the criteria for listing a species in Appendix III, and determined that the listing is appropriate. As required by the Convention, we will monitor trade in these species. We will periodically consult with the States and review the effectiveness of the listing, documented levels of illegal trade, and the volume of legal trade in the species, particularly trade in those specimens harvested from the wild. After these consultations, we will determine if further action is needed.

Issue 10: Understanding the domestic origin of freshwater turtle shipments or the domestic origin of the turtles themselves is essential to understanding the commercial trade of freshwater turtles in the United States. The current gap in information is of concern.

Our Response: We agree. These listings will help close that information gap and inform management decisions by State and tribal agencies and the Service.

Issue 11: Captive breeding turtle farm operations for human consumption and the pet trade reduce pressure from harvest of wild populations.

Our Response: It is unknown at this time if captive turtle breeding operations reduce harvest pressure on wild populations of these species. Turtles are produced in the United States by farms that specialize in propagating captive-bred hatchlings to meet demand for commercial trade, but turtles are also entering trade through collection from the wild. Listing these species in CITES Appendix III is necessary to allow us to adequately monitor international trade in these taxa; to determine whether exports are occurring legally, with respect to State law; and to determine whether further measures under CITES or other laws are required to conserve these species.

Issue 12: The number of snapping turtles reportedly collected under Pennsylvania's commercial permit has more than doubled during the past decade. Although declines in Pennsylvania's snapping turtle populations are not apparent at the present time, there is concern that continuation of this trend is not sustainable.

Our Response: Although snapping turtle populations are known to be vigorous throughout much of the species' range, long-term persistent take makes the species vulnerable to decline.

Issue 13: The improved reporting of traded animals resulting from an Appendix-III listing would be highly valuable in understanding the trade trends and the likely impacts of trade on wild populations.

Our Response: We agree.

Issue 14: The vast majority of published peer-reviewed research papers on these species concern basic biology, ecology, and toxicology in the case of Chelydra; the number of papers examining the effects of offtake are minimal.

Our Response: We agree. An Appendix-III listing will lend additional support to State wildlife agencies in their efforts to regulate and manage these species, improve data gathering to increase our knowledge of trade in these species, and strengthen State and Federal wildlife enforcement activities to prevent poaching and illegal trade.

Issue 15: With regard to the taxonomy used in your Federal Register publication, it is worth noting that it corresponds to the CITES Standard reference for turtles (Fritz & Havas 2007; Vertebrate Zoology 57(2):149-368) in recognizing the subspecies osceola as valid. However, following a thorough molecular phylogenetic evaluation by Shaffer et al. (2008, in the Biology of the Snapping Turtle volume cited above), this subspecies is no longer recognized as taxonomically valid by the Committee on Standard English and Scientific Names of the American Society of Ichthyologists and Herpetologists, the Canadian Association of Herpetologists, the Canadian Amphibian and Reptile Conservation Network, Partners in Amphibian and Reptile Conservation, the Society for the Study of Amphibians and Reptiles and the Herpetologists' League (Crother 2012; ISBN 978-0-916984-85-4) or the Turtle Taxonomy Working Group (TTWG 2014: http://www.iucn-tftsg.org/checklist/). Should these species indeed be included in Appendix III, then this would be a matter to bring to the attention of the Nomenclature Specialist—Zoology of the CITES Animals Committee.

Our Response: We appreciate this comment and will bring this to the attention of the Nomenclature Specialist. Irrespective of the taxonomic differentiation of the common snapping turtle, all recognized common snapping turtle subspecies will be included in the CITES Appendix-III listing.

Issue 16: We surveyed the 36 range States for the common snapping turtle, 30 range States for the spiny softshell turtle, 23 range States for the smooth softshell turtle, and 4 range States for the Florida softshell turtle to determine the regulations currently in place to conserve the species. We have found that each of the States has instituted protections, if not outright harvest prohibitions. In particular, 14 of 36 range States representing approximately 35 percent of the common snapping turtle's natural range prohibit commercial harvest, with 19 of the remaining 22 range States allowing licensed, commercial harvest and 9 of the 22 requiring a minimum size of at least 11 inches, which provides for natural reproduction. Relative to the spiny softshell turtle, 18 of 30 range States, representing approximately 50 percent of its natural range, prohibit commercial harvest, with 11 of the remaining 12 States requiring a harvest license and 6 of the 12 States either requiring a minimum size or a harvest season that avoids affecting natural reproduction. Concerning the smooth softshell turtle, 14 of 23 range States, representing approximately 40 percent of its natural range, prohibit commercial harvest, with 8 of the remaining 9 range States requiring a harvest license and 4 of the 9 States requiring a minimum size or harvest season that avoids affecting reproduction. The Florida softshell occurs in four States and, of those four States, two States (Florida and South Carolina) that represent 90 percent of its natural range prohibit harvest, and the other two require a commercial license, with one State requiring a minimum size to avoid effecting reproduction.

Our Response: We note that one of the criteria for listing a species in CITES Appendix III is that there are domestic regulations in place to prevent or restrict exploitation and to control trade (see discussion under Listing a Native U.S. Species in Appendix III, above). Existing laws have not been completely successful in preventing the unauthorized collection and trade of these four native U.S. freshwater turtle species. Listing these species, including their subspecies (except the Cuatro Cienegas spiny softshell turtle, which is already listed in Appendix I), in Appendix III is necessary to allow us to adequately monitor international trade in these taxa; to determine whether exports are occurring legally, with respect to State law; and to determine whether further measures under CITES or other laws are required to conserve these species and subspecies.

Issue 17: Recently acquired export data for 2012 and 2013 for just the wild-caught cohorts of these four native U.S. freshwater turtle species indicate that 295,373 common snapping turtles, 63,986 Florida soft-shelled turtles, 230 smooth soft-shelled turtles, and 25,495 spiny soft-shelled turtles were exported over that 2-year period. Reviewing all of the data, we would also strongly support adding to the CITES Appendix-III listing razor-backed musk turtles (Sternotherus carinatus), of which 72,526 wild-caught turtles were exported, and common musk turtles (Sternotherus odoratus), of which 100,361 wild-caught turtles were exported during that same 2-year time period. Sternotherus species are particularly vulnerable to over-collection, as females produce a very small numbers of eggs each year.

Our Response: These two species were discussed at the Service's freshwater turtle workshop in St. Louis in September 2010. Although the Working Group at the meeting recommended no wild-caught commercial off-take of these two species, it did not recommend including these two species in CITES Appendix III. We evaluate the need for CITES species listings or proposals on a regular, ongoing basis, and we will continue to consider the appropriateness of an Appendix-III listing for these two species.

Issue 18: The trade in turtles, particularly for the markets in Asia, has decimated turtle populations worldwide. What was once known as the Asian turtle crisis has become a worldwide turtle crisis because of the lengths these markets will go to acquire turtles for food and medicinal purposes.

Our Response: We agree that there is a substantial large-scale international commercial trade in many turtle species. Turtles are produced in the United States by farms that specialize in propagating captive-bred hatchlings specifically to meet this demand for commercial trade, but turtles are also entering trade through collection from the wild. Listing these species in CITES Appendix III is necessary to allow us to adequately monitor international trade in these taxa; to determine whether exports are occurring legally, with respect to State law; and to determine whether further measures under CITES or other laws are required to conserve these species.

Issue 19: The aquaculture industry in China preferentially imports wild-caught adult turtles as breeders.

Our Response: We are aware that there is a demand for large, wild-caught turtles both for food and as breeding adults. Long-term persistent take of wild-caught turtles makes these species vulnerable to decline. We acknowledge that more study is needed to determine what levels of harvest of mature adults of these species are sustainable.

Issue 20: The Service does not provide any specific evidence or recent cases to support their assertions that State laws are not effectively regulating turtle harvest and that illegal trade and unauthorized collection (poaching) of these species is occurring in the United States.

Our Response: In our October 30, 2014, proposed rule (79 FR 64553), we stated that existing laws have not been completely successful in preventing the unauthorized collection and trade of these four native U.S. freshwater turtle species. Existing regulatory mechanisms detailed in the proposed rule in this regard, as well as comments we received on the proposed rule, support our initial determination. For example, the State of Virginia, Department of Game and Inland Fisheries, commented that “We have cross-referenced annual reports from harvesters with processors and have seen as much as 30,000 pounds unreported in a single season. This discrepancy between harvester reports and processor reports appears to be an issue in other [S]tates as well.”

Issue 21: This proposed rule was initiated by economically powerful and litigious environmental groups with campaigns that seek to criminalize pet turtle ownership.

Our Response: The commenter did not provide any evidence of this assertion. In fact, the Service's International Wildlife Trade Program convened a freshwater turtle workshop in St. Louis, Missouri, in September 2010, to discuss the pressing management, regulatory, scientific, and enforcement needs associated with the harvest and trade of freshwater turtles in the United States (see Background, above). The Conservation, Status & Monitoring Working Group at the workshop recommended that listing these species in CITES Appendix III be considered. Based on the recommendations contained in Resolution Conf. 9.25 (Rev. CoP16) and the listing criteria provided in our regulations at 50 CFR 23.90, these four native U.S. freshwater turtle species, including all subspecies, qualify for listing in CITES Appendix III.

Issue 22: The proposed rule cites Congdon et al. that snapping turtles are late maturing. However, the Congdon et al. study took place in a cold climate State. In the warm southeastern United States, where most turtle farming occurs, turtles may reach maturity in as little as 2 to 3 years.

Our Response: We agree that under controlled conditions, turtles may reach maturity earlier than would normally occur in the wild. However, maturity rates of captive-bred turtles are not relevant to this listing action.

Issue 23: There is no information that the Service consulted Native American Tribes as required at 50 CFR 23.90.

Our Response: Pursuant to 50 CFR 23.90(e)(1), we are required to consult with and solicit comments from all States and Tribes where the species occurs and all other range countries. We met this requirement when we solicited comments during a 60-day comment period from all interested parties in our October 30, 2014, proposed rule (79 FR 64553) and by also directly reaching out to tribal entities to notify them of our proposed rule and to solicit comments from Tribes on our proposed rule. U.S. Fish and Wildlife Service Regional Native American Liaison's serve as the point of contact between the Service and Tribes. We worked collaboratively with U.S. Fish and Wildlife Service Regional Native American Liaison's to contact Tribes where these species occur within their respective regions for the purpose of informing them of our proposed rule and to solicit comments on the proposed rule. We did not receive any tribal comments to the proposed rule.

Issue 24: The Association of Fish and Wildlife Agencies does not represent individual recommendations from directors of State wildlife agencies. The proposed rule suggests that State wildlife agencies have approved the Appendix-III listing of these turtle species.

Our Response: We did not intend to imply or assume that State wildlife directors have approved the Appendix-III listing of these turtle species. In fact, we made clear in our October 30, 2014, proposed rule that we have consulted the States, through the Association of Fish and Wildlife Agencies, on this proposed action. Further, the Conservation, Status & Monitoring Working Group at the freshwater turtle workshop in St. Louis, Missouri, in September 2010, recommended that listing these species in CITES Appendix III be considered (see Background, above). Our 60-day comment period for the proposed rule allowed all interested parties an opportunity to comment on our proposal to list these four native U.S. freshwater turtle species in CITES Appendix III, and we received comments from 10 State agencies, as described below.

Issue 25: Restricting State possession of these species and enacting breeding laws are restrictive domestic measures that are contrary to Article XIV of CITES.

Our Response: The commenter is in error regarding the interpretation of Article XIV of the Convention and regarding the effect of this Appendix-III listing. An Appendix-III listing is not a stricter domestic measure, nor does it restrict State possession of these four native U.S. freshwater turtle species or enact breeding laws for these species. Article XIV of the Convention explicitly recognizes the rights of Parties to adopt stricter domestic measures to restrict or prohibit trade, taking, possession, or transport of any wildlife or plant species. Resolution Conf. 11.3 (Rev. CoP16) further recommends that Parties make use of stricter domestic measures if they have determined “that an Appendix-II or -III species is being traded . . . in a manner detrimental to the survival of that species” or is being “traded in contravention of the laws of any country involved in the transaction.” When necessary, the United States has utilized stricter domestic measures, such as the ESA, Marine Mammal Protection Act (16 U.S.C. 1361 et seq.), and Lacey Act Amendments of 1981 (16 U.S.C. 3371-3378), to implement CITES.

Issue 26: Concerns by citizens who possess and breed common snapping turtles and softshell turtles should be publicly addressed first in an amended proposed rule, before publishing any final rule adding these species to Appendix III of CITES.

Our Response: The rulemaking process is designed to allow for public input through the public comment period on the proposed rule, and agency response to those comments in the preamble to the final rule, as we have done here. We decline to accept this suggestion.

Issue 27: AGFC supports this proposed action. The commercial harvest of aquatic turtles has been a component of wildlife resource use by Arkansans for many decades. Three of the four proposed species are commercially harvested in Arkansas: the common snapping turtle, spiny softshell, and smooth softshell. AGFC regulatory changes in 2006 initiated reporting requirements of all turtles harvested from the wild. A quick summary of these harvest data show that between 2004-2014 a total of 46,274 snapping turtles and 70,894 softshell turtles (both species of soft-shelled turtles combined) were harvested from Arkansas waters. It should be noted that these data are incomplete due to either incorrect (listed in pounds of turtle instead of number of individuals) or unreported harvests. Also, these numbers do not reflect whether the animals were exported or retained as captive brood stock. However, it is most likely that the majority of these turtles were exported from the State, destined for the Asian market. Current AGFC regulations impose no limits on the harvest of these species, in terms of season, size class, or numbers, within those areas designated as open to commercial aquatic turtle harvest, which covers approximately one half of the State.

The only foreseeable impact this CITES listing would have would be on those Arkansas harvesters and dealers that wished to ship turtles directly overseas to foreign buyers. The vast majority of Arkansas turtle sales (including the species in question here) are made to buyers and brokers in California who then ship the turtles overseas, and the onus falls on the broker to obtain all required export permits and fulfill any reporting requirements. The proposed CITES Appendix-III listing of these three commercial aquatic turtle species would appear to have no adverse impacts or place any undue regulatory burden on the current commercial aquatic turtle harvester and dealer community in Arkansas. Therefore, the AGFC supports the proposed CITES Appendix-III listing of these species as it would allow better tracking of international exports of these commercially viable turtle species.

Our Response: We thank the State of Arkansas for its comments.

Issue 28: CPW staff members have reviewed the proposal and generally support the inclusion of the common snapping turtle and spiny softshell turtle in Appendix III of CITES. CPW has no comment on the other two species proposed for inclusion as they are not found in Colorado. Both of these native species (common snapping turtle and spiny softshell turtle) are regulated in Colorado, and we agree that their inclusion in CITES Appendix III will increase our ability to monitor their take from the State and allow for better enforcement of their international trade. One specific point we would like to clarify from the Federal Register publication is the State regulations as they apply to the spiny softshell. The Federal Register publication states that collection for personal use is permitted in Colorado. It should be noted that Colorado does not allow possession or collection of the spiny softshell turtle, except by special permit/license.

Our Response: We thank the State of Colorado for its comments and for correcting the record regarding the regulation for possession and collection of spiny softshell turtles in Colorado.

Issue 29: FDACS is the lead agency for the State of Florida for aquaculture. The department is charged by State law with enhancing the growth of aquaculture while protecting Florida's environment.

Currently, the department has 56 certified aquaculture facilities that are growing and marketing freshwater turtles, the majority of which include one or several of the species proposed for CITES Appendix-III listing. Turtles are marketed domestically and internationally to the pet trade and for food consumption. Florida aquaculture turtle producers reported sales in 2012 of approximately $1.2 million based upon a survey conducted for the FDACS by the Florida Agricultural Statistics Service. Aquaculture farms certified by FDACS are subject to on-farm inspections for compliance with chapter 597, Florida Aquaculture Policy Act, Florida Statutes and with chapter 5L-3, Aquaculture Best Management Practices, Florida Administrative Code. Each farm must include their unique identification number on all business-related paper trails (receipts, bills of lading, bills of sale), and we encourage including this identification number on packaging. FDACS conducts unannounced farm inspections for compliance with State laws, which includes regulations relative to the possession, transportation, and sale of native species.

Since 2009, Florida law has prohibited all commercial harvest and trade of native freshwater turtles and eggs from the wild. Existing farms were able to obtain brood stock under a special permit from Florida Fish and Wildlife Conservation Commission; however, the permit is no longer available. Farms must be self-sustaining or obtain stock from other licensed farms or from other States that allow legal commercial harvest and sale of these species. Documentation of stock sources must be maintained by Florida turtle aquaculturists. Wild populations are further protected by these regulations required of all certified Florida turtle farms. Addition of the proposed turtle species in CITES Appendix III will create additional permitting requirements for certified turtle farms exporting products. A Service Import/Export License and filing of the declaration form (FWS Form 3-177) are required for aquaculture turtle shipments along with associated inspection fees. If these species are added to CITES Appendix III, a CITES export permit and potentially a Designated Port Exception Permit will be required for aquaculture shipments. A majority of the Florida turtle farms export hatchlings or market size adults, so a quick turnaround on export applications is critical. Additional permitting requirements increase export time and expenses for farms and potentially result in a loss of revenue if permits cannot be obtained in a timely manner.

Our Response: We will continue to work with State and tribal agencies and the regulated industry to ensure that our permitting process is as streamlined and efficient as possible, while still meeting our legal obligations.

Issue 30: The State of Iowa's regulations on the commercial harvest of wild turtles are among the least restrictive in the United States. This harvest is limited to the common snapping turtle, smooth softshell turtle, spiny softshell turtle, and painted turtle. Twenty-six years of recorded harvest statistics show the annual total harvest of common snapping turtles and both species of softshell turtles has steadily increased from 1987 to 2012. A steady increase in the number of licensed turtle harvesters has been associated with this increase. Much of these increases have been attributed to the demand for turtles in Asia. Lack of stringent reporting requirements prevents IDNR from knowing where many harvested turtles are marketed. However, it is believed many of the adults are exported to other States for use in turtle aquaculture facilities. Statistical harvest data, turtle life-history information, and available research lead the IDNR to believe harvest is exceeding the capability for wild turtles to sustain their populations.

An IDNR committee charged with determining the status of wild turtle populations found that the commercial harvest of common snapping turtles, smooth softshell turtles, and spiny softshell turtles is threatening these species due to overharvest and that it is inevitable that these populations will be on a decline if more restrictive harvest regulations are not enacted. However, it should be mentioned that loss of habitat quality and quantity, predation, and water quality are other probable factors influencing turtle populations.

IDNR tentatively supports the Service's efforts to include the four native U.S. freshwater turtle species in Appendix III of CITES. However, there is concern for the IDNR's role in meeting CITES Appendix-III requirements. Undoubtedly more staff time will be needed to administer, coordinate, and enforce Federal CITES regulations. Iowa may also need to promulgate rules for regulatory purposes. Before full support can be given, the Service must clearly communicate with all States the processes involved in issuing CITES tags, and those processes must not be overly burdensome to the States.

Our Response: A CITES Appendix-III listing only applies to import, export, and re-export of specimens covered by the listing. In June 2006, the United States listed the alligator snapping turtle (Macroclemys temminckii) and all species of map turtle (Graptemys spp.) in Appendix III of CITES. There are no U.S. CITES tagging requirements for any turtle species, and we do not foresee any regulatory or administrative burdens that will fall to the States. Export permits will be the responsibility of the exporter.

Issue 31: LDAF is opposed to this proposed rule for the following reasons:

• Additional expenses will be incurred by turtle farmers for more CITES permits and inspections. All shipments containing a CITES species must be inspected at the airport prior to shipment. The Service charges an inspection fee, as does the shipping agent responsible for correctly packing and handling the shipment.

• Legitimate farmers are being punished due to the actions of illegal traders that may be collecting turtles from the wild, while Louisiana turtles are captive-raised.

• The Service has no way to determine if exported turtles are wild-caught or captive-raised from export documents because they have no source code for captive-raised turtles. On the export form (FWS Form 3-177), all turtles are required to be listed as “LIV” and “W” for live, wild-caught, and this is not a true reflection of Louisiana exports, which are farm-raised.

• The Service cites export statistics when demand was high but due to the cyclical nature of the turtle market, demand for softshells has dramatically fallen in the last few years and demand for snappers is slowing down, especially in the Asian market.

Our Response: The trade information presented in our October 30, 2014, proposed rule (79 FR 64553) was the best available data at the time. We have updated that information above (see Listing a Native U.S. Species in Appendix III) which shows that exportation of live snapping turtles from the United States increased by 69.7% during 2012-2014 as compared to 2009-2011. Also during 2012-2014 as compared to 2009-2011, live softshell turtles exported from the United States increased by 5.7%.

Personal collection and commercial harvest of these species is permitted in Louisiana. In our proposed rule, we acknowledge that export levels vary from year to year. We also believe that the potential remains for significant exports in the future based on overseas demand. It is not the case, as a matter of law, that all CITES shipments must be inspected. The requirement to declare these species at the time of export and make them available for inspection already applies. Subsequent to this listing, we expect that we will be working with interested parties to explore the feasibility of a Master File system for these species as well as an assessment of how our reporting forms can accurately discriminate between wild-caught and farm-raised turtles.

Issue 32: Exports of the common snapping turtle have increased steadily during the past 10 years, from about 130,000 turtles in 2003, to 3,157,000 turtles in 2013. In 2013, Louisiana turtle farmers exported less than 2 percent of the national total. We have been able to determine that the majority of exported snapping turtles are farmed hatchlings that originate from sources and operations in the Midwest. At this time, we do not oppose a CITES Appendix-III listing for the common snapping turtle.

Of the three softshell turtle species proposed for listing in CITES Appendix III, the smooth softshell rarely enters into commerce, and exports have declined from about 10,000 in 2003, to about 75 per year in the past 3 years. The spiny softshell has shown no substantial increase: average of 36,000 per year (2003-2006) to an average of 62,000 per year (2010-2013). Hatchlings that were raised on Louisiana turtle farms accounted for 15 percent of spiny softshell exports in 2013. The IUCN considers the conservation status of the smooth and spiny softshells as “Least Concern.” Based on this status, the relatively low export numbers, a relatively inactive market, and the fact that many to most of the exported turtles are farm-raised hatchlings, we see no justification for the action, and therefore recommend against a CITES Appendix-III listing for the smooth and spiny softshells.

The Florida softshell has shown an increase in exports during the past 10 years, from an average of about 44,000 per year (2003-2006) to an average of about 428,000 per year (2010-2013). The proposed rule makes outdated claims relative to this species (e.g., “It is the most intensively harvested freshwater turtle in Florida” and “The level of wild harvest necessary to maintain farm production is unknown”). Florida banned all commercial take of freshwater turtles in 2009, and limited personal take to one turtle per day. Licensed turtle farms were given until 2011 to collect turtles for breeding stock. Thus, there is no longer a threat of harvest of Florida softshell in Florida, as wild harvest has been illegal for 3 years, and remains so. The other three range States for the Florida softshell have very limited population sizes (Alabama), or regulate the number that may be removed for commerce (Georgia and South Carolina). One Florida turtle farm accounted for about one-third of all Florida softshell hatchlings that were exported in 2013. Because commerce and exports of Florida softshell are almost completely limited to farm-raised hatchlings, and because its status is also considered “Least Concern” by IUCN, we see no justification for the action and therefore recommend against a CITES Appendix-III listing for the Florida softshell.

Our Response: We thank the LDWF for its comments. The criteria for listing species in CITES Appendix III are different from the criteria used by the IUCN in evaluating the conservation status of a species. The criteria for deciding to list U.S. species in Appendix III are outlined at 50 CFR 23.90. As detailed above (see Listing a Native U.S. Species in Appendix III), we have complied with these criteria in deciding to list these four species in CITES Appendix III.

Issue 33: MDNR has reviewed the proposed rule and supports the Service's proposal. The common snapping turtle occurs throughout most of Minnesota, and commercial harvest of this species has been widely practiced for many years. Because monitoring and regulation of this harvest was believed to be inadequate, the common snapping turtle was designated a Species of Special Concern under Minnesota's Endangered Species Act (Minnesota Statutes, Chapter 84.08 95) in 1984. While no formal population monitoring data were available, abundant anecdotal accounts of declining populations supported this concern. In response to the considerable scientific evidence that the commercial harvest of wild turtle populations is not sustainable in northern latitudes, in 2004, the MDNR undertook a major revision of the State's statutes and rules governing turtle harvest. Among many changes was a phase-out of commercial harvest by placing a moratorium on the sale of new harvest licenses and implementing several improvements in reporting and recordkeeping. While a complete elimination of commercial harvest is still many years off, regulation and monitoring of harvest has been improved, and in 2013, the MDNR removed the common snapping turtle's designation under the Minnesota's Endangered Species Act. Although the enclosed report indicates that the number of commercial licenses issued has declined since 2002, the harvest of common snapping turtles remains substantial, and shows little evidence of a decline in the near term. Consequently, the MDNR supports the Service's proposal to list the common snapping turtle in CITES Appendix III.

The smooth softshell turtle is restricted to the lower reaches of the St. Croix, Minnesota, and Mississippi Rivers in Minnesota. Due to its vulnerability to channelization, siltation, water pollution, and disturbance of nesting sites by humans and predators, the smooth softshell turtle was designated a Species of Special Concern under Minnesota's Endangered Species Act in 1984, and retains that designation to this date. Research into the habitat use of this species is ongoing within the MDNR. Harvest of the smooth softshell turtle is not permitted in Minnesota. Given the species vulnerable status within the State, MDNR supports the Service's proposal to list the smooth softshell turtle in CITES Appendix III.

The spiny softshell turtle is found throughout the central and southern portions of Minnesota, and commercial harvest is permitted. Because harvest pressure on this species has historically not been as great as the pressure placed upon the common snapping turtle, this species has not received the concern given to the common snapping turtle. The enclosed report provides evidence that the harvest of this species is small and continuing to decline. While improvements in commercial harvest regulations have benefitted this species, concerns that commercial turtle harvest at any scale from wild populations is not sustainable in Minnesota leads the MDNR to support the Service's proposal to include the spiny softshell turtle in Appendix III of CITES.

An additional change made to Minnesota's laws in 2004 created the regulatory framework for turtle farming in the State. While there has been relatively little activity in this area to date, there is evidence that turtle farming will become an increasingly popular activity in Minnesota in the future, and listing of these three turtles in CITES Appendix III would aid the MDNR in monitoring that activity and its relationship to harvest from the wild.

Our Response: We thank the MDNR for its comments, including additional clarity on the status of these species in Minnesota.

Issue 34: NCWRC supports the proposal to include the common snapping turtle, Florida softshell turtle, smooth softshell turtle, and spiny softshell turtle in CITES Appendix III so that they are monitored in international trade. Although only two of the species (common snapping turtle and spiny softshell turtle) occur in North Carolina, the listing of all four North American turtles is warranted to prevent any common snapping turtle or U.S. softshell turtle from being illegally exported in international trade. As these turtles are not being monitored in international trade at this time, it is important to begin monitoring these turtles to determine the exportation rate to overseas markets and how these markets may expand in the future. This export monitoring could have an impact on how these turtles are managed within their current native ranges to ensure stable populations.

Current North Carolina wildlife regulations allow the common snapping turtle to be collected for personal consumption and trade, while the spiny softshell turtle may not be commercially collected. North Carolina regulations currently allow 10 snapping turtles to be collected per day, and 100 per year, by each collector. These limits were put in place due to high harvest numbers (thousands for some individual collectors) occurring for snapping turtles and other species prior to 2003. At the State level, we increased monitoring efforts and took regulatory action over a decade ago, and efforts should be increased at the Federal level to do the same. International trade in these species to meet the growing demand from other regions of the world could result in population declines within North Carolina and other States.

The apparent increase in exports of the common snapping turtle (as shown in the 2009-2011 data in the October 30, 2014, proposed rule at 79 FR 64557), coupled with declining turtle populations in Asia (see van Dijk, P.P., B.L. Stuart, and A.G.J. Rhodin, Editors. 2000. Asian Turtle Trade: Proceedings of a Workshop on Conservation and Trade of Freshwater Turtles and Tortoises in Asia, Chelonian Research Monographs, Number 2: pp. 1-164), could lead to increasing numbers of common snapping turtles and softshell turtles impacted in the United States. The findings of Congdon, Dunham, and Sels (1994. Demographics of Common Snapping Turtle, (Chelydra serpentina): Implications for Conservation and Management of Long-lived Organisms. American Zoologists, Volume 34: pp. 397-408) on snapping turtle survivorship and possible impacts from commercial harvesting suggest that long-lived vertebrates have more difficulty recovering from commercial harvest, and that because of long generation times, detection of population recovery may be delayed.

Export monitoring of common snapping turtles and the three softshell turtles that are the subjects of the proposed rule is warranted to determine if their trade increases over time. At present, declines are not apparent in populations of these turtle species, but as fewer turtles are available from other countries, North American turtle populations are at risk from unregulated export.

Our Response: We thank the NCWRC for its comments, including current North Carolina regulatory information regarding the common snapping turtle and spiny softshell turtle.

Issue 35: TPWD currently permits commercial collection (from private water bodies) of three of the four freshwater turtle species listed in the Service's proposal to amend CITES Appendix III. Those species are the smooth softshell turtle, spiny softshell turtle, and common snapping turtle. The Florida softshell turtle does not occur in Texas. Collection of any freshwater turtle species from public water bodies is not allowed in Texas. Export to international markets has historically been the primary driver of freshwater turtle commercial collection in Texas. Assessing the impact of this practice has been challenging. Detection of illegal collection and trade by State law enforcement officials is difficult. Therefore, TPWD supports including the above-mentioned turtles in Appendix III of CITES. TPWD believes this inclusion will provide valuable data regarding freshwater turtle trade and will better inform management efforts and harvest guidelines.

Our Response: We thank the TPWD for its comments, including current regulatory information regarding the collection of freshwater turtles in Texas.

Issue 36: DGIF supports the proposed action to include the snapping turtle, Florida softshell, smooth softshell, and spiny softshell in CITES Appendix III so that they can be monitored in international trade. Of the four species that are the subjects of the proposed rule, the snapping turtle and spiny softshell both occur in Virginia, and only the snapping turtle is permitted for commercial harvest. During 2002-2013, the harvest of snapping turtles in Virginia increased 12-fold (1,200 percent), with 2013 reports documenting the highest single-year harvest (7,926 individual turtles). These harvest numbers should be considered conservative estimates, given the inaccuracies often found in harvest reports. We have cross-referenced annual reports from harvesters with processors and have seen as much as 30,000 pounds unreported in a single season. This discrepancy between harvester reports and processor reports appears to be an issue in other States as well. Although it is one of the fastest growing commercial harvests in many States, the commercial harvest of snapping turtles is also one of the poorest managed and monitored commercial harvests.

Our Response: We thank the DGIF for its comments, including important information regarding the commercial harvest of the common snapping turtle.

Issue 37: According to Crother (2012), the common name for “snapping turtle” does not include the word “common.” According to Crother (2012), the common names for “Florida softshell” and “spiny softshell” do not include “turtle.”

Our Response: Although we use common names where appropriate, they cannot be relied upon for identification of any specimen, as they may vary greatly in local usage. Our use of a common name is based on current wider usage. In addition, the Integrated Taxonomic Information System (ITIS), a database representing a partnership of U.S., Canadian, and Mexican agencies, other organizations, and taxonomic specialists designed to provide scientifically credible taxonomic information, includes the common names “common snapping turtle,” “Florida softshell turtle,” and “spiny softshell turtle”; therefore, we accept the use of these common names where appropriate. Because of the potential for confusion with common names, specimens must be identified on CITES permits using the scientific (Latin) name.

Issue 38: We recommend not including or highlighting harvest reports from those States where the snapping turtle is considered invasive. These few States are irrelevant to the overall conservation of the species.

Our Response: A CITES Appendix-III listing of the common snapping turtle applies to specimens destined for export that are derived from throughout the United States. On February 3, 1999, Executive Order 13112 was signed, which directed Federal agencies to address invasive species issues to not authorize, fund, or carry out actions likely to cause or promote the introduction or spread of invasive species, and also established the National Invasive Species Council. Executive Order 13112 requires monitoring invasive species populations accurately and reliably. Requiring harvest reports from those States where the snapping turtle is considered invasive could preclude additional introductions and potential `laundering' of illegal specimens and will contribute to compliance with Executive Order 13112.

Issue 39: The Service's export database (LEMIS) only reports what is exported, not those animals processed for domestic sale. Considering the typical sex ratio of snapping turtles is about 1:1 and mostly females are being exported, the summary in the proposed rule may grossly underestimate the actual harvest amounts. This situation is exacerbated by inaccurate commercial harvest reporting and by unreported recreational harvest. Therefore, the actual number of snapping turtles being harvested could be potentially twice the numbers summarized by the Service. In the proposed rule's summary of total harvest figures, “farm-raised” turtles include the offspring of wild-caught, gravid snapping turtles. We contend that those animals are being taken from the wild and should be reported as such.

Our Response: We acknowledge the need to improve reporting of harvest levels of these species. A CITES Appendix-III listing of these species will assist us in this effort.

Issue 40: The snapping turtle harvest size limits are often focused on larger individuals, which is contrary to the life history of a long-lived species with low nest and hatchling survivorship and high adult survivorship. In such reproductive strategies, we want to protect the larger reproductive adults, but we have found that harvesters do not want smaller turtles.

Our Response: Long-term persistent take of wild-caught turtles makes these species vulnerable to decline. We acknowledge that more study is needed to determine what levels of harvest of mature adults of these species are sustainable.

Based on the recommendations contained in Resolution Conf. 9.25 (Rev. CoP16) and the listing criteria provided in our regulations at 50 CFR 23.90, these four native U.S. freshwater turtle species, including all subspecies, qualify for listing in CITES Appendix III. Declines have been documented or locally severe declines may be possible in at least some portions of the range of these four native U.S. freshwater turtle species, although the Florida softshell seems to be resistant to high levels of commercial harvest. Take of Florida softshells in Florida is regulated, and it is a species of special concern in South Carolina. Although snapping turtle populations are known to be vigorous throughout much of the species' range, long-term persistent take makes the species vulnerable to decline. Existing laws have not been completely successful in preventing the unauthorized collection and trade of these four native U.S. freshwater turtle species. Listing these four native U.S. freshwater turtle species, including their subspecies, except the Cuatro Cienegas spiny softshell turtle (A. s. atra [=Apalone atra], Webb and Legler 1960), which is already listed in CITES Appendix I, in CITES Appendix III is necessary to allow us to adequately monitor international trade in these taxa; to determine whether exports are occurring legally, with respect to State law; and to determine whether further measures under CITES or other laws are required to conserve these species and subspecies. An Appendix-III listing will lend additional support to State wildlife agencies in their efforts to regulate and manage these species, improve data gathering to increase our knowledge of trade in these species, and strengthen State and Federal wildlife enforcement activities to prevent poaching and illegal trade. Furthermore, listing these species in Appendix III will enlist the assistance of other countries in our efforts to monitor and control trade in these species and subspecies.

Accordingly, we are listing the common snapping turtle (Chelydra serpentina), Florida softshell turtle (Apalone ferox), smooth softshell turtle (Apalone mutica), and spiny softshell turtle (Apalone spinifera) in Appendix III of CITES. The listing includes live and dead whole specimens, and all readily recognizable parts, products, and derivatives, of these species and their subspecies, except Apalone spinifera atra, which is already included in Appendix I of CITES. The term “readily recognizable” is defined in our regulations at 50 CFR 23.5 and means any specimen that appears from a visual, physical, scientific, or forensic examination or test; an accompanying document, packaging, mark, or label; or any other circumstances to be a part, product, or derivative of any CITES wildlife or plant, unless such part, product, or derivative is specifically exempt from the provisions of CITES or 50 CFR part 23.

Our regulations at 50 CFR 23.90 require us to publish a proposed rule and a final rule for a CITES Appendix-III listing even though, if a proposed rule is adopted, the final rule will not result in any changes to the Code of Federal Regulations. Instead, this final rule will result in DMA notifying the CITES Secretariat to amend Appendix III by including these four native U.S. freshwater turtle species (including their subspecies, except Apalone spinifera atra, which is already included in Appendix I of CITES), in Appendix III of CITES for the United States.

Subsequent to today's publication in the Federal Register of this final rule to list these species and their subspecies in CITES Appendix III, we will notify the CITES Secretariat. An Appendix-III listing becomes effective 90 days after the Secretariat notifies the CITES Parties of the listing. The effective date of this rule (see DATES, above) has been extended to give the CITES Secretariat sufficient time to notify all Parties of the listing.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.

Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that the regulatory system must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2)), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The Department of the Interior certifies that this action will not have a significant effect on a substantial number of small entities for the reasons discussed below.

This final rule establishes the means to monitor the international trade in species native to the United States and does not impose any new or changed restriction on the trade of legally acquired specimens. Based on current exports of these four native U.S. freshwater turtle species, we estimate that the costs to implement this rule will be less than $100,000 annually due to the costs associated with obtaining permits.

According to the Small Business Administration, small entities include small organizations, such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include aquaculture businesses with less than $750,000.00 in annual sales. This final rule:

(a) Will not have an annual effect on the economy of $100 million or more.

(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

(c) Will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501), the Service has determined that this rulemaking will not impose a cost of $100 million or more in any given year on local or State governments or private entities. The implementation of this rule is by Federal agencies, and there is no cost imposed on any State or local entities or tribal governments. This rule will not have a significant or unique effect on State, local, or tribal governments or the private sector because the Service, as the lead agency for CITES implementation in the United States, is responsible for the issuance of permits and the authorization of shipments of live wildlife, and wildlife parts and products, for CITES-listed species.

This final rule does not contain any new collections of information that require approval by Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995. Information that we will collect under this final rule on FWS Form 3-200-27 is covered by an existing OMB approval and has been assigned OMB control number 1018-0093, which expires on May 31, 2017. We 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.

This final rule has been analyzed under the criteria of the National Environmental Policy Act (42 U.S.C. 4321 et seq.), the Department of the Interior procedures for compliance with NEPA (Departmental Manual (DM) and 43 CFR part 46), and Council on Environmental Quality regulations for implementing the procedural provisions of NEPA (40 CFR 1500-1508). This final rule does not amount to a major Federal action significantly affecting the quality of the human environment. An environmental impact statement or evaluation is not required. This final rule is a regulation that is of an administrative, legal, technical, or procedural nature, and its environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis under NEPA. The FWS has determined that this final rule is categorically excluded from further NEPA review as provided by 516 DM 2, Appendix 1.9, of the Department of the Interior National Environmental Policy Act Revised Implementing Procedures and 43 CFR 46.210(i). No further documentation will be made.

In accordance with Executive Order (E.O.) 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have determined that this final rule will not have significant takings implications. While export, which was previously unregulated, will now be regulated, export will still be allowed.

In accordance with E.O. 13132 (Federalism), this final rule will not have significant Federalism effects. A federalism summary impact statement is not required because this final rule will not have a substantial direct effect on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Although this final rule will generate information that will be beneficial to State wildlife agencies, we do not anticipate that any State monitoring or control programs will need to be developed to fulfill the purpose of this final rule. We have consulted the States, through the Association of Fish and Wildlife Agencies, on this action. In addition, 10 of the comments we received to our proposed rule (October 30, 2014; 79 FR 64553) were from State agencies, and our final decision reflects consideration of the information and opinions we have received from those State agencies. This final rule will help us more effectively conserve these species and will help those affected by CITES to understand how to conduct lawful international trade in wildlife and wildlife products.

The Department, in promulgating this rule, has determined that it will not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of Executive Order 12988.

In accordance with the President's memorandum of April 29, 1994, Government-to-Government Relations With Native American Tribal Governments (59 FR 22951), E.O. 13175, and the Department of the Interior's manual at 512 DM 2, we have a responsibility to communicate meaningfully with Federally recognized Indian Tribes on a government-to-government basis. U.S. Fish and Wildlife Service Regional Native American Liaison's serve as the point of contact between the Service and Tribes. We worked collaboratively with U.S. Fish and Wildlife Service Regional Native American Liaison's to contact Tribes where these species occur within their respective regions for the purpose of informing them of our proposed rule and to solicit comments on the proposed rule. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes. We determined that this final rule will not interfere with the Tribes' ability to manage themselves or their funds or to regulate these turtle species on tribal lands.

E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking actions that significantly affect energy supply, distribution, or use. This final rule will not significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.

A complete list of all references cited in this final rule is available upon request from the Division of Management Authority, U.S. Fish and Wildlife Service (see FOR FURTHER INFORMATION CONTACT).

The primary author of this final rule is Clifton A. Horton, Division of Management Authority, U.S. Fish and Wildlife Service (see FOR FURTHER INFORMATION CONTACT).

Our regulations at 50 CFR 23.90 require us to publish a proposed rule and, if appropriate, a final rule for a CITES Appendix-III listing, even though the final rule will not result in any changes to the Code of Federal Regulations. Accordingly, for the reasons provided in this final rule, we will ask the CITES Secretariat to amend Appendix III of CITES to include for the United States these four native U.S. freshwater turtle species: the common snapping turtle (Chelydra serpentina), Florida softshell turtle (Apalone ferox), smooth softshell turtle (Apalone mutica), and spiny softshell turtle (Apalone spinifera). This listing includes live and dead whole specimens, and all readily recognizable parts, products, and derivatives of these species and their subspecies, except Apalone spinifera atra, which is already included in Appendix I of CITES.

As a result of this action, exporters must obtain an export permit issued by the Service's Division of Management Authority; pack and ship live specimens according to the IATA Live Animals Regulations or the CITES Guidelines for the non-air transport of live wild animals and plants; and follow all applicable regulations pertaining to the export of wildlife, including declaration of the shipment to the Service prior to export.