Federal Register Vol. 81, No.150,

Section 203(c) of the Agricultural Marketing Act of 1946 (7 U.S.C. 1621-1627), as amended, directs and authorizes the Secretary of Agriculture “to develop and improve standards of quality, condition, quantity, grade and packaging, and recommend and demonstrate such standards in order to encourage uniformity and consistency in commercial practices.” AMS is committed to carrying out this authority in a manner that facilitates the marketing of agricultural commodities and makes copies of official grade standards available upon request. The U.S. Standards for Grades of Fruits and Vegetables not connected with Federal Marketing Orders or U.S. import requirements no longer appear in the Code of Federal Regulations (CFR), but are maintained by USDA, AMS, Specialty Crops Program, and are available on the Internet at http://www.ams.usda.gov/grades-standards.

AMS is revising these voluntary U.S. standards for grades using the procedures in part 36, title 7 of the Code of Federal Regulations (7 CFR part 36).

AMS is eliminating the “Unclassified” section in 41 U.S. grade standards that were issued under the Agricultural Marketing Act of 1946.

The fresh fruit and vegetable grade standards covered by these changes are: Sweet anise, lima beans, beets, Brussels sprouts, cabbage, cucumbers, endive, garlic, collard greens or broccoli greens, mustard greens and turnip greens, horseradish roots, greenhouse leaf lettuce, mushrooms, common green onions, onion sets, parsnips, fresh peas, southern peas, rhubarb, romaine, bunched shallots, spinach plants, summer squash, turnips or rutabagas, dewberries and blackberries, American (eastern type) grapes, juice grapes (European or vinifera type), and raspberries.

In the Proposed Notice, AMS inadvertently included celery, honey dew and honey ball type melons, Persian limes, summer and fall pears, and winter pears in this rulemaking. The grade standards for these commodities are published in the CFR at 7 CFR part 51 whereas the standards for the 41 commodities addressed here are not published in the CFR. AMS ultimately intends to remove celery, honey dew and honey ball type melons, Persian limes, summer and fall pears, and winter pears standards from the CFR. At that time, the “Unclassified” section will be removed from the grade standards for celery, honey dew and honey ball type melons, Persian limes, summer and fall pears, and winter pears. The fresh fruit and vegetable for processing grade standards covered by these changes are spinach, berries, blueberries, red sour cherries for manufacture, sweet cherries for canning or freezing, cranberries for processing, currants, raspberries, growers' stock strawberries for manufacture, and washed and sorted strawberries for freezing.

The nut and specialty crops grade standards covered by these changes are: Brazil nuts in the shell, cut peonies in the bud, and tomato plants.

AMS continually reviews all fruit, vegetable, nut and specialty crop grade standards to ensure their usefulness to the industry. AMS determined that the “Unclassified” section should be eliminated from the aforementioned 41 U.S. Standards for Grade as the category is not a grade and only serves to show that no grade has been applied to the lot. It is no longer considered necessary.

On September 9, 2015, AMS published a Proposed Notice in the Federal Register (80 FR 53021) soliciting comments on removing the term “Unclassified” from the standards. Seven comments were received by November 2, 2015, the closing date of the public comment period, from six private citizens and one individual associated with a U.S. university.

The six private citizen commenters supported the revisions as a positive step forward for the USDA that will offer produce companies and everyday shoppers a clearer idea of the quality of produce they are purchasing. The final commenter suggested that making this change to the standards would create the need for additional grades and categories to cover all variants with in different commodities. The USDA stands by its decision to remove the unclassified category because there is no evidence of use of the category by industry, and for the reason that commodities would fall into one of the established grades currently listed in the standards.

Based on the information gathered, AMS is removing the “Unclassified” category from the aforementioned U.S. Standards for Grade. The revision brings these grade standards in line with other recently amended standards and current terminology, and updates the standards to more accurately represent today's marketing practices and provide the industry with greater flexibility.

Prior documents in this proceeding: Notice of Hearing issued on June 26, 2015, and published in the July 2, 2015, issue of the Federal Register (80 FR 38021); Recommended Decision and Opportunity to File Written Exceptions issued on October 20, 2015, and published in the October 28, 2015, issue of the Federal Register (80 FR 66372); and Secretary's Decision and Referendum Order issued on February 22, 2016, and published in the February 29, 2016, issue of the Federal Register (81 FR 10138).

This administrative action is governed by the provisions of sections 556 and 557 of title 5 of the United States Code and, therefore, is excluded from the requirements of Executive Orders 12866, 13563, and 13175. Notice of this rulemaking action was provided to tribal governments through USDA's Office of Tribal Relations; no comments have been received.

The marketing agreement and order regulating the handling of pecans grown in the states of Alabama, Arkansas, Arizona, California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi, North Carolina, New Mexico, Oklahoma, South Carolina, and Texas is based on the record of public hearing held July 20 through July 21, 2015, in Las Cruces, New Mexico; July 23 through July 24, 2015, in Dallas, Texas; and, July 27 through July 29, 2015, in Tifton, Georgia. The hearing was held to receive evidence on the marketing order from growers, handlers, and other interested parties located throughout the production area. The hearing was held pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act,” and the applicable rules of practice and procedure governing the formulation of marketing agreements and orders (7 CFR part 900). The marketing order is authorized under section 8(c) of the Act. Notice of this hearing was published in the Federal Register on July 2, 2015.

The proposal was submitted for consideration to the Department on May 22, 2015, by the American Pecan Board (Board), a proponent group established in 2013 to represent the interests of growers and handlers throughout the fifteen-state production area. A subsequent, modified draft of the regulatory text was submitted on June 10, 2015.

The order provides the pecan industry with tools to assist the industry in addressing a number of challenges, including: a lack of organized representation of industry-wide interests in a single organization; a lack of accurate data to assist the industry in its analysis of production, demand and prices; a lack of coordinated domestic promotion or research; and a forecasted increase in production as a result of new plantings.

Upon the basis of evidence introduced at the hearing and the record thereof, the Administrator of AMS on October 20, 2015, filed with the Hearing Clerk, USDA, a Recommended Decision and Opportunity to File Written Exceptions thereto by November 27, 2015. No exceptions were filed. That document also announced AMS's intent to request approval of new information collection requirements to implement the program. Written comments on the proposed information collection requirements were due by December 28, 2015. None were filed.

However, USDA provided two conforming changes to the order language as published in the Recommended Decision. These conforming changes replaced the word “redefining” in § 986.55 (c)(6) with “reestablishment,” and the word “redefining” in § 986.33(b) with “reestablishment,” thereby conforming to the terminology used in § 986.58.

Further, USDA provided a correction to the Regulatory Flexibility Act (RFA) analysis published in the Recommended Decision. The RFA incorrectly referenced a Small Business Administration (SBA) threshold of $7 million in annual receipts to identify small handler entities, while hearing testimony correctly identified a $7.5 million threshold.

The specifics of these corrections were addressed in the Secretary's Decision and Referendum Order issued on February 22, 2016, and published in the February 29, 2016, issue of the Federal Register.

That document also directed that a referendum be conducted during the period of March 9 through March 30, 2016, among growers who produced a minimum average, annual amount of 50,000 pounds of inshell pecans between August 1, 2011, and July 31, 2015, or who owned a minimum of 30 pecan acres, to determine whether they favored issuance of the order. In the referendum, the order was favored by more than two-thirds of the growers voting in the referendum by number and volume.

The marketing agreement was mailed to all pecan shellers (handlers) in the production area for approval. The marketing agreement was approved by more than 50 percent of the volume of pecans handled by all shellers (handlers) during the representative period of August 1, 2014, and July 31, 2015.

Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, the AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions so that small businesses will not be unduly or disproportionately burdened. Small agricultural producers have been defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $750,000. Small agricultural service firms, which include handlers that will be regulated under the order, are defined as those with annual receipts of less than $7,500,000.

Interested persons were invited to present evidence at the hearing on the probable regulatory and informational impact of the order on small businesses. The record evidence is that while the program will impose some costs on the regulated parties, those costs will be outweighed by the benefits expected to accrue to the U.S. pecan industry.

Specific evidence on the number of large and small pecan farms (above and below the SBA threshold figure of $750,000 in annual sales) was not presented at the hearing. However, percentages can be estimated based on record evidence.

The 2014 season average grower prices per pound for improved and native seedling pecans were $2.12 and $0.88, respectively. A weighted grower price of $1.85 is computed by applying as weights the percentage split between improved and native acreage on a representative U.S. pecan farm, which are 78 and 22 percent, respectively. The average yield on the representative farm is 1,666.67 pounds per acre. Multiplying the $1.85 price by the average yield gives a total revenue per acre figure of $3,080. Dividing the $750,000 SBA annual sales threshold figure by the revenue per acre figure of $3,080 gives an estimate of 243 acres as the size of farm that would have annual sales about equal to $750,000, given the previous assumptions. Any farm of that size or larger would qualify as a large farm under the SBA definition.

Data presented in the record show that about 52 percent of commercial U.S. pecan farms have 250 or more acres of pecans. Since the 243 acre estimate above is close to 250 acres, it can be extrapolated that 52 percent is a reasonable approximation of the proportion of large farms and 48 percent is the proportion of small pecan farms. According to the record, this estimate does not include “backyard” production.

According to record evidence, there are an estimated 250 handlers in the U.S. Of these handlers, which include accumulators, there are an estimated 50 commercially viable shellers with production over 1 million pounds of inshell pecans operating within the production area. Fourteen of these shellers meet the SBA definition for large business entity and the remaining 36 are small business entities.

Record evidence indicates that implementing the order would not represent a disproportionate burden on small businesses. An economic impact study of the authority for generic promotion presented at the hearing provided that the program would likely benefit all industry participants.

The record shows that generic promotion over a wide variety of agricultural products stimulates product demand and translates into higher prices for growers than would have been the case without promotion.

Promotional impact studies of other tree nuts (almonds and walnuts), and of Texas pecans, show price increases as high as 6 percent, but the record indicates that 0 to 3 percent is a more representative range. Since the other tree nut promotion programs are well-established, the record shows that a representative middle (most likely) scenario would be a price increase from promotion of 1.5 percent for the early years of a new pecan promotion program. Low and high scenarios were 0.5 and 3.0 percent, respectively.

The record indicates that an analytical method used historical yearly prices from 1997 to 2014 in a simulation covering that period to obtain an expected average price without promotion. In a subsequent step, the simulation applied a demand increase of 1.5 percent to the entire distribution of prices to represent the impact of promotion. The projected increases in grower prices from promotion for improved and native pecans were 6.3 and 3.6 cents per pound, respectively, as shown in Table 1. These two price increase projections represent a range of results. Based on a range of simulated price increases as high as 3 percent, the low and high price increase projections for improved pecans were 4.0 and 9.6 cents, respectively. For native varieties, the results ranged from 2.7 to 4.2 cents.

The record indicates that a key analytical step was developing an example farm with specific characteristics to explain market characteristics and marketing order impacts. An important characteristic of this “representative farm” is the acreage allocation between improved and native pecans of 78 and 22 percent, respectively. This is similar to the proportion of the U.S. pecan crop in recent years allocated to improved and native varieties. Average yield per acre of the representative farm (covering all states and varieties) is 1,666.67 pounds per acre.

The acreage split of 78 and 22 percent are used as weights to compute weighted average prices (combining improved and native pecans) of 5.7 and 2.3 cents, respectively, as shown in the fourth column of Table 1.

The record shows that the initial ranges of marketing order assessments per pound are 2 to 3 cents for improved pecans and 1 to 2 cents for native pecans. The midpoints of these ranges (2.5 and 1.5 cents, respectively) are used to compute a benefit-cost ratio from promotion, with a weighted average assessment cost of 2.3 cents, as shown in Table 2. Assessments would be collected from handlers, not growers, but for purposes of this analysis, it is assumed that 100 percent of the assessment cost would be passed through to growers.

Table 1 shows that dividing the projected benefit of 5.7 cents per pound (weighted price increase from promotion) by the estimated assessment cost of 2.3 cents (weighted assessment rate per pound), yields a benefit-cost ratio of 2.5. Each dollar spent on pecan promotion through a Federal marketing order is expected to result in $2.50 in increased revenue to the pecan growers of the United States.

Examining potential costs and benefits from promotion across different farm sizes is done in Table 2. Record evidence showed that the minimum size of a commercial pecan farm is 30 acres, and that a representative average yield across the entire production area is 1,666.67 pounds per acre. This combination of acreage and yield results in a minimum threshold level of commercial production of 50,000 pounds. Witnesses stated that expenditures for the minimum necessary level of inputs for commercial pecan production cannot be justified for any operation smaller than this.

In Table 2, a very small farm is defined as being at the minimum commercial threshold level of 30 acres and 50,000 pounds. Small and large farms are represented by farm size levels of 175 and 500 acres, respectively. Multiplying those acreage levels by the average yield for the entire production area gives total annual production level estimates of 291,667 and 833,335 pounds, respectively.

Multiplying the 2014 grower price per pound of $2.14 by the 291,677 pounds of production from the small farm (175 acres) yields an annual crop value estimate of about $618,000. This computation shows that the small farm definition from the record is consistent with the SBA definition of a small farm (annual sales value of up to $750,000).

Table 2 shows for the three representative pecan farm sizes the allocation of total production levels between improved and native varieties (78 and 22 percent, respectively).

Although marketing order assessments are paid by handlers, not growers, it is nevertheless useful to estimate the impact on growers, based on the assumption that handlers may pass part or all of the assessment cost onto growers from whom they purchase pecans. To compute the marketing order burden for each farm size, the improved and native production quantities are multiplied by 2.5 and 1.5 cents per pound of improved and native pecans, respectively. For the representative small farm (175 acres), summing the improved and native assessments yields a total annual assessment cost of $6,650. For the large farm, the total assessment cost is $19,000.

A parallel computation is made to obtain the total dollar benefit for each farm size. The improved and native quantities for the representative farm sizes are multiplied by the corresponding projected price increases of 6.3 and 3.6 cents. Summing the improved and native benefits for the small and large farm size yields projected annual total benefits for the small and large representative farm sizes of $16,643 and $47,550, respectively. The results of dividing the benefits for each farm size by the corresponding costs is 2.5, which equals the benefit-cost ratio shown in Table 2.

The computations in Table 2 provide an illustration, based on evidence from the record, that there would be no disproportionate impact on smaller size farms from establishing a marketing order and implementing a promotion program. Costs are assessed per pound and thus represent an equal burden regardless of size. The projected benefits from promotion are realized through increases in price per pound and are thus distributed proportionally among different sizes of farms.

All of the grower and handler witnesses, both large and small, testified that the projected price increases from promotion of pecans (6.3 and 3.6 cents per pound for improved and native pecans, respectively) were reasonable estimates of the benefits from generic promotion of pecans. A number of them expressed the view that the price increase estimates were conservative and that, over time, the price impact would be larger.

As mentioned above, marketing order assessments are paid by handlers, not growers. However, since handlers may pass some or all of the assessment cost onto growers, it is useful to provide this illustration of potential impact on both growers and handlers.

Using the most recent three years of prices as examples of typical U.S. annual grower prices, Table 3 summarizes evidence from the record that shows the marketing order assessment rates as percentages of grower and handler prices received. Based on record evidence that a representative handler margin is 57.5 cents per pound, handler prices are estimated by summing the grower price and handler margin.

For both improved and native pecans, using 2012 to 2014 prices as examples, Table 3 shows that the potential burden of the program can be calculated at between 1 and 2 percent of operating expenses for growers and are approximately 1 percent of operating expenses for handlers. Grower and handler witnesses, both large and small, covering both improved and native pecans, testified that the initial marketing order assessment rates would not represent a significant burden to their businesses and that the benefits of the generic promotion program substantially outweigh the cost. Sheller witnesses (large and small) that would likely become handlers under a Federal marketing order testified that the additional recordkeeping required to collect assessments to send to the marketing order board (American Pecan Council) would not be a significant additional burden and that the benefits would substantially outweigh the costs. Several witnesses stated that one reason that collecting the assessments would have only a minor impact is that they already perform similar functions for promotion and other pecan-related programs (or other commodity programs) organized under state law.

Statements of support for additional benefits that could come from a Federal marketing order came from grower and handler witnesses, both large and small, covering both improved and native pecans. The additional benefits cited included: (1) Additional and more accurate market information, including data on production, inventory, and total supplies, (2) funding of research on health and nutrition aspects of pecans, improved technology relating to the pecan supply chain and crop health, consumer trends, and other topics, and (3) uniform, industry-wide quality standards for pecans, as well as packaging standards and shipping protocols. Witnesses testified that the burden of funding and participating in marketing order programs with these features would be minor, and that the benefits would substantially outweigh the costs.

The order will impose some reporting and recordkeeping requirements on handlers. However, testimony indicated that the expected burden that will be imposed with respect to these requirements would be negligible. Most of the information that will be reported to the Council is already compiled by handlers for other uses and is readily available. Reporting and recordkeeping requirements issued under other tree nut programs impose an average annual burden on each regulated handler of about 8 hours. It is reasonable to expect that a similar burden may be imposed under this marketing order on the estimated 250 handlers of pecans in the production area.

The record evidence also indicates that the benefits to small as well as large handlers are likely to be greater than would accrue under the alternatives to the order; namely, no marketing order.

In determining that the order and its provisions will not have a disproportionate economic impact on a substantial number of small entities, all of the issues discussed above were considered. Based on hearing record evidence and USDA's analysis of the economic information provided, the order provisions have been carefully reviewed to ensure that every effort has been made to eliminate any unnecessary costs or requirements.

Although the order may impose some additional costs and requirements on handlers, it is anticipated that the order will help to strengthen demand for pecans. Therefore, any additional costs would be offset by the benefits derived from expanded sales benefiting handlers and growers alike. Accordingly, it is determined that the order will not have a disproportionate economic impact on a substantial number of small handlers or growers.

In compliance with OMB regulations (5 CFR part 1320) which implement the Paperwork Reduction Act of 1995 (Pub. L. 104-13), the forms to be used for nomination and selection of the initial administrative council will be submitted to OMB for approval. Any additional information collection and recordkeeping requirements that may be imposed under the order as a result of future council recommendations and rulemaking would also be submitted to OMB for approval. Those requirements would not become effective prior to OMB approval.

The provisions of the marketing agreement and order have been reviewed under Executive Order 12988, Civil Justice Reform. They are not intended to have retroactive effect. The agreement and order will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

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

(a) Findings upon the basis of the hearing record. Pursuant to the provisions of the Agricultural Marketing Agreement of 1937, as amended (7 U.S.C. 601 et seq.) and the applicable rules of practice and procedure effective thereunder (7 CFR part 900), a public hearing was held upon a proposed marketing agreement and order regulating the handling of pecans grown in the States of Alabama, Arkansas, Arizona, California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi, North Carolina, New Mexico, Oklahoma, South Carolina, and Texas.

Upon the basis of evidence introduced at such hearing and the record thereof, it is found that:

(1) The marketing agreement and order, and all of the terms and conditions thereof, will tend to effectuate the declared policy of the Act;

(2) The marketing agreement and order regulate the handling of pecans grown in the production area in the same manner as, and are applicable only to, persons in the respective classes of commercial and industrial activity specified in the marketing agreement and order upon which a hearing has been held;

(3) The marketing agreement and order are limited in its application to the smallest regional production area that is practicable, consistent with carrying out the declared policy of the Act, and the issuance of several orders applicable to subdivisions of the production area would not effectively carry out the declared policy of the Act;

(4) The marketing agreement and order prescribe, such different terms applicable to different parts of the production area as are necessary to give due recognition to the differences in the production and marketing of pecans grown in the production area; and

(5) All handling of pecans grown in the production area as defined in the marketing agreement and order is in the current of interstate or foreign commerce or directly burdens, obstructs, or affects such commerce.

(b) Additional findings. It is necessary and in the public interest to make the provisions of this order effective not later than one day after publication in the Federal Register. A later date would unnecessarily delay implementation of the program, which is expected to benefit the pecan industry. Making the program effective as specified would allow for the nomination, selection and organization of the initial administrative council in advance of the 2016 harvest season. It also allows time for the council to recommend a budget and any administrative rules and regulations deemed necessary to operate the program.

In view of the foregoing, it is hereby found and determined that good cause exists for making the order provisions effective one day after publication in the Federal Register, and that it would be contrary to the public interest to delay the effective date for 30 days after publication in the Federal Register (Sec. 553(d), Administrative Procedure Act; 5 U.S.C. 551-559).

(c) Determinations. It is hereby determined that:

(1) The “Marketing Agreement Regulating the Handling of Pecans Grown in Alabama, Arkansas, Arizona, California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi, North Carolina, New Mexico, Oklahoma, South Carolina, and Texas,” upon which the aforesaid public hearing was held, has been signed by handlers who during the period of August 1, 2014, through July 31, 2015 handled not less than 50 percent of the volume of such pecans covered by the order, and

(2) The issuance of this order is favored or approved by at least two-thirds of the producers who participated in a referendum on the question of its approval and, who produced a minimum average, annual amount of 50,000 pounds of inshell pecans between August 1, 2011, and July 31, 2015, (which has been determined to be a representative period) or who owned a minimum of 30 pecan acres. Such producers also produced for market at least two-thirds of the volume of pecans represented in the referendum.

It is therefore ordered, That on and after the effective date hereof, all handling of pecans grown in the States of Alabama, Arkansas, Arizona, California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi, North Carolina, New Mexico, Oklahoma, South Carolina, and Texas, shall be in conformity to, and in compliance with, the terms and conditions of the said order as follows:

The provisions of the marketing agreement and order are set forth in full herein.

Title 7, chapter IX is amended by adding part 986 to read as follows: PART 986—PECANS GROWN IN THE STATES OF ALABAMA, ARKANSAS, ARIZONA, CALIFORNIA, FLORIDA, GEORGIA, KANSAS, LOUISIANA, MISSOURI, MISSISSIPPI, NORTH CAROLINA, NEW MEXICO, OKLAHOMA, SOUTH CAROLINA, AND TEXAS Subpart A—Order Regulating Handling of Pecans Definitions Sec. 986.1 Accumulator. 986.2 Act. 986.3 Affiliation. 986.4 Blowouts. 986.5 To certify. 986.6 Confidential data or information. 986.7 Container. 986.8 Council. 986.9 Crack. 986.10 Cracks. 986.11 Custom harvester. 986.12 Department or USDA. 986.13 Disappearance. 986.14 Farm Service Agency. 986.15 Fiscal year. 986.16 Grade and size. 986.17 Grower. 986.18 Grower-cleaned production. 986.19 Handler. 986.20 To handle. 986.21 Handler inventory. 986.22 Handler-cleaned production. 986.23 Hican. 986.24 Inshell pecans. 986.25 Inspection service. 986.26 Inter-handler transfer. 986.27 Merchantable pecans. 986.28 Pack. 986.29 Pecans. 986.30 Person. 986.31 Production area. 986.32 Proprietary capacity. 986.33 Regions. 986.34 Representative period. 986.35 Secretary. 986.36 Sheller. 986.37 Shelled pecans. 986.38 Stick-tights. 986.39 Trade supply. 986.40 Unassessed inventory. 986.41 Varieties. 986.42 Warehousing. 986.43 Weight. Administrative Body 986.45 American Pecan Council. 986.46 Council nominations and voting. 986.47 Alternate members. 986.48 Eligibility. 986.49 Acceptance. 986.50 Term of office. 986.51 Vacancy. 986.52 Council expenses. 986.53 Powers. 986.54 Duties. 986.55 Procedure. 986.56 Right of the Secretary. 986.57 Funds and other property. 986.58 Reapportionment and reestablishment of regions. Expenses, Assessments, and Marketing Policy 986.60 Budget. 986.61 Assessments. 986.62 Inter-handler transfers. 986.63 Contributions. 986.64 Accounting. 986.65 Marketing policy. Authorities Relating to Research, Promotion, Data Gathering, Packaging, Grading, Compliance, and Reporting 986.67 Recommendations for regulations. 986.68 Authority for research and promotion activities. 986.69 Authorities regulating handling. 986.70 Handling for special purposes. 986.71 Safeguards. 986.72 Notification of regulation. Reports, Books, and Other Records 986.75 Reports of handler inventory. 986.76 Reports of merchantable pecans handled. 986.77 Reports of pecans received by handlers. 986.78 Other handler reports. 986.79 Verification of reports. 986.80 Certification of reports. 986.81 Confidential information. 986.82 Books and other records. Administrative Provisions 986.86 Exemptions. 986.87 Compliance. 986.88 Duration of immunities. 986.89 Separability. 986.90 Derogation. 986.91 Liability. 986.92 Agents. 986.93 Effective time. 986.94 Termination. 986.95 Proceedings after termination. 986.96 Amendments. 986.97 Counterparts. 986.98 Additional parties. 986.99 Order with marketing agreement. Subpart B—Reserved Authority:

7 U.S.C. 601-674.

This direct final rule implements several conforming amendments to SBA regulations from the National Defense Authorization Act for Fiscal Year 2016, Public Law 114-92, 129 Stat. 726, November 25, 2015 (2016 NDAA). The 2016 NDAA became effective on November 25, 2015. Section 866 of the 2016 NDAA made the following changes to the HUBZone program: authorized Native Hawaiian Organizations (NHOs) to own HUBZone small business concerns; expanded the definition of “base closure area” under the HUBZone program; and authorized the inclusion of “qualified disaster areas” under the HUBZone program.

SBA seeks to amend its HUBZone regulations to mirror the changes the 2016 NDAA made to the Small Business Act, and to avoid public confusion and possible misinterpretations of SBA's HUBZone program. Since these are conforming amendments, with no extraneous interpretation or other expanded materials, SBA expects no significant adverse comments. Based on that fact, SBA has decided to proceed with a direct final rule giving the public 30 days to comment. If SBA receives a significant adverse comment during the comment period, SBA will withdraw the rule, and proceed with a new proposed rule. The statute makes the following changes:

• General Summary—Expands the HUBZone program to assist small businesses in disasters areas and base closure areas and provides equal treatment under the HUBZone program for small businesses owned by NHOs.

• “Major Disaster” Areas—Treats major disaster areas as HUBZones for a period of 5 years. Applies to census tracts and nonmetropolitan counties (NMC) located in “major disaster” areas, if such census tract or NMC lost its HUBZone eligibility within the past 5 years or will lose its HUBZone eligibility within 2 years after the major disaster.

• “Catastrophic Incident” Areas—Treats areas where catastrophic incidents occurred as HUBZones for a period of 10 years. Applies to census tracts and NMCs located in areas where catastrophic incidents occurred, if such census tract or NMC lost its HUBZone eligibility within the past 5 years or will lose its HUBZone eligibility within 2 years after the catastrophic incident.

• Base Closures Areas (BRAC)—Extends HUBZone eligibility for BRACs to 8 years (up from 5) and expands HUBZone eligibility to census tracts and NMCs that (1) contain BRACs, (2) intersect with BRACs, (3) are contiguous to BRACs, or (4) are contiguous to any census tract or NMC described in (1) through (3).

• Native Hawaiian Organizations (NHO)—Allows small businesses owned by NHOs to qualify as HUBZone companies.

In order to implement the changes made by section 866 of the 2016 NDAA, SBA is amending §§ 126.103 and 126.200 of its regulations.

SBA is amending § 126.103 by revising the definitions of the terms “Base closure area”, “HUBZone”, “HUBZone small business concern (HUBZone SBC)”, and “Qualified base closure area”, and by adding new definitions for the terms “Native Hawaiian Organization (NHO)” and “Qualified disaster area”. This rules adopts the definitions of these terms provided in amended sections 3(p)(1), 3(p)(3), 3(p)(4)(D), and new section 3(p)(4)(E), of the Small Business Act, 15 U.S.C. 632(p)(1), 632(p)(3), 632(p)(4)(D), 632(p)(4)(E).

SBA is amending § 126.200 by revising paragraph (b)(1) to implement the statutory authority for HUBZone small business concerns to be wholly or partly owned by NHOs. This rule adopts the language provided in new section 3(p)(3)(D) of the Small Business Act, 15 U.S.C. 632(p)(3)(D).

The Office of Management and Budget (OMB) has determined that this direct final rule does not constitute a significant regulatory action under Executive Order 12866. This rule is also not a major rule under the Congressional Review Act, 5 U.S.C. 800.

This action meets applicable standards set forth in Sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. The action does not have retroactive or preemptive effect.

For the purposes of Executive Order 13132, SBA has determined that this direct final rule will not have substantial, direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, for the purpose of Executive Order 13132, Federalism, SBA has determined that this direct final rule has no federalism implications warranting preparation of a federalism assessment.

SBA has determined that this direct final rule does not impose additional reporting or recordkeeping requirements under the Paperwork Reduction Act, 44 U.S.C., Chapter 35.

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601, requires administrative agencies to consider the effect of their actions on small entities, small non-profit enterprises, and small local governments. Pursuant to the RFA, when an agency issues a rulemaking, the agency must prepare a regulatory flexibility analysis which describes the impact of the rule on small entities. However, section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities. Within the meaning of RFA, SBA certifies that this direct rule will not have a significant economic impact on a substantial number of small entities.

Accordingly, for the reasons stated in the supplementary information, SBA amends 13 CFR part 126 as follows:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Fokker Services B.V. Model F.28 Mark 1000, 2000, 3000, and 4000 airplanes. The NPRM published in the Federal Register on January 20, 2016 (81 FR 3042) (“the NPRM”).

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2014-0107, dated May 7, 2014 (referred to after this the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Fokker Services B.V. Model F.28 Mark 1000, 2000, 3000, and 4000 airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-8472.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.

We revised certain document citations throughout this AD to meet the Office of the Federal Register's requirements for materials incorporated by reference. These changes are for formatting purposes and do not affect the requirements of this AD.

We reviewed the relevant data and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

Fokker Services B.V. has issued Manual Change Notification—Maintenance Documentation MCNM-F28-035, Rev 1, dated January 9, 2014; and Fokker Service Bulletin SBF28-28-049, Revision 2, dated November 3, 2014. This service information describes procedures for installing fuses packed in jiffy junctions (i.e., crimped wire in-line junction device(s)).

Fokker Services B.V. has also issued Manual Change Notification—Maintenance Documentation MCNM-F28-034 Rev 1, dated January 9, 2014; and Service Bulletin SBF28-28-051, Revision 2, dated November 3, 2014. This service information describes procedures for reworking the wiring and installing fuses packed in jiffy junctions in the power supply wire of the solenoid in the left and right level control pilot valves.

In addition, Fokker Services B.V. has issued Proforma Service Bulletin SBF28-28-056, dated January 9, 2014; and F28 Appendix Service Bulletin SBF28-28-056/APP01, dated July 15, 2014. This service information describes procedures for installing fuses in the wiring of the solenoid of the level control pilot valve, the reed switch of the main tank overflow valve, the level float switch of the collector tank, and the solenoid of the main tank fueling shut-off valve. This service information also describes certain CDCCLs.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 5 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Dassault Aviation Model FALCON 900EX and FALCON 2000EX airplanes. The NPRM published in the Federal Register on April 20, 2016 (81 FR 23214) (“the NPRM”).

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2014-0184, dated August 7, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Dassault Aviation Model FALCON 900EX and FALCON 2000EX airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-5594.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.

We reviewed the relevant data and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

We reviewed Dassault Service Bulletins F900EX-476, Revision 1, dated June 25, 2014; and F2000EX-350, dated April 9, 2014. The service information describes procedures for removing the aileron servo actuator. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 284 airplanes of U.S. registry.

We also estimate that it will take about 14 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $43,460 per product. Based on these figures, we estimate the cost of this AD on U.S. operators to be $12,680,600, or $44,650 per product.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that this AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus Model A300 B4-603, B4-605R, and B4-622R airplanes; and Model A310-304, -324, and -325 airplanes. The NPRM published in the Federal Register on February 18, 2016 (81 FR 8155) (“the NPRM”). The NPRM was prompted by a report of a crack found on door FR 73A between stringers 24 and 25. The NPRM proposed to require inspections around the rivet heads of the seal retainer run-out holes at certain frames and corrective actions if necessary. We are issuing this AD to detect and correct cracking of the door frame, which could result in reduced structural integrity of the airplane.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2014-0202R1, dated September 19, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A300 B4-603, B4-605R, and B4-622R airplanes; and Model A310-304, -324, and -325 airplanes The MCAI states:

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-0466.

We gave the public the opportunity to participate in developing this AD. The following presents the comment received on the NPRM and the FAA's response to the comment.

An anonymous commenter asked why the NPRM has not yet been enacted. The commenter stated that they do not want to be on a plane that lacks structural integrity because of cracks on the door frame.

ADs are federal regulations that have the force and effect of law. In simple terms, the Administrative Procedure Act (APA), Title 5 of the United States Code (5 U.S.C.) § 553, requires all regulatory agencies such as the FAA to provide the public with notice and time for comment prior to issuing a regulation. ADs are issued in accordance with the public rulemaking procedures of the APA, FAA procedures in 14 CFR part 11, and several other relevant regulations. For this AD, we did not substantiate that a critical, immediate safety of flight problem exists that would warrant issuing a rule without prior notice or opportunity for public comment. We have not changed this AD in this regard.

We reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

Airbus has issued Service Bulletins A300-53-6175 and A310-53-2138, both dated May 28, 2014. The service information describes procedures for doing HFEC inspections around the rivet heads of the seal retainer run-out holes at certain frame locations on the left-hand and right-hand sides. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 24 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc. Model BD-700-1A10 and BD-700-1A11 airplanes. The NPRM published in the Federal Register on April 12, 2016 (81 FR 21491) (“the NPRM”). The NPRM was prompted by a design review, which found that the burst pressure of the flexible hose used to vent oxygen from the high-pressure relief valve of the oxygen cylinder overboard is lower than the opening pressure of the high-pressure relief valve. This pressure difference could cause the flexible hose to burst before it is able to vent excess oxygen overboard. The NPRM proposed to require replacement of flexible relief hoses for the crew oxygen bottles with new metal design relief hoses. We are issuing this AD to prevent the accumulation of excess oxygen in an enclosed space, which could, if near a source of ignition, cause an uncontrolled oxygen-fed fire.

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2015-25, dated September 10, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc. Model BD-700-1A10 and BD-700-1A11 airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-5459.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public. We reviewed the relevant data and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

Bombardier, Inc. has issued the following service information:

• Service Bulletin 700-35-013, Revision 01, dated July 22, 2015.

• Service Bulletin 700-35-5001, Revision 01, dated July 22, 2015;

• Service Bulletin 700-35-6001, Revision 01, dated July 22, 2015; and

• Service Bulletin 700-1A11-35-012, Revision 01, dated July 22, 2015.

The service information describes procedures to replace the flexible oxygen hoses with metal hoses. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 73 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

According to the manufacturer, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus Model A330-200 Freighter, -200, and -300 series airplanes. The NPRM published in the Federal Register on April 12, 2016 (81 FR 21486) (“the NPRM”). The NPRM was prompted by a report of a manufacturing defect that affects the durability of affected parts in the cargo and cabin compartment. The NPRM proposed to require an inspection of affected structural parts in the cargo and cabin compartments to determine if proper heat treatment has been done, and replacement if necessary. We are issuing this AD to prevent crack initiation and propagation, which could result in reduced structural integrity of the fuselage.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued European Airworthiness Directive 2015-0212, dated November 4, 2015, to correct an unsafe condition for all Airbus Model A330-200 Freighter, -200, and -300 series airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-5460.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.

We reviewed the relevant data and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

Airbus has issued the following service information:

• Airbus Service Bulletin A330-53-3227, dated August 18, 2015. The service information describes procedures to inspect affected structural parts in the cargo compartment to determine if proper heat treatment has been done, and replacement of parts; and

• Airbus Service Bulletin A330-53-3228, dated August 18, 2015. The service information describes procedures to inspect affected structural parts in the cabin compartment to determine if proper heat treatment has been done, and replacement of parts.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 20 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

We estimate the following costs to do any necessary replacements that will be required based on the results of the required inspection. We have received no definitive data that will enable us to provide the cost of replacement parts for the on-condition actions specified in this AD, nor the cost of repairs. We have no way of determining the number of aircraft that might need this action.

According to the manufacturer, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all available costs in our cost estimate.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Fokker Services B.V. Model F.28 Mark 1000, 2000, 3000, and 4000 airplanes. The NPRM published in the Federal Register on January 20, 2016 (81 FR 3056) (“the NPRM”).

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2014-0106, dated May 7, 2014 (referred to after this the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Fokker Services B.V. Model F.28 Mark 1000, 2000, 3000, and 4000 airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-8469.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.

We reviewed the relevant data and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

Fokker Services B.V. has issued Service Bulletin SBF28-28-050, Revision 3, dated December 11, 2014. The service information describes the fuel airworthiness limitation item and the CDCCL. Fokker Services B.V. has also issued Service Bulletin SBF28-28-054, Revision 1, dated January 9, 2014, which describes procedures for applying sealant to the attachment nuts, washers, and stud ends of the FQTU; and Manual Change Notification—Maintenance Documentation MCNM-F28-037, Rev 1, dated January 9, 2014, which describes related changes in the affected maintenance documents.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 5 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

Discussion

The Civil Aviation Authority (CAA), which is the aviation authority for New Zealand, has issued AD No. DCA/FU24/184, dated July 7, 2016 (referred to after this as “the MCAI”), to correct an unsafe condition for Pacific Aerospace Limited Models FU24-954 and FU24A-954 airplanes and was based on mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country. The MCAI states:

The MCAI requires inspecting the elevator torque tube for cracks and replacing the elevator torque tube is any cracks are found. You may examine the MCAI on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-8838.

Pacific Aerospace Limited (previously Pacific Aerospace Corporation Ltd.) has issued Chapter 27, Flight Controls, dated May 1980, of the Maintenance Manual for the Fletcher FU24 and FU24A Post-954. The information in Chapter 27 of the referenced maintenance manual describes procedures for replacing the elevator torque tube. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this AD.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all information provided by the State of Design Authority and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because there are no airplanes currently on the U.S. registry and thus, does not have any impact upon the public. Therefore, we find that notice and opportunity for prior public comment are unnecessary.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-8838; Directorate Identifier 2016-CE-020-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD.

We estimate that this AD will affect 0 products of U.S. registry. We also estimate that it will take about .5 work-hour per product to comply with the basic inspection requirement of this AD. The average labor rate is $85 per work-hour.

Based on these figures, we estimate the cost of the inspection requirement of this AD on U.S. operators to be $42.50 per product.

In addition, we estimate that any necessary follow-on actions will take about 4 work-hours and require parts costing $3,012, for a cost of $3,352 per product.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

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:

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:

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:

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

The background for this action is discussed in detail in our April 20, 2016, proposal (81 FR 23232). In that document, we proposed to approve portions of ten SIP submittals for the State of Louisiana. These amendments enhance the SIP by (1) defining insignificant activities that will not require permitting; (2) correcting contradictory language in the insignificant activities list; (3) providing edits to the Permit Procedure Rule as requested by the EPA; (4) including procedures for incorporating test results; (5) unifying and streamlining name and ownership changes for all media; and (6) revising references to various LDEQ divisions. This action is being taken under section 110 of the Act. We did not receive any comments regarding our proposal although the LDEQ did send a letter to the EPA on July 14, 2016, to update information on sections 525, 527, and 529.

We are approving the revisions to the Louisiana SIP as proposed in our April 20, 2016, proposal (81 FR 23232), with the exception of sections 525, 527, and 529, as discussed below. This includes SIP submittals from the State of Louisiana submitted on November 15, 1993, November 10, 1994, July 25, 1997, June 22, 1998, June 27, 2003, May 5, 2006, November 9, 2007, August 14, 2009, August 29, 2013, and November 3, 2014. These revisions provide clarity to the rules, correct contradictory language, update permit application and fee requirements, revise the rules to conform to the latest Louisiana laws, and add to the “Insignificant Activities List”. We approve the revisions to the SIP that meet CAA requirements. Specifically, we are approving revisions to the Louisiana SIP pertaining to the following sections:

• LAC 33:III.501 as submitted on November 15, 1993, November 10, 1994, June 22, 1998, June 27, 2003, May 5, 2006, November 9, 2007, August 14, 2009; and November 3, 2014;

• LAC 33:III.502 as submitted on November 15, 1993, and November 3, 2014;

• LAC 33:III.503 as submitted on November 15, 1993, and November 3, 2014;

• LAC 33:III.504 as submitted on November 3, 2014;

• LAC 33:III.511 as submitted on November 15, 1993;

• LAC 33:III.513 as submitted on November 15, 1993, and November 9, 2007;

• LAC 33:III.515 as submitted on November 15, 1993;

• LAC 33:III.517 as submitted on November 15, 1993, November 10, 1994, July 25, 1997, June 22, 1998, and May 5, 2006;

• LAC 33:III.519 as submitted on November 15, 1993;

• LAC 33:III.521 as submitted on November 10, 1994, and May 5, 2006;

• LAC 33:III.523 as submitted on November 15, 1993, August 29, 2013, and November 3, 2014;

• LAC 33:III.601 as submitted on November 3, 2014;

• LAC 33:III.603 as submitted on November 3, 2014;

• LAC 33:III.605 as submitted on November 3, 2014;

• LAC 33:III.607 as submitted on November 3, 2014;

• LAC 33:III.615 as submitted on November 3, 2014; and

• LAC 33:III.619 as submitted on November 3, 2014.

The EPA is not taking final action as proposed on the Louisiana SIP at this time pertaining to the following sections based on LDEQ's letter of July 14, 2016, which withdrew portions of sections 525, 527, and 529 because they apply exclusively to part 70 sources. The letter specifically identified citations that are already approved into Louisiana's Operating Permits program. EPA will take action on the portion of the citations in these sections that have not been withdrawn in a future action:

• LAC 33:III.525 as submitted on November 15, 1993;

• LAC 33:III.527 as submitted on November 15, 1993, and November 10, 1994; and

• LAC 33:III.529 as submitted on November 15, 1993.

This action is being taken under section 110 of the Act.

In this rule, we are finalizing regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, we are finalizing the incorporation by reference of the revisions to the Louisiana regulations as described in the Final Action section above. We have made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or in hard copy at the EPA Region 6 office.

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 3, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purpose 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:

The National Railroad Passenger Corporation (Amtrak) was established by Congress in 1970 to preserve passenger services and routes on the Nation's railroads. See Lebron v. Nat'l R.R. Passenger Corp., 513 U.S. 374, 383-384 (1995); Nat'l R.R. Passenger Corp. v. Atchison, Topeka, & Santa Fe R.R., 470 U.S. 451, 454 (1985); see also Rail Passenger Serv. Act of 1970, Public Law 91-518, 84 Stat. 1328 (1970). As a condition of relieving the railroad companies of their common carrier obligation to provide passenger service, Congress required them to permit Amtrak to operate over their tracks and use their facilities. See 45 U.S.C. 561, 562 (1970 ed.). Since 1973, Congress has required railroads to give Amtrak trains preference over freight service when using their lines and facilities: “Except in an emergency, intercity and commuter rail passenger transportation provided by or for Amtrak has preference over freight transportation in using a rail line, junction, or crossing . . . .” 49 U.S.C. 24308(c); see Amtrak Improvement Act of 1973, Public Law 93-146, section 10(2), 87 Stat. 552 (initial version).

Prior to 2008, the Board was not involved in the adjudication of Amtrak's preference rights. The only way that Amtrak could enforce its preference rights was by asking the Attorney General to bring a civil action for equitable relief. 49 U.S.C. 24103. Further, the Secretary of Transportation had the authority under section 24308(c) to grant a host rail carrier relief from the preference obligation and to establish the usage rights between Amtrak and the host carrier if the Secretary found that Amtrak's preference materially lessened the quality of freight transportation provided to shippers. In 2008, Congress enacted Section 213 of the Passenger Rail Investment and Improvement Act of 2008 (PRIIA), 49 U.S.C. 24308(f), to address, among other things, the concern that one cause of Amtrak's inability to achieve reliable on-time performance was the failure of host railroads to honor Amtrak's right to preference. See Passenger Rail Inv. & Improvement Act, Public Law 110-432, Div. B, 122 Stat. 4907 (2008); S. Rep. No. 67, 110th Cong., 1st Sess. 25-26 (2007). Section 207 of PRIIA, 49 U.S.C. 24101 note, charged Amtrak and the Federal Railroad Administration (FRA) with “jointly” developing new, or improving existing, metrics and standards for measuring the performance of intercity passenger rail operations, including on-time performance and train delays incurred on host railroads.

PRIIA also transferred from the Secretary of Transportation to the Board the administration and enforcement of Amtrak's preference rights. Thus, PRIIA amended 49 U.S.C. 24308(c) to provide that: “Except in an emergency, intercity and commuter rail passenger transportation provided by or for Amtrak has preference over freight transportation in using a rail line, junction, or crossing unless the Board orders otherwise under this subsection” (emphasis added). Congress likewise transferred to the Board the authority under section 24308(c) to determine if “preference for intercity and commuter rail passenger transportation materially will lessen the quality of freight transportation provided to shippers” on a freight carrier's line, and, if so, to “establish the rights of the carrier and Amtrak on reasonable terms.”

Under Section 213(a) of PRIIA, 49 U.S.C. 24308(f)(1), if the “on-time performance” (OTP) of any intercity passenger train averages less than 80% for any two consecutive calendar quarters, the Board may initiate an investigation, or upon complaint by Amtrak or another eligible complainant, the Board “shall” do so. The purpose of such an investigation is to determine whether and to what extent delays are due to causes that could reasonably be addressed by the passenger rail operator or the host railroad. Following the investigation, should the Board determine that Amtrak's substandard performance is “attributable to” the rail carrier's “failure to provide preference to Amtrak over freight transportation as required” by 49 U.S.C. 24308(c), the Board may “award damages” or other appropriate relief from a host railroad to Amtrak. 49 U.S.C. 24308(f )(2). If the Board finds it appropriate to award damages to Amtrak, Amtrak must use the award “for capital or operating expenditures on the routes over which delays” were the result of the host railroad's failure to grant the statutorily required preference to passenger transportation. 49 U.S.C. 24308(f )(4).

Thus, 49 U.S.C. 24308(f) sets up a two-stage process involving, first, a “less than 80 percent” threshold to indicate whether a train's OTP allows for an investigation; and second, if this prerequisite is satisfied, the Board may investigate (or on complaint, shall investigate) the causes of the deficient OTP, which could lead to findings, recommendations, and other possible relief as detailed in the statute.

On May 15, 2015, the Board instituted this rulemaking proceeding in response to a petition filed by the Association of American Railroads (AAR). See On-Time Performance Under Sec. 213 of the Passenger Rail Inv. & Improvement Act of 2008, EP 726 (STB served May 15, 2015). In that decision, the Board stated that a rulemaking would provide clarity regarding the “less than 80 percent” OTP threshold in all applicable cases and allow the Board to obtain the full range of stakeholder perspectives in one docket and avoid the potential relitigation of the issue in each case, thereby conserving party and agency resources.1

On December 28, 2015, the Board issued a Notice of Proposed Rulemaking (NPRM) that proposed a definition for OTP derived from a previous definition used by our predecessor, the Interstate Commerce Commission (ICC).2 The Board's proposed rule read: “A train is `on time' if it arrives at its final terminus no more than five minutes after its scheduled arrival time per 100 miles of operation, or 30 minutes after its scheduled arrival time, whichever is less.” NPRM, slip op. at 4-9. The Board sought comments on this definition but also encouraged the public to propose other alternatives, including the alternative adopted here: factoring into the calculation a train's punctuality at intermediate stops rather than the final terminus only. See NPRM, slip op. at 6. The Board also established a procedural schedule providing for comments and replies.

The Board received 121 comments and replies on its proposed rule from the railroad industry (both passenger and freight), states, the U.S. Department of Transportation, elected officials at all levels of government, individual members of the traveling public, and various stakeholder groups.

Shortly after the comment period in this docket closed, in Association of American Railroads v. Department of Transportation, 821 F.3d 19 (D.C. Cir. 2016), the United States Court of Appeals for the District of Columbia Circuit held that the structure of Section 207 of PRIIA violates the Due Process Clause of the U.S. Constitution because, in the court's view, it authorized Amtrak, “an economically self-interested actor,” to “regulate its competitors”—that is, the railroads that host Amtrak passenger trains outside the Northeast Corridor. Accordingly, the FRA and Amtrak metrics are currently invalid.

The Board's Authority. Several freight rail interests argue that—even though section 24308(f)(1) allows, and in some circumstances requires, the Board to investigate the causes of poor “on time performance,” including whether a host rail carrier has failed to provide preference to Amtrak over its rail line as required by section 24308(c)—the Board lacks authority to give meaning to the term “on-time performance.” They argue this even though PRIIA provides that if the on-time performance of an Amtrak passenger train falls below 80% for two consecutive quarters, such performance may warrant an investigation by the Board.

Although regulatory agencies like the Board typically have the authority to define the terms in provisions of the statutes that they administer, AAR and freight railroad commenters (Canadian National Railway Company (CN), CSX Transportation, Inc. (CSXT), and Norfolk Southern Railway Company (NS)) argue that the Board does not have the authority to define on-time performance because Congress gave that responsibility jointly to Amtrak and FRA in Section 207 of PRIIA. We disagree.

In National Railroad Passenger Corp.—Section 213 Investigation of Substandard Performance on Rail Lines of Canadian National Railway (Illini/Saluki), NOR 42134, slip op. at 2 (STB served Dec. 19, 2014), the Board concluded that the unconstitutionality of Section 207 of PRIIA does not prevent the Board from initiating investigations of on-time performance problems under section 24308(c). Indeed, the only way for the Board now to fulfill its responsibilities under 49 U.S.C. 24308(f) is to define OTP as a threshold for such investigations.

CN and AAR in their initial comments (see CN Feb. 8 Comment 4; AAR Feb. 8 Comment 6) raise concerns that host freight railroads may be faced with two inconsistent sets of regulations (i.e., issued by (1) FRA/Amtrak and (2) the Board) if section 24308(f) investigations are instituted using the OTP definition established in this final rule and the courts ultimately uphold the validity of the PRIIA Section 207 metrics and standards. However, at present there are not two different operative standards, and there may never be. We will, therefore, address the issue of conflicting OTP definitions if and when the issue should arise.

CN and AAR argue that the issue is not whether section 24308(f) survives if Section 207 of PRIIA is unconstitutional, but whether Congress delegated to the Board in section 24308(f)(1) the authority to define on-time performance. They contend that because Congress explicitly delegated the authority to define on-time performance to FRA and Amtrak in Section 207 of PRIIA, the Board lacks that authority even if FRA and Amtrak are found not to have the legal authority to meet the statutory command.3

An agency has implied authority to implement “a particular statutory provision . . . when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” United States v. Mead Corp., 533 U.S. 218, 226-27 (2001).4 “Sometimes, the legislative delegation to an agency on a particular question is implicit rather than explicit.” Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984). Several federal courts of appeals have held that an administrative agency with rulemaking authority has implicit authority to fill a gap exposed by the Supreme Court's invalidation of a portion of a statute. See Pittston Co. v. United States, 368 F.3d 385, 403-04 (4th Cir. 2004); Sidney Coal Co. v. Social Security Admin., 427 F.3d 336, 346 (6th Cir. 2005).5

Here, as in Pittston and Sidney Coal, the invalidation of Section 207 of PRIIA leaves a gap that the Board has the delegated authority to fill by virtue of its authority to adjudicate complaints brought by Amtrak against host freight railroads for violations of Amtrak's statutory preference and to award damages where a preference violation is found. Any other result would gut the remedial scheme, a result that Congress clearly did not intend.

All-Stations OTP. As summarized below, the Board's NPRM proposed to calculate OTP solely on the basis of train arrivals at endpoint termini (Endpoint OTP). The Board proposed Endpoint OTP as an appropriate threshold for bringing OTP cases under 49 U.S.C. 24308(f)(1) because it would be “clear and relatively easy to apply,” i.e., comprehensible to the traveling public and simple to describe and implement. In addition, Amtrak's public OTP data 6 suggest that under either an Endpoint OTP or All-Stations OTP standard, the threshold for initiating a case could be triggered in a comparable number of cases, if long-established trends continue. Nevertheless, many commenters perceived that in proposing an Endpoint OTP threshold, the Board was devoting insufficient attention to intermediate stations, their passengers, and even the states in which the intermediate stations are located. That was not the Board's intent; rather, the intent was solely to set a threshold for accepting cases.

Except for the freight railroad industry, virtually all commenters urge the Board to define “on time” based on train punctuality at all stations, rather than just at the endpoints (as originally proposed), because the majority of the traveling public are destined for intermediate rather than endpoint stations. (See, e.g., Amtrak Feb. 8 Comment 7.) Moreover, the examples provided by individual passengers—e.g., of waiting for hours at unattended stations in remote or unsecured locations at night for late trains that would be deemed “on time” at their endpoints—convince us that an “all-stations” definition will more appropriately reflect the principle that rail passengers destined for every station along a line, regardless of its size, should have the same expectation of punctuality. This principle underlies the Congressional aspiration that “Amtrak shall . . . operate Amtrak trains, to the maximum extent feasible, to all station stops within 15 minutes of the time established in public timetables.” 49 U.S.C. 24101(c)(4) (emphasis added).7 We therefore will incorporate an all-stations calculation in the threshold for bringing cases to the Board under 49 U.S.C. 24308(f).

As the freight railroads point out, and as FRA and Amtrak themselves acknowledged in their final metrics and standards under PRIIA Section 207 (in which they deferred application of an all-stations test for OTP for two years to allow for schedule adjustments), some schedules, particularly for long-distance trains, may need to be modified to more realistically distribute recovery time in light of an all-stations threshold. (See CN Mar. 30 Reply 3-4; AAR Mar. 30 Reply 6-7.) For example, as CSXT notes, considerable care must be exercised in distributing recovery time along a route, to avoid site-specific operational concerns. (See CSXT Mar. 30 Reply 10.) Moreover, a number of current passenger rail schedules insert a very large share of recovery time between the last stations on a route. To support all stations OTP on such a route could require a reevaluation and potential reallocation of recovery time across the entire route. We are confident, however, that following adoption of an all-stations approach to OTP in this rulemaking, rail operations planners from all affected parties will be able to devise appropriate, realistic, and up-to-date modifications to published schedules that are consistent both with all-stations OTP and with Congress' explicit intent in PRIIA to improve intercity passenger rail service. Furthermore, considerations regarding the published schedules may enter into the investigation stage of the two-stage process contemplated in the statute.

The 15-Minute Allowance. In the NPRM, the Board proposed that an Amtrak train would be considered on-time if it arrives at its final terminus no more than five minutes after its scheduled arrival time per 100 miles of operation, or 30 minutes after its scheduled arrival time, whichever is less. Based on the comments received,8 the Board has decided to deem a train's arrival or departure “on time” if it occurs no later than 15 minutes after its scheduled time. In our view, this 15-minute allowance has several advantages. First, it is consistent with the Congressional goal set forth in 49 U.S.C. 24101(c)(4).9 Second, in comparison with the tiered proposal, it is simple and easy to apply. Third, it treats all stations and all passengers equally. Finally, Amtrak has long been calculating All-Stations OTP with a constant 15-minute allowance at each station,10 so the data needed to apply this final rule are readily available to the public and stakeholders.

Contract On-Time Performance Versus Published Schedules. The freight railroads generally argue that OTP should be measured in accordance with the criteria contained in their private contracts with Amtrak (contract OTP) rather than the published Amtrak timetables. (See Union Pac. R.R. (UP) Feb. 8 Comment 3; AAR Feb. 8 Comment 10; CN Feb. 8 Comment 5.) However, the Congressional goal at 49 U.S.C. 24101(c)(4) refers to the “time established in public timetables.” In addition to being consistent with the Congressional goal, a comparison of publicly scheduled train timings with actual train timings is also the simplest and most transparent way to compare a train's OTP, as experienced by the traveling public, with the “less than 80 percent” threshold mandated in 49 U.S.C. 24308(f)(1). Although the private contracts between Amtrak and its host carriers will not enter into the threshold stage of an OTP case, such contracts could be relevant in the investigation stage.

Several freight railroads and AAR claim that if the Board does not account for the problems with the schedules and simply relies on the published schedules as they are, it could result in an avalanche of complaints and “false positives”—trains that technically fall below the OTP threshold but are not necessarily poor performers because the schedules are allegedly “unrealistic.” (See AAR Mar. 30 Reply; CN Mar. 30 Reply; UP Mar. 30 Reply; NS Mar. 30 Reply; CSXT Mar. 30 Reply.) Because the complainant has the primary burden of proving its case and litigation is resource intensive, the adopted approach is not expected to result in an overwhelming number of claims.

Finally, some commenters (e.g., Virginia DOT, Michigan DOT, States for Passenger Rail Coalition) argue that the Board should set standards for the development of route schedules or conduct further study of the schedules prior to adopting rules. However, while section 24308(f) permits the Board, in conducting a particular investigation, to review the extent to which scheduling may contribute to the delays being investigated and to identify reasonable measures to improve OTP, the statute does not include generalized authority, outside a particular investigation, for the Board to set standards for the development of schedules. Thus, what these commenters are asking the Board to do is beyond the scope of our authority and this rulemaking.

Third-Party (State) Agreements. A number of states and others expressed concern that the Board's OTP rule could undermine or preempt separate agreements entered into between states, operators, hosts, and others for the improvement of passenger rail service in specific corridors—for example, service outcomes agreements under FRA's High-Speed Intercity Passenger Rail (HSIPR) Program. (See States for Passenger Rail Coalition, Inc. Feb. 8 Comment 3; Cal. State Transp. Agency Feb. 8 Comment 3.) We reiterate, however, that the Board is defining “on time” and describing the calculation of OTP only for the purpose of determining whether the “less than 80 percent” threshold for bringing an OTP complaint has been met. The Board neither intends nor expects that its OTP definition here will have any applicability beyond that limited purpose.

Multicarrier Routes. Several commenters, including freight railroad interests, argue that for routes where there are multiple host carriers, OTP should not be measured for the entire route, but for each host carrier's segment. The commenters argue that this would allow the Board to determine if the delays are occurring on one carrier's segment and, if so, to properly narrow the investigation solely to that carrier's conduct. The commenters argue that if the Board does not do so, a carrier that is meeting its statutory duty could be unfairly drawn into an investigation.

Although the Board understands that concern, the attribution of delays to hosts and specific causes more properly pertains to—indeed, would likely be among the initial topics addressed in—the investigatory phase of a case. Moreover, the statutory mandate (49 U.S.C. 24308(f)) specifically refers to the “on-time performance of any intercity passenger train,” irrespective of the number of host carriers involved in the train's operation. Therefore, the adopted approach is consistent with the statute.

Calculation of OTP. Two individuals take issue with the Board's proposal to exclude from the OTP analysis any train that does not operate “from its scheduled origin to its scheduled destination.” The commenters argue that these trains should be accounted for, because they might represent instances of the most severe service failures.

The changes adopted in this final rule will lessen the potential impact of this issue. Endpoint OTP, as proposed in the NPRM, would not have included any train that does not serve both its scheduled endpoints. By contrast, under the all-stations calculation method, every departure from origin and every arrival at subsequent stations that actually occurs—regardless of whether the train originates at its scheduled origin or completes its run to its scheduled destination—will enter into the denominator. The Board will exclude, from its prescribed calculation method, only trains that do not operate at all, or stations on a curtailed train's route that do not actually receive service. This is consistent with the statute, which provides that Congressionally-mandated investigations in 49 U.S.C. 24308(f)(1) should analyze “delays” (not cancellations). In addition, in a train operation that does not take place, there typically would be no practical way to determine whether preference (the focus of 49 U.S.C. 24308(f)(2)) was granted or withheld. Finally, because Amtrak generally cancels or curtails its services only in the event of emergencies or extreme weather events (such as the severe flooding in South Carolina in the Fall of 2015), it is doubtful that inclusion of such incidents in the denominator of the calculation would shed light on what is taking place under typical operating conditions for a particular train. To clarify this point, language is being added to the final rule making clear that the OTP calculation includes only “actual” arrivals and departures.

Additional issues, including the following, were raised by certain commenters, but the issues are beyond the scope of this rulemaking.

Per-Train vs. Per-Route Calculation. Some railroad interests argue that the Board should not calculate OTP for all trains on the route, but rather, for each individual train that operates on that route. This argument goes to the question of what constitutes a “train,” an issue that this rulemaking does not address and was not intended to address.

International Service. Some commenters note that the proposed OTP standard rule does not provide any guidance for cross-border routes (i.e., those that go into Canada). No such issue has arisen in a case brought to the Board, and this issue goes to the question of what constitutes a “train,” an issue that, again, this rulemaking does not address and was not intended to address.

Eligible Complainants. The Michigan Association of Railroad Passengers argues that the Board should expand the pool of the parties that can file complaints to include passengers. However, the parties eligible to bring complaints under section 24308(f) are specified by that statute, and we are not at liberty to expand it in this rulemaking.

Time Limits on Data. Some freight railroad commenters also state that without a time limit on the period during which the OTP deficiency at issue is alleged to have occurred (e.g., the most recent four quarters), outdated and unnecessary claims could be filed regarding a train that is currently performing well. (See CN Feb. 8 Comment 6; AAR Feb. 8 Comment 14.) This issue, too, is beyond the scope of this rulemaking, which was intended solely to define “on time” and specify the formula for calculating OTP for purposes of 49 U.S.C. 24308(f).

For the reasons discussed above, we are modifying the rule as initially proposed and adopting the all-stations approach. This approach will be codified at 49 CFR 1040. The final regulations are attached at the end of this decision.

Section 1040.1 makes explicit the strictly limited purpose of the rulemaking, as discussed above: To define “on time” and specify the formula for calculating OTP so as to trigger implementation of 49 U.S.C. 24308(f).

Section 1040.2 states that a train's arrival at or departure from a particular station is “on time” if it occurs no later than 15 minutes after its scheduled time. This section embodies the 15-minute allowance contained in the longstanding Congressional goal for Amtrak at 49 U.S.C. 24101(c)(4).

Section 1040.3 implements the “all-stations” option that was suggested as an alternative to endpoint OTP in the NPRM. Pursuant to 49 U.S.C. 24308(f)(1), which states that a train can be the subject of an OTP complaint if its OTP “averages less than 80 percent for any two consecutive calendar quarters,” Section 1040.3 describes the method for calculating a train's OTP in each quarter. Specifically, OTP is the percentage equivalent to the fraction (1) whose denominator is the total number of the train's actual (a) departures from its origin station, (b) arrivals at all intermediate stations, and (c) arrivals at its destination station, during that calendar quarter, and (2) whose numerator is the total number of such actual departures and arrivals that are “on time” under § 1040.2—i.e., that occur no later than 15 minutes after their scheduled time.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, generally requires a description and analysis of new rules that would have a significant economic impact on a substantial number of small entities. In drafting a rule, an agency is required to: (1) Assess the effect that its regulation will have on small entities; (2) analyze effective alternatives that may minimize a regulation's impact; and (3) make the analysis available for public comment. 5 U.S.C. 601-604. Under section 605(b), an agency is not required to perform an initial or final regulatory flexibility analysis if it certifies that the proposed or final rules will not have a “significant impact on a substantial number of small entities.”

Because the goal of the RFA is to reduce the cost to small entities of complying with federal regulations, the RFA requires an agency to perform a regulatory flexibility analysis of small entity impacts only when a rule directly regulates those entities. In other words, the impact must be a direct impact on small entities “whose conduct is circumscribed or mandated” by the proposed rule. White Eagle Coop. Ass'n v. Conner, 553 F.3d 467, 478, 480 (7th Cir. 2009). An agency has no obligation to conduct a small entity impact analysis of effects on entities that it does not regulate. United Distrib. Cos. v. FERC, 88 F.3d 1105, 1170 (D.C. Cir. 1996).

In the NPRM, the Board already certified under 5 U.S.C. 605(b) that the proposed rule would not have a significant economic impact on a substantial number of small entities within the meaning of the RFA. The Board explained that the proposed rule would not place any additional burden on small entities, but rather clarify an existing obligation. The Board further explained that, even assuming for the sake of argument that the proposed regulation were to create an impact on small entities, which it would not, the number of small entities so affected would not be substantial. A copy of the NPRM was served on the U.S. Small Business Administration (SBA).

The final rule adopted here uses a different measure of “on time” and “on-time performance” for purposes of Section 213 of PRIIA than those proposed in the NPRM. However, the same basis for the Board's certification of the proposed rule applies to the final rule adopted here. The final rule would not create a significant impact on a substantial number of small entities. Host carriers have been required to allow Amtrak to operate over their rail lines since the 1970s. Moreover, an investigation concerning delays to intercity passenger traffic is a function of Section 213 of PRIIA rather than this rulemaking. The final rule only defines “on-time performance” for the purpose of implementing the rights and obligations already established in Section 213 of PRIIA. Thus, the rule does not place any additional burden on small entities, but rather clarifies an existing obligation. Moreover, even assuming, for the sake of argument, that the final rule were to create an impact on small entities, which it does not, the number of small entities so affected would not be substantial. The final rule applies in proceedings involving Amtrak, currently the only provider of intercity passenger rail transportation subject to PRIIA, and its host railroads. For almost all of its operations, Amtrak's host carriers are Class I rail carriers, which are not small businesses under the Board's new definition for RFA purposes.11 Currently, out of the several hundred Class III railroads (“small businesses” under the Board's new definition) nationwide, only approximately 10 host Amtrak traffic.12 Therefore, the Board certifies under 5 U.S.C. 605(b) that the final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the RFA. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration, Washington, DC 20416.

The final rule is categorically excluded from environmental review under 49 CFR 1105.6(c).

It is ordered:

1. The final rule set forth below is adopted and will be effective on August 27, 2016. Notice of the rule adopted here will be published in the Federal Register.

2. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration.

3. This decision is effective on the date of service.

For the reasons set forth in the preamble, the Surface Transportation Board amends title 49, chapter X, subchapter A, of the Code of Federal Regulations by adding part 1040 as follows:

Executive Summary

Purpose of this document. On May 24, 1996, we published in the Federal Register a final rule designating 3,887,800 acres (ac) (1,573,340 hectares (ha)) of critical habitat for the marbled murrelet in the States of Washington, Oregon, and California (61 FR 26256). On October 5, 2011, we published in the Federal Register a final rule revising critical habitat for the marbled murrelet (76 FR 61599), resulting in the removal of approximately 189,671 ac (76,757 ha) of critical habitat in the States of Oregon and California. In a proposed rule published in the Federal Register August 25, 2015 (80 FR 51506), we reconsidered the 1996 final rule, as revised in 2011, for the purpose of assessing whether all of the designated areas meet the statutory definition of critical habitat. We did not propose any changes to the boundaries of the specific areas identified as critical habitat.

Why we needed to reconsider the rule. In 2012, the American Forest Resource Council (AFRC) and other parties filed suit against the Service, challenging the designation of critical habitat for the marbled murrelet, among other things. After this suit was filed, the Service concluded that the 1996 rule that first designated critical habitat for the marbled murrelet, as well as the 2011 rule that revised that designation, did not comport with recent case law holding that the Service should specify which areas were occupied at the time of listing, and should further explain why unoccupied areas are essential for conservation of the species. Hence, the Service moved for a voluntary remand of the critical habitat rule, requesting until September 30, 2015, to issue a proposed rule, and until September 30, 2016, to issue a final rule. On September 5, 2013, the court granted the Service's motion, leaving the current critical habitat rule in effect pending completion of the remand.

The basis for our action. Under the Act, any species that is determined to be an endangered or threatened species shall, to the maximum extent prudent and determinable, have habitat designated that is considered to be critical habitat. Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best scientific data available after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. Section 4 of the Act and its implementing regulations in part 424 of title 50 of the Code of Federal Regulations (50 CFR part 424) set forth the procedures for designating or revising critical habitat for listed species.

We considered the economic impacts of the proposed rule. We provided our evaluation of the potential economic impacts of the proposed determination regarding critical habitat for the marbled murrelet in the proposed rule. Following the close of the comment period, we reviewed and evaluated all information submitted during the comment period that may pertain to our consideration of the probable incremental economic impacts of the proposed determination. We have incorporated the comments into this final determination.

Public comment. The comment period on our proposed rule and our evaluation of probable economic impacts of the proposed rule was open for 60 days, beginning with the publication of the proposed rule on August 25, 2015 (80 FR 51506), through October 26, 2015. We considered all substantive and relevant comments and information received from the public during the comment period.

For additional information on previous Federal actions concerning the marbled murrelet, refer to the final listing rule published in the Federal Register on October 1, 1992 (57 FR 45328), the final rule designating critical habitat published in the Federal Register on May 24, 1996 (61 FR 26256), and the final revised critical habitat rule published in the Federal Register on October 5, 2011 (76 FR 61599). In the 1996 final critical habitat rule, we designated 3,887,800 ac (1,573,340 ha) of critical habitat in 32 units on Federal and non-Federal lands. On September 24, 1997, we completed a recovery plan for the marbled murrelet in Washington, Oregon, and California (USFWS 1997, entire). On January 13, 2003, we entered into a settlement agreement with AFRC and the Western Council of Industrial Workers, whereby we agreed to review the marbled murrelet critical habitat designation and make any revisions deemed appropriate after a revised consideration of economic and any other relevant impacts of designation. On April 21, 2003, we published in the Federal Register a notice initiating a 5-year review of the marbled murrelet (68 FR 19569) and published a second information request for the 5-year review on July 25, 2003 (68 FR 44093). The 5-year review evaluation report was finished in March 2004 (McShane et al. 2004), and the 5-year review was completed on August 31, 2004.

On September 12, 2006, we published in the Federal Register a proposed revision to critical habitat for the marbled murrelet, which included adjustments to the original designation and proposed several exclusions under section 4(b)(2) of the Act (71 FR 53838). On June 26, 2007, we published in the Federal Register a document announcing the availability of a draft economic analysis (72 FR 35025) related to the September 12, 2006, proposed critical habitat revision (71 FR 53838). On March 6, 2008, we published a document in the Federal Register (73 FR 12067) stating that the critical habitat for marbled murrelet should not be revised due to uncertainties regarding U.S. Bureau of Land Management (BLM) revisions to its District Resource Management Plans in western Oregon, and that document fulfilled our obligations under the settlement agreement.

On July 31, 2008, we published in the Federal Register a proposed rule to revise currently designated critical habitat for the marbled murrelet by removing approximately 254,070 ac (102,820 ha) in northern California and Oregon from the 1996 designation (73 FR 44678). A second 5-year review was completed on June 12, 2009. On January 21, 2010, in response to a May 28, 2008, petition to delist the California/Oregon/Washington distinct population segment (DPS) of the marbled murrelet and our subsequent October 2, 2008, 90-day finding concluding that the petition presented substantial information (73 FR 57314; October 2, 2008), we published a 12-month finding notice in the Federal Register (75 FR 3424) determining that removing the marbled murrelet from the Federal List of Endangered and Threatened Wildlife (50 CFR 17.11) was not warranted. We also found that the Washington/Oregon/California population of the marbled murrelet is a valid DPS in accordance with the discreteness and significance criteria in our 1996 DPS policy (February 7, 1996; 61 FR 4722) and concluded that the DPS continues to meet the definition of a threatened species under the Act.

On October 5, 2011, we published in the Federal Register a final rule revising the critical habitat designation for the marbled murrelet (76 FR 61599). This final rule removed approximately 189,671 ac (76,757 ha) in northern California and southern Oregon from the 1996 designation, based on new information indicating these areas did not meet the definition of critical habitat for the marbled murrelet; this action resulted in a final revised designation of approximately 3,698,100 ac (1,497,000 ha) of critical habitat in Washington, Oregon, and California.

On January 24, 2012, AFRC filed suit against the Service to delist the marbled murrelet and vacate critical habitat. On March 30, 2013, the U.S. District Court for the District of Columbia granted in part AFRC's motion for summary judgment and denied a joint motion for vacatur of critical habitat pending completion of a voluntary remand. Following this ruling, the Service moved for a remand of the critical habitat rule, without vacatur, in light of recent case law setting more stringent requirements on the Service for specifying how designated areas meet the definition of critical habitat. On September 5, 2013, the district court ordered the voluntary remand without vacatur of the critical habitat rule, and set deadlines of September 30, 2015, for a proposed rule and September 30, 2016, for a final rule. The court ruled in favor of the Service regarding the Service's denial of plaintiffs' petition to delist the species, and that ruling was affirmed on appeal. See American Forest Resource Council v. Ashe, 946 F. Supp. 2d 1 (D.D.C. 2013), aff'd 2015 U.S. App. LEXIS 6205 (D.C. Cir., Feb. 27, 2015).

The Service, in conjunction with the National Marine Fisheries Service, published a rule revising 50 CFR 424.12, the criteria for designating critical habitat, on February 11, 2016 (81 FR 7413); the rule became effective on March 14, 2016. The revised regulations clarify, interpret, and implement portions of the Act concerning the procedures and criteria used for adding species to the Lists of Endangered and Threatened Wildlife and Plants and designating and revising critical habitat. Specifically, the amendments make minor edits to the scope and purpose, add and remove some definitions, and clarify the criteria and procedures for designating critical habitat. These amendments are intended to clarify expectations regarding critical habitat and provide for a more predictable and transparent critical habitat designation process.

As stated in the revised version of § 424.12, the regulatory provisions in that section apply only to rulemaking actions for which the proposed rule is published after that effective date. Thus, the prior version of § 424.12 will continue to apply to any rulemaking actions for which a proposed rule was published before that date. Since the proposed rule for marbled murrelet critical habitat was published on August 25, 2015, this final rule follows the version of § 424.12 that was in effect prior to March 14, 2016.

Based upon our evaluation of the best scientific data available and considering all information and comments received during the public comment period, we conclude that our evaluation and description of how all areas currently designated as critical habitat for the marbled murrelet meet the statutory definition under the Act is accurate as described in the proposed rule. Furthermore, we conclude that our description of the probable incremental impacts of our proposed rulemaking is accurate as described in the proposed rule. Therefore, there are no changes from the proposed rule in this final rule.

A final rule designating critical habitat for the marbled murrelet was published in the Federal Register on May 24, 1996 (61 FR 26256). A final rule revising the 1996 designation of critical habitat for the marbled murrelet was published in the Federal Register on October 5, 2011 (76 FR 61599). Both of these rules are available under the “Supporting Documents” section for this docket in the Federal eRulemaking Portal: http://www.regulations.gov at Docket Number FWS-R1-ES-2015-0070. It is our intent to discuss only those topics directly relevant to the 1996 and revised 2011 designations of critical habitat for the marbled murrelet. A complete description of the marbled murrelet, including a discussion of its life history, distribution, ecology, and habitat, can be found in the May 24, 1996, final rule (61 FR 26256) and the final recovery plan (USFWS 1997).

In this document, we have reconsidered our previous critical habitat designation for the marbled murrelet (May 24, 1996; 61 FR 26256, as revised on October 5, 2011; 76 FR 61599). The current designation consists of approximately 3,698,100 ac (1,497,000 ha) of critical habitat in Washington, Oregon, and California. The critical habitat consists of 101 subunits: 37 in Washington, 33 in Oregon, and 31 in California. We have reconsidered the final rule for the purpose of evaluating whether all areas currently designated meet the definition of critical habitat under the Act. We have described and assessed each of the elements of the definition of critical habitat, and evaluated whether these statutory criteria apply to the current designation of critical habitat for the marbled murrelet. Here we present the following information relevant to our evaluation:

I. The statutory definition of critical habitat.

II. A description of the physical or biological features essential to the conservation of the marbled murrelet, for the purpose of evaluating whether the areas designated as critical habitat provide these essential features.

III. The primary constituent elements for the marbled murrelet.

IV. A description of why those primary constituent elements may require special management considerations or protection.

V. Our standard for defining the geographical areas occupied by the species at the time of listing.

VI. The evaluation of those specific areas within the geographical area occupied at the time of listing for the purpose of determining whether designated critical habitat meets the definition under section 3(5)(A)(i) of the Act.

VII. An additional evaluation of all critical habitat to determine whether the designated units meet the standard of being essential to the conservation of the species, under section 3(5)(A)(ii) of the Act. We conducted this analysis to assess whether all areas of critical habitat meet the statutory definition under either of the definition's prongs, regardless of occupancy. This approach is consistent with the ruling in Home Builders Ass'n of Northern California v. U.S. Fish and Wildlife Service, 616 F.3d 983 (9th Cir.), cert. denied 131 S.Ct. 1475 (2011), in which the court upheld a critical habitat rule in which the Service had determined that the areas designated, whether occupied or not, met the more demanding standard of being essential for conservation.

VIII. Restated correction to preamble language in 1996 critical habitat rule.

IX. Effects of critical habitat designation under section 7 of the Act.

X. As required by section 4(b)(2) of the Act, consideration of the potential economic impacts of the rule.

XI. Final determination that all areas currently designated as critical habitat for the marbled murrelet meet the statutory definition under the Act.

XII. Summary of Comments and Responses

Critical habitat is defined in section 3 of the Act as:

(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features.

(a) Essential to the conservation of the species, and

(b) Which may require special management considerations or protection; and

(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

Under the first prong of the Act's definition of critical habitat in section 3(5)(a)(i), areas within the geographical area occupied by the species at the time it was listed may be included in critical habitat if they contain physical or biological features: (1) Which are essential to the conservation of the species; and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical and biological features within an area, we focus on the primary biological or physical constituent elements (primary constituent elements such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type) that are essential to the conservation of the species. Primary constituent elements (PCEs) are those specific elements of the physical or biological features that provide for a species' life-history processes and are essential to the conservation of the species.

Under the second prong of the Act's definition of critical habitat in section 3(5)(A)(ii), we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon the Secretary's determination that such areas are essential for the conservation of the species. For example, an area currently occupied by the species but that was not occupied at the time of listing may be essential for the conservation of the species and may be included in the critical habitat designation. In addition, if critical habitat is designated or revised subsequent to listing, we may designate areas as critical habitat that may currently be unoccupied but that were occupied at the time of listing. We designate critical habitat in areas outside the geographical area presently occupied by a species only when a designation limited to its present range would be inadequate to ensure the conservation of the species.

We identified the specific physical or biological features essential for the conservation of the marbled murrelet from studies of this species' habitat, ecology, and life history as described below. Additional information can be found in the final listing rule published in the Federal Register on October 1, 1992 (57 FR 45328), and the Recovery Plan for the Marbled Murrelet (USFWS 1997). In the 1996 final critical habitat rule (May 24, 1996; 61 FR 26256), we relied on the best available scientific information to describe the terrestrial habitat used for nesting by the marbled murrelet. For this 2016 rule reconsideration, the majority of the following information is taken directly from the 1996 final critical habitat rule, where the fundamental physical or biological features essential to the marbled murrelet as described therein (in the section titled Ecological Considerations) remain valid (May 24, 1996; 61 FR 26256).

Where newer scientific information is available that refutes or validates the information presented in the 1996 final critical habitat rule, that information is provided here and is so noted. However, this final rule does not constitute a complete summary of all new scientific information on the biology of the marbled murrelet since 1996. Because this rule reconsideration addresses the 1996 final critical habitat, as revised in 2011 (October 5, 2011; 76 FR 61599), which designated critical habitat only in the terrestrial environment, the following section will solely focus on the terrestrial nesting habitat features. Forested areas with conditions that are capable of supporting nesting marbled murrelets are referred to as “suitable nesting habitat.” Loss of such nesting habitat was the primary basis for listing the marbled murrelet as threatened; hence protection of such habitat is essential to the conservation of the species. We consider the information provided here to represent the best available scientific data with regard to the physical or biological features essential for the marbled murrelet's use of terrestrial habitat.

Throughout the forested portion of the species' range, marbled murrelets typically nest in forested areas containing characteristics of older forests (Binford et al. 1975, p. 305; Quinlan and Hughes 1990, entire; Hamer and Cummins 1991, pp. 9-13; Kuletz 1991, p. 2; Singer et al. 1991, pp. 332-335; Singer et al. 1992, entire; Hamer et al. 1994, entire; Hamer and Nelson 1995, pp. 72-75; Ralph et al. 1995a, p. 4). The marbled murrelet population in Washington, Oregon, and California nests in most of the major types of coniferous forests (Hamer and Nelson 1995, p. 75) in the western portions of these States, wherever older forests remain inland of the coast. Although marbled murrelet nesting habitat characteristics may vary throughout the range of the species, some general habitat attributes are characteristic throughout its range, including the presence of nesting platforms, adequate canopy cover over the nest, landscape condition, and distance to the marine environment (Binford et al. 1975, pp. 315-316; Hamer and Nelson 1995, pp. 72-75; Ralph et al. 1995b, p. 4; McShane et al. 2004, p. 4-39).

Individual tree attributes that provide conditions suitable for nesting (i.e., provide a nesting platform) include large branches (ranging from 4 to 32 inches (in) (10 to 81 centimeters (cm)), with an average of 13 in (32 cm) in Washington, Oregon, and California) or forked branches, deformities (e.g., broken tops), dwarf mistletoe infections, witches' brooms, and growth of moss or other structures large enough to provide a platform for a nesting adult marbled murrelet (Hamer and Cummins 1991, p. 15; Singer et al. 1991, pp. 332-335; Singer et al. 1992, entire; Hamer and Nelson 1995, p. 79). These nesting platforms are generally located greater or equal to 33 feet (ft) (10 meters (m)) above ground (reviewed in Burger 2002, pp. 41-42 and McShane et al. 2004, pp. 4-55-4-56). These structures are typically found in old-growth and mature forests, but may be found in a variety of forest types including younger forests containing remnant large trees. Since 1996, research has confirmed that the presence of platforms is considered the most important characteristic of marbled murrelet nesting habitat (Nelson 1997, p. 6; reviewed in Burger 2002, pp. 40, 43; McShane et al. 2004, pp. 4-45-4-51, 4-53, 4-55, 4-56, 4-59; Huff et al. 2006, pp. 12-13, 18). Platform presence is more important than the size of the nest tree because tree size alone may not be a good indicator of the presence and abundance of platforms (Evans Mack et al. 2003, p. 3). Tree diameter and height can be positively correlated with the size and abundance of platforms, but the relationship may change depending on the variety of tree species and forest types that marbled murrelets use for nesting (Huff et al. 2006, p. 12). Overall, nest trees in Washington, Oregon, and northern California have been greater than 19 in (48 cm) diameter at breast height (dbh) and greater than 98 ft (30 m) tall (Hamer and Nelson 1995, p. 81; Hamer and Meekins 1999, p. 10; Nelson and Wilson 2002, p. 27).

Northwestern forests and trees typically require 200 to 250 years to attain the attributes necessary to support marbled murrelet nesting, although characteristics of nesting habitat sometimes develop in younger coastal redwood (Sequoia sempervirens) and western hemlock (Tsuga heterophylla) forests. Forests with older residual trees remaining from previous forest stands may also develop into nesting habitat more quickly than those without residual trees. These remnant attributes can be products of fire, windstorms, or previous logging operations that did not remove all of the trees (Hansen et al. 1991, p. 383; McComb et al. 1993, pp. 32-36). Other factors that may affect the time required to develop suitable nesting habitat characteristics include site productivity and microclimate.

Through the 1995 nesting season, 59 active or previously used tree nests had been located in Washington (9 nests), Oregon (36 nests), and California (14 nests) (Hamer and Nelson 1995, pp. 70-71; Nelson and Wilson 2002, p. 134; Washington Department of Fish and Wildlife murrelet database; California Department of Fish and Game murrelet database). All of the nests for which data were available in 1996 in Washington, Oregon, and California were in large trees that were more than 32 in (81 cm) dbh (Hamer and Nelson 1995, p. 74). Of the 33 nests for which data were available, 73 percent were on a moss substrate and 27 percent were on litter, such as bark pieces, conifer needles, small twigs, or duff (Hamer and Nelson 1995, p. 74). The majority of nest platforms were created by large or deformed branches (Hamer and Nelson 1995, p. 79). Nests found subsequently have characteristics generally consistent with these tree diameter and platform sources (McShane et al. 2004, pp. 4-50 to 4-59; Bloxton and Raphael 2009, p. 8). However, in Oregon, nests were found in smaller diameter trees (as small as 19 in (49 cm)) that were distinguished by platforms provided by mistletoe infections (Nelson and Wilson 2002, p. 27). In Washington, one nest was found on a cliff (i.e., ground nest) that exhibited features similar to a tree platform, such as vertical and horizontal cover (Bloxton and Raphael 2009, pp. 8 and 33). In central California, nest platforms were located on large limbs and broken tops with 32.3 percent mean moss cover on nest limbs (Baker et al. 2006, p. 944).

More than 94 percent of the nests for which data were available in 1996 were in the top half of the nest trees, which may allow easy nest access and provide shelter from potential predators and weather. Canopy cover directly over the nests was typically high (average 84 percent; range 5 to 100 percent) in Washington, Oregon, and California (Hamer and Nelson 1995, p. 74). This cover may provide protection from predators and weather. Such canopy cover may be provided by trees adjacent to the nest tree, or by the nest tree itself. Canopy closure of the nest stand/site varied between 12 and 99 percent and averaged 48 percent (Hamer and Nelson 1995, p. 73). Information gathered subsequent to 1996 confirms that additional attributes of the platform are important including both vertical and horizontal cover and substrate. Known nest sites have platforms that are generally protected by branches above (vertical cover) or to the side (horizontal cover) (Huff et al. 2006, p. 14). Marbled murrelets appear to select limbs and platforms that provide protection from predation (Marzluff et al. 2000, p. 1135; Luginbuhl et al 2001, p. 558; Raphael et al. 2002a, pp. 226, 228) and inclement weather (Huff et al. 2006, p. 14). Substrate, such as moss, duff, or needles on the nest limb is important for protecting the egg and preventing it from falling (Huff et al. 2006, p. 13).

Nests have been located in forested areas dominated by coastal redwood, Douglas-fir (Pseudotsuga menziesii), mountain hemlock (Tsuga mertensiana), Sitka spruce (Picea sitchensis), western hemlock, and western red cedar (Thuja plicata) (Binford et al. 1975, p. 305; Quinlan and Hughes 1990, entire; Hamer and Cummins 1991, p. 15; Singer et al. 1991, p. 332, Singer et al.1992, p. 2; Hamer and Nelson 1995, p. 75). Individual nests in Washington, Oregon, and California have been located in Douglas-fir, coastal redwood, western hemlock, western red cedar, and Sitka spruce trees (Hamer and Nelson 1995, p. 74).

For nesting habitat to be accessible to marbled murrelets, it must occur close enough to the marine environment for marbled murrelets to fly back and forth. The farthest inland distance for a site with nesting behavior detections is 52 mi (84 km) in Washington. The farthest known inland sites with nesting behavior detections in Oregon and California are 40 and 24 mi (65 and 39 km), respectively (Evans Mack et al. 2003, p. 4). Additionally, as noted below in the section titled Definition of Geographical Area Occupied at the Time of Listing, presence detections have been documented farther inland in Washington, Oregon, and California (Evans Mack et al. 2003, p. 4).

Prior to Euroamerican settlement in the Pacific Northwest, nesting habitat for the marbled murrelet was well distributed, particularly in the wetter portions of its range in Washington, Oregon, and California. This habitat was generally found in large, contiguous blocks of forest (Ripple 1994, p. 47) as described under the Management Considerations section of the 1996 final critical habitat rule (May 24, 1996; 61 FR 26256).

Areas where marbled murrelets are concentrated at sea during the breeding season are likely determined by a combination of terrestrial and marine conditions. However, nesting habitat appears to be the most important factor affecting marbled murrelet distribution and numbers. Marine survey data confirmed conclusions made in the supplemental proposed critical habitat rule (August 10, 1995; 60 FR 40892) that marine observations of marbled murrelets during the nesting season generally correspond to the largest remaining blocks of suitable forest nesting habitat (Nelson et al. 1992, p. 64; Varoujean et al. 1994, entire; Ralph et al. 1995b, pp. 5-6; Ralph and Miller 1995, p. 358).

Consistent with Varoujean et al.'s (1994) 1993 and 1994 aerial surveys, Thompson (1996, p. 11) found marbled murrelets to be more numerous along Washington's northern outer coast and less abundant along the southern coast. Thompson reported that this distribution appears to be correlated with: (1) Proximity of old-growth forest, (2) the distribution of rocky shoreline/substrate versus sandy shoreline/substrate, and (3) abundance of kelp (Thompson 1996, p. 11). In British Columbia, Canada, Rodway et al. (1995, pp. 83, 85, 86) observed marbled murrelets aggregating on the water close to breeding areas at the beginning of the breeding season and, for one of their two study areas, again in July as young were fledging. Burger (1995, pp. 305-306) reported that the highest at-sea marbled murrelet densities in both 1991 and 1993 were seen immediately adjacent to two tracts of old-growth forest, while areas with very low densities of marbled murrelets were adjacent to heavily logged watersheds. More recent evidence supports that detections of marbled murrelets at inland sites and densities offshore were higher in or adjacent to areas with large patches of old-growth, and in areas of low fragmentation and low isolation of old-growth patches (Raphael et al. 1995, pp. 188-189; Burger 2002, p. 54; Meyer and Miller 2002, pp. 763-764; Meyer et al. 2002, pp. 109-112; Miller et al. 2002, p. 100; Raphael et al. 2002a, p. 221; Raphael et al. 2002b, p. 337). Overall, landscapes with detections indicative of nesting behavior tended to have large core areas of old-growth and low amounts of overall edge (Meyer and Miller 2002, pp. 763-764; Raphael et al. 2002b, p. 331).

In contrast, where nesting habitat is limited in southwest Washington, northwest Oregon, and portions of California, few marbled murrelets are found at sea during the nesting season (Ralph and Miller 1995, p. 358; Varoujean and Williams 1995, p. 336; Thompson 1996, p. 11). For instance, as of 1996, the area between the Olympic Peninsula in Washington and Tillamook County in Oregon (100 mi (160 km)) had few sites with detections indicative of nesting behavior or sightings at sea of marbled murrelets. In California, approximately 300 mi (480 km) separate the large breeding populations to the north in Humboldt and Del Norte Counties from the southern breeding population in San Mateo and Santa Cruz Counties. This reach contained few marbled murrelets during the breeding season; however, the area likely contained significant numbers of marbled murrelets before extensive logging (Paton and Ralph 1988, p. 11, Larsen 1991, pp. 15-17). More recent at-sea surveys confirm the low numbers of marbled murrelets in marine areas adjacent to inland areas that have limited nesting habitat (Miller et al. 2012, p. 775; Raphael et al. 2015, p. 21).

Dispersal mechanisms of marbled murrelets are not well understood; however, social interactions may play an important role. The presence of marbled murrelets in a forest stand may attract other pairs to currently unused habitat within the vicinity. This may be one of the reasons marbled murrelets have been observed in habitat not currently suitable for nesting, but in close proximity to known nesting sites (Hamer and Cummins 1990, p. 14; Hamer et al. 1994, entire). Although marbled murrelets appear to be solitary in their nesting habits (Nelson and Peck 1995, entire), they are frequently detected in groups above the forest, especially later in the breeding season (USFWS 1995, pp. 14-16). Two active nests discovered in Washington during 1990 were located within 150 ft (46 m) of each other (Hamer and Cummins 1990, p. 47), and two nests discovered in Oregon during 1994 were located within 100 ft (33 m) of each other (USFWS 1995, p. 14). Therefore, unused habitat in the vicinity of known nesting habitat may be more important for recovering the species than suitable habitat isolated from known nesting habitat (USFWS 1995; USFWS 1997, p. 20). Similarly, marbled murrelets are more likely to discover newly developing habitat in proximity to sites with documented nesting behaviors. Because the presence of marbled murrelets in a forest stand may attract other pairs to currently unused habitat within the vicinity, the potential use of these areas may depend on how close the new habitat is to known nesting habitat, as well as distance to the marine environment, population size, and other factors (McShane et al. 2004, p. 4-78).

Marbled murrelets are believed to be highly vulnerable to predation when on the nesting grounds, and the species has evolved a variety of morphological and behavioral characteristics indicative of selection pressures from predation (Ralph et al. 1995b, p. 13). For example, plumage and eggshells exhibit cryptic coloration, and adults fly to and from nests by indirect routes and often under low-light conditions (Nelson and Hamer 1995a, p. 66). Potential nest predators include the great horned owl (Bubo virginianus), Cooper's hawk (Accipiter cooperii), barred owl (Strix varia), northwestern crow (Corvus caurinus), American crow (Corvus brachyrhynchos), and gray jay (Perisoreus canadensis) (Nelson and Hamer 1995b, p. 93; Marzluff et al. 1996, p. 22; McShane et al. 2004, p. 2-17). The common raven (Corvus corax), Steller's jay (Cyanocitta stelleri), and sharp-shinned hawk (Accipiter striatus) are known predators of eggs or chicks (Nelson and Hamer 1995b, p. 93, McShane et al. 2004, pp. 2-16-2-17). Based on experimental work with artificial nests, predation on eggs and chicks by squirrels and mice may also occur (Luginbuhl et al. 2001, p. 563; Bradley and Marzluff 2003, pp. 1183-1184). In addition, a squirrel has been documented rolling a recently abandoned egg off a nest (Malt and Lank 2007, p. 170).

From 1974 through 1993, of those marbled murrelet nests in Washington, Oregon, and California where nest success or failure was documented, approximately 64 percent of the nests failed. Of those nests, 57 percent failed due to predation (Nelson and Hamer 1995b, p. 93). Continuing research further supports predation as a significant cause of nest failure (McShane et al. 2004, pp. 2-16 to 2-19; Peery et al. 2004, pp. 1093-1094; Hebert and Golightly 2006, pp. 98-99; Hebert and Golightly 2007, pp. 222-223; Malt and Lank 2007, p. 165). The relatively high predation rate could be biased because nests near forest edges may be more easily located by observers and also more susceptible to predation, and because observers may attract predators. However, Nelson and Hamer (1995b, p. 94) believed that researchers had minimal impacts on predation in most cases because the nests were monitored from a distance and relatively infrequently, and precautions were implemented to minimize predator attraction. More recent research has relied on remotely operated cameras for observing nests, rather than people, in order to reduce the possible effects of human attraction (Hebert and Golightly 2006, p. 12; Hebert and Golightly 2007, p. 222).

Several possible reasons exist for the high observed predation rates of marbled murrelet nests. One possibility is that these high predation rates are normal, although it is unlikely that a stable population could have been maintained historically under the predation rates observed (Beissinger 1995, p. 390).

In the 1996 rule we hypothesized that populations of marbled murrelet predators such as corvids (jays, crows, and ravens) and great horned owls are increasing in the western United States, largely in response to habitat changes and food sources provided by humans (Robbins et al. 1986, pp. 43-46; Johnson 1993, pp. 58-60; Marzluff et al. 1994, pp. 214-216; National Biological Service 1996, entire), resulting in increased predation rates on marbled murrelets. Subsequent to the 1996 rule, surveys have confirmed that corvid populations are indeed increasing in western North America as a result of land use and urbanization (Marzluff et al. 2001, pp. 332-333; McShane et al. 2004, pp. 6-11; Sauer et al. 2013, pp. 18-19). However, breeding bird surveys in North America indicate that great horned owls are declining in 40 percent of the areas included in the surveys (Sauer et al. 2013, p. 17). Barred owls (Strix varia), foraging generalists that may prey on marbled murrelets, were not considered in 1996, but have subsequently been shown to be significantly increasing in numbers and distribution (Sauer et al. 2013, p. 17).

In the 1996 rule, we also posited that creation of greater amounts of forest edge habitat may increase the vulnerability of marbled murrelet nests to predation and ultimately lead to higher rates of predation. Edge effects have been implicated in increased forest bird nest predation rates for other species of birds (Chasko and Gates 1982, pp. 21-23; Yahner and Scott 1988, p. 160). In a comprehensive review of the many studies on the potential relationship between forest fragmentation, edge, and adverse effects on forest nesting birds, Paton (1994, p. 25) concluded that “strong evidence exists that avian nest success declines near edges.” Small patches of habitat have a greater proportion of edge than do large patches of the same shape. However, many of the studies Paton (1994, entire) reviewed involved lands where forests and agricultural or urban areas interface, or they involved experiments with ground nests that are not readily applicable to canopy nesters such as marbled murrelets. Paton (1994, p. 25), therefore, stressed the need for studies specific to forests fragmented by timber harvest in the Pacific Northwest and elsewhere.

Some research on this topic has been conducted in areas dominated by timber production and using nests located off the ground (Ratti and Reese 1988, entire; Rudnicky and Hunter 1993, entire; Marzluff et al. 1996, entire; Vander Haegen and DeGraaf in press, entire). Vander Haegen and DeGraaf (in press, p. 8; 1996, pp. 175-176) found that nests in shrubs less than 75 m (246 ft) from an edge were three times as likely to be depredated than nests greater than 75 m (264 ft) from an edge. Likewise, Rudnicky and Hunter (1993, p. 360) found that shrub nests on the forest edge were depredated almost twice as much as shrub nests located in the forest interior. They also observed that shrub nests were taken primarily by avian predators such as crows and jays, which is consistent with the predators believed to be impacting marbled murrelets, while ground nests were taken by large mammals such as raccoons and skunks. Ratti and Reese (1988, entire) did not find the edge relationship documented by Rudnicky and Hunter (1993, entire), Vander Haegen and DeGraaf (in press), and others cited in Paton (1994, entire). However, Ratti and Reese (1988, p. 488) did observe lower rates of predation near “feathered” edges compared to “abrupt” edges (e.g., clearcut or field edges), and suggested that the vegetative complexity of the feathered edge may better simulate natural edge conditions than do abrupt edges. These authors also concluded that their observations were consistent with Gates and Gysel's (1978, p. 881) hypothesis that birds are poorly adapted to predator pressure near abrupt artificial edge zones.

Studies of artificial and natural nests conducted in Pacific Northwest forests also indicate that predation of forest bird nests may be affected by habitat fragmentation, forest management, and land development (Hansen et al. 1991, p. 388; Vega 1993, pp. 57-61; Bryant 1994, pp. 14-16; Nelson and Hamer 1995b, pp. 95-97; Marzluff et al. 1996, pp. 31-35). Nelson and Hamer (1995b, p. 96) found that successful marbled murrelet nests were further from edge than unsuccessful nests. Marzluff et al. (1996, entire) conducted experimental predation studies that used simulated marbled murrelet nests, and more recent research documented predation of artificial marbled murrelet nests by birds and arboreal mammals (Luginbuhl et al. 2001, pp. 562-563; Bradley and Marzluff 2003, pp. 1183-1884; Marzluff and Neatherlin 2006, p. 310; Malt and Lank 2007, p. 165). Additionally, more recent research indicates proximity to human activity and landscape contiguity may interact to determine rate of predation (Marzluff et al. 2000, pp. 1136-1138, Raphael et al. 2002a, entire; Zharikov et al. 2006, p. 117; Malt and Lank 2007, p. 165). Interior forest nests in contiguous stands far from human activity appear to experience the least predation (Marzluff et al. 1996, p. 29; Raphael et al. 2002a, pp. 229-231).

More recent information indicates that marbled murrelets locate their nests throughout forest stands and fragments, including along various types of natural and human-made edges (Hamer and Meekins 1999, p. 1; Manley 1999, p. 66; Bradley 2002, pp. 42, 44; Burger 2002, p. 48; Nelson and Wilson 2002, p. 98). In California and southern Oregon, areas with abundant numbers of marbled murrelets were farther from roads, occurred more often in parks protected from logging, and were less likely to occupy old-growth habitat if they were isolated (greater than 3 mi (5 km)) from other nesting marbled murrelets (Meyer et al. 2002, pp. 95, 102-103). Marbled murrelets no longer occur in areas without suitable forested habitat, and they appear to abandon highly fragmented areas over time (areas highly fragmented before the late 1980s generally did not support marbled murrelets by the early 1990s) (Meyer et al. 2002, p. 103).

The conversion of large tracts of native forest to small, isolated forest patches with large edge can create changes in microclimate, vegetation species, and predator-prey dynamics—such changes are often collectively referred to as “edge effects.” Unfragmented, older-aged forests have lower temperatures and solar radiation and higher humidity compared to clearcuts and other open areas (e.g., Chen et al. 1993, p. 219; Chen et al. 1995, p. 74). Edge habitat is also exposed to increased temperatures and light, high evaporative heat loss, increased wind, and decreased moisture. Fundamental changes in the microclimate of a stand have been recorded at least as far as 787 ft (240 m) from the forest edge (Chen et al. 1995, p. 74). The changes in microclimate regimes with forest fragmentation can stress an old-growth associate species, especially a cold-water adapted seabird such as the marbled murrelet (Meyer and Miller 2002, p. 764), and can affect the distribution of epiphytes that marbled murrelets use for nesting. Branch epiphytes or substrate have been identified as a key component of marbled murrelet nests (Nelson et al. 2003, p. 52; McShane et al. 2004, pp. 4-48, 4-89, 4-104). While there are no data on the specific effects of microclimate changes on the availability of marbled murrelet nesting habitat at the scale of branches and trees, as discussed in the references above, the penetration of solar radiation and warm temperatures into the forest could change the distribution of epiphytes, and wind could blow moss off nesting platforms.

A large body of research indicates that marbled murrelet productivity is greatest in large, complex-structured forests far from human activity due to the reduced levels of predation present in such landscapes. Marbled murrelet productivity is lowest in fragmented landscapes; therefore, marbled murrelet nesting stands may be more productive if surrounded by simple-structured forests, and minimal human recreation and settlement. Human activities can significantly compromise the effectiveness of the forested areas surrounding nests to protect the birds and/or eggs from predation (Huhta et al. 1998, p. 464; Marzluff et al. 1999, pp. 3-4; Marzluff and Restani 1999, pp. 7-9, 11; Marzluff et al. 2000, pp. 1136-1138; De Santo and Willson 2001, pp. 145-147; Raphael et al. 2002a, p. 221; Ripple et al. 2003, p. 80).

In addition to studies of edge effects, some research initiated prior to 1996 looked at the importance of stand size. Among all Pacific Northwest birds, the marbled murrelet is considered to be one of the most sensitive to forest fragmentation (Hansen and Urban 1992, p. 168). Marbled murrelet nest stand size in Washington, Oregon, and California varied between 7 and 2,717 ac (3 and 1,100 ha) and averaged 509 ac (206 ha) (Hamer and Nelson 1995, p. 73). Nelson and Hamer (1995b, p. 96) found that successful marbled murrelets tended to nest in larger stands than did unsuccessful marbled murrelets, but these results were not statistically significant. Miller and Ralph (1995, entire) compared marbled murrelet survey detection rates among four stand size classes in California. Recording a relatively consistent trend, they observed that a higher percentage of large stands (33.3 percent) had nesting behavior detections when compared to smaller stands (19.8 percent), while a greater percentage of the smallest stands (63.9 percent) had no presence or nesting behavior detections when compared to the largest stands (52.4 percent) (Miller and Ralph 1995, pp. 210-212). However, these results were not statistically significant, and the authors did not conclude that marbled murrelets preferentially select or use larger stands. The authors suggested the effects of stand size on marbled murrelet presence and use may be masked by other factors such as stand history and proximity of a stand to other old-growth stands. Rodway et al. (1993, p. 846) recommended caution when interpreting marbled murrelet detection data, such as that used by Miller and Ralph (1995), because numbers of detections at different sites may be affected by variation caused by weather, visibility, and temporal shifts.

In addition to stand size, general landscape condition may influence the degree to which marbled murrelets nest in an area. In Washington, marbled murrelet detections increased when old-growth/mature forests make up more than 30 percent of the landscape (Hamer and Cummins 1990, p. 43). Hamer and Cummins (1990, p. 43) found that detections of marbled murrelets decreased in Washington when the percentage of clear-cut/meadow in the landscape increased above 25 percent. Additionally, Raphael et al. (1995, p. 177) found that the percentage of old-growth forest and large sawtimber was significantly greater within 0.5 mi (0.8 km) of sites (501-ac (203-ha) circles) that were used by nesting marbled murrelets than at sites where they were not detected. Raphael et al. (1995, p. 189) suggested tentative guidelines based on this analysis that sites with 35 percent old-growth and large sawtimber in the landscape are more likely to be used for nesting. In California, Miller and Ralph (1995, pp. 210-211) found that the density of old-growth cover and the presence of coastal redwood were the strongest predictors of marbled murrelet presence.

In summary, the best scientific information available strongly suggests that marbled murrelet reproductive success may be adversely affected by forest fragmentation associated with either natural disturbances, such as severe fire or windthrow, or certain land management practices, generally associated with timber harvest or clearing of forest. Based on this information, the Service concluded that the maintenance and development of suitable habitat in relatively large contiguous blocks as described in the 1996 rule and the draft Marbled Murrelet (Washington, Oregon, and California Population) Recovery Plan (draft recovery plan) (USFWS 1995, pp. 70-71, finalized in 1997) would contribute to the recovery of the marbled murrelet. These blocks of habitat should contain the structural features and spatial heterogeneity naturally found at the landscape level, the stand level, and the individual tree level in Pacific Northwest forest ecosystems (Hansen et al. 1991, pp. 389-390; Hansen and Urban 1992, pp. 171-172; Ripple 1994, p. 48; Bunnell 1995, p. 641; Raphael et al. 1995, p. 189). Newer information further supports the conclusion that the maintenance of suitable nesting habitat in relatively large, contiguous blocks will be needed to recover the marbled murrelet (Meyer and Miller 2002, pp. 763-764; Meyer et al. 2002, p. 95; Miller et al. 2002, pp. 105-107; Raphael et al. 2011, p. 44).

Therefore, based on the information presented in the 1996 final critical habitat rule and more recent data that continue to confirm the conclusions drawn in that rule, we consider the physical or biological features essential to the conservation of the marbled murrelet to include forests that are capable of providing the characteristics required for successful nesting by marbled murrelets. Such forests are typically coniferous forests in contiguous stands with large core areas of old-growth or trees with old-growth characteristics and a low ratio of edge to interior. However, due to timber harvest history we recognize that, in some areas, such as south of Cape Mendocino in California, coniferous forests with relatively smaller core areas of old-growth or trees with old-growth characteristics are essential for the conservation of the marbled murrelet because they are all that remain on the landscape. Forests capable of providing for successful nesting throughout the range of the listed DPS are typically dominated by coastal redwood, Douglas-fir, mountain hemlock, Sitka spruce, western hemlock, or western red cedar, and must be within flight distance to marine foraging areas for marbled murrelets.

The most important characteristic of marbled murrelet nesting habitat is the presence of nest platforms. These structures are typically found in old-growth and mature forests, but can also be found in a variety of forest types including younger forests containing remnant large trees. Potential nesting areas may contain fewer than one suitable nesting tree per acre and nest trees may be scattered or clumped throughout the area. Large areas of unfragmented forest are necessary to minimize edge effects and reduce the impacts of nest predators to increase the probability of nest success. Forests are dynamic systems that occur on the landscape in a mosaic of successional stages, both as the result of natural disturbances (fire, windthrow) or anthropogenic management (timber harvest). On a landscape basis, forests with a canopy height of at least one-half the site-potential tree height in proximity to potential nest trees contribute to the conservation of the marbled murrelet. Trees of at least one-half the site-potential height are tall enough to reach up into the lower canopy of nest trees, which provides nesting murrelets more cover from predation. The site-potential tree height is the average maximum height for trees given the local growing conditions, and is based on species-specific site index tables. The earlier successional stages of forest also play an essential role in providing suitable nesting habitat for the marbled murrelet, as they proceed through successional stages and develop into the relatively large, unfragmented blocks of suitable nesting habitat needed for the conservation of the species.

As stated above under Previous Federal Actions, the rule revising 50 CFR 424.12 was published on February 11, 2016 (81 FR 7413), and became effective on March 14, 2016, and the revised version of § 424.12 applies only to rulemakings for which the proposed rule is published after that date. Thus, the prior version of § 424.12 will continue to apply to any rulemakings for which a proposed rule was published before that date. Because the proposed rule for marbled murrelet critical habitat was published on August 25, 2015, this final rule follows the version of § 424.12 that was in effect prior to March 14, 2016.

According to 50 CFR 424.12(b), we are required to identify the physical or biological features essential to the conservation of the marbled murrelet within the geographical area occupied at the time of listing, focusing on the “primary constituent elements” (PCEs) of those features. We consider PCEs to be those specific elements of the physical or biological features that provide for a species' life-history processes and are essential to the conservation of the species. For the marbled murrelet, those life-history processes associated with terrestrial habitat are specifically related to nesting. Therefore, as previously described in our designation of critical habitat for the marbled murrelet (61 FR 26256; May 24, 1996), and further supported by more recent information, our designation of critical habitat focused on the following PCEs specific to the marbled murrelet:

(1) Individual trees with potential nesting platforms, and

(2) forested areas within 0.5 mile (0.8 kilometer) of individual trees with potential nesting platforms, and with a canopy height of at least one-half the site-potential tree height. This includes all such forest, regardless of contiguity.

These PCEs are essential to provide and support suitable nesting habitat for successful reproduction of the marbled murrelet.

In our evaluation of whether the current designation meets the statutory definition of critical habitat, we assessed not only whether the specific areas within the geographical area occupied by the species at the time of listing contain the physical or biological features essential to the conservation of the species, but also whether those features may require special management considerations or protection. Here we describe the special management considerations or protections that apply to the physical or biological features and PCEs identified for the marbled murrelet.

As discussed above and in the 1996 final rule designating critical habitat (May 24, 1996; 61 FR 26261-26263), marbled murrelets are found in forests containing a variety of forest structure, which is in part the result of varied management practices and natural disturbance (Hansen et al. 1991, p. 383; McComb et al. 1993, pp. 32-36). In many areas, management practices have resulted in fragmentation of the remaining older forests and creation of large areas of younger forests that have yet to develop habitat characteristics suitable for marbled murrelet nesting (Hansen et al. 1991, p. 387). Past and current forest management practices have also resulted in a forest age distribution skewed toward younger even-aged stands at a landscape scale (Hansen et al. 1991, p. 387; McComb et al. 1993, p. 31). Bolsinger and Waddell (1993, p. 2) estimated that old-growth forest in Washington, Oregon, and California had declined by two-thirds statewide during the previous five decades.

Current and historical loss of marbled murrelet nesting habitat is generally attributed to timber harvest and land conversion practices, although, in some areas, natural catastrophic disturbances such as forest fires have caused losses (Hansen et al. 1991, pp. 383, 387; Ripple 1994, p. 47; Bunnell 1995, pp. 638-639; Raphael et al. 2011, pp. 34-39; Raphael et al. 2015 in prep, pp. 94-96). Reduction of the remaining older forest has not been evenly distributed in western Washington, Oregon, and California. Timber harvest has been concentrated at lower elevations and in the Coast Ranges (Thomas et al. 1990, p. 63), generally overlapping the range of the marbled murrelet. In California today, more than 95 percent of the original old-growth redwood forest has been logged, and 95 percent of the remaining old-growth is now in parks or reserves (Roa 2007, p. 169).

Some of the forests that were affected by past natural disturbances, such as forest fires and windthrow, currently provide suitable nesting habitat for marbled murrelets because they retain scattered individual or clumps of large trees that provide structure for nesting (Hansen et al. 1991, 383; McComb et al. 1993, p. 31; Bunnell 1995, p. 640). This is particularly true in coastal Oregon where extensive fires occurred historically. Marbled murrelet nests have been found in remnant old-growth trees in mature and young forests in Oregon. Forests providing suitable nesting habitat and nest trees generally require 200 to 250 years to develop characteristics that supply adequate nest platforms for marbled murrelets. This time period may be shorter in redwood and western hemlock forests and in areas where significant remnants of the previous stand remain. Intensively managed forests in Washington, Oregon, and California have been managed on average cutting rotations of 70 to 120 years (USDI 1984, p. 10). Cutting rotations of 40 to 50 years are common for some private lands. Timber harvest strategies on Federal lands and some private lands have emphasized dispersed clear-cut patches and even-aged management. Forest lands that are intensively managed for wood fiber production are generally prevented from developing the characteristics required for marbled murrelet nesting. In addition, suitable nesting habitat that remains under these harvest patterns is highly fragmented.

Within the range of the marbled murrelet on Federal lands, the Northwest Forest Plan (NWFP) (USDA and USDI 1994, entire) designated a system of Late Successional Reserves (LSRs), which provides large areas expected to eventually develop into contiguous, unfragmented forest. In addition to LSRs, the NWFP designated a system of Adaptive Management Areas, where efforts focus on answering management questions, and matrix areas, where most forest production occurs. Administratively withdrawn lands, as described in the individual National Forest or BLM land use plans, are also part of the NWFP.

In the 1996 final rule, we acknowledged the value of implementation of the NWFP as an integral role in marbled murrelet conservation. As a result, designated critical habitat on lands within the NWFP area administered by the National Forests and BLM was congruent with LSRs. These areas, as managed under the NWFP, should develop into large blocks of suitable murrelet nesting habitat given sufficient time. However, LSRs are plan-level designations with less assurance of long-term persistence than areas designated by Congress. Designation of LSRs as critical habitat complements and supports the NWFP and helps to ensure persistence of this management directive over time. These lands managed under the NWFP require special management considerations or protection to allow the full development of the essential physical or biological features as represented by large blocks of forest with the old-growth characteristics that will provide suitable nesting habitat for marbled murrelets.

In some areas, the large blocks of Federal land under the NWFP are presently capable of providing the necessary contribution for recovery of the species. However, the marbled murrelet's range includes areas that are south of the range of the northern spotted owl (the focus of the NWFP), where Federal lands are subject to timber harvest. Therefore, the critical habitat designated on Federal lands outside of the NWFP also require special management considerations or protection to enhance or restore the old-growth characteristics required for nesting by marbled murrelets, and to attain the large blocks of contiguous habitat necessary to reduce edge effects and predation.

In the 1996 critical habitat rule (May 24, 1996; 61 FR 26256), the Service designated selected non-Federal lands that met the requirements identified in the Criteria for Identifying Critical Habitat section, in those areas where Federal lands alone were insufficient to provide suitable nesting habitat for the recovery of the species. For example, State lands were considered to be particularly important in southwestern Washington, northwestern Oregon, and in California south of Cape Mendocino. Small segments of county lands were also included in northwestern Oregon and central California. Some private lands were designated as critical habitat because they provided essential elements and occurred where Federal lands were, and continue to be, very limited, although suitable habitat on private land is typically much more limited than on public lands. In California, south of Cape Mendocino, State, county, city, and private lands contain the last remnants of nesting habitat for the southernmost population of murrelets, which is the smallest, most isolated, and most susceptible to extirpation. All of the non-Federal lands have been and continue to be subject to some amount of timber harvest and habitat fragmentation and lower habitat effectiveness due to human activity. Therefore, all non-Federal lands within the designation require special management considerations or protection to preserve suitable nesting habitat where it is already present, and to provide for the development of suitable nesting habitat in areas currently in early successional stages.

In summary, areas that provide the essential physical or biological features and PCEs for the marbled murrelet may require special management considerations or protection. Because succession has been set back or fragmentation has occurred due to either natural or anthropogenic disturbance, those essential features may require special management considerations or protections to promote the development of the large, contiguous blocks of unfragmented, undisturbed coniferous forest with old-growth characteristics (i.e., nest platforms) required by marbled murrelets. Areas with these characteristics provide the marbled murrelet with suitable nesting habitat, and reduce edge effects, such as increased predation, resulting in greater nest success for the species. Areas that currently provide suitable nesting habitat for the marbled murrelet may require protection to preserve those essential characteristics, as the development of old-growth characteristics may take hundreds of years and thus cannot be easily replaced once lost.

Critical habitat is defined as “the specific areas within the geographical area occupied by the species, at the time it is listed” under section (3)(5)(A)(i) of the Act, on which are found those physical or biological features essential to the conservation of the species and which may require special management considerations or protection. For the purposes of critical habitat, the Service must first determine what constitutes the geographical area occupied by the species at the time of listing. We consider this to be a relatively broad-scale determination, as the wording of the Act clearly indicates that the specific areas that constitute critical habitat will be found within some larger geographical area. We consider the “geographical area occupied by the species” at the time of listing, for the purposes of section 3(5)(A)(i), to be the area that may be broadly delineated around the occurrences of a species, or generally equivalent to what is commonly understood as the “range” of the species. We consider a species occurrence to be a particular location in which individuals of the species are found throughout all or part of their life cycle, even if not used on a regular basis (e.g., migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals). Because the “geographical area occupied by the species” can, depending on the species at issue and the relevant data available, be defined on a relatively broad, coarse scale, individuals of the species may or may not be present within each area at a smaller scale within the geographical area occupied by the species. For the purposes of critical habitat, then, we consider an area to be “occupied” (within the geographical area occupied by the species) if it falls within the broader area delineated by the species' occurrences, i.e., its range.

Within the listed DPS, at-sea observations indicate marbled murrelets use the marine environment along the Pacific Coast from the British Columbia, Canada/Washington border south to the Mexico/California border. Because they must fly back and forth to the nest from their marine foraging areas, marbled murrelets use inland areas for nesting that are nearby to those areas used by the species offshore. The inland extent of terrestrial habitat use varies from north to south and depends upon the presence of nesting structures in relation to marine foraging areas. Marbled murrelets have been detected as far inland as 70 miles (mi) (113 kilometers (km)) in Washington, but the inland extent narrows going south, where marbled murrelets generally occur within 25 mi (40 km) of the coast in California. At a broad scale, the geographical area occupied by the listed DPS of the marbled murrelet at the time of listing includes the west coast from the British Columbia, Canada/Washington border south to the Mexico/California border, ranging inland from approximately 70 mi (113 km) in Washington to roughly 25 mi (40 km) of the coast in California. However, the inland nesting habitat extends southward in California only to just south of Monterey Bay. Occurrence data that supports this geographic range includes at-sea surveys, radar detections, radio-telemetry studies, and audiovisual surveys.

At the time the marbled murrelet was listed (October 1, 1992; 57 FR 45328), occurrence data were very limited. However, the geographic range was generally known at that time, with the exception of the exact inland extent.

We now describe what is known about marbled murrelet use of the critical habitat subunits that were designated in 1996, as revised in 2011. In 1996, only terrestrial areas were designated as critical habitat. Terrestrial habitat is used by the marbled murrelet only for the purpose of nesting; therefore, we focus on those specific areas used for nesting by the species. Because we did not designate critical habitat in the marine environment, that aspect of the species' life history or available data will not be discussed further, unless it is pertinent to the terrestrial habitat.

At the landscape scale, marbled murrelets show fidelity to marine foraging areas and may return to specific watersheds for nesting (Nelson 1997, pp. 13, 16-17, 20; Cam et al. 2003, p. 1123). For example, marbled murrelets have been observed to return to the same specific nest branches or sites (Hebert and Golightly 2006, p. 270; Bloxton and Raphael 2009, p. 11). Repeated surveys in nesting stands have revealed site tenacity similar to that of other birds in the alcid family (Huff et al. 2006, p. 12) in that marbled murrelets have been observed in the same suitable habitat areas for more than 20 years in California and Washington. Based on the high site tenacity exhibited by marbled murrelets, it is highly likely that areas found to be used by marbled murrelets since listing in 1992 were also being used at the time of listing. Therefore, in order to determine whether any particular area was being used at the time the marbled murrelet was listed, we used all years of survey data available to us (for example, through 2013 in Washington, and some data through 2014 for California).

Not all survey data are indicative of nesting. The specific types of data that we relied upon include audiovisual surveys and specific nest locations, which may have been located through radio-telemetry studies, tree climbing, chicks on the ground, or eggshell fragments. Audiovisual surveys result in a variety of detections, only some of which are specific indicators of nesting behavior tied to the area being surveyed. The types of behaviors that are indicative of nesting include: sub-canopy behaviors, circling above the canopy, and stationary calling. Other types of detections, such as radar and fly-overs observed during audiovisual surveys, provide information regarding the general use of an area, but generally do not tie the observed individual(s) to a specific forested area (Evans Mack et al. 2003, pp. 20-23).

There continue to be gaps in our knowledge of marbled murrelet use in the terrestrial environment. Surveys are site/project specific and generally have been conducted for the purposes of allowing timber harvest. Surveys not conducted in adherence to the strict protocol may have missed nesting behaviors due to the cryptic nature of marbled murrelets and their nests. For example, a single visit to a location where marbled murrelets are present has only a 55 percent chance of detecting marbled murrelets (Evans Mack et al. 2003, p. 39). In addition, on some lands, such as Federal LSRs, our history of consultation under section 7 of the Act demonstrates that, in general, land managers choose not to conduct surveys to determine site “presence”; rather they consider the suitable habitat to be used by nesting murrelets and adjust their projects accordingly. Therefore, we recognize that our information regarding marbled murrelet use of the terrestrial landscape is incomplete; however, we have determined that the information used in this document is the best scientific data available.

We consider the geographical area occupied by the species at the time of listing for the purposes of critical habitat to be equivalent to the nesting range of the marbled murrelet, for the reasons described above. However, it is important to note that, at the time of listing, we may not have had data that definitively demonstrated the presence of nesting murrelets within each specific area designated as critical habitat. Some of these areas still lack adequate survey information. Yet because these areas fall within the broader nesting range of the species, we consider them to have been occupied at the time of listing. For the purposes of clarity, we further evaluated the specific areas within that broader geographic range to determine whether we have documented detections of behaviors indicative of nesting by the marbled murrelet at the scale of each subunit. The following types of data are indicative of the marbled murrelet's use of forested areas for nesting and will be relied upon to make the determination of whether we have documentation of nesting behavior by critical habitat subunit:

(a) Data indicative of nesting behavior. A subunit with any of the following data will be considered to have a documented detection of nesting behavior. We consider one detection in a subunit sufficient to support a positive nesting behavior determination for the entire subunit.

(1) Audiovisual surveys conducted according to the Pacific Seabird Group (PSG) survey protocol (Evans Mack et al. 2003 or earlier versions). Detection types that are indicative of nesting include: sub-canopy behaviors (such as flying through the canopy or landing), circling above the canopy, and stationary calling.

(2) Nest locations obtained through radio-telemetry tracking, tree climbing, eggshell fragments, and chicks on the ground.

(b) Contiguity of forested areas within which nesting behaviors have been observed. According to the PSG protocol (Evans Mack et al. 2003), a contiguously forested area with detections indicative of nesting behavior is deemed to be used by nesting marbled murrelets throughout its entirety. Therefore, any subunits where there were no detections of behaviors indicative of nesting or possibly no surveys, but the forested areas in the subunit are contiguous with forested areas extending outside of the subunit within which there are documented nesting behaviors, will be deemed to be positive in terms of a nesting behavior detection.

Radar-based marbled murrelet detections and presence-only detections (such as flying over or heard only) resulting from audiovisual surveys were not used to classify a subunit as positive in terms of nesting behavior detections. Even though these detections indicate use of an area by marbled murrelets, these types of detections do not link murrelet nesting to specific areas of forested habitat.

In Washington and California, occurrence data, including nest locations and audiovisual survey data, are maintained in State wildlife agency databases. The Washington Department of Fish and Wildlife marbled murrelet data was obtained by the Service on June 19, 2014, and includes data collected through 2013. The California Department of Fish and Wildlife's marbled murrelet occurrence database, as currently maintained by the Arcata Fish and Wildlife Office, was accessed on February 5, 2015. The database includes information on some surveys conducted through 2006, with one observation from 2014, but is incomplete for the State. Audiovisual surveys in Oregon are not maintained in a centralized database. The Service, through a cooperative agreement, provided funds to the Oregon State University to obtain and collate Oregon survey data. The data provided to the Service included surveys through 2003, mainly on Federal lands. Additionally, the BLM and Oregon Department of Forestry provided a summary of current survey data, as of March 2015, within critical habitat in Oregon. Survey data for private lands in Oregon were not available.

We have determined that all 101 subunits designated as critical habitat in 1996, as revised in 2011, are within the geographical range occupied by the species at the time of listing, and all 101 subunits contain the physical or biological features and PCEs essential to the conservation of the species. Evidence of the presence of PCEs is based on nests located within a subunit, nesting behavior detections, audiovisual survey station placements (generally surveys are conducted only if there are nesting platforms present in the forested area), and specific forest inventory data. All of these forms of evidence point to the presence of PCE 1, nesting platforms, within the subunit, as well as the presence of PCE 2. In addition, within all 101 subunits, the essential physical or biological features and PCEs may require special management considerations or protection, as described above, because these subunits have received or continue to receive some level of timber harvest, fragmentation of the forested landscape, and reduced habitat effectiveness from human activity. Therefore, all 101 subunits meet the definition of critical habitat under section 3(5)(A)(i) of the Act.

Of the 101 subunits, 78 (all critical habitat subunits except for those identified in Table 1, below) have either specific nesting behavior detection data within the subunit or forested areas within the subunit that are contiguous with forested areas within which nesting behaviors have been observed. In total, the 78 subunits with nesting behavior detections account for 3,335,400 ac (1,349,800 ha), or 90 percent of the total designation. These 78 subunits all contain the physical or biological features and PCEs essential to the conservation of the species, which may require special management considerations or protection, as described above, because these subunits have received or continue to receive some level of timber harvest, fragmentation of the forested landscape, and reduced habitat effectiveness from human activity. Therefore, we conclude that these 78 subunits meet the definition of critical habitat under section 3(5)(A)(i) of the Act.

There are 23 subunits that did not have data indicating marbled murrelet nesting behaviors at the time of listing (Table 1). All of these subunits, however, are within the range of the species at the time of listing, and, hence, we consider them to be occupied. Of these 23 subunits, 2 are in Washington, 5 are in Oregon, and 16 are in California, totaling up to 362,600 ac (145,800 ha) or 10 percent of the designation. We have determined that all 23 subunits contain the essential physical or biological features and PCEs based on specific forest inventory data and audiovisual survey station placements. Only 7 of these 23 subunits have received partial or complete surveys to determine use by marbled murrelets. Very limited inland distribution information was available when the species was listed (1992) and in 1996 when critical habitat was designated (May 24, 1996; 61 FR 26256, pp. 26269-26270). However, continued survey efforts have filled in gaps in the distribution that were not known at the time of listing. For example, as of June 2014, the Washington Department of Fish and Wildlife murrelet detection database contained 5,225 nesting behavior detections. Of these 5,225 detections, only 254 were from surveys before 1992, and only 2,149 were prior to 1996. Therefore, our opinion is that, had surveys been conducted in many of these 23 subunits, nesting behaviors would likely have been detected.

Even if these 23 subunits were considered unoccupied at the time of listing because we do not have specific documentation of nesting behaviors, the Act permits designation of such areas as critical habitat if they are essential for the conservation of the species. We evaluated whether each of these 23 subunits are essential for the conservation of the species. In this evaluation we considered: (1) The importance of the areas to the future recovery of the species; (2) whether the areas have or are capable of providing the essential physical or biological features; and (3) whether the areas provide connectivity between marine and terrestrial habitats. As stated above, we determined that all 23 subunits contain the physical or biological features and PCEs for the marbled murrelet; therefore, all 23 subunits provide essential nesting habitat that is currently limited on the landscape. In particular, 13 subunits in California that are south of Cape Mendocino contain the last remnants of nesting habitat in that part of California. All 101 designated subunits work together to create a distribution of essential nesting habitat from north to south and inland from marine foraging areas. All of the designated critical habitat units occur within areas identified in the draft and final recovery plans for the marbled murrelet (USFWS 1995 and 1997, entire) as essential for the conservation of the species. Maintaining and increasing suitable nesting habitat for the marbled murrelet is a key objective for the conservation and recovery of the species, by providing for increases in nest success and productivity needed to attain long-term population viability. Based upon this information, we have determined that all of the 23 subunits where nesting behaviors have not been documented are, nonetheless, essential for the conservation of the species. Therefore, even if these 23 subunits were considered unoccupied, we conclude that they meet the definition of critical habitat under section 3(5)(A)(ii) of the Act.

As described above, all areas designated as critical habitat for the marbled murrelet (101 subunits) contain the physical or biological features and PCEs essential to the conservation of the species, which may require special management considerations or protection. We recognize that the physical or biological features and PCEs may not be uniformly distributed throughout these 101 subunits because historical harvest patterns and natural disturbances have created a mosaic of multiple-aged forests. Replacement of essential physical or biological features and PCEs for the marbled murrelet can take centuries to grow.

We have additionally evaluated all currently designated critical habitat for the marbled murrelet applying the standard under section 3(5)(A)(ii) of the Act, and have determined that all 101 subunits included in this designation are essential for the conservation of the species. As detailed above, we have determined that all areas of critical habitat, whether known to be occupied at the time of listing or not, contain the physical or biological features and PCEs for the marbled murrelet. All 101 designated subunits work together to create a distribution of essential nesting habitat from north to south and inland from marine foraging areas, and occur within areas identified in the draft and final recovery plans for the marbled murrelet (USFWS 1995 and 1997, entire) as essential for the conservation of the species. All areas designated as critical habitat are essential for the conservation and recovery of the marbled murrelet by maintaining and increasing suitable nesting habitat and limiting forest fragmentation, thereby providing for increases in nest success and productivity to attain long-term population viability of the species. Therefore, we have determined that all areas currently identified as critical habitat for the marbled murrelet, whether confirmed to be occupied at the time of listing or not, are essential for the conservation of the species and meet the definition of critical habitat under section 3(5)(A)(ii) of the Act. Recent population and suitable habitat research confirms that these areas continue to be essential because the marbled murrelet population has declined since listing (Miller et al. 2012, entire) and continues to decline in Washington (Lance and Pearson 2015, pp. 4-5), hence suitable nesting areas are of increased importance to provide recovery potential for the marbled murrelet. In addition, while habitat loss has slowed since adoption of the NWFP, suitable nesting habitat continues to be lost to timber harvest (Raphael et al. 2015 in prep, pp. 94-95).

The preamble to the 1996 final critical habitat rule (May 24, 1996; 61 FR 26265) stated that, within the boundaries of designated critical habitat, only those areas that contain one or more PCEs are, by definition, critical habitat, and areas without any PCEs are excluded by definition. This statement was in error; we clarified this language in the revised critical habitat rule published in 2011 (October 5, 2011; 76 FR 61599, p. 61604), and we reemphasize this correction here. By introducing some ambiguity in our delineation of critical habitat, this language was inconsistent with the requirement that each critical habitat unit be delineated by specific limits using reference points and lines (50 CFR 424.12(c)). The Service does its best not to include areas that obviously cannot attain PCEs, such as alpine areas, water bodies, serpentine meadows, lava flows, airports, buildings, parking lots, etc. (May 24, 1996; 61 FR 26256, p. 26269). However, the scale at which mapping is done for publication in the Code of Federal Regulations does not allow precise identification of these features, and, therefore, some may fall within the critical habitat boundaries. Hence, all lands within the mapped critical habitat boundaries for the marbled murrelet are critical habitat.

Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species.

We published a final regulation with a new definition of destruction or adverse modification on February 11, 2016 (81 FR 7214), which became effective on March 14, 2016. Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of a listed species. Such alterations may include, but are not limited to, those that alter the physical or biological features essential to the conservation of a species or that preclude or significantly delay development of such features.

If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 of the Act) or that involve some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency). Federal actions not affecting listed species or critical habitat, and actions on State, tribal, local, or private lands that are not federally funded or authorized, do not require section 7 consultation.

As a result of section 7 consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of:

(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or

(2) A biological opinion for Federal actions that may affect and are likely to adversely affect, listed species or critical habitat.

When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (at 50 CFR 402.02) as alternative actions identified during consultation that:

(1) Can be implemented in a manner consistent with the intended purpose of the action,

(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,

(3) Are economically and technologically feasible, and

(4) Would, in the Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.

Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.

Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law). Consequently, Federal agencies sometimes may need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat.

We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) section 9 of the Act's prohibitions on taking any individual of the species, including taking caused by actions that affect habitat. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.

The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species. Activities that may destroy or adversely modify critical habitat are those that result in a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of the marbled murrelet. Such alterations may include, but are not limited to, those that alter the physical or biological features essential to the conservation of the species or that preclude or significantly delay development of such features. As discussed above, the role of critical habitat is to support physical or biological features essential to the conservation of a listed species and provide for the conservation of the species.

Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation.

Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for the marbled murrelet. A detailed explanation of the regulatory effects of critical habitat in terms of consultation under section 7 of the Act and application of the adverse modification standard is provided in the October 5, 2011, final rule revising critical habitat for the marbled murrelet (76 FR 61599).

As required by section 4(b)(2) of the Act and its implementing regulations, we fully considered the economic impact that may result from specifying any particular area as critical habitat. If critical habitat has not been previously designated, the probable economic impact of a proposed critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.” The “without critical habitat” scenario represents the baseline for the analysis, and includes the existing regulatory and socio-economic burden imposed on landowners, managers, or other resource users potentially affected by the designation of critical habitat (e.g., under the Federal listing as well as other Federal, State, and local regulations). In this case the baseline represents the costs of all efforts attributable to the listing of the species under the Act (i.e., conservation of the species and its habitat incurred regardless of whether critical habitat is designated). The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. These are the conservation efforts and associated impacts that would not be expected but for the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat, above and beyond the baseline costs. These incremental costs represent the potential economic impacts we consider in association with a designation or revision of critical habitat, as required by the Act.

Baseline protections as a result of the listed status of the marbled murrelet include sections 7, 9, and 10 of the Act, and any economic impacts resulting from these protections to the extent they are expected to occur absent the designation of critical habitat:

• Section 7 of the Act, even absent critical habitat designation, requires Federal agencies to consult with the Service to ensure that any action authorized, funded, or carried out will not likely jeopardize the continued existence of any endangered or threatened species. Consultations under the jeopardy standard result in administrative costs, as well as impacts of conservation efforts resulting from consideration of this standard.

• Section 9 defines the actions that are prohibited by the Act. In particular, it prohibits the “take” of endangered wildlife, where “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. The economic impacts associated with this section manifest themselves in sections 7 and 10.

• Under section 10(a)(1)(B) of the Act, an entity (e.g., a landowner or local government) may develop an HCP for a listed animal species in order to meet the conditions for issuance of an incidental take permit in connection with a land or water use activity or project. The requirements posed by the HCP may have economic impacts associated with the goal of ensuring that the effects of incidental take are adequately avoided or minimized. The development and implementation of HCPs is considered a baseline protection for the species and habitat unless the HCP is determined to be precipitated by the designation of critical habitat, or the designation influences stipulated conservation efforts under HCPs.

In the present rulemaking, we are not starting from a “without critical habitat” baseline. In this particular case, critical habitat has been in place for the marbled murrelet since May 24, 1996 (61 FR 26256), and was most recently revised on October 5, 2011 (76 FR 61599). Because the 2011 revision resulted only in the removal of some areas of critical habitat, all areas remaining in the current designation have been critical habitat for the marbled murrelet since 1996. This current critical habitat designation formed the baseline for our consideration of the potential economic impacts of the proposed rule.

In the proposed rule, we described our evaluation and conclusion that all of the currently designated areas meet the statutory definition of critical habitat for the marbled murrelet. Specifically, we clarified that all areas are within the range of the marbled murrelet and, therefore, occupied by the species at the time of listing, and contain the physical or biological features essential to the conservation of the species, which may require special management consideration or protection. Furthermore, although all areas are considered to have been occupied at the time of listing, all areas do not necessarily have specific data indicating known detections of nesting murrelets at the time of listing. Upon further evaluation, we determined that all critical habitat, regardless of whether we have information indicating definitive use by nesting murrelets at the time of listing, is essential for the conservation of the species. As a result of our evaluation, we did not propose any modification to the boundaries of critical habitat for the marbled murrelet, nor did we propose any changes to the definition of the PCEs (May 24, 1996; 61 FR 26256). We fully considered all substantive comments and relevant information received on our proposed determination of critical habitat for the marbled murrelet; our consideration of this information did not lead to any changes from our proposed rule in this final rule.

We considered the probable incremental economic impacts of the proposed rule with regard to critical habitat for the marbled murrelet. As described in our proposed rule, critical habitat has already been in place for the marbled murrelet for 20 years; as we are not changing any of the critical habitat boundaries or PCEs, and as Federal action agencies consult on the effects to the PCEs rather than the species itself with regard to actions in critical habitat, we do not anticipate any additional costs as a result of the clarification of areas occupied at the time of listing. Our evaluation of the probable economic impacts of our proposed determination of critical habitat for the marbled murrelet was available for public review during the comment period on our proposed rule from August 25, 2015, through October 26, 2015 (August 25, 2015; 80 FR 51506). Following the close of the comment period, we reviewed and evaluated all information submitted that may pertain to our consideration of the probable incremental economic impacts of this critical habitat rule. We fully considered public comment on our evaluation, as well as information supplied by the action agencies with whom we regularly consult with regard to marbled murrelet critical habitat (details below). Those action agencies confirmed our conclusion that our clarification of how the areas currently designated as critical habitat meet the statutory definition under the Act is unlikely to result in any additional costs, regardless of occupancy status.

Our conclusion that this critical habitat rule will not result in incremental economic impacts is based upon the following evaluation. Critical habitat designation will not affect activities that do not have any Federal involvement; designation of critical habitat affects only activities conducted, funded, permitted, or authorized by Federal agencies. In areas where the marbled murrelet is present, Federal agencies already are required to consult with the Service under section 7 of the Act on activities they fund, permit, or implement that may affect the species. In this particular case, because all areas that we have considered are already designated as critical habitat for the marbled murrelet, where a Federal nexus occurs, consultations to avoid the destruction or adverse modification of critical habitat have been incorporated into the existing consultation process. Federal agencies have been consulting under section 7 of the Act on critical habitat for the marbled murrelet for approximately 20 years. As our proposed rule did not include the addition of any new areas as critical habitat, any probable economic impacts resulting from the proposed rule would result solely from our clarification of how all of the areas currently designated meet the statutory definition of critical habitat. The incremental economic impacts of our rulemaking would, therefore, be equal to any additional costs incurred as the result of a difference between the outcome of consultations as they are currently conducted and consultations as they would be conducted if the proposed rule were to become final.

Based upon our evaluation and as described in our proposed rule, we do not anticipate changes to the consultation process or effect determinations made for critical habitat as a result of our evaluation and conclusion that all areas meet the definition of critical habitat under the Act. In addition, we do not anticipate requiring additional or different project modifications than are currently requested when an action “may affect” critical habitat. Therefore, it is the Service's expectation that this final rule clarifying the 1996 critical habitat designation, as revised in 2011, which explains how all areas within the boundaries of the current designation meet the definition of critical habitat under the Act, will result in no additional (incremental) economic impacts.

In order to confirm the accuracy of our assessment of the potential economic impacts of the proposed rule, we asked those Federal action agencies that manage lands that are critical habitat or with whom we have consulted over the past 20 years on marbled murrelet critical habitat to review our evaluation and characterization of the changes, if any, to consultation under section 7 that may be anticipated as a consequence of the proposed rule. We specifically asked each agency whether our proposed rule would be likely to result in any additional economic impacts on their agency (incremental impacts), above and beyond those already incurred as a result of the current critical habitat designation for the marbled murrelet (baseline impacts). Based on our consultation history with Federal agencies, it is our understanding that action agencies currently consult on effects to marbled murrelet critical habitat through an analysis of the effects to the PCEs. We asked the action agencies to confirm or correct this understanding, and to verify our characterization of how these consultations take place under the current designation, which we described as follows:

• If an action will take place within designated critical habitat, the action agency considers the action area to be critical habitat, irrelevant of the presence of PCEs. The action agency then determines whether there are PCEs within the action area. If the action agency determines there are no PCEs within the action area, the agency makes a “no effect” determination and the Service is not consulted.

• If the action agency determines there are PCEs within the action area, they analyze the action's potential effects on the PCEs, which may result in a “no effect” or “may effect” determination. If the action agency determines the action “may affect” the PCEs, they undergo section 7 consultation with the Service.

Whether the critical habitat subunit or action area is considered to be “occupied” by the species is irrelevant to the effect determination made for critical habitat. Rather, the determination of “occupancy” is relevant to the effect determination for the species and any minimization measures that may be implemented (such as project timing).

In the proposed rule we clarified that we consider all areas to have been occupied by the species at the time of listing, and that all of these areas have the PCEs. Because occupancy of the critical habitat subunit or action area is considered irrelevant to the effect determination made for critical habitat, the Service does not anticipate changes to the consultation process or effect determinations made for critical habitat as a result of this determination. In addition, the Service does not anticipate requiring additional or different project modifications than are currently requested when an action “may affect” critical habitat. Therefore, we conclude that this final rule clarifying the 1996 critical habitat designation, as revised in 2011, which is limited to explaining how all areas within the boundaries of the current designation meet the definition of critical habitat under the Act, will not result in additional (incremental) costs to the Federal agencies.

As noted above, we solicited review and comment on our draft summary of the anticipated economic impacts of the proposed rule from seven Federal agencies with whom we regularly consult on marbled murrelet critical habitat (the U.S. Forest Service (USFS), U.S. Bureau of Land Management (BLM), National Park Service (NPS), Bureau of Indian Affairs (BIA), U.S. Army Corps of Engineers, Federal Highway Administration, and Federal Energy Regulatory Commission). We received responses from four of these agencies: The USFS representing multiple national forests, the BLM representing multiple districts, the NPS representing Redwood National Park and State Parks partnership, and the BIA. All responses agreed with our evaluation of the potential incremental effects of the proposed rule, and confirmed that they did not anticipate any additional costs as a result of the clarification of areas occupied at the time of listing. Our initial letter of inquiry and all responses received from the action agencies are available for review in the Supplemental Materials folder at http://www.regulations.gov, Docket No. FWS-R1-ES-2015-0070.

We additionally considered any potential economic impacts on non-Federal entities as a result of the proposed rule. In our experience, any economic impacts to non-Federal parties are generally associated with the development of HCPs under section 10(a)(1)(B) of the Act. However, as described above, in most cases the incentive for the development of an HCP is the potential issuance of an incidental take permit in connection with an activity or project in an area where a listed animal species occurs. HCPs are seldom undertaken in response to a critical habitat designation, but in such a case the costs associated with the development of an HCP prompted by the designation of critical habitat would be considered an incremental impact of that designation. In this particular situation, because we did not propose any changes to the boundaries of critical habitat, we did not anticipate the initiation of any new HCPs in response to the proposed rule; therefore, we did not anticipate any costs to non-Federal parties associated with HCP development. We did not receive any information during the public comment period that suggested this conclusion was in error.

Other potential costs to non-Federal entities as a result of critical habitat designation might include costs to third-party private applicants in association with Federal activities. In most cases, consultations under section 7 of the Act involve only the Service and other Federal agencies, such as the U.S. Army Corps of Engineers. Sometimes, however, consultations may include a third party involved in projects that involve a permitted entity, such as the recipient of a Clean Water Act section 404 permit. In such cases, these private parties may incur some costs, such as the cost of applying for the permit in question, or the time spent gathering and providing information for a permit. These costs and administrative effort on the part of third-party applicants, if attributable solely to critical habitat, would be incremental impacts of the designation. In this particular case, however, because we did not propose any boundary changes to the current critical habitat designation, we did not anticipate any change from the current baseline conditions in terms of potential costs to third parties; therefore, we expected any incremental impacts to non-Federal parties associated with the proposed rule to be minimal. Again, we did not receive any information during the public comment period that would suggest this conclusion is in error.

Based on our evaluation, the information provided to us by the Federal action agencies within the critical habitat area under consideration, and the information received during the public comment period on our proposed rule, we conclude that this final rule will result in little if any additional economic impact above baseline costs.

We have examined all areas designated as critical habitat for the marbled murrelet in 1996 (May 24, 1996; 61 FR 26256), as revised in 2011 (October 5, 2011; 76 FR 61599), and evaluated whether all areas meet the definition of critical habitat under section 3(5)(A) of the Act. Based upon our evaluation, we have determined that all 101 subunits designated as critical habitat are within the geographical area occupied by the species at the time of listing, and each of these subunits provides the physical or biological features and PCEs essential to the conservation of the species, which may require special management considerations or protections. Therefore, we conclude that all areas designated as critical habitat for the marbled murrelet meet the definition of critical habitat under section 3(5)(A)(i) of the Act. Of the 101 subunits, 78 of those subunits had documented detections of nesting behavior at the time of listing. We have determined that we do not have sufficient data to definitively document nesting behavior within the other 23 subunits at the time of listing. However, even if these 23 subunits were considered unoccupied, the Secretary has determined that they are essential for the conservation of the species, as they contribute to the maintenance or increase of suitable nesting habitat required to achieve the conservation and recovery of the marbled murrelet; therefore, we conclude that they meet the definition of critical habitat under section 3(5)(A)(ii) of the Act.

In addition, recognizing that the detection of nesting behaviors or the presence of essential physical or biological features or PCEs within a subunit may be evaluated on multiple scales, such that at some finer scales some subset of the subunit may be considered unoccupied or lacking in PCEs, we evaluated the designation in its entirety as if it were unoccupied under section 3(5)(A)(ii) of the Act, and found that all areas of critical habitat are essential for the conservation of the species. We have here clarified that we have evaluated all critical habitat for the marbled murrelet, and have concluded that in all cases the areas designated as critical habitat for the marbled murrelet meet the definition of critical habitat under section 3(5)(A) of the Act. In addition, as required by section 4(b)(2) of the Act, we have considered the potential economic impact of this clarification, and we have concluded that any potential economic effects resulting from this rulemaking are negligible.

Therefore, we conclude that, under the Act, critical habitat as currently designated for the marbled murrelet in the Code of Federal Regulations remains valid.

We requested written comments from the public on the proposed determination of critical habitat for the marbled murrelet in a proposed rule published on August 25, 2015 (80 FR 51506). As described in that proposed rule, our purpose was to reconsider the final rule designating critical habitat for the marbled murrelet (May 24, 1996; 61 FR 26256, as revised on October 5, 2011; 76 FR 61599) for the purpose of evaluating whether all areas currently designated meet the definition of critical habitat under the Act. To that end, we specifically sought comments concerning: (1) What areas within the currently designated critical habitat for the marbled murrelet were occupied at the time of listing and contain features essential to the conservation of the species; (2) special management considerations or protection that may be needed in critical habitat areas, including managing for the potential effects of climate change; (3) what areas within the currently designated critical habitat are essential for the conservation of the species and why; and (4) information on the extent to which the description of economic impacts is a reasonable estimate of the likely economic impacts of the proposed determination. During the comment period, which closed on October 26, 2015, we received 16 comment letters from organizations or individuals directly addressing the proposed critical habitat designation.

Eleven of these letters provided substantive comments (beyond a succinct expression of agreement or opposition) on the proposed rule. Five of the comment letters expressed support of our 1996 designation, one opposed the 1996 designation, and five did not express a particular opinion regarding the 1996 designation and whether it meets the statutory definition, but offered other suggestions or information regarding critical habitat for the marbled murrelet.

Several comments we received were outside the scope of the proposed rule, which was limited to the specific purpose for which the court remanded this rule, which was to assess whether all of the designated areas meet the statutory definition of critical habitat. Examples of comments outside of the scope of the proposed rule included:

(a) Requests that we designate additional critical habitat;

(b) A request that we apply the Service's proposed policy for excluding lands included in Habitat Conservation Plans (See 79 FR 27052 (May 12, 2014) at 27055);

(c) Requests that we designate marine areas as critical habitat;

(d) A request that surrounding encumbered lands be freed up as a more available revenue source; and

(e) A request to complete a 5-year review.

These comments are beyond the scope of the proposed rule, and some would require separate rulemaking to be considered. Accordingly, we have not specifically responded to these comments in this final rule.

All substantive information provided during the comment period has either been incorporated directly into this final determination or addressed below. Comments received were grouped into general issues specifically relating to the proposed critical habitat determination, and are addressed in the following summary and incorporated into the final rule as appropriate.

Section 4(i) of the Act states, “the Secretary shall submit to the State agency a written justification for his failure to adopt regulations consistent with the agency's comments or petition.” Comments received from the State regarding the determination of critical habitat for the marbled murrelet are addressed below.

(1) Comment: The Oregon Department of Forestry stated they have not experienced impacts, positive or negative, associated with the designation of critical habitat. Critical habitat has not been an obstacle to the effective implementation of their forest management plans.

Our response: Thank you for the information.

(2) Comment: The Oregon Department of Forestry and one private organization expressed the opinion that we relied heavily on technical information associated with the 1996 designation and largely or completely ignored newer scientific literature. In particular they pointed out that all the referenced nest site data is decades old.

Our response: The sole purpose of our proposed rule was to evaluate whether all areas currently designated as critical habitat for the marbled murrelet meet the statutory definition of critical habitat; we did not propose to revise critical habitat as a whole. In doing so, we did not ignore or discount any available relevant literature, including publications made available after the 1996 designation of critical habitat. In fact, many of the publications the commenters indicate we ignored, such as McShane et al. 2004, are cited in the proposed rule (see, for example, citations on pp. 51509-51512 of 80 FR 51506; August 25, 2015). If our review of the best available scientific data as reflected in the more recently published literature had indicated a change in our understanding of the essential habitat features for the marbled murrelet, we might have proposed further revision. However, we reviewed all available scientific data relevant to this question and found that it did not indicate that such a change was appropriate. Rather, the more recently published literature continues to support the physical or biological factors and primary constituent elements (PCEs) as described in the 1996 critical habitat final rule and is, therefore, consistent with both our proposed and final rules.

The commenters also indicate that the nest and occupancy data we relied upon were outdated. We disagree. On page 51516 of the proposed rule (80 FR 51506; August 25, 2015), we denote the years of survey data that we relied upon, which included all available nests, occupied behaviors, and presence behaviors within the analysis area. In Washington, the information included data collected through 2013. In Oregon, some survey data was as recent as 2014. In California, most of the available data was collected through 2006, with one data point from 2014. These data present the most recent and best data available for us to use in our reconsideration.

(3) Comment: The Oregon Department of Forestry commented that the boundaries of critical habitat follow ownerships rather than habitat.

Our response: Our implementing regulations at 50 CFR 424.12(c), in effect at the time of our designation, specify that “Each critical habitat will be defined by specific limits using reference points and lines as found on standard topographic maps of the area. . . . Ephemeral reference points (e.g., trees, sand bars) shall not be used in defining critical habitat.” Although by definition the foundation of our critical habitat designation is based on habitat characteristics (the presence of essential physical or biological features, or areas otherwise determined to be essential for the conservation of the species), to be useful those specific areas that fall within the designation must be identifiable “on the ground.” Characteristics such as the location of forest edges, for example, which might serve as a habitat-based boundary for marbled murrelets, are expected to vary over space and time and thus are not useful in this regard. For this reason, we utilized ownership and administrative boundaries, which are relatively more stable, to define the boundaries of our critical habitat units, after reliance on the habitat characteristics to define critical habitat for the marbled murrelet located within those administrative boundaries.

(4) Comment: The Oregon Department of Forestry recommended that critical habitat should be focused on older, high-quality habitat rather than younger stands.

Our response: We agree with the basic principle of this recommendation, and in fact the critical habitat does focus on older, high-quality habitat, which is likely to equate to forested areas that contain trees with suitable nesting structures (PCE 1). However, limiting the critical habitat designation to areas that only contain PCE 1 would not be sufficient to achieve the conservation of the species because marbled murrelets need large contiguous blocks of forested areas (Recovery Plan for the Marbled Murrelet, USFWS 1997). It is not necessary that the entirety of these large, contiguous blocks of forest is represented by trees with characteristics associated with late-successional old growth; a large block of forested area may be constituted of trees with suitable nesting structures surrounded by areas of younger forest. Marbled murrelet critical habitat, therefore, comprises two PCEs, which serve separate, but intertwined, purposes. Forested areas within 0.5 mile (0.8 kilometer) of individual trees with potential nesting platforms with a canopy height of at least one-half the site-potential tree height (PCE 2) provide the larger forested areas that are necessary to minimize edge effects and reduce the impacts of nest predators to increase the probability of nest success, in addition to providing forest cohesion around suitable nesting trees (PCE 1), which has been associated with murrelet use and to provide for the development of suitable nesting trees. Because these younger stands may provide this essential feature, critical habitat for the marbled murrelet is not strictly limited to only older stands of forest.

(5) Comment: The Washington Department of Natural Resources (WDNR) requested that the critical habitat unit descriptions, tables, and maps be updated to remove the lands excluded because of inclusion in the Department's Habitat Conservation Plan (HCP).

Our response: The 1996 critical habitat designation for the marbled murrelet stipulates by text that “Critical habitat units do not include non-federal lands covered by a legally operative incidental take permit for marbled murrelets issued under section 10(a) of the Act.” However, the WDNR HCP for the marbled murrelet was not completed until 1997, after critical habitat designation; therefore, all WDNR lands were mapped in the final critical habitat. Once the WDNR obtained a legally operative incidental take permit for marbled murrelets issued under section 10(a) of the Act in 1997, the HCP lands designated as critical habitat were excluded by the text referenced above. As long as WDNR has a legally operative incidental take permit for marbled murrelets, their lands remain excluded by text from critical habitat. However, should their permit be revoked, terminated, or expire, WDNR lands would revert back to critical habitat. WDNR lands, therefore, continue to remain mapped and accounted for in the total designation acreage.

Further, as noted above, the purpose of this proposed action was to consider whether our 1996 designation meets the statutory definition of critical habitat; we did not propose revision of critical habitat as a whole. Therefore, we did not propose to reconsider or reevaluate any of the exclusions contained in the 1996 final designation for consistency with our current exclusion policies.

(6) Comment: One private organization stated that our proposed rule did not contain a finding that areas not occupied at the time of the listing are essential for the conservation of the species. At the same time, this organization also contends that our determination that all 101 subunits would qualify for designation under 16 U.S.C. 1532 (5)(A)(ii) as “essential to the conservation of the species” has no legal bearing on a designation under 16 U.S.C. 1532 (5)(A)(i) for the geographical area occupied at the time of listing. The comment letter suggests that the subsection (ii) standard applies only to areas that are outside the geographical area occupied at the time of listing, and that the “Service has determined that all designated critical habitat is within the geographical area occupied at the time of listing. For such areas, they suggest critical habitat can only be designated under subsection (i), and only if the physical or biological features (PCEs) “are found” on those areas.”

Our response: We refer the commenter to section VII on pages 51517-51518 of the proposed rule (80 FR 51506; August 25, 2015), which provides our finding that all currently designated critical habitat is essential to the conservation of the marbled murrelet. As stated there, we first determined that all areas designated as critical habitat are within the geographical area occupied by the species at the time of listing and contain the physical or biological features and PCEs essential to the conservation of the species, which may require special management considerations or protection. However, we acknowledged that the physical or biological features and PCEs may not be uniformly distributed throughout the subunits, and, therefore, we additionally conducted an evaluation of all subunits under the standards of section 3(5)(A)(ii) of the Act. While this evaluation was not technically necessary, we determined it to be a conscientious application of all methods of designating critical habitat, regardless of occupancy, differing interpretations of occupancy, or differing scales of analysis. We expressly stated in our determination that all areas currently identified as critical habitat for the marbled murrelet, whether confirmed to be occupied at the time of listing or not, are essential for the conservation of the species and meet the definition of critical habitat under section 3(5)(A)(ii) of the Act (see section XI, Determination, on page 51520 of the proposed rule, 80 FR 51506; August 25, 2015). This approach is consistent with the ruling in Home Builders Ass'n of Northern California v. U.S. Fish and Wildlife Service, 616 F.3d 983 (9th Cir.), cert. denied 131 S.Ct. 1475 (2011), in which the court upheld a critical habitat rule in which the Service had determined that the areas designated, whether occupied or not, met the more demanding standard of being essential for conservation. See also our response to Comment (7).

(7) Comment: The same private organization stated that the Service cannot designate areas within the geographical area occupied at the time of listing that lack any of the physical or biological features simply by combining those areas in a large “subunit” consisting of thousands of acres including some other areas that do contain the features. If the presence of physical and biological features anywhere within a large critical habitat unit was sufficient to find the presence of physical and biological features everywhere within the unit, nothing would prevent the administrative creation of a single multimillion-acre critical habitat “unit” and finding every acre to contain physical and biological features because a single small area contains such features. This interpretation would render the statutory terms meaningless. In particular, the commenting organization noted that the designation included lands delineated as Late Successional Reserves under the Northwest Forest Plan, which they contend does not meet the statutory standard because the physical or biological features and PCEs may not be uniformly distributed throughout a subunit.

Our response: We agree with the commenter that an interpretation of the statute that would lead to the creation of a single multimillion-acre critical habitat unit and declaring every acre within that unit to contain physical and biological features on the basis of a small subset of the unit containing such features would not be reasonable. However, we disagree that such an interpretation reflects our designation of critical habitat for the marbled murrelet. Marbled murrelets require forested habitats for nesting, particularly trees with nesting platforms (which are typically found in forests with late seral characteristics) embedded within larger areas of contiguous forest that may serve as a “buffer” area to insulate nesting murrelets from edge effects, such as invasion by corvid predators (crows or ravens) or negative microclimatic conditions (also noting that the beneficial effects of these surrounding areas may be provided by younger forest stands). In addition, as noted in our proposed rule, trees with suitable nesting platforms may also be found in areas of younger forest containing remnant large trees.

Forests are dynamic systems, and cannot be expected to remain static on the landscape; the progression of forest habitats through a series of seral stages is a fundamental principle of forest ecology. As a result of both natural disturbance and anthropogenic activities, forests occur in a mosaic of age-structured conditions. It is, therefore, to be expected that the designation of critical habitat for a wide-ranging forest species requiring nest trees with mature or old-growth characteristics will additionally include surrounding forests in a mosaic of both old and younger forests; this simply reflects how forest patches of varying ages and structural condition are distributed across the landscape.

Our implementing regulations at 50 CFR 424.12(b)(5)(d) state: “When several habitats, each satisfying the requirements for designation as critical habitat, are located in proximity to one another, an inclusive area may be designated as critical habitat.” In this case, our designation of critical habitat for the marbled murrelet is focused primarily on areas of forest with late-successional characteristics that provide suitable nesting habitat (PCE 1), surrounded by areas of potentially younger forest (PCE 2). Because marbled murrelets require large blocks of contiguous forest habitat for successful nesting, we have noted that special management considerations may be required to provide for the development of suitable nesting habitat for those areas currently in early successional stages.

Taking all of these factors into consideration, we considered the best available scientific information and concluded that the 101 subunits of critical habitat designated here for the marbled murrelet contain the essential physical or biological features and PCEs at a scale appropriate for the conservation of the species and representative of the natural distribution of these features on the landscape. It is not biologically reasonable to expect the PCEs to be found on every acre of each subunit of a critical habitat designation for a wide-ranging species that requires large blocks of contiguous forest habitat for successful nesting. Furthermore, because of the fundamental dynamic nature of successional forests, we do not expect such features to be distributed uniformly across critical habitat. We dispute the commenter's argument that areas within the critical habitat designation do not meet the statutory standard because the physical or biological features and PCEs are not uniformly distributed throughout the subunits. There is no statutory or regulatory requirement that the physical or biological features or PCEs be “uniformly distributed” throughout critical habitat. Section 3(5)(A)(i) of the Act requires in plain language only that the physical or biological features essential to the conservation of the species “are found” on those specific areas identified as critical habitat within the geographical area occupied by the species at the time it is listed. Our designation of critical habitat for the marbled murrelet clearly meets the statutory standard. We note that the U.S. Court of Appeals for the Ninth Circuit recently affirmed a similar interpretation of the Act in Alaska Oil and Gas Association v. Jewell, 2016 U.S. App. LEXIS 3624 (9th Cir., Feb. 29, 2016), in which the court upheld the Service's designation of critical habitat for the polar bear. The court held that, in its designation of denning habitat, the Service was not required to identify specifically where all elements of the denning habitat PCE were located within each 5-mile increment of the designated area, and the Service adequately explained why it adopted a method designed to capture a “robust” estimation of inland den use.

Finally, we recognize that there may be different approaches to defining the “geographical area occupied by the species at the time it is listed,” depending largely on the scale at which the area occupied is considered. Here we have defined that area on a relatively large scale, essentially equivalent to the range of the species, such that all critical habitat is considered occupied by the species. We have further determined, as described in this document, that the physical or biological features essential to the conservation of the species, and which may require special management considerations or protection, are found in each of the 101 subunits within the geographical area occupied by the species at the time it was listed, as identified in this designation of critical habitat. All critical habitat for the marbled murrelet therefore meets the definition of critical habitat under section (3)(5)(A)(i) of the Act.

This commenter asserted that the proposal includes “millions of acres that were not occupied at the time of listing.” In the proposed rule, we explained why this assertion is incorrect, in light of our interpretation of “occupied” as being equivalent to the range of the species. But, even if some areas of the critical habitat designation were considered unoccupied at the time of listing, we have determined that all critical habitat for the marbled murrelet, as currently designated, is essential for the conservation of the species (see section VII of the proposed rule). Hence, the designated areas meet the definition of critical habitat set forth in section 3(5)(A)(ii) of the Act. That alternative definition does not require that PCEs be present.

In this case, regardless of the scale at which the geographical area occupied by the species at the time it was listed is considered, we have determined that all areas currently designated as critical habitat for the marbled murrelet meet the definition of critical habitat whether evaluated under the standards of subsection (i) or (ii) of section 3(5)(A) of the Act. This approach is consistent with the ruling in Home Builders Ass'n of Northern California v. U.S. Fish and Wildlife Service, 616 F.3d 983, 990 (9th Cir.), cert. denied 131 S.Ct. 1475 (2011), in which the court held that, where the Service had determined in a critical habitat rule that all areas met the more demanding standard under section 3(5)(A)(ii) for unoccupied areas, there was no need to classify particular areas as occupied or unoccupied, and any possible overlap with occupied areas “poses no problem.” The court observed that “Courts routinely apply similar reasoning in cases where a standard is unclear yet the result is the same under even the highest standard.” Id. The court also held that its prior ruling in Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004), “requires FWS to be more generous in defining area as part of a critical habitat designation.” Id. at 989 (emphasis in original).

(8) Comment: The same private organization stated that an area can only be designated as critical habitat under section 3(5)(A)(i) of the Act if it meets two separate requirements with two different temporal bounds: (1) The area must be within the geographic area occupied by the species at the time it is listed, and (2) the area must currently contain (“on which are found”) physical or biological features that are “essential to the conservation of the species” [emphasis added by commenter].

Our response: In our designation of critical habitat in 1996, as revised in 2011, we determined that the physical or biological features essential to the conservation of the marbled murrelet were found on all areas occupied by the species at the time of listing. In the analysis presented in this document, we have reevaluated all designated critical habitat for the marbled murrelet, and have additionally determined that the physical or biological features essential to the conservation of the species are currently found in all critical habitat subunits as well, whether considered occupied at the time of listing or not. Therefore, whether considered at the time of listing, at designation, or at present, we conclude that all critical habitat for the marbled murrelet meets the definition of critical habitat under section 3(5)(A)(i) of the Act. Furthermore, we note that, since we have additionally evaluated all critical habitat as if it were unoccupied at the time of listing and determined that all designated areas meet the “essential for conservation” standard of section 3(5)(A)(ii), the presence of the essential physical or biological features or PCEs is not determinative.

(9) Comment: The same private organization stated that designation of non-habitat younger forest stands as critical habitat has a substantial economic impact, because, absent such designation, consultation under the jeopardy standard would not be required for actions limited to non-habitat younger forest stands, since those actions would be “no effect” on the marbled murrelet. By requiring consultation on actions limited to non-habitat younger forest stands that would not otherwise occur, there is a substantial risk that some of those actions would run afoul of the adverse modification standard, and impose a substantial administrative cost on the consulting agencies.

Our response: Section 4(b)(2) of the Act requires that we consider the potential economic impacts of a critical habitat designation. We consider the economic impacts of critical habitat to be those impacts that would not occur but for the designation of critical habitat; that is, those costs that are attributable solely to the proposed critical habitat, above and beyond the “baseline” costs already incurred for the species. As fully described in our proposed rule (pp. 51518-51519, 80 FR 51506; August 24, 2015), in this case the baseline for our analysis is the critical habitat that has been in place for the marbled murrelet since 1996, as revised in 2011. Our proposed rule focused solely on evaluating this existing critical habitat for the purpose of determining whether all areas meet the statutory definition under the Act; we did not propose any changes to the critical habitat designation already in place beyond the clarification of areas considered occupied or unoccupied at the time of listing, and a detailed description of how those areas meet the statutory definition of critical habitat. In considering the potential economic impacts of our proposed rule, we, therefore, contemplated a possible change in occupancy status of some areas of critical habitat as a result of our assessment. That is, we evaluated whether there would be any additional costs incurred as a result of our proposed rule, should we determine that some areas of critical habitat currently considered to be occupied by the marbled murrelet would change to “unoccupied” or vice versa.

Whether a subunit or action area is considered “occupied” by the species is irrelevant to the effect determination for critical habitat analysis, because the analysis is based on impacts to the PCEs, not impacts to the species. For this reason we did not anticipate any incremental economic impacts from our proposed rule. Federal agencies have been consulting under section 7 of the Act on impacts to PCE 1 and PCE 2 for marbled murrelet critical habitat since 1996. As described in detail in our proposed rule (p. 51520, 80 FR 51506; August 25, 2015), we contacted all Federal agencies with whom we have consulted on marbled murrelet critical habitat over the past 20 years to confirm our understanding that they consult on effects to critical habitat through an analysis of the effects to PCEs. Furthermore, we specifically inquired whether our proposed rule would be likely to result in any additional economic impacts on their agencies, should any areas change in occupancy status. All of the agencies that responded confirmed that they did not anticipate any additional costs as a result of the clarification of critical habitat subunits occupied at the time of listing.

(10) Comment: The same private organization stated that the Service incorrectly determined that critical habitat designation will not affect activities that do not have Federal agency involvement because, in Washington and California, the designation triggers legal obligations under State laws. Therefore, the Service should account for additional costs sustained by private landowners and revise the determination that designating critical habitat will result in no additional (incremental) economic impacts.

Our response: As required by section 4(b)(2) of the Act, we considered the potential economic impacts that could result as a consequence of our proposed rule. As described on pages 51518-51520 of the proposed rule (80 FR 51506; August 25, 2015), the baseline for this analysis is the critical habitat designation in place today. The proposed rulemaking was focused solely on evaluating the current critical habitat designation—those areas designated in 1996, as revised in 2011—for the purposes of determining whether all of those areas meet the statutory definition of critical habitat.

We are not proposing any changes to the critical habitat designation that is already in place beyond this clarification of areas considered occupied or unoccupied at the time of listing, and a detailed description of how those areas meet the statutory definition of critical habitat. We evaluated whether there would be any incremental costs incurred if there was a change in status of a critical habitat subunit from unoccupied to occupied (see our response to Comment 9, above). Incremental costs are those costs that are solely attributable to the proposed critical habitat rulemaking, over and above costs incurred for the conservation of the species absent the proposed critical habitat action. In this case, because there is no change in the geographic areas designated as critical habitat, the current designation would not trigger any additional obligations under State laws that had not already been triggered by the initial 1996 designation; therefore, there would be no indirect incremental impacts of this rulemaking in relation to State laws as suggested by the commenter. In addition, for the most part, private lands in Washington and California that were included in the final 1996 designation were known to be used by marbled murrelets; therefore, any legal obligations of the landowners would be primarily associated with the presence of the listed species, and would not be attributable solely to the designation of critical habitat (in other words, those obligations would have been realized regardless of critical habitat designation).

Under the Regulatory Flexibility Act, Federal agencies (including the Service) are required to evaluate the potential incremental impacts of a rulemaking only on directly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried out by the Agency is not likely to adversely modify critical habitat. Therefore, only Federal action agencies are directly subject to the specific regulatory requirement imposed by critical habitat designation (avoiding destruction or adverse modification of critical habitat). Under these circumstances, it is the Service's position that only Federal action agencies will be directly regulated by this designation.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) 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 regulations must be based on the best available science and that the rulemaking process 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 (RFA; 5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; 5 U.S.C. 801 et seq.), 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 effects 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 the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA to require Federal agencies to provide a certification statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities.

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 manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.

The Service's current understanding of the requirements under the RFA, as amended, and following recent court decisions, is that Federal agencies are required to evaluate the potential incremental impacts of rulemaking only on those entities directly regulated by the rulemaking itself and are not required to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried by the Agency is not likely to destroy or adversely modify critical habitat. Therefore, under section 7 only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Consequently, it is our position that only Federal action agencies will be directly regulated by this designation. There is no requirement under RFA to evaluate the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Consequently, because no small entities are directly regulated by this rulemaking, the Service certifies that, if promulgated, the final critical habitat designation will not have a significant economic impact on a substantial number of small entities.

During the development of this final rule we reviewed and evaluated all information submitted during the comment period that may pertain to our consideration of the probable incremental economic impacts of this critical habitat designation. Based on this information, we affirm our certification that this final critical habitat designation will not have a significant economic impact on a substantial number of small entities, and a regulatory flexibility analysis is not required.

Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. OMB has provided guidance for implementing this Executive Order that outlines nine outcomes that may constitute “a significant adverse effect” when compared to not taking the regulatory action under consideration. Our consideration of potential economic impacts finds that none of these criteria are relevant to this analysis, thus, energy-related impacts associated with marbled murrelet conservation activities within critical habitat are not expected. This final rule only clarifies how the designated critical habitat meets the definition of critical habitat under the Act. As such, the designation of critical habitat is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), we make the following findings:

(1) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”

The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.

(2) We do not believe that this rule will significantly or uniquely affect small governments because this final rule only clarifies how the designated critical habitat meets the definition of critical habitat under the Act. The rule does not change the boundaries of the current critical habitat; therefore, landownership within critical habitat does not change, and a Small Government Agency Plan is not required.

In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we analyzed the potential takings implications of the proposed determination of critical habitat for the marbled murrelet. This final rule clarifies whether and how the designated critical habitat meets the definition of critical habitat under the Act; there are no changes to the boundaries of the current critical habitat, so landownership within critical habitat does not change. Thus, we conclude that this final rule does not pose additional takings implications for lands within or affected by the original 1996 designation. Critical habitat designation does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. Therefore, based on the best available information, as described above, we confirm the conclusions we reached in 1996 that the final determination of critical habitat for the marbled murrelet does not pose significant takings implications.

In accordance with E.O. 13132 (Federalism), this rule does not have significant Federalism effects. A Federalism assessment is not required. From a Federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, the rule does not have substantial direct effects either on the States, or on the relationship between the national government and the States, or on the distribution of powers and responsibilities among the various levels of government. The designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical and biological features of the habitat necessary to the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist these local governments in long-range planning (because these local governments no longer have to wait for case-by-case section 7 consultations to occur).

Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.

In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have reconsidered designated critical habitat for the marbled murrelet for the purpose of assessing whether all of the areas meet the statutory definition of critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, the final rule identifies the elements of physical or biological features essential to the conservation of the marbled murrelet.

This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. 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.

There are no tribal lands designated as critical habitat for the marbled murrelet.

A complete list of all references cited in this rule is available on the Internet at http://www.regulations.gov, at Docket No. FWS-R1-ES-2015-0070. In addition, a complete list of all references cited herein, as well as others, is available upon request from the Washington Fish and Wildlife Office (see ADDRESSES).

The primary authors of this document are the staff members of the Washington Fish and Wildlife Office, U.S. Fish and Wildlife Service (see ADDRESSES).

The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

The Atlantic Bluefish fishery is jointly managed by the Mid-Atlantic Fishery Management Council and the Atlantic States Marine Fisheries Commission. The management unit for bluefish specified in the Atlantic Bluefish Fishery Management Plan is U.S. waters of the western Atlantic Ocean. Regulations implementing the FMP appear at 50 CFR part 648, subparts A and J. The regulations requiring annual specifications are found at § 648.162, and are described in the proposed rule. The proposed rule for this action published in the Federal Register on March 31, 2016 (81 FR 18559), and comments were accepted through April 15, 2016.

A description of the process used to estimate bluefish stock status and fishing mortality, as well as the process for deriving the annual catch limit (ACL) and associated quotas and harvest limits, is provided in the proposed rule and in the bluefish regulations at § 648.160 through 162, and are not repeated here. The stock is not overfished or experiencing overfishing, and the specifications described below reflect the best available scientific information for bluefish. The final 2016-2018 bluefish specifications are shown in Table 1.

A transfer of quota from the recreational fishery to the commercial sector is permitted under the FMP up to a commercial fishery quota of 10.50 million lb (4,763 mt), provided the combined expected recreational landings and the commercial quota does not exceed the total TAL. The proposed rule for this action contained a sector quota transfer based on preliminary 2015 recreational landings data. In the interim between the proposed rule and now, the final 2015 Marine Recreational Information Program (MRIP) estimates were released in June and subsequently revised in July. The final bluefish catch estimate is higher than the preliminary value used to calculate the proposed measures, but notably lower than the MRIP information provided in June. Using these updated recreational landings to project 2016 catch allows a transfer of quota from the recreational sector to the commercial fishery (1.57 million lb (715 mt)) and results in a final commercial quota of 4,884,780 lb (2,215 mt).

Consistent with Council recommendations, these final specifications do not allocate research set-aside quota for 2016 through 2018; therefore, no additional adjustments to commercial or recreational allocations are needed.

Given historical landings, the reduced commercial quota could be constraining to the fishery. Even though the commercial quota is reduced, the bluefish quota management system has been timely and effective at constraining catch in the past, and NMFS does not expect any state to exceed their quota.

Consistent with the recommendation of the Council, this final rule maintains the status quo daily recreational possession limit of up to 15 fish per person for 2016.

The final rule implementing Amendment 1 to the Bluefish Fishery Management Plan, which was published in the Federal Register on July 26, 2000 (65 FR 45844), provided a mechanism for bluefish quota to be transferred from one state to another. Two or more states, under mutual agreement and with the concurrence of the Administrator, Greater Atlantic Region, NMFS (Regional Administrator), can transfer or combine bluefish commercial quota under § 648.162(e). The Regional Administrator is required to consider the criteria in § 648.162(e)(1) in the evaluation of requests for quota transfers or combinations.

During the processing of this final rule, the Commonwealth of Virginia agreed to transfer 50,000 lb (22,680 kg) of bluefish quota to the State of Rhode Island and 30,000 lb (13,607 kg) to the State of New York, and the State of Florida agreed to transfer 50,000 lb (22,680 kg) to the State of Rhode Island. The state commercial transfers will not preclude the overall annual quota from being fully harvested, and will address contingencies in the fishery. In addition, the transfers are consistent with the objectives of the FMP and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). These transfers have been approved and are incorporated within this final rule and the individual state quota allocations have been adjusted to reflect the transfer. The final state commercial allocations for 2016-2018 are shown in Table 2. The initial quotas are based on percentages specified in the FMP. No states exceeded their quota in 2015, therefore, no accountability measures are being implemented for the 2016 fishing year.

General Background

The summer flounder, scup, and black sea bass fisheries are managed cooperatively under the provisions of the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP) developed by the Mid-Atlantic Fishery Management Council and the Atlantic States Marine Fisheries Commission, in consultation with the New England and South Atlantic Fishery Management Councils. States manage these three species within 3 nautical miles (4.83 km) of their coasts, under the Commission's plan for summer flounder, scup, and black sea bass. The applicable species-specific Federal regulations govern vessels and individual fishermen fishing in Federal waters of the exclusive economic zone (EEZ), as well as vessels possessing a Federal summer flounder, scup, or black sea bass charter/party vessel permit, regardless of where they fish.

A proposed rule to implement the 2016 Federal recreational management measures (minimum fish size, season, and possession limit) for the summer flounder, scup, and black sea bass fisheries, scup commercial possession limit change, and summer flounder mesh requirement clarifications was published in the Federal Register on May 23, 2016 (81 FR 32269), with a 15-day comment period that ended on June 7, 2016. Comments received on the proposed rule are summarized and responded to in the Comments and Responses section found later in this rule. Additional background and information on the process to develop the measures described is provided in the preamble to the proposed rule and is not repeated here.

NMFS is implementing the following measures that would apply in the Federal waters of the EEZ:

These measures apply to all federally permitted party/charter vessels with applicable summer flounder, scup, or black sea bass permits, regardless of where they fish, unless the state in which they land implements measures that are more restrictive. These measures are intended to achieve, but not exceed, the previously-established recreational harvest limits for these fisheries. See 80 FR 80689, published December 28, 2015, for background information on 2016 harvest limits. Additional detail on the measures for each species is provided below.

NMFS is implementing conservation equivalency to manage the 2016 summer flounder recreational fishery, as recommended by the Council and Commission. The 2016 recreational harvest limit for summer flounder is 5.42 million lb (2,214 mt) and final landings for 2015, as estimated by the Marine Recreational Information Program (MRIP), were 4.88 million lb (2,096 mt). Maintaining the 2015 management measures is expected to effectively constrain 2016 summer flounder recreational landings and prevent the recreational harvest limit from being exceeded.

Conservation equivalency, as established by Framework Adjustment 2 (July 29, 2001; 66 FR 36208), allows each state to establish its own recreational management measures (per-angler possession limits, minimum fish size, and fishing seasons) to achieve its state harvest limit partitioned by the Commission from the coastwide recreational harvest limit, as long as the combined effect of all of the states' management measures achieves the same level of conservation as would Federal coastwide measures. Framework Adjustment 6 (July 26, 2006; 71 FR 42315) allowed states to form regions for conservation equivalency in order to minimize regulation differences for anglers fishing in adjacent waters.

The Commission implemented Addendum XXVII to its Summer Flounder FMP to continue regional conservation equivalency for fishing year 2016. The Commission has adopted the following mix of stand-alone state and regions for summer flounder measures: (1) Massachusetts; (2) Rhode Island; (3) Connecticut and New York; (4) New Jersey; (4) Delaware, Maryland, and Virginia; and (5) North Carolina. In order to provide the maximum amount of flexibility and to continue to adequately address the state-by-state differences in fish availability, each state in a region is required by the Council and Commission to establish fishing seasons of the same length, with identical minimum fish sizes and possession limits. The Commission certified, by letter dated June 7, 2016, that the Addendum XXVII measures implemented by individual states and regions, when combined, are the conservation equivalent of coastwide measures that would be expected to result in the recreational harvest limit being achieved, but not exceeded. More information on this addendum is available from the Commission (www.asmfc.org).

Based on the recommendation of the Commission, we find that the recreational summer flounder fishing measures implemented for 2016 in state waters are, collectively, the conservation equivalent of the season, minimum size, and possession limit prescribed in §§ 648.104(b), 648.105, and 648.106(a). According to § 648.107(a)(1), vessels subject to the recreational fishing measures are not subject to Federal measures, and instead are subject to the recreational fishing measures implemented by the state in which they land. Section 648.107(a) is amended through this rule to recognize state-implemented measures as conservation equivalent of the coastwide recreational management measures for 2016. The 2016 summer flounder management measures adopted by the individual states vary according to the state of landing, as specified in Table 2.

In addition, this action maintains the current default coastwide measures (an 18-inch (45.7-cm) minimum size, 4-fish possession limit, and May 1-September 30 open fishing season), that become effective January 1, 2017, when the 2016 conservation equivalency program expires. These measures will remain effective until replaced by the 2017 recreational management measures in the spring of next year.

This rule maintains status quo scup measures for the 2016 fishery: A 9-inch (22.9-cm) minimum fish size, 50-fish per person possession limit, and year-round season. The 2016 scup recreational harvest limit is 6.09 million lb (2,763 mt) and 2015 recreational landings were 5.11 million lb (2,318 mt). Based on this, no changes in measures are needed to ensure the 2016 recreational harvest limit is not exceeded, and further liberalization of the management measures was not requested by the Council or Commission.

This rule implements a 12.5-inch (31.8-cm) minimum size, 15-fish possession limit, and open seasons of May 15-September 21 and October 22-December 31 in Federal waters. The states of Maryland, Delaware, Virginia and North Carolina have also adopted these measures for state waters. New Jersey, New York, Connecticut, Rhode Island, and Massachusetts have adopted different, more restrictive measures for their state waters, as required by the Commission's Addendum XXVII to the FMP. The Commission certified, by letter dated June 7, 2016, that the northern states (Massachusetts to New Jersey) have implemented measures consistent with Addendum XXVII.

The Council and the Commission made use of the preliminary MRIP estimates when developing 2016 management measures. It was, at the time of the development process, the best available information. In some years, the final MRIP estimates that are typically available in April have been slightly different than the preliminary year-end estimates available in February. The final 2015 MRIP estimates, delayed until June 13, 2016, are substantially different than the preliminary information used by the Council and Commission. The 2015 landings estimate increased from 3.62 (1,642 mt) to 3.97 million lb (1,801 mt)—a 350,000-lb (159-mt) increase. This would necessitate a 30.2-percent reduction from 2015 landings to constrain 2016 catch to the 2.82 million lb (1,279 mt) recreational harvest limit. The preliminary information used by the Council and Commission indicated a 22.1-percent reduction in landings was necessary.

The majority of black sea bass are caught inside state waters from New Jersey north. The Council and Commission recommend maintaining the 2015 management measures (12.5-inch (31.8-cm) minimum fish size, 15-fish possession limit with an open season of May 15-September 21 and October 22-December 31) in Federal waters and for state waters in Delaware, Maryland, Virginia, and North Carolina. Because catch from Federal waters and state waters from Delaware to North Carolina is generally less than 8 percent of the total catch, recreational measures must necessarily focus on state waters from New Jersey north. The Council and Commission's recommendations were contingent on the northern states (New Jersey north) implementing at least a 23-percent reduction to their state waters measures through a Commission Addendum. This approach also used the accountability measure methods developed for 2015. The accountability measure has been triggered again for 2016; however, because the previously developed and implemented approach (i.e., maintaining Federal measures and applying them in states from Delaware south while states from New Jersey north reduce landings to constrain catch) is being maintained, no additional measures are required for 2016.

The Council recommended a backup coastwide measure of a 14-inch (35.56-cm) minimum fish size and a 3-fish possession limit with an open season of July 15-September 15 to be implemented in Federal waters and for southern states only if the northern states did not comply with the landings-reduction requirements of the Commission's Addendum. NMFS received a letter from the Commission on June 7, 2016, before the final MRIP estimates were available, stating that the northern states had developed and implemented black sea bass measures designed to achieve the required 23-percent reduction in 2016 recreational landings.

In response to the unexpected change in the final MRIP estimates for black sea bass, the Commission's Black Sea Bass Management Board held an emergency teleconference on July 6, 2016, to discuss the new MRIP estimates and to consider additional management action. In the discussion, Board members spoke about challenges in making any additional changes. They cited administrative burdens and timing complications of both receiving new information so late in the fishing year and difficulties implementing regulatory changes quickly mid-season. Many reiterated that the backup coastwide measures were intended to ensure states complied with the addendum requirements and were never envisioned for implementation under any other scenario. That is, backup measures were only designed as an incentive to ensure state compliance and would only be used in the event that states failed to implement the addendum-required measures. Some cited the potential for additional angler and public disillusionment if additional reductions were implemented mid-year. Others stated that it is possible, given the upcoming stock assessment, that catches may be increased next or, at a minimum, any regulatory changes could be developed next year in response to 2016 catch and whatever information results from the assessment. Ultimately, the Board elected not to take any action at this time. The existing measures adopted under Addendum XXVII, when evaluated with the final 2015 MRIP estimates indicates that landings reductions may be in the 24- to 25-percent range as the new data changed the effective reductions on a state-by-state basis. Some state measures are now more restrictive than previously believed, others are now more liberal.

NMFS is implementing the Council recommended original suite of measures, for the following reasons:

1. The Council and Commission developed appropriate measures on what was considered the best available information at the time of their decisionmaking processes. The backup coastwide provisions (i.e., a 14-inch (35.56-cm) minimum fish size and a 3-fish possession limit with an open season of July 15-September 15) developed by the Council as a backstop provision was designed for use only if northern states did not develop measures to achieve the required 23-percent reduction in landings based on the preliminary MRIP information. Acting in good faith, the northern states did comply with the provisions of Addendum XXVII to the Commission's FMP. Using the coastwide provisions would disproportionally affect the southern states that adopt Federal measures for their state waters while doing little, if anything, to constrain overall catch. The actual reduction in landings from using the backstop would not achieve a 30-percent reduction in 2016 landings.

2. The final MRIP data were released substantially later than is normal and were considerably different than the preliminary estimates. It could not be foreseen that final information would increase 2015 landing estimates by nearly 10 percent, nor could it be anticipated that final estimates would be available much later than normal. Final MRIP estimates for black sea bass, usually released in mid-April, generally vary 1-2 percent from the preliminary estimates and in many years have been lower than preliminary estimates, not higher.

3. The 2016 recreational black sea bass fishery is well underway. Even acting quickly, several states indicated during the July 6 Board teleconference that they would be unable to implement regulatory changes before the end of summer. For many states, the fishery is effectively over by mid-September. Similarly, it is unlikely that an emergency action by NMFS could be implemented much more quickly. Federal measures alone would be insufficient to effectively reduce landings because the majority of catch occurs in northern state's waters.

4. A comprehensive stock assessment is scheduled for December 2016. Work has already begun on this assessment. NMFS is prepared to work quickly with the Council and Commission to react to new stock information as soon as it becomes available in early 2017.

5. Further delay to implement management measures would affect not only black sea bass management, but also scup and summer flounder. The latter species, summer flounder, currently lacks the conservation equivalency determination for Federal waters until a final rule is published in the Federal Register. This would create inconsistent measures in Federal and state waters, confusion for the public, and could lead to enforcement problems.

This rule increases the incidental winter season (November 1-April 30) scup commercial possession limit for vessels using mesh smaller than 5.0 inches (12.7 cm) from 500 lb (227 kg) to 1,000 lb (454 kg). This change is expected to allow vessels using small mesh that take scup incidental to other target species to convert some scup that would otherwise be discarded to landings. Vessels using mesh larger than 5 inches (12.7 cm) may continue to land up to the targeted commercial fishery possession limit according to the applicable Federal and state rules.

This rule also corrects two errors in the commercial summer flounder regulations. The summer flounder minimum mesh size regulations at § 648.108(a)(1) require that any vessel landing or possessing more than 100 lb (45 kg) of summer flounder from May 1 through October 31, or 200 lb (91 kg) of summer flounder from November 1 through April 30, use at least 5.5-inch (14-cm) diamond or 6.0-inch (15-cm) square mesh “throughout the body, extension(s), and codend portion of the net.” However, the turtle excluding device (TED) regulations require summer flounder trawls fishing in the sea turtle protection area to have a TED extension with webbing no larger than 3.5 inches (9 cm). This rule eliminates the conflict between these two regulations by specifying that the minimum mesh size restrictions do not apply to extensions needed to comply with the TED regulations.

This rule also corrects an erroneous reference to the Regional Administrator's authority to terminate the fly net exemption after review. This authority has been incorrectly listed at § 648.108(b)(3) and is corrected in this rule to reference § 648.108(b)(2)(iv).

Three comments were received on measures outlined in the May 23, 2016 (81 FR 32269), proposed rule. Two comments received supported the scup incidental trip limit increase contained in this rule. Both noted this change will assist fishermen in reducing regulatory discards in small-mesh fisheries during the November to April timeframe. NMFS agrees and is implementing this change as proposed.

The other comment received raised no issues with any of the proposed measures. Rather, the individual wanted more information in the final rule about what outreach and/or inclusion of commercial and recreational fishermen's input occurred during the development of the measures in this rule.

As outlined in the SIR prepared by the Council, the public had the opportunity to provide comments during the development of the 2016 catch limits, the 2016 recreational management measures, and the scup incidental trawl possession limits. Opportunities for public participation, including recreational and commercial fishermen, occurred as part the following meetings:

• Summer Flounder, Scup, and Black Sea Bass Monitoring Committee Meetings; September 23, 2015, and November 7-10, 2015;

• Summer Flounder, Scup, and Black Sea Bass Advisory Panel Meetings; October 22, 2015, and November 17, 2015;

• Council meeting; December 8-10, 2015.

Furthermore, the measures of this rule have been subject to public comment through proposed rulemaking, as required under the Administrative Procedure Act.

The Administrator, Greater Atlantic Region, NMFS, determined that the 2016 recreational management measures and other specification measures of this rule for the Summer Flounder, Scup, and Black Sea Bass FMP are necessary for the conservation and management of the summer flounder, scup, and black sea bass fisheries and that the measures are consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.

The Assistant Administrator for Fisheries, NOAA, finds good cause to waive the requirement for a 30-day delay in effectiveness under the provisions of section 553(d) of the Administrative Procedure Act because a delay in its effectiveness would not serve any legitimate purpose, while unfairly prejudicing federally permitted charter/party vessels. Recreational fisheries are already underway for summer flounder, scup, and black sea bass. Rulemaking has been delayed while final information from the MRIP program, provided many weeks later than is typical, has been evaluated. The Commission's Black Sea Bass Management Board met on July 6, 2016, to discuss the updated MRIP estimates. NMFS could not issue a final rule for black sea bass measures until the outcome of this meeting was known.

Because summer flounder fisheries are already open prior to the publication of this rule, additional delay will disadvantage federally permitted charter/party vessels that would be restricted to the existing summer flounder coastwide regulations (18-inch (45.7-cm) minimum size and a 4-fish per person possession limit) until the Federal regulations implementing conservation equivalency are effective. This would unnecessarily disadvantage federally permitted vessels, which would be subject to the more restrictive measures while state-licensed vessels could be engaged in fishing activities under this year's management measures. If this final rule were delayed for 30 days, the fishery would likely forego some amount of landings and revenues during the delay period. While these restrictions would be alleviated after this rule becomes effective, fishermen may be not able to recoup the lost economic opportunity of foregone trips that would result from delaying the effectiveness of this action.

Finally, requiring a 30-day delay before the final rule becomes effective would not provide any benefit to the regulated parties. Unlike actions that require an adjustment period to comply with new rules, charter/party operators will not have to purchase new equipment or otherwise expend time or money to comply with these management measures. Rather, complying with this final rule simply means adhering to the published management measures for each relevant species of fish while the charter/party operators are engaged in fishing activities.

For these reasons, the Assistant Administrator finds good cause to waive the 30-day delay and to implement this rule upon publication in the Federal Register.

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

On December 29, 2015, the National Marine Fisheries Service (NMFS) issued a final rule establishing a small business size standard of $11 million in annual gross receipts for all businesses primarily engaged in the commercial fishing industry (NAICS 11411) for Regulatory Flexibility Act (RFA) compliance purposes only (80 FR 81194, December 29, 2015). The $11 million standard became effective on July 1, 2016, and is to be used in place of the U.S. Small Business Administration's (SBA) current standards of $20.5 million, $5.5 million, and $7.5 million for the finfish (NAICS 114111), shellfish (NAICS 114112), and other marine fishing (NAICS 114119) sectors of the U.S. commercial fishing industry in all NMFS rules subject to the RFA after July 1, 2016.

Pursuant to the Regulatory Flexibility Act, and prior to July 1, 2016, a certification was developed for this regulatory action using SBA's former size standards. NMFS has reviewed the analyses prepared for this regulatory action in light of the new size standard. All of the entities directly regulated by this regulatory action are commercial finfish fishing businesses. The new standard could result in fewer commercial finfish businesses being considered small. However, NMFS has determined that the new size standard does not affect its decision to certify this regulatory action. The action results in essentially status quo measures for all three fisheries and would have a minimal, potentially slightly positive, impact on all regulated entities regardless of size.

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

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

The 2016 total allowable catch (TAC) of dusky rockfish in the Western Regulatory Area of the GOA is 173 metric tons (mt) as established by the final 2016 and 2017 harvest specifications for groundfish of the Gulf of Alaska (81 FR 14740, March 18, 2016).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2016 TAC of dusky rockfish in the Western Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 100 mt, and is setting aside the remaining 73 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for dusky rockfish in the Western Regulatory Area of the GOA.

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

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of directed fishing for dusky rockfish in the Western Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of July 29, 2016.

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

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

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

The 2016 total allowable catch (TAC) of Pacific ocean perch in the Western Regulatory Area of the GOA is 2,737 metric tons (mt) as established by the final 2016 and 2017 harvest specifications for groundfish of the Gulf of Alaska (81 FR 14740, March 18, 2016).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2016 TAC of Pacific ocean perch in the Western Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 2,637 mt, and is setting aside 100 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific ocean perch in the Western Regulatory Area of the GOA.

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

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of directed fishing for Pacific ocean perch in the Western Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of July 29, 2016.

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

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

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

The 2016 total allowable catch (TAC) of northern rockfish in the Western Regulatory Area of the GOA is 457 metric tons (mt) as established by the final 2016 and 2017 harvest specifications for groundfish of the Gulf of Alaska (81 FR 14740, March 18, 2016).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2016 TAC of northern rockfish in the Western Regulatory Area of the GOA will be soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 50 mt, and is setting aside 407 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for northern rockfish in the Western Regulatory Area of the GOA.

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

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of directed fishing for northern rockfish in the Western Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of July 29, 2016.

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

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