Federal Register Vol. 81, No.156,

This final rule is issued pursuant to the Dairy Production Stabilization Act (Dairy Act) of 1983 [7 U.S.C. 4501-4514], as amended.

The Office of Management and Budget has waived the review process required by Executive Order 12866 for this action.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This final rule is not intended to have a retroactive effect. In accordance with 7 U.S.C. 4512(a), this rule will not preempt or supersede any other program relating to dairy product promotion organized and operated under the laws of the United States or any State.

The Dairy Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under 7 U.S.C. 4509, any person subject to the Dairy Order may file with the Secretary of Agriculture (Secretary) a petition stating that the Dairy Order, any provision of the Dairy Order, or any obligation imposed in connection with the Dairy Order is not in accordance with the law and request a modification of the Dairy Order or to be exempted from the Dairy Order. Such person is afforded the opportunity for a hearing on the petition. After a hearing, the Secretary would rule on the petition. The Dairy Act provides that the district court of the United States in any district in which the person is an inhabitant or has his principal place of business, has jurisdiction to review the Secretary's ruling on the petition, provided a complaint is filed not later than 20 days after the date of the entry of the ruling.

In accordance with the Regulatory Flexibility Act (5 U.S.C. 601-612), the Agricultural Marketing Service has considered the economic impact of this action on small entities and has certified that this final rule will not have a significant economic impact on a substantial number of small entities. The purpose of the Regulatory Flexibility Act is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be disproportionately burdened.

The Dairy Act authorizes a national program for dairy product promotion, research and nutrition education. Congress found that it is in the public interest to authorize the establishment of an orderly procedure for financing (through assessment on all milk produced in the United States for commercial use and on imported dairy products) and carrying out a coordinated program of promotion designed to strengthen the dairy industry's position in the marketplace and to maintain and expand domestic and foreign markets and uses for fluid milk and dairy products.

The Small Business Administration [13 CFR 121.201] defines such entities with fewer than 500 employees as small businesses. According to 2013 data from the U.S. Census Bureau, 98.6 percent of these types of firms had fewer than 500 employees (http://census.gov/econ/subs/). According to the U.S. Customs and Border Protection (CBP), in 2014, approximately 1,400 importers paid assessments under Section 1150.152(b) of the Dairy Order. Although data is not available concerning the sizes of these firms, it is reasonable to assume that most of them would be considered small businesses. The most common classification for dairy product importers is Grocery and Related Product Merchant Wholesalers (North American Industry Classification System, category 4244).

The final rule amends the Dairy Order, Section 1150.131(c), by reducing the number of Dairy Board importer representatives from 2 members to 1 member.

The amendment should not have a significant economic impact on persons subject to the Dairy Order. The changes allow representation on the Dairy Board to better reflect the volume of dairy product imports into the United States.

In accordance with the Office of Management and Budget (OMB) regulation [5 CFR part 1320] which implements the Paperwork Reduction Act of 1995 [44 U.S.C. chapter 35], the information collection requirements and record keeping provisions imposed by the Dairy Order have been previously approved by OMB and assigned OMB Control No. 0581-0093. No relevant Federal rules have been identified that duplicate, overlap, or conflict with this rule.

Upon publication of this rule, the Dairy Order is administered by a 37-member Dairy Board, 36 members representing 12 geographic regions within the United States and 1 member representing importers. The Dairy Order requires in Section 1150.131(f) that at least once every three years, after the initial appointment of importer representatives on the Dairy Board, the Secretary shall review the average volume of domestic production of dairy products compared to the average volume of imports of dairy products into the United States during the previous three years and, on the basis of that review, if warranted, reapportion the importer representation on the Dairy Board to reflect the proportional shares of the United States market served by domestic production and imported dairy products. This reapportionment review is the first conducted since importer members were appointed to the Dairy Board on November 2, 2011.

For initial representation of importers on the Dairy Board, the Dairy Act states “In making initial appointments to the Board of importer representatives, the Secretary shall appoint 2 members who represent importers of dairy products and are subject to assessment under the order.” 7 U.S.C. 4504(b)(6)(A). For subsequent representation of importers, the Dairy Act goes on to state “At least once every 3 years after the initial appointment of importer representatives under subparagraph (A), the Secretary shall review the average volume of domestic production of dairy products compared to the average volume of imports of dairy products into the United States during the previous 3 years and, on the basis of that review, shall reapportion importer representation on the Board to reflect the proportional share of the United States market by domestic production and imported dairy products.” 7 U.S.C. 4504(b)(6)(B).

Section 1150.131(f) of the Dairy Order states the basis for the comparison of domestic production of dairy products to imported products should be estimated total milk solids. The calculation of total milk solids of imported dairy products for reapportionment purposes “shall be the same as the calculation of total milk solids of imported dairy products for assessment purposes.” The reapportionment review was not conducted prior to 2015 because three full years' worth of data was not available.

Using National Agricultural Statistical Service (NASS) Annual Dairy Products Summary data, the average U.S. milk total solids for domestic dairy products for 2012 to 2014 was 23,462 billion pounds annually. Based on the total milk solids number, each of the 36 domestic Dairy Board producer members would represent 652 million pounds of total milk solids (23,462 billion pounds divided by 36 producer members equals 652 million pounds per producer).

Using information received from CBP, the average total milk solids imported during 2012 to 2014 was 589 million pounds (589 million pounds divided by 1 importer member equals 589 million pounds per importer).

Accordingly, Table 1 summarizes, based on U.S. total solids and imported total solids, the adopted number of Dairy Board seats for domestic and importer members.

On April 1, 2016, a proposed rule was published in the Federal Register [81 FR 18802] inviting comments on proposed modifications to the number of importer representatives on the Dairy Board. Interested parties were provided 30 days to comment on the proposed amendment. USDA received three timely comments from industry organizations and an individual. Of those comments, two were opposed the rule and one did not address the merits of the proposed rule.

One commenter opposed reducing the number of importer members on the Dairy Board, recognizing that approximately 1,400 importers paid assessments under the Dairy Order in 2014. The commenter stated that due to the limits of the Dairy Tariff-Rate Import Quota Licensing Program placed on the volume of cheese imported into the U.S., increasing import volumes by any appreciable amount is impossible.

A second commenter also opposed the proposal to reduce Dairy Board importer representation from two members to one member, and urged for the withdrawal of the proposed rule. The commenter recognized the Dairy Act requires importer representation to reflect the proportional share of the U.S. market by domestic production and imported dairy products. However, the commenter argued that increasing import volumes by any appreciable amount is impossible due to the limits placed on the volume of cheese imported into the U.S. by factors beyond the control of the market, namely quotas, tariffs and import licenses. The commenter also stated safeguard triggers require substantially higher tariffs if the triggers are breached and noted this occurred with butter in 2015 and may occur in the coming year with several cheeses. The commenter went on to state that the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP) agreements are focused on the reduction, if not elimination of tariffs and quotas. As a result, TPP and TTIP implementation would likely result in an increase in imported dairy products, including cheese, and would make the representation of importers on the Dairy Board even more meaningful.

As noted in the proposed rule, the Dairy Order requires and provides instruction on how to carry out a review to determine whether or not a reapportionment of importer members on the Dairy Board is warranted. Therefore, the proposed rule will not be withdrawn. Neither commenter disputed the method of nor the data used to conduct the reapportionment review. Similarly, an alternative process for conducting the review was not offered. Additionally, because the Secretary is required to review importer representation every three years, any increase in imported dairy products, cheese or otherwise, would be reflected in the calculations used to determine whether importer representation would increase, remain the same, or decrease.

This final rule adopts the proposed rule without change, and therefore Dairy Board importer representation is decreased from two importer members to one importer member.

Pursuant to 5 U.S.C. 553, it is found and determined that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because this rule should be in effect as soon as possible to appoint Dairy Board members for the 2016-2019 term.

For the reasons set forth in the preamble, 7 CFR part 1150 is amended as follows:

Background

The National Poultry Improvement Plan (NPIP, also referred to below as “the Plan”) is a cooperative Federal-State-industry mechanism for controlling certain poultry diseases. The Plan consists of a variety of programs intended to prevent and control poultry diseases. Participation in all Plan programs is voluntary, but breeding flocks, hatcheries, and dealers must first qualify as “U.S. Pullorum-Typhoid Clean” as a condition for participating in the other Plan programs.

The Plan identifies States, flocks, hatcheries, dealers, and slaughter plants that meet certain disease control standards specified in the Plan's various programs. As a result, customers can buy poultry that has tested clean of certain diseases or that has been produced under disease-prevention conditions.

The regulations in 9 CFR parts 145, 146, and 147 (referred to below as the regulations) contain the provisions of the Plan. The Animal and Plant Health Inspection Service (APHIS, also referred to as “the Service”) of the U.S. Department of Agriculture (also referred to as “the Department”) amends these provisions from time to time to incorporate new scientific information and technologies within the Plan. In addition, the regulations in 9 CFR part 56 set out conditions for the payment of indemnity for costs associated with poultry that are infected with or exposed to H5/H7 low pathogenic avian influenza and provisions for a cooperative control program for the disease.

On March 24, 2016, we published in the Federal Register (81 FR 15652-15660, Docket No. APHIS-2014-0101) a proposal 1 to amend the regulations by clarifying who may participate in the NPIP and amending participation requirements. In addition, we proposed to amend definitions of poultry and breeding stock, amend the approval process for new diagnostic tests, and amend slaughter plant inspection and laboratory inspection and testing requirements.

We solicited comments concerning our proposal for 60 days ending May 23, 2016. We received one comment by that date. It was from an individual. The issues raised by the commenter are discussed below.

In the March 2016 proposed rule, we proposed to amend the definition of breeding flock in § 56.1 to remove the word “chicks” and replace it with the word “progeny.” The commenter objected to this change, suggesting that many people would not know the meaning of the latter term and would find it confusing.

We are not making any changes to the final rule in response to this comment. As stated in the March 2016 proposed rule, the term “progeny” is more accurate than “chicks” in this context because it is more inclusive of both chicken and turkey flocks. Young turkeys are known as poults rather than chicks. In addition, as we noted in the proposed rule, the change in terminology also makes our definition of breeding flock in § 56.1 consistent with our definition of multiplier breeding flock in § 145.1.

The March 2016 proposed rule included a minor change to § 145.12, which contains requirements for the retention and examination of records for all flocks maintained primarily for hatching eggs. We proposed to specify, in paragraph (b) of that section, that records for all breeder flock hatcheries must be made available for annual examination by a State inspector. Historically, testing records were retained at the hatchery, which allowed for examination of the records during annual inspections, but that is no longer the case. Many commercial hatcheries now keep testing records at the corporate office or another site. Our proposed amendment to § 145.12 was intended to reflect this change in recordkeeping practices in the industry and also to allow flexibility in the regulations regarding who may make the records available to the State inspector.

The commenter objected to this proposed change, stating that the records should be kept at the hatchery with the flocks so that taxpayers do not have to incur additional costs due to the need for inspectors to travel to different locations.

We do not agree with this comment. As noted above, we are amending the regulations to reflect current practices in the industry. By allowing hatcheries the discretion to maintain records where they would most readily be accessible when needed, we are relieving a regulatory burden. The commenter provides no evidence to support the claim that having the records kept at sites other than the hatcheries will result in additional costs to taxpayers.

The commenter also stated that the proposed rule would have the effect of loosening testing standards, thereby increasing the risk of the spread of disease.

We did not propose to loosen existing testing standards, as the commenter claims. We proposed instead to make some editorial changes to § 145.14(b) to remove references to tests that are no longer being used, update terminology that is no longer current, and otherwise clarify the testing requirements in that section.

Finally, the commenter objected to our proposed changes to the slaughter plant inspection requirements in § 146.11.

We will not be making any changes to the final rule in response to this comment. The commenter did not offer a rationale for opposing the proposed amendments to § 146.11, which were intended to clarify our slaughter plant inspection requirements and remove language that conflicted with requirements set out elsewhere in part 146.

In this final rule, we are making one minor editorial change to correct an error in the regulatory text of the proposed rule.

Part 146 of the regulations contains the NPIP provisions for commercial poultry. Currently, the only disease addressed in this part is H5/H7 low pathogenic avian influenza; under part 146, table-egg layer flocks, meat-type chicken slaughter plants, meat-type turkey slaughter plants, and certain types of game birds and waterfowl may participate in U.S. H5/H7 Avian Influenza Monitored classifications.

Section 146.11 sets out the audit process for participating slaughter plants. Paragraph (b) states that flocks slaughtered at a slaughter plant will be considered to be not conforming to the required protocol of the classifications if there are no test results available, if the flock was not tested within 21 days before slaughter, or if the test results for the flocks were not returned before slaughter. We intended to amend paragraph (b) to state that “a flock will be considered to be conforming to protocol if it meets the requirements as described in §§ 146.33(a), 146.43(a), 146.53(a).” However, we inadvertently referred to § 145.33(a) instead of § 146.33(a). In this final rule, we are correcting that error.

Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with the change discussed in this document.

This final rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

In accordance with the Regulatory Flexibility Act, we have analyzed the potential economic effects of this action on small entities. The analysis is summarized below. Copies of the full analysis are available on the Regulations.gov Web site (see footnote 1 in this document for a link to Regulations.gov) or by contacting the person listed under FOR FURTHER INFORMATION CONTACT.

We are amending the NPIP, its auxiliary provisions, and the indemnity regulations for the control of H5 and H7 low pathogenic avian influenza to align the regulations with international standards and make them more transparent to stakeholders and the general public. The changes in this final rule were voted on and approved by the voting delegates at the 2014 NPIP National Plan Conference.

The establishments that will be affected by the rule—principally entities engaged in poultry production and processing—are predominantly small by Small Business Administration standards. In those instances in which an addition to or modification of requirements could potentially result in a cost to certain entities, we do not expect the costs to be significant. NPIP membership is voluntary. The changes contained in this final rule were decided upon by the NPIP General Conference Committee on behalf of Plan members; that is, the changes were recognized by the poultry industry as being in their interest.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 2 CFR chapter IV.)

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are in conflict with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the information collection or recordkeeping requirements included in this final rule, which were filed under 0579-0445, have been submitted for approval to the Office of Management and Budget (OMB). When OMB notifies us of its decision, if approval is denied, we will publish a document in the Federal Register providing notice of what action we plan to take.

The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this rule, please contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2727.

Accordingly, we are amending 9 CFR parts 56, 145, 146, and 147 as follows:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2010-10-13, Amendment 39-16292 (75 FR 27419, May 17, 2010) (“AD 2010-10-13”). AD 2010-10-13 applied to all BAE Systems (Operations) Limited Model BAe 146 and Avro 146 series airplanes. The NPRM published in the Federal Register on April 20, 2016 (81 FR 23208) (“the NPRM”). The NPRM was prompted by revised inspection procedures issued by the DAH. The NPRM proposed to continue to require repetitive inspections of the wing fixed leading edge and front spar structure for corrosion and cracking, and repair if necessary. The NPRM also proposed to require revised inspection procedures that terminate a previously approved inspection procedure. We are issuing this AD to detect and correct corrosion and cracking of the wing fixed leading edge and front spar structure, 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 Airworthiness Directive 2014-0047; corrected February 26, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”); to correct an unsafe condition. The MCAI states:

The repetitive inspection interval for the detailed visual inspection for cracking and corrosion of the wing fixed leading edge and front spar structure is:

• 12 years or 36,000 flight cycles, whichever occurs earlier, for airplanes on which the enhanced corrosion protection has not been accomplished.

• 6 years or 36,000 flight cycles, whichever occurs earlier, for airplanes on which the enhanced corrosion protection has been accomplished.

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-2016-5465.

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 available 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.

BAE Systems (Operations) Limited has issued Service Bulletin ISB.57-072, Revision 3, dated August 31, 2010. The service information describes procedures for inspection and repair for cracking and corrosion of the wing fixed leading edge and front spar structure. 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 4 airplanes of U.S. registry.

The actions required by AD 2010-10-13, and retained in this AD take about 12 work-hours per product, and 1 work-hour per product for reporting, at an average labor rate of $85 per work-hour. Based on these figures, the estimated cost of the actions that are required by AD 2010-10-13 is $1,105 per product.

The new requirements of this AD add no additional economic burden.

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

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this AD is 2120-0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at 800 Independence Ave. SW., Washington, DC 20591, ATTN: Information Collection Clearance Officer, AES-200.

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 Airbus Model A318, A319, A320, and A321 series airplanes. The NPRM published in the Federal Register on October 19, 2015 (80 FR 63136) (“the NPRM”). The NPRM was prompted by reports of premature aging of certain passenger chemical oxygen generators that resulted in the generators failing to activate. The NPRM proposed to require an inspection to determine if certain passenger chemical oxygen generators are installed and replacement of affected passenger chemical oxygen generators. We are issuing this AD to prevent failure of the passenger chemical oxygen generator to activate and consequently not deliver oxygen during an emergency, possibly resulting in injury to the airplane occupants.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2015-0117, dated June 24, 2015; corrected August 7, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”); to correct an unsafe condition for all Airbus Model A318, A319, A320, and A321 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-2015-3989.

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM (80 FR 63136, October 19, 2015) and the FAA's response to each comment.

United Airlines (UAL) and Delta Air Lines, Inc. (DAL) requested an extension of the 30-day compliance time for the part number inspection. UAL stated that the time required for the part number inspection and the size of UAL's fleet is prohibitive to meeting the 30-day compliance time and requested that we extend the initial compliance time to 24 months. DAL stated that the time required for the part number inspection and the size of DAL's fleet is prohibitive to meeting the 30-day compliance time and requested that we extend the initial compliance time for the part number inspection to 90 days. DAL pointed out that a 90-day compliance time would allow ample time to route airplanes and schedule the required work on the first group of affected airplanes.

We disagree with the requests to extend the 30-day compliance time for the part number inspection. The commenters did not provide any justification to substantiate how increasing the compliance time from 30 days to 90 days or 24 months would provide an acceptable level of safety. After considering all of the available information, we have determined that the compliance time, as proposed, represents an appropriate interval of time in which the required actions can be performed in a timely manner with the affected fleet, while still maintaining an adequate level of safety. In developing an appropriated compliance time, we considered the safety implications, parts availability, and normal maintenance schedules for timely accomplishment of the replacement, overall risk to the fleet, including the severity of the identified unsafe condition and the likelihood of the occurrence of the unsafe condition. However, under the provisions of paragraph (n)(1) of this AD, operators may apply for an extension of the compliance time by providing rationale explaining why a compliance time extension provides an acceptable level of safety. We have not changed this AD in this regard.

DAL requested that we revise the Costs of Compliance section provided in the NPRM. DAL pointed out that the cost estimate may not properly account for the number of products per airplane and that they believe the costs are significantly higher than the estimate included in the NPRM. DAL also provided revised cost estimates based on their fleet.

We partially agree with the request to revise the Costs of Compliance section. We disagree that the cost estimate should be revised based on airplane configuration, findings, and associated costs based only on the DAL fleet. The configuration of each airplane and inspection findings may vary among U.S. operators. We agree that the Costs of Compliance section provided in the NPRM might not have accurately represented the actual cost. After considering the data presented by DAL, we also agree that the number of work-hours required is higher than our previous estimate. The Costs of Compliance section of this final rule has been revised accordingly.

UAL requested that we remove the reporting requirement in the proposed AD. UAL pointed out that reporting could expose operators to compliance risk. UAL also pointed out that they do not find any value in the information being requested by the reporting requirement. UAL stated that they will provide any feedback as requested.

We disagree with the request to remove the reporting requirement. We disagree that the information requested provides no value. Reporting is necessary for the airframe manufacturer to determine the extent of the unsafe condition and any necessary follow-up actions. We have not changed this AD in this regard.

Mr. Ricardo Erazo requested that we revise the AD to reference B/E Aerospace Service Bulletin 117042-35-001, Revision 004, dated October 13, 2015. Mr. Erazo did not provide rationale for this request.

We agree with the request to revise this AD to reference B/E Aerospace Service Bulletin 117042-35-001, Revision 004, dated October 13, 2015, and have revised this AD accordingly. B/E Aerospace Service Bulletin 117042-35-001, Revision 004, dated October 13, 2015, clarifies references to additional service information. As a result, we have also added paragraph (m) to this AD, to give credit for actions accomplished before the effective date of this AD using B/E Aerospace Service Bulletin 117042-35-001, dated December 10, 2014; B/E Aerospace Service Bulletin 117042-35-001, Revision 001, dated April 9, 2015; B/E Aerospace Service Bulletin 117042-35-001, Revision 002, dated May 29, 2015; or B/E Aerospace Service Bulletin 117042-35-001, Revision 003, dated June 25, 2015.

We have revised paragraphs (h) and (i) of this AD to refer to Airbus AOT A35N006-14, dated December 10, 2014, including Appendix 1, as an additional appropriate source of service information for the 15-minute passenger chemical oxygen generators.

We reviewed the relevant data, considered the comments received, 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.

We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.

We reviewed the following service information.

• Airbus AOT A35N006-14, dated December 10, 2014, including Appendix 1.

• B/E Aerospace Inc. Service Bulletin 117042-35-001, Revision 004, dated October 13, 2015.

This service information describes procedures to replace certain passenger chemical oxygen generators. 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 953 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 would be required based on the results of the required inspection. We have no way of determining the number of airplanes that might need these replacements:

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this AD is 2120-0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at 800 Independence Ave. SW., Washington, DC 20591, ATTN: Information Collection Clearance Officer, AES-200.

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:

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

On May 6, 2016, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class E Airspace at Linton Municipal Airport, Linton, ND (81 FR 27356) Docket No. FAA-2016-5456. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. One comment in support of the proposal was received from the National Business Aviation Association.

Class E airspace designations are published in paragraph 6006 of FAA Order 7400.9Z dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.9Z, airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.9Z lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E airspace extending upward from 1,200 feet above the surface within a 125-mile radius of Linton Municipal Airport, Linton, ND, to facilitate vectoring of IFR aircraft under control of Minneapolis ARTCC. Controlled airspace is needed for the safety and management of IFR operations within the NAS.

Class E airspace designations are published in Paragraph 6006 of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exists that warrant preparation of an environmental assessment.

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

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

On May 6, 2016, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class E Airspace in the Platte, SD area. (81 FR 27355) Docket No. FAA-2016-5386. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. One comment in support of the proposal was received from the National Business Aviation Association.

Class E airspace designations are published in paragraph 6006 of FAA Order 7400.9Z dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.9Z, airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.9Z lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E airspace extending upward from 1,200 feet above the surface within a 75-mile radius of Platte Municipal Airport, Platte, SD, to facilitate vectoring of IFR aircraft under control of Minneapolis ARTCC. Controlled airspace is needed for the safety and management of IFR operations within the NAS.

Class E airspace designations are published in Paragraph 6006 of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exists that warrant preparation of an environmental assessment.

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

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

On March 28, 2016, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to remove Class D airspace at North Air Force Auxiliary Field, North, SC., (81 FR 17111) FAA 2016-1074. No comments were received.

Class D airspace designations are published in paragraphs 5000 of FAA Order 7400.9Z dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR part 71.1. The Class D airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.9Z lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 removes Class D airspace at North Air Force Auxiliary Field, North, SC. The air traffic control tower is no longer in use. Therefore, the Class D airspace area is no longer necessary.

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. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

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

On May 6, 2016, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class E Airspace in the Harvey, ND area. (81 FR 27357) Docket No. FAA-2016-5387. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. One comment in support of the proposal was received the National Business Aviation Association.

This document amends FAA Order 7400.9Z, airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.9Z lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E airspace extending upward from 1,200 feet above the surface within a 100-mile radius of Harvey Municipal Airport, Harvey, ND, to facilitate vectoring of IFR aircraft under control of Minneapolis ARTCC. Controlled airspace is needed for the safety and management of IFR operations in the National Airspace System.

Class E airspace designations are published in Paragraph 6006 of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exists that warrant preparation of an environmental assessment.

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

On June 2, 2016, the Commission published for public comment in the Federal Register a proposed order that would exempt Federal Reserve Banks that provide customer accounts and other services to certain designated financial market utilities registered with the Commission from Sections 4d and 22 of the CEA.1 The proposed order would permit Federal Reserve Banks to hold money, securities, and property deposited into a customer account by certain designated financial market utilities in accordance with the standards to which Federal Reserve Banks are held.

In response to the request for public comment, CME Group Inc. noted that the proposed order would be inconsistent with Regulation 1.20(g)(4)(ii).2 Commission Regulation 1.20(g)(4)(ii) requires that a DCO obtain from a Federal Reserve Bank acting as a depository for customer funds a written acknowledgment that the customer funds deposited therein are being held in accordance with Section 4d of the CEA; however, pursuant to the terms of the proposed order, the Federal Reserve Banks would be exempt from Section 4d. The Commission subsequently issued a final exemptive order that is substantively similar to the proposed order. In the Federal Register notice issuing the final exemptive order, the Commission noted that, in light of the comment, it had determined to repeal the written acknowledgment requirement with respect to customer accounts held with a Federal Reserve Bank 3 in a separate Federal Register notice. The final exemptive order will render these provisions inapplicable, as the Federal Reserve Banks will not be held to the requirements of Section 4d of the CEA. Therefore, the Commission is amending Regulation 1.20 to remove the acknowledgment letter requirement for customer funds deposited by a DCO with a Federal Reserve Bank. The Commission welcomes any comments and/or questions regarding this amendment.

For the reasons stated in the preamble, the Commodity Futures Trading Commission amends 17 CFR part 1 as follows:

OSHA published a final rule for Confined Spaces in Construction on May 4, 2015 (80 FR 25365) to provide new protections to employees working in confined spaces in construction. This new subpart replaced OSHA's general training requirement for work in confined spaces (29 CFR 1926.21(b)(6)) with a comprehensive standard. The new standard includes a permit program designed to protect employees from exposure to many hazards associated with work in confined spaces, including atmospheric and physical hazards. Those requirements contained collections of information approved by OMB under control number 1218-0258, which OSHA publicized in the Federal Register document announcing the new rule (see 80 FR 22514-22517). This technical amendment codifies the OMB control number for the Confined Spaces in Construction standard into § 1926.5, which is the central section in which OSHA displays its approved collections under the Paperwork Reduction Act.

Additional opportunity for public comment on this rule is unnecessary because the public has already had the opportunity to comment on the collections of information and OMB has approved them. This revision of § 1926.5 is a purely technical step to increase public awareness of OMB's approval of the collections of information.

David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506 et seq.) and Secretary of Labor's Order 1-2012 (77 FR 3912 (1/25/2012)).

For the reasons stated in the preamble in this document, the Occupational Safety and Health Administration amends 29 CFR part 1926 as follows:

I. Table of Abbreviations CFR Code of Federal Regulations FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

This annually recurring event and special local regulation is currently listed as the “Friends of the Riverfront Inc./Pittsburgh Triathlon and Adventure Races” under 33 CFR 100.801, Table 1, line no. 21, scheduled for two days during the last two weekends in July or first weekend of August. This year the event sponsor changed the date to the second weekend of August, and informed the Coast Guard of this date change on June 6. The event will consist of at least 400 swimmers and takes place on the Allegheny River. This temporary final rule reflects the date changes to the event. The Captain of the Port Pittsburgh (COTP) has determined that the special local regulation under 33 CFR 100.801 is still necessary to protect participants, spectators, and waterway users during this event.

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” It is impracticable to publish an NPRM because we must establish this special local regulation by August 13, 2016.

We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be contrary to public interest because immediate action is needed to establish a special local regulation to protect participants of the “Pittsburgh Triathlon and Adventure Race” beginning on August 13, 2016 to August 14, 2016.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1233. The Captain of the Port Pittsburgh (COTP) has determined the need to protect participants during the “Pittsburgh Triathlon and Adventure Race” from 6 a.m. to 9 a.m. on August 13, 2016 and August 14, 2016. This rule is needed to protect personnel, vessels, and these navigable waters before, during, and after the scheduled event.

The Captain of the Port Pittsburgh is establishing this special local regulated area from 6 a.m. to 9 a.m. on August 13, 2016 and August 14, 2016 for all waters of the Allegheny River mile 0.0-1.5. The duration of the special local regulated area is intended to ensure the safety of vessels, participants, spectators and other waterway users before, during, and after the scheduled event. No vessel or person is permitted to enter the special local regulated area without obtaining permission from the COTP or a designated representative. The regulatory text we are establishing appears at the end of this document.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

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

This regulatory action determination is based on the size, location, duration, and time-of-day of the special local regulated area.

This special local regulation restricts transit on the Allegheny River from mile 0.0-1.5 for a short duration of 3 hours each day. Vessel traffic will be informed about the special local regulated area through local notices to mariners. Moreover, the Coast Guard will issue Broadcast Notices to Mariners via VHF-FM marine channel 16 about the area and the rule allows vessels to seek permission to transit the area.

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

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

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

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

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

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

The Marine Parkway Bridge, mile 3.0, across the Rockaway Inlet, has a vertical clearance in the closed position of 55 feet at mean high water and 59 feet at mean low water. The existing bridge operating regulations are found at 33 CFR 117.795(a).

The waterway is transited by commercial barge traffic of various sizes.

The bridge owner, MTA Bridges and Tunnels, requested a temporary deviation from the normal operating schedule to replace span guide rollers, counterweight guide shoes and trunnion journal at the bridge.

Under this temporary deviation, the Marine Parkway Bridge shall remain in the closed position from 7 a.m. on October 17, 2016 to 5 p.m. October 28, 2016.

Vessels able to pass under the bridge in the closed position may do so at anytime. The bridge will not be able to open for emergencies and there is no immediate alternate route for vessels to pass.

The Coast Guard will inform the users of the waterways through our Local Notice and Broadcast to Mariners of the change in operating schedule for the bridge so that vessel operations can arrange their transits to minimize any impact caused by the temporary deviation. The Coast Guard notified various companies of the commercial oil and barge vessels and they have no objections to the temporary deviation.

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

Purpose of Program: Under the Rehabilitation Act of 1973 (Rehabilitation Act), as amended by the Workforce Innovation and Opportunity Act (WIOA), the Rehabilitation Services Administration (RSA) makes grants to public and private nonprofit agencies and organizations, including institutions of higher education, to establish interpreter training programs or to provide financial assistance for ongoing interpreter training programs to train a sufficient number of qualified interpreters throughout the country. The grants are designed to train interpreters to effectively interpret and transliterate using spoken, visual, and tactile modes of communication; ensure the maintenance of the interpreting skills of qualified interpreters; and provide opportunities for interpreters to improve their skills in order to meet both the highest standards approved by certifying associations and the communication needs of individuals who are deaf or hard of hearing and individuals who are Deaf-blind.

Applicable Program Regulations: 34 CFR part 396.

We published a notice of proposed priority (NPP) for this competition in the Federal Register on May 6, 2016 (81 FR 27375). That notice contained background information and our reasons for proposing the particular priority.

Public Comment: In response to our invitation in the notice of proposed priority, 25 parties submitted comments on the proposed priority.

We group major issues according to subject. Generally, we do not address technical and other minor changes, or suggested changes the law does not authorize us to make under the applicable statutory authority. In addition, we do not address general comments that raised concerns not directly related to the proposed priority.

Analysis of Comments and Changes: An analysis of the comments and of any changes in the priority since publication of the notice of proposed priority follows.

Comment: A number of commenters recommended continuing the specialty area training developed in prior grant cycles for deaf-blind interpreting, health care interpreting, legal interpreting, trilingual interpreting in American Sign Language (ASL)/English/Spanish, deaf self-advocacy training (DSAT), interpreting in a Vocational Rehabilitation (VR) setting, interpreting provided by deaf 1 interpreters, and video remote interpreting and video relay interpreting. The commenters stated that these specialty areas are growing or emerging practice areas and that prior grant cycles only laid the foundation for them. Therefore, commenters recommended the Department of Education (Department) support specialty training in eight specific areas that were funded in prior grant cycles.

First, commenters supported trilingual interpreting in ASL/English/Spanish and argued that there is still a critical need for more training for interpreters in Spanish-influenced settings. One commenter stated that existing training developed for ASL/English/Spanish is still in its very initial stages and, if continued, has the potential to develop model partnerships that could be replicated into a training process for other spoken languages.

Second, commenters supported continued funding for training for deaf-blind interpreting. They indicated that deaf-blind consumers are one of the least well-served groups and there continues to be a critical need to increase the number of interpreters skilled in this area. For example, one commenter shared that there is a new movement occurring within the deaf-blind community around the concept of “pro-tactile,” which is altering the nature of communication, language, leadership, and interaction, and is one of the new areas in which interpreters need to be skilled to effectively work with individuals who are deaf-blind.

Finally, one commenter stated that the importance of accessible and advanced training for interpreters in healthcare and legal settings is underscored in a report entitled “Preparing Interpreters for Tomorrow: Report on a Study of Emerging Trends in Interpreting and Implications for Interpreter Education.” This report was prepared by a current grantee under this program, the National Interpreter Education Center, Northeastern University, in January 2015. According to this report, interpreters and consumers continue to identify these two specialty areas as areas of priority training needs for interpreters.

Discussion: We agree that there continues to be a critical need for more training in some of the specialty areas funded in the 2010-2016 grant cycle and in earlier cycles. For example, the U.S. Department of Labor predicts that “employment of interpreters and translators is expected to grow 42 percent from 2010 to 2020 and the demand for American Sign Language (ASL) interpreters is expected to grow rapidly. . . .” 2 Therefore, we have concluded that applications may be submitted for specialty training areas developed in the 2010-2016 grant cycles for deaf-blind interpreting, health care interpreting, legal interpreting, trilingual interpreting in ASL/English/Spanish, interpreting in a Vocational Rehabilitation (VR) setting, interpreting provided by Deaf interpreters, and video remote interpreting and video relay interpreting.

Specific to trilingual interpreting, we also believe there may be parts of the country where multiple languages are spoken by deaf individuals. Therefore, we are permitting applicants to address multiple language combinations in their proposals.

However, we believe it would be an inefficient use of Federal resources to allocate funds to focus solely on replicating rather than scaling up or expanding existing training or to train interpreters where there is no need. Therefore, applicants proposing to provide training in existing specialty areas will be expected to describe how their proposed projects expand on, rather than replicate, existing training in these areas. Applications for training in existing specialty areas will also be expected to specify that they plan to serve areas of the country in which there are not enough interpreters to adequately meet the communication needs of deaf, hard-of-hearing, and deaf-blind consumers.

Changes: We revised Specialty Area 2: Trilingual interpreting that immediately follows the application requirements in the priority to allow applicants to submit proposals for trilingual interpreting in ASL/English/Spanish. We added language to the priority requiring applicants that propose to continue existing training in trilingual interpreting for English/Spanish/ASL to provide evidence to support the demand for trilingual interpreters in English/Spanish/ASL and, to the extent possible, specify areas of the country in which there are not enough trilingual English/Spanish/ASL interpreters to adequate meet the communication needs of Deaf, hard-of-hearing, and Deaf-blind consumers. We also added language that applicants proposing to continue existing training in ASL/English/Spanish without improvement, update, or addition of new material will not be eligible for funding.

We added language to Specialty Area 2 to allow applicants to propose multiple language combinations in their proposals. As such, in this specialty area, we will require applicants to propose a framework that will be used to provide trilingual interpreter training and to develop separate modules for each language in order to ensure the training content appropriately addresses the cultural nuances of each language.

Additionally, we revised Specialty Area 3: Field-initiated projects to allow specialty area training for deaf-blind interpreting, health care interpreting, legal interpreting, interpreting in a Vocational Rehabilitation (VR) setting, interpreting provided by Deaf interpreters, and video remote interpreting and video relay interpreting. We added language requiring that applicants ensure that projects will improve, update, and develop new material for training in these specialty areas. We also added language requiring applicants to demonstrate the demand for interpreters in these specialty areas and, to the extent possible, specify areas of the country in which there are not enough interpreters to adequately meet the communication needs of deaf, hard-of-hearing, and deaf-blind consumers. Finally, we added language that applicants proposing to continue existing training in these areas without improvement, update, or addition of new material will not be eligible for funding.

Comments: A number of commenters recommended the Department continue to fund DSAT, which was funded from 2010 to 2016 and in prior grant cycles. Commenters stated that, while the DSAT curriculum is complete and available online, further efforts are necessary to increase training opportunities and ultimately reach more deaf individuals. Some of these commenters also described DSAT's ability to improve the advocacy skills of a deaf person by helping to understand the role of the interpreter, the right to be provided interpreting services, and the impact interpreting services have on obtaining, maintaining, and advancing in competitive integrated employment as well as in other situations. Several commenters argued that those who have gone through the training can more effectively advocate not only for themselves but also for other deaf consumers including those who have dysfluent language. A commenter stated that DSAT directly ties into enhanced employment outcomes and creates jobs for deaf individuals as trainers and educators in a variety of settings, including secondary and post-secondary education, community-based agencies, and private practice. Finally, a commenter stated that the DSAT curriculum filled a significant gap experienced by educators, VR counselors, and community agency personnel, such as staff from centers for independent living and community rehabilitation programs.

Discussion: We recognize and value DSAT for individuals who are deaf and hard of hearing and individuals who are deaf-blind, but the Department has determined not to continue funding for DSAT. We agree that it is important for deaf consumers to understand their basic legal rights and be equipped with knowledge and confidence in order to effectively communicate their preferred accommodations and make appropriate requests as they transition from secondary education to post-secondary settings and competitive integrated employment. For this program, however, every specialty area project must be focused specifically on interpreting, which DSAT is not. We believe that funding the specialty areas described in this notice will provide interpreters with critically needed skills.

There are other vehicles funded by the Department that protect and advocate for individuals with disabilities, many of which teach self-advocacy skills. For example, the Client Assistance Program (CAP) is designed to advise and inform clients, client applicants, and other individuals with disabilities of all the available services and benefits under the Rehabilitation Act of 1973, as amended, and of the services and benefits available to them under Title I of the Americans with Disabilities Act (ADA). In addition, CAP grantees may assist and advocate for clients and client applicants about projects, programs, and services provided under the Rehabilitation Act. In providing assistance and advocacy under Title I of the Rehabilitation Act, a CAP agency may provide assistance and advocacy about services directly related to employment for the client or client applicant.

The Department also funds Parent Training and Information Centers (PTI centers) authorized under the Individuals with Disabilities Education Act (IDEA). Each State has at least one PTI center to provide training and information to students with disabilities and their families about their rights and services under IDEA. In addition, RSA currently funds seven State and regional PTI centers under section 303(c) of the Rehabilitation Act. All of these PTI centers provide training and information to enable individuals and their families to participate more effectively in meeting the vocational, independent living, and rehabilitation needs of such individuals.

Finally, the Centers for Independent Living authorized under title VII of the Rehabilitation Act and administered by the Department of Health and Human Services provide advocacy services for individuals with disabilities, and the modules developed on DSAT are among the tools they may use to teach deaf consumers to advocate for their rights. The existence of the programs described here, and their ability to use DSAT materials developed in previous grant cycles make it less necessary to continue to support DSAT through this competition.

We also believe that there is sufficient demand in the market for DSAT to sustain the curriculum without Federal investment. Since the DSAT curriculum was unveiled in 2010, more than 2,000 deaf, hard of hearing, and deaf-blind consumers have attended a DSAT consumer training and more than 250 deaf, hard of hearing, and deaf-blind individuals have been trained as DSAT trainers. In 2013, the DSAT curriculum was expanded to include deaf-blind-specific adaptations, and 10 deaf-blind individuals undertook a rigorous four-day deaf-blind self advocacy training (DBSAT) train the trainer course in preparation to provide future DBSAT to their peers.

We agree that the DSAT curriculum fills a significant gap experienced by educators, VR counselors, and community agency personnel, such as staff from centers for independent living and community rehabilitation programs. For example, as part of the Postsecondary Educational Programs Network (pepnet 2) Building State Capacity Summit, the team from Georgia recognized the value of the training materials and focused their five-year plan on improving self-advocacy and self-determination skills among deaf and hard of hearing high school and middle school students across the State. After piloting the project, they have worked closely with DSAT trainers to ensure that the curriculum addressed the needs of the population served. We expect that these and other strategies for using the existing DSAT materials will grow.

Change: None.

Comment: One commenter stated that the proposed priority is unnecessarily narrow and restrictive; needs greater input from more perspectives, especially those of the deaf communities to be served by the funding; and should embrace creativity and innovation. The commenter maintained that, while the emphasis on evidence and data that the proposed priority encourages is important, more evidence to support the proposed priority would have been useful as well.

Discussion: We do not agree that the priority is narrow or restrictive. However, we agree that creativity, innovation, and input from multiple perspectives are important for this program. Accordingly, in addition to the specialty areas the Department specified in this priority, we are also seeking field-initiated projects. While only one report was cited as support in the background section of the notice of proposed priority for this program, we acknowledge there are other works of research in the field of interpreter training that are equally valid. Therefore, for each area of specialty training, applicants may consult and incorporate relevant studies and evidence into their proposals.

Change: None.

Comments: A few commenters recommended the Department change the requirement in the priority that prevents applicants from submitting different proposals under more than one specialty area.

Another commenter asked whether an application may focus on multiple specialty areas, such as dysfluent language competencies and trilingual interpreting. For example, the commenter stated that for many deaf refugees in the United States, ASL is their first readily accessible language, and it becomes their primary communication choice despite their recent acquisition of this language. These individuals could benefit from interpreters who trained as trilingual interpreters and are familiar with working with dysfluent individuals.

Discussion: We agree that applicants should be able to submit different proposals for different specialty areas. However, the proposed components of the project (i.e., the competencies working interpreters must demonstrate in order to provide high-quality services in the identified specialty area, as well as the design, delivery of training, and evaluation) must be tailored to the specific specialty area. Applications proposing the same content for multiple specialty areas will not be considered.

We also agree that applicants may submit proposals that focus on more than one specialty area. We regard these combined proposals as field-initiated topics that should be submitted under Specialty Area 3.

However, as to the comment suggesting combining dysfluent language competencies and trilingual interpreting, we believe applicants could include trilingual interpreting as a secondary focus for working interpreters along with training in dysfluent language competencies. Applications for this combination should still be submitted under Specialty Area 1.

Changes: We revised the specialty areas that immediately follow the application requirements in the priority in order to allow applicants to submit different proposals under more than one specialty area and to allow applicants to submit proposals that combine areas of specialty training. We added language directing proposals combining areas of specialty training to be submitted under Specialty Area 3: Field-initiated topics.

Under Specialty Area 1, we added language allowing applicants to include trilingual interpreting as a secondary focus for working interpreters who may require both training as trilingual interpreters and gaining familiarity working with dysfluent individuals.

Comment: One commenter recommended removing the proposed eligibility requirement for applicants under “Specialty Area 3: Field-initiated topics” in order to allow topics focused on interpreting for pre-K to grade 12 students. The commenter suggested that one way to address the increase in providing services to deaf individuals with idiosyncratic and dysfluent language is to ensure that educational interpreters working in pre-K to grade 12 have the training and supports they need to effectively serve students.

Discussion: Programs that prepare working interpreters to work in pre-K to grade 12 are not eligible because the focus of this program is to prepare interpreters to work in VR settings. To that end, we chose to limit eligible applicants to those programs that provide training to interpreters in such settings. We acknowledge there is emphasis in the Workforce Innovation and Opportunity Act (WIOA) on providing services and support to transition-age youth. However, the Department has other resources to support programs preparing pre-K to grade 12 personnel. For example, the Department currently funds grant awards under the IDEA Personnel Preparation in Special Education, Early Intervention, and Related Services program to improve the quality and increase the number of personnel who are fully credentialed to serve children, including infants and toddlers, with disabilities, especially in areas of chronic personnel shortage, by supporting projects that prepare special education, early intervention, and related services personnel at the baccalaureate, master's, and specialist levels. More specifically, this program funds a specialty area to serve school-age children with low incidence disabilities by training personnel who serve children with low incidence disabilities, such as visual impairments, hearing impairments, and simultaneous visual and hearing impairments. Projects preparing educational interpreters are eligible under this focus area. For these reasons, we have chosen to limit applicants under this competition to those who train interpreters to work in VR settings.

Change: None.

Comments: Several commenters noted that the priority does not specify entities eligible to apply for funds, such as associate of the arts (AA) programs, associate in applied sciences (AAS) programs, baccalaureate degree ASL-English programs accredited by the Commission on Collegiate Interpreter Education (CCIE), and non-CCIE-accredited baccalaureate degree ASL-English programs. Many commenters recommended that eligible applicants be degree-granting institutions with a demonstrated track record of relationships with relevant stakeholders such as the National Association of the Deaf, Registry of Interpreters for the Deaf, Conference of Interpreter Trainings, and others, as appropriate.

Discussion: Under the statute authorizing this program (section 302(f)(1)(A) of the Rehabilitation Act of 1973, as amended), eligible applicants are States and public or nonprofit agencies and organizations, including American Indian tribes and institutions of higher education, which includes CCIE-accredited and non-CCIE-accredited baccalaureate degree ASL-English programs. We do not believe further clarification in the priority is needed.

As a technical matter, AA/AAS programs are eligible, but the focus of this program is to prepare working interpreters to work in VR settings. To that end, in order to be eligible, applicants must be able to provide training to working interpreters in such settings, and such applicants would typically be institutions granting baccalaureate degrees.

Change: None.

Comments: Several commenters recommended expanding the proposed definition of “working interpreter.” One commenter noted that there may be a number of certified, qualified deaf interpreters who would otherwise be successful participants but do not possess a baccalaureate degree in ASL-English interpretation. Other commenters recommended aligning the definition of “working interpreter” with requirements established by the Registry of Interpreters for the Deaf (RID). One commenter indicated RID requires interpreters to possess a baccalaureate degree in order to be eligible for generalist certification, with certain limited exceptions. RID does not currently specify the type of degree a candidate must possess but instead recognizes that any baccalaureate degree represents a liberal arts education that sets a strong foundation of critical thinking and broad world view. Therefore, this commenter suggested the Department create an equivalency determination when the degree requirement would unnecessarily exclude underrepresented populations.

For example, the commenter stated that equivalent alternative criteria that could be allowable in lieu of the educational requirements might include life experience, years of professional experience, and years of education (credit hours) not totaling a formal degree. The commenter noted that RID also accepts continuing education credits in addition to these other requirements in order to satisfy the educational equivalency requirements.

Discussion: We agree that we should expand the definition of “working interpreter” to more closely align with RID requirements. This will avoid unnecessarily limiting the pool of qualified participants and promote participation within projects.

Change: We amended the definition of “working interpreter” in the first paragraph of the final priority to include interpreters with a baccalaureate degree in ASL-English who possess a minimum of three years of relevant experience as an interpreter or equivalence such as relevant professional experience and years of education (credit hours) not equivalent to a formal degree.

Comments: Some commenters indicated that the priority does not mention credentials that participants must achieve upon successful completion of the training program. One commenter recommended the Department consider other available national-level credentials that are equivalent to credentials awarded by the RID. Another commenter suggested the Department consider State-level certification or licensure, such as the Board for Evaluation of Interpreters (BEI), for certification or licensure to offer interpreting services within the State. One commenter noted that the BEI testing options include basic, advanced, and master's level certification tests, as well as testing in legal interpreting, trilingual interpreting, a certified deaf interpreter test, and a soon-to-be-released medical interpreting test.

Discussion: The priority does not designate a specific certification as a desired outcome for this program, nor does it require participants to achieve a designated certification upon successful completion in the program. However, applicants may choose to award continuing education credits or college or master's level credits to participants in the training program and we encourage applicants to consider doing so.

We believe there is limited information available on the reliability and validity of assessments used by States to confer certifications and licensures. For example, in some cases, an individual pays a fee to receive a license to work as an interpreter in a State, regardless of skill or competency. In other cases, assessments, such as the BEI, are State specific, and there is no information about how the specific levels of skills and competencies they assess compare with the level of skills and competencies required to pass other State-level licensure tests.

Applicants may use national and State-level licensures and certifications, as applicable, to assess participant progress in competency and skill level. Any proposed instruments must be valid and reliable and the applicant must submit a rationale to support the use of each instrument. However, the Department does not consider it appropriate at this time to require all applicants to adopt specific national or State-level certifications or licensures.

Change: None.

Comment: One commenter stated that the priority requires trainers to be certified or recognized in the specialty area of training, but does not believe there is enough data to determine whether there are enough trainers in specialty areas to meet this requirement.

The commenter also does not believe there is data to indicate whether a sufficiently large pool of working interpreters that possess baccalaureate degrees in ASL-English and three years of interpreting experience who also possess competence in the proposed specialty training areas.

This commenter recommended the Department include flexibility on the qualifications of trainers, as well in the definition of “working interpreter.”

Discussion: We believe the priority provides sufficient flexibility on the qualifications of trainers. Under paragraph (b)(2) of the requirements for this program, applicants may identify and partner with trainers who are either certified or recognized in the specialty area through formal or informal certification. If certification is not available in the specialty area, applicants may provide evidence of relevant training and experience (e.g., provide a portfolio that includes training verification, video samples, letters of support from consumers and employers, etc.).

As stated earlier, we have also amended the definition of “working interpreter” to include interpreters with a baccalaureate degree in ASL-English who possess a minimum of three years of relevant experience as an interpreter or equivalence such as relevant professional experience, and years of education (credit hours) not totaling a formal degree.

Change: None.

Comment: One commenter asked the Department to clarify the baseline numbers against which “increased” numbers will be measured for project outcomes (i.e. an increase in the number of interpreters who are trained to work with deaf consumers who require specialized interpreting and an increase in the number of interpreters trained in specialty areas who obtain or advance in employment in the areas for which they were prepared).

Discussion: We intend for applicants to provide baseline data in their applications for the actual or estimated number of working interpreters currently trained in a specialty area. We acknowledge that baseline numbers may not be available to applicants proposing to develop training in topics that address new specialty areas. In those cases, we will accept zero as a baseline, provided that the applicants adequately explain the lack of data to establish a baseline. We also expect applicants to provide a target number of new working interpreters that will be trained in a specialty area.

Change: We added a new paragraph (a)(2) to the requirements to clarify baseline and target data that must be included in the application.

Comments: One commenter recommended that the Department clarify the purpose of the coordination and communication requirement in paragraph (c)(10)(iv)(B). For example, one commenter asked if this requirement allows applicants to interact with specific projects funded by the Department, such as the IDEA Personnel Development to Improve Services and Results for Children with Disabilities Program, which can support projects focused on K-12 interpreting.

One commenter recommended interaction with other Department-funded projects and stated that dysfluent language evident in deaf adults can be traced, in part, to inadequate language models early in life. According to this commenter, coordination of interpreter education efforts between children and adults could be a key step to addressing dysfluency among future Deaf generations.

Discussion: We intended for the language in requirement (c)(10)(iv)(B) to mean that grantees would communicate, coordinate, and collaborate with other Department-funded projects for the purposes of exchanging relevant information such as outcome data and promising practices, as well as disseminating training material and products developed under this program. Applicants may also communicate, coordinate, and collaborate with other Department-funded projects for the purposes of informing, improving, and strengthening training developed under this program. The priority does not require formal relationships (e.g., memoranda of understanding) with other Department-funded projects.

We will not further specify how this communication, collaboration, or coordination will occur because we believe applicants are well suited to make this determination.

Change: None.

Comment: One commenter asked for clarification of the second paragraph under the proposed priority concerning whether pre-service training is an allowable project activity. The commenter suggested the Department consider allowing the development of content for pre-service training because it could have a positive long-term impact on the quality of interpreting.

Discussion: Pre-service training is not the focus of this priority. The priority states that applicants may develop a new training program or stand-alone modules that could also be incorporated into an existing baccalaureate degree ASL-English program. Applicants are expected to develop and deliver training of sufficient scope, intensity, and duration for working interpreters to achieve increased skill, knowledge, and competence in a specialty area. However, applicants may consider a variety of resources (such as available pre-service training material) that may inform, support, or strengthen the development of training for English-ASL interpreter training in specialized areas. As a result of new training curricula established through this program, pre-service training modules could be developed as a “feeder” into existing baccalaureate degree ASL-English programs.

Change: None.

Comment: One commenter suggested that project timelines be proposed, but not required, in the priority. The commenter reasoned that the requirement to develop training materials and curricula in a single year and then implement them over the following four years is not unreasonable but noted that, with a focus on new specialty training areas, a complete curriculum could require two or more years to develop. The commenter also recommended that the timeline in each application be reviewed on its own merits. For example, an application to address training in a new specialty area may require more time, funding, and extended collaboration to fully develop a curriculum. On the other hand, an application that demonstrates the intention of building on, enhancing, or significantly revising a previously developed curriculum might be completed more quickly.

Discussion: We agree that an application to address training in a new specialty area may require more time to fully develop a curriculum. Therefore, if applicants determine additional time may be necessary to fully develop a curriculum and obtain input and feedback from key partners, relevant stakeholders, and consumers, they must provide adequate justification in their application.

Change: In the final priority we have added that applicants must provide adequate justification in their application if they determine additional time may be necessary to fully develop a curriculum and obtain input and feedback from key partners, relevant stakeholders, and consumers.

Comment: One commenter suggested the Department award these projects as cooperative agreements rather than grants. Another commenter stated that implementing a cooperative agreement for this funding would be a positive strategy to monitor quality and achievement of proposed goals. This commenter further stated that providing transparent decision-making by RSA, with open and explicit rationales for funding choices and re-funding choices, is needed in order to insure that an evaluation is effectively conducted and that funds are awarded (or withheld) based on evidence of effective program management. This commenter urged the Department to require transparent reporting by, and evaluation of, the grantee that is easily and quickly accessible and that encourages public input at every evaluation point, in order to help insure that such evaluation is incorporated and integrated throughout.

Discussion: The priority does not specify whether these projects would be awarded as cooperative agreements. The Department has flexibility to make this determination, and we will announce that decision in the notice inviting applications. As to the commenter's recommendation that the Department involve the public in reporting by grantees and evaluation of the projects, the Department already has established processes and procedures for monitoring project performance. Further, the Notice Inviting Applications will specify annual and final reporting requirements and performance measures.

The Department is committed to transparency and will make available to the public abstracts of successful applications. Products produced as a result of these grants will be made available to the public through the National Clearinghouse of Rehabilitation Training Materials.

Change: None.

Final Priority: This notice contains one final priority.

Interpreter Training in Specialty Areas.

Final Priority: The purpose of this priority is to fund projects that provide training for English-American Sign Language (ASL) interpreter training in specialty areas. The training must be provided to working interpreters (e.g., interpreters with a baccalaureate degree in ASL-English who possess a minimum of three years of relevant experience as an interpreter or equivalence such as relevant professional experience, and years of education (credit hours) not totaling a formal degree) who need to develop a new skill area or enhance an existing skill area. Within this final priority, the Assistant Secretary intends to fund training in the following specialty areas: (1) Interpreting for consumers with dysfluent language competencies (e.g., individuals who use idiosyncratic signs or display limited first language competency in either spoken or sign language, due to delayed acquisition of the first language); (2) trilingual interpreting (e.g., language fluency in first, second, and third languages with one of the three languages being ASL); and (3) field-initiated topics.

During the project, applicants must develop and deliver training of sufficient scope, intensity, and duration for working interpreters to achieve increased skill, knowledge, and competence in a specialty area. Applicants may develop a new training program or stand-alone modules that could also be incorporated into an existing baccalaureate degree ASL-English program. The training program or modules must be developed by the end of the first year of the project period and delivered in years two, three, four, and five of the project period. Applicants must provide adequate justification in their application if they determine additional time may be necessary to fully develop a curriculum and obtain input and feedback from key partners, relevant stakeholders, and consumers.

The projects must be designed to achieve, at a minimum, the following outcomes:

(a) An increase in the number of interpreters who are trained to work with deaf consumers who require specialized interpreting; and

(b) An increase in the number of interpreters trained in specialty areas who obtain or advance in employment in the areas for which they were prepared.

To be considered for funding, applicants must meet the requirements contained in this final priority, which are as follows:

(a) Demonstrate, in the narrative section of the application under “Significance of the Project,” how the proposed project will address the need for sign language interpreters in a specialty area. To address this requirement, applicants must:

(1) Present applicable data demonstrating the need for interpreters in the specialty area for which training will be developed by the project in at least three distinct, noncontiguous geographic areas, which may include the U.S. Territories;

(2) Present baseline data for the number or estimated number of working interpreters currently trained in a specialty area. In the event that an applicant proposes training in a new specialty area that does not currently exist or for which there are no baseline data, the applicant should provide an adequate explanation of the lack of reliable data and may report zero as a baseline;

(3) Explain how the project will increase the number of working interpreters in a specialty area who demonstrate the necessary competencies to meet the communication needs of individuals who are deaf, hard of hearing, or deaf-blind. To meet this requirement, the applicant must—

(i) Identify competencies that working interpreters must demonstrate in order to provide high-quality services in the identified specialty area using practices that are promising or based on instruction supported by evidence and intervention, when available; and

(ii) Demonstrate that the identified competencies are based on practices that are promising or supported by evidence that will result in effectively meeting the communication needs of individuals who are deaf, hard of hearing, or deaf-blind.

(b) Demonstrate, in the narrative section of the application under “Quality of Project Design,” how the proposed project will—

(1) Provide training in person or remotely to at least three distinct, noncontiguous geographic areas identified in paragraph (a)(1);

(2) Identify and partner with trainers who are certified and recognized in the specialty area through formal or informal certification to develop and deliver the training. If certification is not available in the specialty area, provide evidence of relevant training and experience (e.g., provide a portfolio that includes training verification, video samples, letters of support from consumers and employers, etc.);

(3) Be based on current research and make use of practices that are promising or supported by evidence. To meet this requirement, the applicant must describe—

(i) How the proposed project will incorporate current research and practices that are promising or supported by evidence in the development and delivery of its products and services;

(ii) How the proposed project will engage working interpreters with different learning styles; and

(iii) How the proposed project will ensure that working interpreters interact with deaf individuals who have a range of communication skills, from those with limited language skills to those with high-level, professional language skills.

(c) In the narrative section of the application under “Quality of Project Services,” the applicant must—

(1) Demonstrate how the project will ensure equal access and treatment for eligible project participants who are members of groups who have traditionally been underrepresented based on race, color, national origin, gender, age, or disability;

(2) Describe the criteria that will be used to identify high-quality applicants for participation in the program, including any pre-assessments that may be used to determine the skill, knowledge base, and competence of the working interpreter;

(3) Describe the recruitment strategies the project will use to attract high-quality working interpreters, including specific strategies targeting high-quality participants from traditionally underrepresented groups (e.g., individuals with disabilities and individuals living in remote areas);

(4) Describe how the project will ensure that all training activities and materials are fully accessible;

(5) Describe the approach that will be used to enable more working interpreters to participate in and successfully complete the training program, specifically participants who need to work while in the program, have child care or elder care considerations, or live in geographically isolated areas. The approach must emphasize innovative instructional delivery methods, such as distance learning or block scheduling (a type of academic scheduling that offers students fewer classes per day for longer periods of time), which would allow working interpreters to more easily participate in the program;

(6) Describe the approach that will be used to enable working interpreters to successfully complete the program or stand-alone modules, to include mentoring, monitoring, and accommodation support services;

(7) Describe how the project will incorporate practices that are promising and supported by evidence for adult learners;

(8) Demonstrate how the project is of sufficient scope, intensity, and duration to adequately prepare working interpreters in the identified specialty area of training. To address this requirement, the applicant must describe how—

(i) The components of the proposed project will support working interpreters' acquisition and enhancement of the competencies identified in paragraph (a)(2)(i);

(ii) The components of the project will allow working interpreters to apply their content knowledge in a practical setting;

(iii) The proposed project will provide working interpreters with ongoing guidance and feedback; and

(iv) The proposed project will provide ongoing induction opportunities and support working interpreters after completion of the specialty area program.

(9) Demonstrate how the proposed project will actively engage representation from consumers, consumer organizations, and service providers, especially vocational rehabilitation (VR) agencies, interpreters, interpreter training programs, and individuals who are deaf and deaf-blind in the project, including project development, design, implementation, delivery of training, dissemination, sustainability planning, program evaluation, and other relevant areas as determined by the applicant;

(10) Describe how the project will conduct dissemination and coordination activities. To meet this requirement, the applicant must—

(i) Describe its plan for disseminating information to and coordinating with VR agencies, American Job Centers and other workforce partners regarding finding interpreters with the specialized interpreting skills needed; disseminating information to working interpreters about training available in the specialty area, and broadly disseminating successful strategies for preparing working interpreters in a specialty area;

(ii) Describe its strategy for disseminating products developed during the project period. To meet this requirement the applicant must—

(A) Develop and maintain a state-of-the-art archiving and dissemination system that is open and available to the public and provides a central location for later use of training materials, including curricula, audiovisual materials, Webinars, examples of emerging and promising practices, and any other relevant material;

(B) Provide a minimum of three Webinars or video conferences over the course of the project. Applicants may determine the audience, content, and goals of this activity. For instance, applicants may consider disseminating information to working interpreters not enrolled in the program about training in a specialty area, as well as interacting with interpreter educators about the curriculum or training module design, challenges, solutions, and results achieved.

(iii) Describe its approach for incorporating the use of information technology (IT) into all aspects of the project. The approach must include establishing and maintaining a state-of-the-art IT platform that is sufficient to support Webinars, teleconferences, video conferences, and other virtual methods of dissemination of information.

(iv) Describe its approach for conducting coordination and collaboration activities. To meet this requirement, the applicant must—

(A) Establish a community of practice 3 in the specialty area of training that focuses on project activities in this priority and acts as a vehicle for communication and exchange of information among participants in the program and other relevant stakeholders;

(B) Communicate, collaborate, and coordinate with other relevant Department-funded projects, as applicable;

(C) Maintain ongoing communication with the RSA project officer and other RSA staff as required; and

(D) Communicate, collaborate, and coordinate, as appropriate, with key staff in State VR agencies, such as the State Coordinators for the Deaf; State and local partner programs; consumer organizations and associations, including those that represent individuals who are deaf, hard of hearing, deaf-blind, and late deafened; and relevant RSA partner organizations and associations.

(d) In the narrative section of the application under “Quality of the Evaluation Plan,” include an evaluation plan for the project. To address this requirement, the evaluation plan must describe—

(1) An approach, using pre- and post-assessments, for assessing the level of knowledge, skills, and competencies gained among participants;

(2) An approach for assessing the application of knowledge, skills, and competencies after completion; and

(3) An approach for incorporating oral and written feedback from trainers, from deaf consumers, and any feedback from mentoring sessions conducted with the participants;

(4) Evaluation methodologies, including instruments, data collection methods, and analyses that will be used to evaluate the project;

(5) Measures of progress in implementation, including the extent to which the project's activities and products have reached their target populations; intended outcomes or results of the project's activities in order to evaluate those activities; and how well the goals and objectives of the proposed project, as described in its logic model,4 have been met;

(6) How the evaluation plan will be implemented and revised, as needed, during the project. The applicant must designate at least one individual with sufficient dedicated time, experience in evaluation, and knowledge of the project to coordinate the design and implementation of the evaluation. For example, coordination with any identified partners in the application and RSA to make revisions post award to the logic model in order to reflect any changes or clarifications to the model and to the evaluation design and instrumentation with the logic model (e.g., designing instruments and developing quantitative or qualitative data collections that permit collecting of progress data and assessing project outcomes);

(7) The standards and targets for determining effectiveness of the project;

(8) How evaluation results will be used to examine the effectiveness of implementation and the progress toward achieving the intended outcomes; and

(9) How the methods of evaluation will produce quantitative and qualitative data that demonstrate whether the project activities achieved their intended outcomes.

(e) Demonstrate, in the narrative section of the application under “Adequacy of Project Resources,” how—

(1) The proposed project will encourage applications for employment with the project from persons who are members of groups that have historically been underrepresented based on race, color, national origin, gender, age, or disability;

(2) The proposed project personnel, consultants, and subcontractors have the qualifications and experience to provide training to working interpreters and to achieve the project's intended outcomes;

(3) The applicant and any identified partners have adequate resources to carry out the proposed activities; and

(4) The proposed costs are reasonable in relation to the anticipated results and benefits;

(f) Demonstrate, in the narrative section of the application under “Quality of the Management Plan,” how—

(1) The proposed management plan will ensure that the project's intended outcomes will be achieved on time and within budget. To address this requirement, the applicant must describe—

(i) Clearly defined responsibilities for key project personnel, consultants, and subcontractors, as applicable; and

(ii) Timelines and milestones for accomplishing the project tasks.

(2) Key project personnel and any consultants and subcontractors will be allocated to the project and how these allocations are appropriate and adequate to achieve the project's intended outcomes, including an assurance that such personnel will have adequate availability to ensure timely communications with stakeholders and RSA;

(3) The proposed management plan will ensure that the products and services provided are of high quality; and

(4) The proposed project will benefit from a diversity of perspectives, especially relevant partners, groups, and organizations described throughout this notice, in its development and operation.

(g) Address the following application requirements. The applicant must—

(1) Include, in Appendix A, a logic model that depicts, at a minimum, the goals, activities, outputs, and intended outcomes of the proposed project;

(2) Include, in Appendix A, person-loading charts and timelines, as applicable, to illustrate the management plan described in the narrative; and

(3) Include, in the budget, attendance at a one-day intensive review meeting in Washington, DC, during the third quarter of the third year of the project period.

With this final priority, the Secretary intends to fund four national projects in the following specialty areas: (1) Interpreting for consumers with dysfluent language competencies (e.g., individuals who use idiosyncratic signs or display limited first language competency in either spoken or sign language, due to delayed acquisition of the first language); (2) trilingual interpreting (e.g., language fluency in first, second, and third languages with one of the three languages being ASL); and (3) field-initiated topics. Applicants must identify the specific focus area (1, 2, or 3) under which they are applying as part of the competition title on the application cover sheet (SF form 424, line 4).

Applicants may submit proposals under one or more specialty area. Applications proposing the same content for different specialty areas will not be considered.

Applicants may combine more than one specialty and these applications must be submitted under Specialty Area 3: Field-initiated topics.

Interpreting for deaf and hard of hearing, and deaf-blind consumers with dysfluent language competencies include: (1) Those with limited, idiosyncratic, or differing levels of first and second language fluency in English and ASL); (2) those who have families using non-English spoken languages at home and have limited or no fluency in English and ASL; and (3) those with cognitive and physical disabilities that impact linguistic competencies. Under this specialty area, applicants may include trilingual interpreting as a secondary focus for working interpreters who may require both training as trilingual interpreters and gaining familiarity working with dysfluent individuals.

Trilingual interpreting is interpreting between three different languages; that is, two spoken languages such as English and Spanish, and ASL. This requires a working interpreter to be competent in three different languages and seamlessly facilitate communication between those languages in real time. RSA is seeking to fund similar projects in trilingual interpreting that includes languages that may be spoken in the United States. Applications may address multiple language combinations. In this instance, applicants must propose a framework that will be used to provide trilingual interpreter training. Applicants must develop separate modules for each language and ensure the training content appropriately addresses the cultural nuances of the language.

Applicants that choose to focus on trilingual interpreting in English/Spanish/ASL must propose to improve, update, and develop new material to support existing specialty training in this area. Applicants must describe in their application specific improvements, updates, and new material to be developed and provide rationale for why this is needed. Applicants must provide evidence to support the demand for trilingual interpreters in English/Spanish/ASL and, to the extent possible, specify areas of the country in which there are not enough trilingual English/Spanish/ASL interpreters to adequate meet the communication needs of Deaf, hard-of-hearing, and Deaf-blind consumers.

Trilingual interpreting in English/Spanish/ASL that proposes only to continue existing training developed during the 2010-2016 grant cycle or earlier cycles is not eligible under this priority.

Field-initiated topics that address the needs of working interpreters to acquire specialized knowledge and competencies. These topics may address new specialty areas that require development of training modules of sufficient intensity, duration, and scope of sequence to warrant funding of an entire grant. Proposed topics may also replace training in an established specialty area that is no longer relevant. For instance, applicants may propose new or updated training, such as interpreting in a VR setting given reauthorization of the Rehabilitation Act, as amended, by WIOA. Applicants may also propose new subsets of training in established specialty areas. For instance, in health care interpreting, mental health might be one permissible subset of training because it has its own unique challenges and complexities in terms of setting and deaf consumer needs. In addition, applicants must provide sufficient evidence to demonstrate the need for the proposed new specialty training project or to show that an existing specialty training project is not adequately meeting the training needs of interpreters in order to better meet the linguistic and communication needs of deaf, hard-of-hearing, and deaf-blind consumers.

Applicants may also propose to enhance existing training developed in prior grant cycles for deaf-blind interpreting, health care interpreting, legal interpreting, interpreting in a VR setting, interpreting provided by Deaf interpreters, and video remote interpreting and video relay interpreting. In this instance, applicants must propose to improve, update, and develop new material to support existing specialty training in these areas. Applicants must describe in their application specific improvements, updates, and new material to be developed and provide rationale for why this is needed. Applicants must demonstrate the demand for interpreters in these existing specialty areas and, to the extent possible, specify areas of the country in which there are not enough trained interpreters to adequately meet the communication needs of deaf, hard-of-hearing, and deaf-blind consumers.

Applications that propose only to continue existing training in these areas are not eligible for funding. Additional field-initiated topics not eligible under this final priority include topics focusing on educational interpreting for pre-k-12 and deaf self-advocacy training.

Types of Priorities:

When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the Federal Register. The effect of each type of priority follows:

Absolute priority: Under an absolute priority, we consider only applications that meet the priority (34 CFR 75.105(c)(3)).

Competitive preference priority: Under a competitive preference priority, we give competitive preference to an application by (1) awarding additional points, depending on the extent to which the application meets the priority (34 CFR 75.105(c)(2)(i)); or (2) selecting an application that meets the priority over an application of comparable merit that does not meet the priority (34 CFR 75.105(c)(2)(ii)).

Invitational priority: Under an invitational priority, we are particularly interested in applications that meet the priority. However, we do not give an application that meets the priority a preference over other applications (34 CFR 75.105(c)(1)).

This notice does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.

As part of its continuing effort to reduce paperwork and respondent burden, the Department provides the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)). This helps ensure that: the public understands the Department's collection instructions, respondents can provide the requested data in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the Department can properly assess the impact of collection requirements on respondents.

This final priority contains information collection requirements that are approved by OMB under the National Interpreter Education program 1820-0018; this final priority does not affect the currently approved data collection.

Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—

(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities in a material way (also referred to as an “economically significant” rule);

(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.

This final regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.

We have also reviewed this final regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—

(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;

(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and

(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.

Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”

We are issuing this final priority only on a reasoned determination that its benefits justify its costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.

We also have determined that this regulatory action does not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.

In accordance with both Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities.

Through this priority, training will be provided to working interpreters for English-ASL interpreter training in specialty areas. These activities will help interpreters to more effectively meet the communication needs of individuals who are deaf or hard of hearing and individuals who are Deaf-blind. The training ultimately will improve the quality of VR services and the competitive integrated employment outcomes achieved by individuals with disabilities. This priority will promote the efficient and effective use of Federal funds.

Intergovernmental Review: This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.

This document provides early notification of our specific plans and actions for this program.

Accessible Format: Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to the program contact person listed under FOR FURTHER INFORMATION CONTACT.

Electronic Access to This Document: The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.thefederalregister.org/fdsys. At this site, you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

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

On January 15, 2016 (81 FR 2136), the EPA proposed to partially approve and partially disapprove the following documents that were submitted for incorporation into the California SIP:

We proposed to approve the 2006 RACT SIP and Updated RACT SIP with the exception of Rule 455, Pharmaceutical Manufacturing, and the municipal waste landfill category as satisfying the RACT requirements of CAA section 182(b)(2) and (f).

Also under CAA section 110(k)(3), we proposed to disapprove those elements of the 2006 RACT SIP and Updated RACT SIP that pertain to Rule 455 and the municipal waste landfill category because we found that these elements did not meet all of the applicable CAA requirements. In particular, we found that Rule 455, Pharmaceuticals Manufacturing, (amended 11/29/83 and 9/5/96) lacks test methods, recordkeeping, and monitoring requirements that are necessary to support enforcement of the rule. See CAA section 110(a). We also found that the California SIP did not contain any provisions to implement RACT for volatile organic compounds (VOCs) at the Kiefer landfill, which is a major source of VOCs located within the Sacramento Metro area.

SMAQMD's submittal also included a number of negative declarations. CAA Sections 182(b)(2) and (f) require that SIPs for ozone nonattainment areas classified as moderate or above implement RACT for any source covered by a Control Techniques Guidelines (CTG) document and any major stationary source of VOCs or nitrogen oxides (NOX). If an ozone nonattainment area does not have any stationary sources covered by a particular CTG, then the area may submit a negative declaration certifying that there are no such sources in the relevant nonattainment area in lieu of adopting RACT requirements for that category. We proposed approval of SMAQMD's negative declarations because we determined that they complied with relevant CAA requirements.

Our proposed action contains more information on the basis for this rulemaking and on our evaluation of the 2006 RACT SIP and Updated RACT SIP.

The EPA's proposed action provided a 30-day public comment period. During this period, we received no comments.

For the reasons provided in our January 15, 2016 proposed rule, the EPA is partially approving and partially disapproving SMAQMD's 2006 RACT SIP and Updated RACT SIP under CAA section 110(k)(3). In particular, we are approving all elements of the 2006 RACT SIP and Updated RACT SIP, with the exception of elements pertaining to Rule 455, Pharmaceutical Manufacturing, and the municipal waste landfill category, as satisfying the RACT requirements of CAA section 182(b)(2) and (f). We are disapproving those elements of the 2006 RACT SIP and Updated RACT SIP that pertain to Rule 455 and the municipal waste landfill category because we have determined that they do not meet all of the applicable CAA requirements.

The EPA is committed to working with the District and CARB to resolve the identified RACT deficiencies. We note that SMAQMD will not be required to submit a revised CAA section 182 RACT SIP demonstration for the 1997 8-hour ozone NAAQS if it submits for SIP approval, rules and/or permit provisions that implement RACT for the pharmaceutical manufacturing source category, as well as RACT for VOCs for the Kiefer landfill, and the EPA fully approves them into the SIP. On April 28, 2016, SMAQMD repealed Rule 455 and adopted amendments to Rule 464, Organic Chemical Manufacturing Operations to incorporate the pharmaceutical manufacturing requirements from Rule 455 along with other improvements to implement RACT into Rule 464. SMAQMD plans, in July 2016, to adopt the relevant portions of the Kiefer landfill permit into the SIP to implement RACT.

Because we are finalizing a partial disapproval of the 2006 RACT SIP and Updated RACT SIP, the EPA must promulgate a federal implementation plan (FIP) under section 110(c) unless we approve subsequent SIP revisions that correct the rule deficiencies within 24 months of the effective date of this action. In addition, sanctions will be imposed under CAA section 179 and 40 CFR 52.31, unless the EPA approves subsequent SIP revisions that correct the rule deficiencies or issues an interim final determination that submitted revisions correct the deficiencies within 18 months of the effective date of this action.

Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

This action does not impose an information collection burden under the PRA because this action does not impose additional requirements beyond those imposed by state law.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities beyond those imposed by state law.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by state law. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, will result from this action.

This action does not have federalism implications. It 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.

This action does not have tribal implications, as specified in Executive Order 13175, because the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, and will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not impose additional requirements beyond those imposed by state law.

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

Section 12(d) of the NTTAA directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. The EPA believes that this action is not subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with the CAA.

The EPA lacks the discretionary authority to address environmental justice in this rulemaking.

This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under CAA section 307(b)(1), petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 11, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

Throughout this document, “we,” “us,” and “our” means the EPA.

This rulemaking addresses an infrastructure SIP submittal from the state of Texas addressing, among other things, the requirements of CAA section 110(a)(2)(D)(i)(I), also known as the good neighbor provision (or interstate transport prongs 1 and 2), with respect to the 2008 ozone NAAQS. The background for this action is discussed in detail in our April 11, 2016 proposal (81 FR 21290). In that action we proposed to disapprove the portion of the December 13, 2012 Texas SIP submittal pertaining to CAA section 110(a)(2)(D)(i)(I) which requires that the State prohibit any emissions activity within the state from emitting air pollutants which will significantly contribute to nonattainment (prong 1) or interfere with maintenance (prong 2) of the 2008 ozone NAAQS in other states.1 In proposing to disapprove the SIP submittal as to prongs 1 and 2 of the good neighbor provision, we noted several deficiencies in Texas' submittal: (1) Texas limited its discussion of data only to areas designated nonattainment in states that are geographically closest to Texas (Arizona, Arkansas, Colorado, Illinois, Indiana, Louisiana, Mississippi, Missouri, Tennessee, and Wisconsin); and (2) Texas did not give the “interfere with maintenance” clause of CAA section 110(a)(2)(D)(i)(I) independent significance because its analysis did not attempt to evaluate the potential impact of Texas emissions on areas that are currently measuring clean data, but that may have issues maintaining that air quality.2 Finally, the EPA explained that Texas and other states could no longer rely on the implementation of the Clean Air Interstate Rule (CAIR) to satisfy emission reduction obligations with respect to the 2008 ozone NAAQS (81 FR 21290, 21294-5). The EPA is finalizing its proposed disapproval in this action.

We received three comments during the comment period on our proposed SIP disapproval. The comments were submitted by the State of Texas (Texas Commission on Environmental Quality “TCEQ”), Luminant (a Texas electricity producer) and a member of the public. A synopsis of the comments and our responses are provided below.

Comment: Comments were received from a member of the public that was supportive of the EPA's basis for its proposed action, but added that (1) the public can better understand how we are using the most current information if we clarify and explain how the projections and modeling discussed in the evaluation for our proposal are informed by recent ozone monitoring data, and (2) the commenter stated that the EPA took too long to propose action on the Texas SIP revision, noting that Texas would benefit from earlier review of its analysis by the EPA.

Response: We agree with the commenter's conclusion that Texas's SIP submittal was inadequate to address the statutory interstate transport requirements with respect to the 2008 ozone NAAQS. With respect to the commenter's first concern, the projections and modeling released c in the August 4, 2015 NODA and the proposed CSAPR Update, which we also o recited in the EPA's proposed action on the Texas SIP submittal. In our CSAPR Update proposal, we explained how the CSAPR Update Rule proposed to use recent ozone monitoring data to inform our evaluation of interstate transport (80 FR 75706, 75724). We proposed to identify as nonattainment receptors those monitoring sites that (1) measured ozone concentrations that exceed the NAAQS based on monitoring data from years 2012-2014, and (2) are projected to exceed the NAAQS in 2017 based on an average design value.3 We proposed to identify maintenance receptors as those monitoring sites that have measured ozone concentrations that meet the NAAQS (clean data) based on monitoring data from years 2012-2014 and are projected to exceed the NAAQS in 2017 based on a maximum or average design value. We proposed this method of projecting from recent monitoring data to 2017 to identify maintenance receptors, since the monitoring sites of the proposed maintenance receptors currently meeting the NAAQS could be subject to conditions that may allow violations to reoccur and therefore may have future maintenance concerns. For more information about how the EPA identified 2017 nonattainment and maintenance receptors, please see pages 75723-75726 in the proposed CSAPR Update. (80 FR 75706). Today's rulemaking does not address which monitoring sites are identified as nonattainment and maintenance receptors with respect to interstate transport for the 2008 ozone NAAQS. Such determination, including more recent ozone monitoring data which will inform that analysis, will be addressed in the EPA's final CSAPR Update and are outside the scope of this final action. The EPA's disapproval is based on the inadequacies in the analysis provided in Texas's SIP submittal, as described in this document and in EPA's proposed action on that SIP.

With respect to the timeliness of the EPA's action on the Texas SIP submittal, CAA section 110(k)(2) requires the EPA to act on SIPs within one year after a submittal is determined to be complete. We determined that the Texas infrastructure SIP submittal, which includes transport, was complete on December 20, 2012. While the EPA generally agrees that prompt action on state SIP submittals can be beneficial to the states' planning efforts, in this case, the D.C. Circuit's decision in North Carolina v. EPA, 531 F.3d 896, 908-911 (D.C. Cir. 2008) provided the holding that states must give the “interfere with maintenance” clause of CAA section 110(a)(2)(D)(i)(I) independent significance, which Texas failed to do.

Comment: The TCEQ stated that it does not support the EPA's proposed disapproval of the state's interstate transport portion of its SIP submittal because the TCEQ's interstate transport analysis adequately addresses the requirements of CAA section 110(a)(2)(D)(i)(I). Specifically, TCEQ stated that the EPA failed to issue guidance in a timely manner for states to use in developing infrastructure and transport SIP revisions for the 2008 ozone NAAQS. TCEQ therefore contends that it is inappropriate for the EPA to conclude that the state's analysis of ozone contributions to other areas is incomplete when the EPA did not provide timely guidance stating what would constitute a complete analysis. TCEQ explained that its SIP revision was submitted on December 13, 2012 in order to meet the January 4, 2013 deadline by which the EPA was court-ordered to issue findings of failure to submit infrastructure SIPs for the 2008 ozone NAAQS. TCEQ notes that the EPA did not issue infrastructure SIP guidance until September 13, 2013, eight months following the January 2013 deadline, which did not contain any information on what would constitute an adequate interstate transport analysis. TCEQ further notes that the EPA did not provide information to states regarding interstate transport for the 2008 ozone NAAQS until 2015, through information provided in a January 22, 2015 memo, an August 4, 2015 NODA, and the December 3, 2015 CSAPR Update proposal, which was well after the state's SIP submittal. Therefore, as a result of the EPA's lack of timely transport guidance for the 2008 ozone standard and subsequent NODA regarding 2017 nonattainment and maintenance receptor linkages and contributions, TCEQ contends that it was forced to expend effort and resources to develop its SIP revision without knowing how the EPA would evaluate Texas' interstate transport obligation. Further, the EPA has routinely failed to issue timely guidance for SIP revisions and to even meet statutory SIP review deadlines in the CAA. As a result, the EPA has disrupted the SIP development process nationwide, undermining the states' ability to submit sufficient SIP revisions.

Response: We disagree that Texas' December 13, 2012 SIP submittal containing the state's transport analysis adequately addressed the requirements of CAA section 110(a)(2)(D)(i)(I). Rather, the state's analysis was deficient to address the statutory requirements, as detailed in the proposal and in more detail in this document. CAA section 110(a)(2)(D)(i)(I) requires that for a new or revised standard, each SIP must contain adequate provisions to prohibit any emissions activity within the state from emitting air pollutants that will “contribute significantly to nonattainment” or “interfere with maintenance” of the applicable air quality standard in any other state—here being the 2008 ozone standard. (81 FR 21290-1, April 11, 2016). Texas submitted an analysis of monitoring data, wind patterns, emissions data and emissions controls and concluded that based on monitoring data, due to decreases in ozone design values and existing control measures, emissions from sources from within the state do not contribute significantly to nonattainment or interfere with maintenance of the 2008 ozone NAAQS in other states. We find that Texas' analysis was not adequate because Texas limited its discussion of data only to areas designated nonattainment in states that are geographically closest to the state and we find this approach incomplete, (as detailed in our proposal), since the state did not consider other areas that were not formally designated as nonattainment. (81 FR 21292). Moreover, the state did not give the “interfere with maintenance” clause of CAA section 110(a)(2)(D)(i)(I) independent significance, consistent with the D.C. Circuit's decision in North Carolina v. EPA, 531 F.3d 896, 908-911 (D.C. Cir. 2008), because its analysis did not attempt to evaluate the potential impact of Texas emissions on areas that are currently measuring clean data, but that may have issues maintaining that air quality. (81 FR 21292). As we noted at proposal the EPA's most recent technical information demonstrates that emissions from Texas do impact air quality in other states relative to the 2008 ozone NAAQS. (81 FR 21292-3). With regard to the timelines of EPA guidance, in EPA v. EME Homer City Generation, L.P., the Supreme Court clearly held that “nothing in the statute places the EPA under an obligation to provide specific metrics to States before they undertake to fulfill their good neighbor obligations.” 134 S. Ct. 1584, 1601 (2014).4 While we have taken a different approach in some prior rulemakings by providing states with an opportunity to submit a SIP after we quantified the states' budgets (e.g., the NOXSIP Call and CAIR 5 ), the CAA does not require such an approach. Regarding the commenter's contention that the EPA's alleged inability to review SIP submittals within the CAA timelines undermines the ability of states to submit sufficient SIPs, the State's ability to submit a sufficient SIP that meets the applicable requirements is unrelated to the EPA's timeline for review.

Comment: TCEQ and Luminant both state that the EPA's public notice on the proposed disapproval is not meaningful because they contend that the outcome was predetermined when the EPA proposed a FIP for Texas in the proposed CSAPR Update. They stated that at the time of the proposed FIP to update CSAPR, the EPA had taken no action on the previously submitted SIP submittal from Texas addressing interstate transport with respect to the 2008 ozone NAAQS. The commenters contend that the EPA should have evaluated the SIP submittal prior to proposing a CSAPR Update that included Texas. The commenters also stated that we had not satisfied the prerequisites of CAA section 110(c)(1) when we issued the proposed FIP for Texas in the proposed CSAPR Update. The commenters therefore contend that the proposed SIP disapproval is only a post hoc rationalization for the proposed CSAPR Update, and our approach is unlawful and impermissibly treads on cooperative federalism required under the CAA. Lastly, the commenters claim that had we reviewed the SIP revision before proposing the CSAPR Update for Texas, the state would have had the opportunity contemplated by the CAA to correct any problems with its SIP in a timely fashion and avoid the imposition of the FIP.

Response: We disagree with the commenters that the proposed disapproval was predetermined when the EPA issued the proposed CSAPR Update that included a FIP for Texas. Our proposal to disapprove the Texas SIP provided proper notice and an opportunity for public comment, as legally required, and provided distinct bases for the proposed disapproval. Importantly, the proposed disapproval of the Texas SIP allowed an opportunity for submittal of any information that could have changed our proposed views concerning (1) the adequacy of the SIP submittal, and (2) the effect of Texas emissions on ozone levels in downwind states as demonstrated in the modeling and contribution information the EPA relied upon for its proposed disapproval. The EPA has not received any information demonstrating the identified inadequacies of the SIP submittal and the data showing the effect of Texas emissions in downwind states are inaccurate.

Whether the EPA appropriately proposed the CSAPR Update is outside the scope of this action, and is irrelevant to the question of whether the Texas SIP should be disapproved. The bases for the disapproval are further explained in both the proposal and this final action, and do not rely upon the proposed CSAPR Update. As described in the proposal and earlier in this document, whether or not the EPA had proposed the CSAPR Update, Texas' SIP submittal failed to include an analysis that appropriately evaluated the impact of state emissions on areas in other states, regardless of current nonattainment designations and considering the ability of areas currently measuring clean data to maintain that standard. These deficiencies are completely independent of any analysis conducted to support the CSAPR Update proposal.

Moreover, while the CSAPR Update proposal also relied upon the same modeling and contribution information to identify which states might be subject to a FIP in the final rulemaking, in the absence of an approvable SIP, the proposed disapproval of the Texas SIP did not rely upon the proposed findings in the CSAPR Update but rather cited, in addition to other deficiencies identified with the Texas SIP, technical data that was relevant to and informative for both proposals.

Our actions are consistent with CAA section 110(c) prerequisites in promulgating a FIP. In our December 3, 2015 Federal Register notice, we proposed to include Texas in the CSAPR Update (80 FR 75706). In that proposal we recognized that we could not promulgate a FIP for any state, including Texas, in the final CSAPR Update unless we found that the state had failed to make an approvable SIP submittal (80 FR 75719-20). A proposed rulemaking does not constitute a promulgation of a rule by the EPA, and therefore the proposed CSAPR Update does not constitute a “predetermined outcome” of EPA's review of Texas' SIP submittal, as the commenters describe, nor a promulgated FIP under CAA section 110(c). Were the EPA to finalize an approval of Texas' SIP, the EPA would not finalize the proposed inclusion of Texas in any final CSAPR Update. However, for the reasons described earlier, the EPA is finalizing its disapproval of Texas' SIP. However, this final action does not promulgate a FIP nor make any final determination regarding whether and when the EPA will promulgate a FIP. The EPA will determine whether to issue a FIP in the context of the CSAPR Update in the rulemaking for that action, and thus any concerns regarding the EPA's authority to issue a FIP are appropriately raised only in the context of that rulemaking.

Finally, the EPA disagrees with the commenters' claim that had we reviewed the SIP revision before proposing the CSAPR Update for Texas, the state would have had the opportunity contemplated by the CAA to correct any problems with its SIP in a timely fashion in order to avoid the imposition of the FIP. Contrary to commenters' assertions, CAA does not contemplate that a state have an opportunity to correct deficiencies with its SIP either before the EPA takes action to act on the SIP or before the EPA imposes a FIP after disapproval of a SIP. CAA section 110(c) provides that the EPA “shall promulgate a [FIP] at any time within two years after” the EPA either finds that a state has failed to make a required submittal or disapproves a SIP, in whole or in part. As the Supreme Court confirmed in EPA v. EME Homer City Generation. L.P., “EPA is not obliged to wait two years or postpone its action even a single day: The Act empowers the Agency to promulgate a FIP `at any time' within the two-year limit.” EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584, 1600-01 (2014). The EPA notes, however, that states have the ability at any time, including before or after the imposition of a FIP, to submit an approvable SIP, which corrects any deficiency.

Comment: TCEQ commented that we inappropriately stated that it should have considered possible contributions to downwind areas that are not designated nonattainment but may nonetheless measure exceedances of the NAAQS. TCEQ further stated that we fail to mention how Texas might have accomplished this theoretical exercise particularly without EPA guidance on how to develop its transport SIP and considering the EPA relies on nationwide modeling to determine potential exceedances in areas that are attaining the NAAQS that is not made available to states prior to the statutory due dates for state transport SIPs. The TCEQ concedes that the EPA may now consider the CSAPR schema to be appropriate guidance for transport regulation, but contends that it is still not possible for states to effectively respond with timely transport SIPs. The commenter again notes that the EPA did not explain what type of transport analysis would be considered satisfactory when the EPA issued SIP guidance in 2013.

Response: Regardless of an air quality designation, any area may violate the NAAQS if upwind emissions affecting air quality are not adequately controlled. The EPA has routinely interpreted the obligation to prohibit emissions that “significantly contribute to nonattainment” of the NAAQS in downwind states to be independent of formal designations because exceedances can happen in any area.6 Nothing in the CAA limits States' obligations under the good neighbor provision to downwind areas that have been formally designated nonattainment. To the contrary, CAA section 110(a)(2)(D)(i)(I) requires States to prohibit emissions that “will contribute significantly to nonattainment in . . . any other State.” (emphasis added). The future tense demonstrates that Congress intended this requirement to be forward-looking and apply to areas that will be in nonattainment regardless of formal designation. An area with air quality that is projected to exceed the NAAQS would be in nonattainment, and thus not meeting public health-based standards, regardless of whether it has been formally designated as a nonattainment area. An upwind state cannot be relieved of its obligation to address interstate transport of air pollution merely because of a lack of formal designation. Thus, Texas should have considered possible contributions to downwind areas that are not designated nonattainment but may nonetheless measure exceedances of the NAAQS in considering whether Texas emissions significantly contribute to nonattainment in another state.

With respect to the “interfere with maintenance” requirement, the court in North Carolina v. EPA, (531 F.3d 896, D.C. Cir. 2008), was specifically concerned with areas not designated nonattainment when it rejected the view that “a state can never `interfere with maintenance' unless the EPA determines that at one point it `contribute[d] significantly to nonattainment.' ” 531 F.3d at 910. The court pointed out that areas barely attaining the standard due in part to emissions from upwind sources would have “no recourse” pursuant to such an interpretation. Id. Accordingly, and as described in the proposal, the court explained that the regulatory authority must give “independent significance” to the maintenance prong of CAA section 110(a)(2)(D)(i)(I) by separately identifying such downwind areas for purposes of defining states' obligations pursuant to the good neighbor provision. Thus, Texas should have considered the potential impact of its emissions on areas that are currently measuring clean data, but may have issues maintaining that air quality.

Although the TCEQ questions how it could have completed such an analysis without explicit guidance from the EPA and before the EPA had conducted air quality modeling evaluating downwind air quality and contributions, as explained earlier, states bear the primary responsibility for demonstrating that their plans contain adequate provisions to address the statutory interstate transport provisions and the EPA is not required to issue guidance. In separate interstate transport actions, the EPA has reviewed and finalized action on interstate transport SIPs in states where air quality modeling was not available or where the total weight of evidence for finalizing action on the state's SIP was not solely based on air quality modeling, according to these standards.7 As evidenced by these actions, consideration of monitoring data is one valid way to evaluate potential interstate transport impacts, but it does not absolve a state from evaluating its downwind impact regardless of formal area designations and considering the requirements of both prongs of the good neighbor provision. As we noted above and as found by the Supreme Court in EME Homer City Generation, L.P., the lack of guidance does not relieve either the states of the obligation to submit SIPs that address CAA section 110(a)(2)(D)(i)(I) nor the EPA of the obligation to review such SIPs consistent with the statutory requirements of the good neighbor provision. For the 2015 ozone NAAQS, we plan to provide information pertaining to interstate transport of air pollution later this year.8 Interstate transport SIPs for the 2015 ozone NAAQS are due October 26, 2018. We plan to continue our ongoing dialogue with states to assist in developing an appropriate transport SIP.

Comment: TCEQ and Luminant both state that in our CSAPR Update proposal the EPA did not give independent effect to both the “contribute significantly to nonattainment” and the “interfere with maintenance” requirements as nonattainment and maintenance receptors are treated exactly the same way as far as linkages to states are defined and emission budgets are set. Luminant also claims that the EPA would be in violation of the Supreme Court in EME Homer City Generation, L.P. if we impose the same “cost-effective controls” to address both interference with maintenance and significant contribution to nonattainment.

Further, the comments state that because some states are linked to receptors in marginal nonattainment areas, the EPA is requiring emissions reductions from upwind states, including Texas, to assist states that do not have make emission reductions or institute control strategies of their own. Further, the comments claim that we have failed to identify any balance between local controls in areas with potential maintenance problems and reductions that it is requiring of states upwind that it models as contributing at least 1% of the relevant NAAQS to these areas with modeled, not monitored, issues.

The commenters also disagree with the EPA's finding that the Texas SIP submittal did not give independent significance to the CAA “interfere with maintenance” requirement and contend that we have misconstrued that requirement by stating that TCEQ did not evaluate areas currently measuring clean data. Luminant contends that Texas' SIP does give independent significance to the “interfere with maintenance” clause. TCEQ claims that the EPA has not promulgated a rule that identifies a required or recommended methodology for the EPA or states to give independent consideration to possible contributions that may interfere with maintenance in downwind areas, and contend that it is arbitrary and capricious for the EPA to propose disapproval for failure to meet a standard or requirement that did not exist at the time the statutory obligation matured.

Response: As described in the proposal, the EPA proposed disapproval in part because the Texas SIP submittal did not address the potential impact of Texas emissions on maintenance areas. Reiterating our position explained in the proposal, the D.C. Circuit in North Carolina explained that the regulatory authority must give “independent significance” to the maintenance prong of CAA section 110(a)(2)(D)(i)(I) by evaluating the impact of upwind state emissions on downwind areas that, while currently in attainment, are at risk of future nonattainment, considering historic variability. North Carolina v. EPA, 531 F.3d 896, 908-911 (D.C. Cir. 2008). While one commenter contends that Texas evaluated the interference with maintenance prong and concluded monitoring data do not suggest that emissions from Texas contribute significantly to nonattainment or interfere with maintenance of the 2008 ozone NAAQS for areas in any other state, nothing in Texas' SIP submittal indicates that it performed any analysis to support its conclusion as the State limited its discussion of data only to certain areas designated nonattainment and did not consider whether those or any other areas might have trouble maintaining the standard even if they measured clean data. Thus, contrary to the commenter's assertion, Texas did not give independent meaning to the interference with maintenance prong by evaluating the impact of upwind state emissions on downwind areas that, while currently in attainment, are at risk of future nonattainment, as required by the statute and as clarified by the D.C. Circuit in North Carolina.

The EPA disagrees with the commenter's assertion that this standard or requirement did not exist at the time the statutory obligation to submit a transport SIP matured. At the time Texas was obligated to submit a SIP addressing interstate transport requirements for the 2008 ozone NAAQS, CAA section 110(a)(2)(D)(i)(I) clearly required states to submit a plan containing adequate provisions prohibiting any source or other type of emissions activity within the state from emitting any air pollutant in amounts which will interfere with maintenance by any other state with respect to a particular NAAQS. This requirement has not changed since Texas' obligation to submit a transport SIP matured, and contrary to commenter's assertion, the EPA is not obligated to identify a required or recommended methodology for giving independent consideration to possible contributions that may interfere with maintenance in downwind areas prior to proposing action on a SIP addressing such statutory requirement. Nonetheless, the State's SIP made no attempt to evaluate the maintenance prong with respect to the 2008 ozone NAAQS aside from its conclusory assertion that the requirements were satisfied.

To the extent the commenter has raised concerns with respect to the EPA's interpretation and application of the CAA, including the “interfere with maintenance” clause, in the context of the CSAPR Update rulemaking, such comments are appropriately raised and addressed in that rulemaking. The EPA is not finalizing in this rule any determinations regarding the identification of specific downwind maintenance receptors, the magnitude of Texas' contribution to those receptors, and the quantity of any emission reductions that might be necessary. Such determinations will be made in the context of the CSAPR Update rulemaking. To the extent that Luminant refers to the EPA's approach as not compliant with the Supreme Court's EME Homer City Generation, L.P. decision, this comment relates to the CSPAR Update rulemaking and not our action today. Thus, it is outside the scope of this action and would be more appropriately addressed in that separate rulemaking.

Comment: TCEQ claims that the EPA has not demonstrated that a contribution by upwind states of 1% of the NAAQS will interfere with maintenance in identified maintenance areas. Further the TCEQ contends that the EPA has not demonstrated that a 1% of the NAAQS contribution to modeled emissions in maintenance areas is appropriate for linking an upwind state to a maintenance monitor. Further, they contend that EPA has not demonstrated that the amount of reductions necessary to cure a contribution to nonattainment is also appropriate to ensure that an upwind state is not interfering with maintenance. Lastly, TCEQ states that the 1% contribution threshold is arbitrary.

Response: The EPA explained in the CSPAR Update proposal its reasoning for why we believe it appropriate to use the same approach used in CSAPR to establish a 1% air screening threshold for the evaluation of interstate transport requirements for the 2008 ozone NAAQS, including the interference with maintenance requirement. 81 FR 21292-94. The commenter does not explain its allegations that the 1% threshold is arbitrary nor does the commenter explain how the EPA has not demonstrated this threshold is appropriate to show interference by upwind states with maintenance in identified maintenance areas.

Nonetheless, while the EPA cited the modeling conducted for the CSAPR Update as showing Texas may significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone NAAQS in downwind states, we did not propose to make a specific finding of contribution or to quantify any specific emissions reduction obligation. We did not rely upon a 1% contribution threshold for this action. Rather, the evaluation of whether emissions from Texas significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone NAAQS downwind, relying upon the use of a 1% contribution threshold, and if so what reductions are necessary to address that contribution, is being conducted in the context of the CSAPR Update rulemaking. Accordingly, this comment relates to the CSPAR Update rulemaking and not our action today. Thus, it is outside the scope of this action and would be more appropriately addressed in that separate rulemaking. The EPA will consider timely-submitted comments regarding the EPA's air quality modeling and various associated legal and policy decisions in finalizing that rulemaking.

Comment: TCEQ stated that it supports the use of ambient air quality monitoring data as the only valid basis for making nonattainment designations and identifying nonattainment and maintenance receptors and that it does not support the use of modeling as the basis for designations or identifying either nonattainment or maintenance receptors for transport. TCEQ contends that using modeling for these actions could result in major capital expenditures for industry to fix something that may not be a real problem, and claims that to base these actions on modeling is inconsistent with historical and present EPA policies. TCEQ also notes that the EPA does not redesignate an area to attainment when an area models attainment as part of an attainment demonstration, but rather uses monitoring data to verify attainment before redesignation.

Response: While the EPA does rely on ambient air quality monitoring data to make decisions on ozone nonattainment designations and redesignations, the EPA has routinely based its determination of receptors for purposes of evaluating interstate ozone transport on air quality modeling projections.9 This is because, regardless of designation, any area may violate the NAAQS if upwind emissions affecting air quality are not adequately controlled, and areas currently measuring clean data may still violate the NAAQS if conditions change such that attainment with the NAAQS can no longer be maintained. Thus, the means by which the EPA makes decisions with respect to area designations is not relevant to our identification of receptors that should be evaluated for interstate transport of air pollution. In North Carolina v. EPA, the D.C. Circuit concluded that the EPA's reliance on future projections to identify such receptors was a reasonable application of the statute. North Carolina, 531 F.3d at 914. Nonetheless, while the EPA has relied upon modeling to identify downwind air quality problems, the EPA has also stated that states may consider other types of data when evaluating interstate transport in developing their SIPs. See Memorandum from William T. Harnett to Regional Air Division Directors, Regions I-X, “Guidance on SIP Elements Required Under [CAA] Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5) National Ambient Air Quality Standards (NAAQS)”, September 25, 2009.10 Indeed, as described earlier, the EPA has regularly evaluated interstate transport SIPs in western states, where modeling has not typically been available, considering monitored data in a manner that is consistent with the standards described in this document.

Comment: TCEQ stated that we failed to give comments on the adequacy of the State's interstate transport analysis during the State public comment period and that the lack of comments led the State to believe that the submitted analysis was adequate to show how Texas contributes to other states' ozone concentrations.

Response: The EPA's authority and obligation under the Act is to review a SIP submittal and determine whether it meets the applicable requirements of the Act and regulations, regardless of whether we commented on a State's proposed SIP during its State rulemaking process. There is no requirement in the Act that the EPA must review, evaluate, and comment on a State's proposed SIP revision during the state rulemaking process, and no reasonable or legal basis for states to assume that the EPA's choosing to not provide comment on their analysis during the state public comment period constitutes the Agency's endorsement of such analysis.

Comment: Luminant stated that the EPA needs to revise the CSAPR ozone season NOX budgets in accordance with the D.C. Circuit's remand in EME Homer City Generation, L.P. before the EPA can evaluate Texas' SIP submittal. See EME Homer City Generation, L.P. v EPA, 795 F.3d 118 (D.C. Cir. 2015). Luminant stated that, by failing to issue new budgets for the 1997 ozone NAAQS, we are in violation of the D.C. Circuit's specific remand instructions. The commenter contends that the EPA cannot rationally evaluate Texas' SIP submittal until we comply with the court's remand. The commenter specifically contends that the EPA must replace the CSAPR budgets with lawful budgets that do not require more control than necessary to comply with the 1997 ozone NAAQS, and that otherwise, the EPA has no basis to disapprove the Texas SIP submittal. By failing to establish lawful budgets, the commenter claims that the EPA does not have the information necessary to evaluate additional reductions associated with Texas' plan to comply with the 2008 ozone NAAQS.

Response: The EPA has an independent statutory obligation to evaluate Texas' SIP submittal addressing the good neighbor provision with respect to the 2008 ozone NAAQS. The fact that the EPA has not yet completed its response to the D.C. Circuit's remand to address interstate transport with respect to the 1997 ozone NAAQS does not preclude either the state from addressing its own statutory obligation with respect to the 2008 ozone NAAQS pursuant to CAA section 110(a)(2)(D)(i)(I) or the EPA from fulfilling its statutory obligation to review the SIP submittal pursuant to CAA section 110(k). As noted earlier, the EPA has identified several deficiencies with the interstate transport analysis in the Texas SIP submittal that are unrelated to the CSAPR rulemakings either with respect to the 1997 or 2008 ozone standards.

The EPA has proposed its intended response to address the D.C. Circuit's remand of the CSAPR ozone season NOX budgets in the context of the CSAPR Update, which is expected to be finalized later this year. The commenter does not explain how the EPA's finalization of this action with respect to the 1997 ozone standard would aid in the state's evaluation of transport with respect to the 2008 ozone standard. Nonetheless, should the commenter have any concerns about the EPA's approach to addressing the court's remand, the appropriate venue for the EPA's evaluation of those concerns is in the context of the CSAPR Update rulemaking. Any concerns are outside the scope of this rulemaking.

Comment: Luminant stated that we must reopen the comment period for the CSAPR Update rulemaking. Luminant contends that comments previously submitted on the CSAPR Update proposal have limited utility because the EPA's rationale for disapproving Texas' SIP submittal was not known at the time those comments were submitted for that proposal.

Response: As noted earlier, the EPA has identified several deficiencies with the interstate transport analysis in the Texas SIP submittal that are unrelated to the CSAPR Update rulemaking. Moreover, any request to reopen the public comment period on the CSAPR Update is not appropriately raised in this rulemaking.

For the reasons described in the proposal and in this final action, the EPA is disapproving a portion of the December 13, 2012 SIP submittal from Texas seeking to address the required infrastructure element under CAA section 110(a)(2)(D)(i)(I) with respect to the State's significant contribution to nonattainment or interference with maintenance of the 2008 ozone NAAQS in other states, known as prongs 1 and 2 of the good neighbor provision.

In a separate action, we disapproved the portion of the SIP submittal pertaining to the CAA section 110(a)(2)(D)(i)(II) requirement to address the interstate transport of air pollution which will interfere with other states' programs for visibility protection (81 FR 296, January 5, 2016). We proposed to approve the other portions of the infrastructure SIP submittal on February 8, 2016 (81 FR 6483). We expect to take final action on the other portions of the Texas infrastructure SIP at a later date.

Pursuant to CAA section 110(c)(1), this disapproval establishes a 2-year deadline for the EPA to promulgate a FIP for Texas to address the requirements of CAA section 110(a)(2)(D)(i) with respect to the 2008 ozone NAAQS unless Texas submits and we approve a SIP that meets these requirements. Disapproval does not start a mandatory sanctions clock for Texas pursuant to CAA section 179 because this action does not pertain to a part D plan for nonattainment areas required under CAA section 110(a)(2)(I) or a SIP call pursuant to CAA section 110(k)(5).

This final action is not a “significant regulatory action” and was therefore not submitted to the Office of Management and Budget for review.

This final action does not impose an information collection burden under the PRA because it does not contain any information collection activities.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action merely disapproves a SIP submittal as not meeting certain CAA requirements.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector.

This action does not have federalism implications. It 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.

This action does not have tribal implications as specified in Executive Order 13175. This action does not apply on any Indian reservation land, any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, or non-reservation areas of Indian country. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it merely disapproves a SIP submittal as not meeting certain CAA requirements.

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

This rulemaking does not involve technical standards.

The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations. This action merely disapproves a SIP submittal as not meeting certain CAA requirements.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 11, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2).)

40 CFR part 52 is amended as follows:

Throughout this document wherever “we,” “us,” or “our” is used, it is intended to refer to the EPA.

On May 21, 2015, Idaho submitted revisions to the Idaho State Implementation Plan. On June 19, 2016, the EPA proposed to approve the submitted revisions, with the exception of certain provisions that are inappropriate for SIP approval (81 FR 37170). Please see our proposed rulemaking for further explanation and the basis for our finding. The public comment period for this proposal ended on July 11, 2016. We received no comments on the proposal.

The EPA is approving, and incorporating by reference, the following revisions to the Idaho SIP submitted on May 21, 2015:

• IDAPA 58.01.01.006 General Definitions, except .49, .50, .51, .66, .67, .68.b, .116 (renumbered from .114), and .118 (renumbered from .116) (State effective 4/11/2014);

• IDAPA 58.01.01.011 Definitions for the Purposes of Sections 790 through 799 (State effective 3/15/2002);

• IDAPA 58.01.01.107 Incorporations by Reference, except .03.f through .n, and with respect to .a, the incorporation by reference of 40 CFR 51.165 (State effective 4/11/2015);

• IDAPA 58.01.01.157 Test Methods and Procedures (State effective 4/11/2015);

• IDAPA 58.01.01.175 Procedures and Requirements for Permits Establishing a Facility Emissions Cap (State effective 4/11/2015);

• IDAPA 58.01.01.176 Facility Emissions Cap, except for provisions relating to hazardous air pollutants (State effective 4/11/2015);

• IDAPA 58.01.01.177 Application Procedures (State effective 4/11/2015);

• IDAPA 58.01.01.178 Standard Contents of Permits Establishing a Facility Emissions Cap (State effective 4/11/2015);

• IDAPA 58.01.01.179 Procedures for Issuing Permits Establishing a Facility Emissions Cap (State effective 4/11/2015);

• IDAPA 58.01.01.180 Revisions to Permits Establishing a Facility Emissions Cap (State effective 4/11/2015);

• IDAPA 58.01.01.181 Notice and Record-Keeping of Estimates of Ambient Concentrations (State effective 4/11/2015);

• IDAPA 58.01.01.201 Permit to Construct Required (State effective 4/11/2006);

• IDAPA 58.01.01.202 Application Procedures (State effective 4/11/2015);

• IDAPA 58.01.01.401 Tier II Operating Permit, except .01.a and .04, (State effective 4/11/2006);

• IDAPA 58.01.01.579 Baselines for Prevention of Significant Deterioration (State effective 4/11/2015);

• IDAPA 58.01.01.725 Rules for Sulfur Content of Fuels (State effective 4/11/2015);

• IDAPA 58.01.01.790 Rules for the Control of Nonmetallic Mineral Processing Plants (State effective 3/15/2002);

• IDAPA 58.01.01.791 General Control Requirements, (State effective 3/15/2002);

• IDAPA 58.01.01.793 Emissions Standards for Nonmetallic Mineral Processing Plants not Subject to 40 CFR 60, Subpart OOO (State effective 3/15/2002);

• IDAPA 58.01.01.794 Permit Requirements, except .04 (State effective 4/11/2015);

• IDAPA 58.01.01.795 Permit by Rule Requirements (State effective 3/15/2002);

• IDAPA 58.01.01.796 Applicability (State effective 3/15/2002);

• IDAPA 58.01.01.797 Registration for Permit by Rule (State effective 3/15/2002);

• IDAPA 58.01.01.798 Electrical Generators (State effective 3/15/2002); and

• IDAPA 58.01.01.799 Nonmetallic Mineral Processing Plan Fugitive Dust Best Management Practice (State effective 3/15/2002).

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference as described in the amendments to 40 CFR part 52 set forth below. These materials have been approved by the EPA for inclusion in the State Implementation Plan, have been incorporated by reference by the EPA into that plan, are fully federally-enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.1 The EPA has made, and will continue to make, these materials generally available through http://www.regulations.gov and/or at the EPA Region 10 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble).

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

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

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

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

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

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

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

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

• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because this action does not involve technical standards; and

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

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian Tribe has demonstrated that a Tribe has jurisdiction. In those areas of Indian country, the rule does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 11, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:

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

On May 18, 2016 (81 FR 31212), the EPA proposed, under section 110(k)(3) of the Clean Air Act (CAA or “Act”), to approve a revision to the California SIP submitted by the California Air Resources Board (CARB) on November 13, 2015.1 The SIP submittal revises budgets applicable to control strategy or maintenance plans for the SJV for the 1997 8-hour ozone standard, 2006 24-hour PM2.5 standard, and the 1987 24-hour PM10 standard.2 In our May 18, 2016 action, we proposed to approve revised budgets for the 1997 8-hour ozone standard and the 2006 24-hour PM2.5 standard. We also proposed to conditionally approve revised budgets for the 1987 24-hour PM10 standard. CARB developed the revised budgets using EMFAC2014 and the travel activity projections provided by the SJV Metropolitan Planning Organizations (MPOs) consistent with the 2015 Federal Transportation Improvement Program (TIP). As such, the revised budgets reflect the most recent planning forecasts and are based on the most recent emission factor data and approved calculation methods.

The EPA previously approved the SJV budgets for the 1997 8-hour ozone standard and the 24-hour PM10 standard. The ozone budgets were included in the EPA's approval of the SJV 2007 8-hour Ozone Plan (“2007 Ozone Plan”) at 77 FR 12652 (March 1, 2012), which established NOX and VOC 3 budgets for 2011, 2014, 2017, 2020, and 2023.4 The PM10 budgets were included in the EPA's approval of the 2007 PM10 Maintenance Plan and Request for Redesignation (“2007 PM10 Plan”) at 73 FR 66759 (November 12, 2008), which established direct PM10 and NOX budgets for 2005 and 2020.5 The SJV budgets for the 2006 24-hour PM2.5 standard were included in the EPA's proposed approval of the SJV 2012 PM2.5 Plan (“2012 PM2.5 Plan”) at 80 FR 1816 (January 13, 2015). The EPA found the 2017 PM2.5 budgets in the SJV 2012 PM2.5 Plan to be adequate at 81 FR 22194 (April 15, 2016), establishing direct PM2.5 and NOX budgets for 2017. As of May 2, 2016, these budgets must be used to determine conformity of transportation plans and TIPs to the control strategy plan for the SJV for the 2006 24-hour PM2.5 standard.6

In our May 18, 2016 proposed rule, we reviewed the revised budgets for the 1997 8-hour ozone standard in the November 13, 2015 submittal, evaluated them for compliance with statutory and regulatory requirements, and concluded that they meet all applicable requirements. More specifically, under CAA section 110(k)(3), we proposed to approve the revised VOC and NOX budgets in table 1 for 2017, 2020, and 2023 for the 1997 8-hour ozone standard. We determined that replacement of the current approved budgets with the revised VOC and NOX budgets would not interfere with the approved RFP and attainment demonstrations for the 1997 8-hour ozone standard in the SJV and emissions changes in non-motor vehicle emissions categories do not change the overall conclusions of the 2007 Ozone Plan.

Second, under CAA section 110(k)(4), the EPA proposed to conditionally approve the revised direct PM10 and NOX budgets in table 2 for 2020 for the 24-hour PM10 standard. We determined that, when combined with implementation of the contingency plan in the SIP-approved 2007 PM10 Plan and fulfillment of the commitments in the State's April 29, 2016 letter, the revised direct PM10 and NOX budgets will allow the SJV to continue to demonstrate maintenance of the 24-hour PM10 standard. The contents of the State's April 29, 2016 letter are described in detail in our proposed rule on pages 31220 and 31221. In our proposal, we explained that if the conditional approval is finalized, CARB must adopt and submit the SIP revisions that it has committed to submit by June 1, 2017. The resulting impacts if CARB fails to comply with this commitment are explained below in section III of today's action.

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

IDEM requested on October 16, 2015, that EPA approve as a revision to the SIP alternative control technology requirements for Abengoa. These requirements include the use of a carbon adsorption/absorption hydrocarbon vapor recovery system with a minimum overall control efficiency of 98% to control VOC emissions from the ethanol loading racks at Abengoa. A CEMS must be used to monitor the carbon adsorption/absorption hydrocarbon vapor recovery system for breakthrough of VOC emissions. These requirements are contained in Commissioner's Order No. 2015-01 issued by the IDEM Commissioner on September 8, 2015.

In Abengoa's initial construction and operating permit issued by IDEM, the ethanol loading racks were subject to the statewide case-by-case Best Available Control Technology (statewide BACT) determination required under SIP-approved Title 326 Article 8 Rule 1-6 of the Indiana Administrative Code (326 IAC 8-1-6). The statewide BACT for Abengoa's ethanol loading racks was determined to be enclosed flares with a minimum overall control efficiency of 98%. Since then, Abengoa has modified its plant design, including the ethanol loading racks, and is now subject to a newer SIP-approved state rule, 326 IAC 8-5-6, Fuel Grade Ethanol Production at Dry Mills, which created an industry-specific statewide BACT standard and which replaced the statewide case-by-case BACT rule (326 IAC 8-1-6) for fuel grade ethanol production dry mills that have no wet milling operations. EPA approved this rule into the SIP on February 20, 2008 (73 FR 9201).

The three VOC control options under 326 IAC 8-5-6 are: (1) A thermal oxidizer with a minimum overall control efficiency of 98% or resulting in a VOC concentration of not more than ten (10) parts per million (ppm), (2) a wet scrubber with a minimum overall control efficiency of 98% or resulting in a VOC concentration of not more than twenty (20) ppm, and (3) an enclosed flare with a minimum overall control efficiency of 98%. The VOC control options under 326 IAC 8-5-6 do not include a carbon adsorption/absorption hydrocarbon vapor recovery system. Abengoa has opted to use a carbon adsorption/absorption hydrocarbon vapor recovery system rather than one of the VOC control options under 326 IAC 8-5-6. However, like the VOC control options under 326 IAC 8-5-6, Abengoa's carbon adsorption/absorption system has a minimum overall control efficiency of 98%. IDEM considers the system Reasonably Available Control Technology (RACT) under SIP rule 326 IAC 8-1-5 (Petition for a site-specific reasonably available control technology (RACT) plan).

As a result, pursuant to 326 IAC 8-1-5, Indiana has issued Commissioner's Order No. 2015-01 approving Abengoa's use of this system as an alternative site-specific RACT in lieu of the industry-specific statewide BACT options under 326 IAC 8-5-6. The carbon adsorption/absorption system will control VOC emissions at a minimum overall control efficiency of 98%, which is the same level of control of the industry-specific BACT options under 326 IAC 8-5-6; therefore, there will be no relaxation of the emission reduction requirements at Abengoa as a result of this SIP revision. As an added benefit, Abengoa's use of the carbon adsorption/absorption system is expected to result in fewer criteria air pollutant emissions, since, unlike enclosed flares, carbon adsorption/absorption does not involve the combustion of natural gas.

It should be noted that Condition #3 of the “Conditions of Approval” in Commissioner's Order 2015-01 states: “The overall efficiency for the carbon adsorption/absorption hydrocarbon vapor recovery system (C-2101), including the capture efficiency and adsorption/absorption efficiency, shall be at least 98%. The Petitioner shall demonstrate compliance using methods approved by the department. Testing shall be conducted in accordance with the provisions of 326 IAC 3-6 (Source Sampling Procedures)”. IDEM has confirmed in an email to EPA dated June 6, 2016, that this provision requires testing using EPA Method 25 (40 CFR part 60, appendix A-7).

EPA is approving the requirements in Commissioner's Order No. 2015-01 as a revision to the Indiana SIP. This is based on EPA's finding that the 98% minimum overall control efficiency adsorption/absorption system with a CEMS qualifies as alternative site-specific RACT under 326 IAC 8-1-5 of the Indiana SIP for Abengoa's ethanol loading racks. EPA also finds that this system constitutes statewide BACT under 326 IAC 8-1-6 of the Indiana SIP in lieu of the industry-specific statewide BACT options under 326 IAC 8-5-6 of the Indiana SIP. There will be no relaxation of the emission reduction requirements at Abengoa as a result of this SIP revision. Since this is not a relaxation, section 110(l) of the Clean Air Act (CAA) is satisfied and no backsliding is occurring as a result of this SIP revision. As an added benefit, Abengoa's use of the carbon adsorption/absorption system is expected to result in fewer criteria air pollutant emissions, since, unlike enclosed flares, carbon adsorption/absorption does not involve the combustion of natural gas.

We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse written comments are filed. This rule will be effective October 11, 2016 without further notice unless we receive relevant adverse written comments by September 12, 2016. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. If we do not receive any comments, this action will be effective October 11, 2016.

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Indiana Regulations described in the amendments to 40 CFR part 52 set forth below. Therefore, these materials have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.1 EPA has made, and will continue to make, these documents generally available through www.regulations.gov and/or at the EPA Region 5 Office (please contact the person identified in the “For Further Information Contact” section of this preamble for more information.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 11, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. 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:

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

On August 24, 2015 (80 FR 51147), the EPA proposed to approve the “Report on Reductions Achieved from Incentive-based Emission Reduction Measures in the San Joaquin Valley” (Emission Reduction Report) and, based on California's documentation therein of actions taken by grantees in accordance with the identified incentive program guidelines, to approve 7.8 tpd of NOX emission reductions and 0.2 tpd of PM2.5 emission reductions for credit toward the State's 2014 emission reduction commitments in its 2008 plan to provide for attainment of the 1997 PM2.5 National Ambient Air Quality Standards (NAAQS) in the San Joaquin Valley (hereafter “2008 PM2.5 Plan”).1 The California Air Resources Board (CARB) adopted the Emission Reduction Report on October 24, 2014 and submitted it to EPA as a revision to the California SIP on November 17, 2014. We proposed to approve the Emission Reduction Report based on a determination that it satisfied the applicable CAA requirements. Our proposed action contains more information on the Emission Reduction Report and our evaluation.

The EPA's proposed action provided a 30-day public comment period. During this period, we received comments from Adenike Adeyeye, Earthjustice, by email dated and received September 16, 2015. The comments and our responses are summarized below.

Comment 1: Earthjustice asserts that the emission reductions identified in the Emission Reduction Report are not enforceable by the public and therefore should not be approved into the SIP. According to Earthjustice, the Carl Moyer program allows air districts to enter into emission reduction agreements with grant recipients, with CARB added to contracts as a third party with enforcement rights, but does not enable the public to enforce these emission reduction agreements entered into among CARB, the air district, and the grant recipient. Earthjustice argues that the EPA's enforceability criteria require that citizens have access to all emissions-related information obtained from participating sources and be able to file suit against a responsible entity for violations, and that the Emission Reduction Report does not meet these criteria.

Response 1: We agree with the commenter's statement that the public cannot enforce the agreements entered into among CARB, an air district and a grant recipient but disagree with the commenter's suggestion that this renders the Emission Reduction Report inconsistent with the EPA's enforceability criteria. This Emission Reduction Report was submitted to demonstrate that that a portion of the emission reductions required under a previously approved SIP commitment have in fact been achieved—not to satisfy a future emission reduction requirement—and thus it does not need to provide a citizen enforcement mechanism.

As we explained in our proposed rule, where a state relies on a discretionary economic incentive program (EIP) or other voluntary measure to satisfy an attainment planning requirement under the CAA (e.g., to demonstrate that specific amounts of emission reductions will occur by a future milestone date), the state must take responsibility for assuring that SIP emission reduction requirements are met through an enforceable commitment, which becomes federally enforceable upon approval into the SIP. 80 FR 51147, 51150. Thus, had CARB submitted the Emission Reduction Report to satisfy a future emission reduction requirement under the CAA, an enforceable state commitment to assure that the required emission reductions occur would be necessary to satisfy the Act's enforceability requirements. The purpose of the Emission Reduction Report, however, is to demonstrate that a portion of the emission reductions required under a previously-approved SIP commitment have in fact been achieved, not to satisfy a future emission reduction requirement. See id. at 51150-51151. Accordingly, it is not necessary to require the State to submit, as part of this particular SIP submission, additional commitments to achieve future emission reductions.

The EPA evaluated the Emission Reduction Report in accordance with the Agency's guidance on discretionary EIPs. See 80 FR 51147, 51149-50 (citing, inter alia, U.S. EPA, “Improving Air Quality with Economic Incentive Programs,” January 2001 (hereafter “2001 EIP Guidance”)). A discretionary EIP uses market-based strategies to encourage the reduction of emissions from stationary, area, and/or mobile sources in an efficient manner. See 2001 EIP Guidance at 3. To qualify for approval as a discretionary EIP, emission reductions or actions leading to reductions must be enforceable either by the State or by the EPA, and the State must be directly responsible for ensuring that program elements are implemented. See id. at 157-158 (states may use the 2001 EIP Guidance where “[a]ctions and/or emission reductions by identifiable sources are enforceable by [the State] and/or by the EPA”).

A “financial mechanism EIP” is an EIP that indirectly reduces emissions by increasing costs for high emitting activities—e.g., through subsidies targeted at promoting pollution-reducing activities or products. See 2001 EIP Guidance at 119-122. The EPA has identified several attributes that may make subsidy financial mechanism EIPs successful, including: (1) The relevant governmental body possesses legal authority to provide subsidies; (2) the subsidies address activities reasonably related to actual emissions or potential emissions; (3) where projected emission reductions are based on changes in behavior, methods for verifying that such reductions have taken place to the degree projected are generally accepted as unbiased and trustworthy; and (4) if needed, adequate penalty provisions are in place to ensure that the subsidy is used as expected. See 2001 EIP Guidance at 27 (“Attributes That Make Subsidy Financial Mechanism EIPs Successful”).

As explained further in Response 2 below, the portions of the Proposition 1B: Goods Movement Emission Reduction Program (Prop 1B program) and Carl Moyer Memorial Air Quality Standards Attainment Program (Carl Moyer Program) guidelines discussed in the Emission Reduction Report are consistent with the EPA's recommendations for “financial mechanism EIPs” in the 2001 EIP Guidance. First, CARB and the District are directly responsible for ensuring that the Prop 1B program and Carl Moyer Program are implemented in accordance with State law. See 2010 Prop 1B guidelines at 1-4 (“Overview”) and 2011 Carl Moyer Program Guidelines at Chapter 1 (“Program Overview”). Second, the incentive programs discussed in the Emission Reduction Report address actions reasonably related to actual air pollutant emissions, e.g., by requiring grant recipients to purchase and operate newer, cleaner vehicles or equipment in place of older, more-polluting vehicles or equipment, subject to detailed contract requirements. Third, the relevant portions of the 2008 and 2010 Prop 1B guidelines and the 2005, 2008 and 2011 Carl Moyer Program Guidelines establish a number of methods for verifying that projected emission reductions have taken place through compliance with the terms and conditions of each funding contract. Finally, under the applicable guidelines, actions by grantees that lead to emission reductions are directly enforceable by the State and/or the District—e.g., CARB and/or the District may assess fiscal penalties and take certain corrective actions where contract violations are identified. Consistent with the EPA's recommendations for “financial mechanisms EIPs,” these provisions in the 2008 and 2010 Prop 1B guidelines and the 2005, 2008 and 2011 Carl Moyer Program Guidelines are adequate to ensure that program funds are used as expected—i.e., to reduce emissions from higher-polluting vehicles and equipment by replacing them with newer, lower-polluting equipment and vehicles. Based on our more detailed evaluations of 11 randomly selected projects from among those listed in the Emission Reduction Report, we find that the projects identified in the Emission Reduction Report were implemented as required under the applicable program guidelines and achieved the emission reductions projected for those projects, with the exception of one source category. See Response 2.

In sum, although an enforceable state commitment would ordinarily be necessary for a SIP submission that relies on a discretionary EIP to satisfy CAA enforceability requirements, such a commitment is not necessary in this case because the Emission Reduction Report was not submitted to satisfy a future emission reduction requirement and, instead, demonstrates only that certain Prop 1B program and Carl Moyer Program incentive projects achieved specified amounts of emission reductions in the past. The portions of the Prop 1B program and Carl Moyer Program guidelines that apply to the identified incentive projects ensure that program funds are used as expected and that the EPA and citizens have access to all emissions-related information obtained from participating sources. Based on our review of the available project records for a subset of the projects identified in the Emission Reduction Report, we find that the identified projects achieved the necessary emission reductions, with the exception of one source category discussed further below. Therefore, it is not necessary for the Emission Reduction Report to provide a mechanism for citizen suits against a responsible entity.

Comment 2: Earthjustice argues that, based on the information presented in the Emission Reduction Report, citizens cannot even obtain the information necessary to quantify and verify emission reductions. For example, Earthjustice states that the total project life for each stationary and portable farm engine funded through the Carl Moyer program varies from two years to ten years and that project life varies, in part, because emission reductions cannot be counted as surplus after the compliance date for a regulation applicable to that project. Earthjustice states that CARB is required to ensure that emission reductions from projects are no longer counted as SIP-creditable emission reductions after that compliance date but argues that “[n]either EPA nor the public has any way of knowing whether or not these projects were counted during only the years in which they were surplus because CARB does not provide enough information to determine a project's compliance date.”

According to Earthjustice, to determine whether the stationary and portable farm engine projects were counted only for the years during which they could be considered surplus, one would need to know: What type of engine was used as a replacement; the horsepower of the engine used as a replacement; tier of the original agricultural engine; and fleetwide particulate matter (PM) levels.

Response 2: We disagree with the commenter's claim that citizens cannot obtain the information necessary to quantify and verify emission reductions. As we explained in the technical support document supporting our proposed rule and as explained in further detail below, the emission reductions identified in the Emission Reduction Report can be independently verified and the public has access to emissions-related information due to several requirements in the 2008 and 2010 Prop 1B guidelines and the 2005, 2008 and 2011 Carl Moyer Program guidelines. See U.S. EPA Region 9, Air Division, “Technical Support Document for EPA's Notice of Proposed Rulemaking for the California State Implementation Plan, Report on Reductions Achieved from Incentive-Based Emission Reduction Measures in the San Joaquin Valley,” August 2015 (“Proposal TSD”) at 7-15. We discuss the relevant guideline provisions in more detail below.

First, actions required of grantees under the applicable portions of the Prop 1B and Carl Moyer Program guidelines are independently verifiable through (1) pre-project and post-project on-site inspections (with photographic documentation) that the District and/or CARB must carry out pursuant to the applicable guidelines, and (2) documents that each grantee is required to maintain and/or submit to the District in accordance with detailed contract provisions. See generally 2008 Prop 1B guidelines at Section III.D (“Local Agency Project Implementation Requirements”), Section IV (“General Equipment Project Requirements”), and Appendix A, Section C (“Recordkeeping Requirements”) and Section D (“Annual Reporting Requirements”); 2010 Prop 1B guidelines at Section IV.A (“Project Implementation Requirements”), Section VI (“General Equipment Project Requirements”), and Appendix A, Section F (“Recordkeeping Requirements”) and Section G (“Annual Reporting Requirements”); 2005 Carl Moyer Guidelines, Part I, Chapter 2 (“Administration of the Carl Moyer Program”); 2008 Carl Moyer Guidelines, Part III (“Program Administration”) and 2011 Carl Moyer Program Guidelines, Part I, Chapter 3 (“Program Administration”).

For example, the 2008 and 2010 Prop 1B guidelines require, among other things, that (1) all project applications include documentation of current equipment and activity information (e.g. engine make, model, horsepower and fuel type, annual vehicle miles of travel (VMT) in California, and estimated percentage of annual VMT in trade corridors); (2) that the District conduct a “pre-inspection” of each application deemed eligible for funding, to verify information regarding the baseline engine, vehicle, or equipment; (3) that the District conduct a “post-inspection” of each funded project to record, among other things, identifiers and specifications for the new engine/equipment (e.g., Vehicle Identification Numbers (VIN) for new trucks, serial numbers for new engines), and verification that the new engine/equipment is operational and consistent with the old/replaced equipment, where applicable; and (4) that the District's pre-inspection and post-inspection project files include photographic documentation of each piece of equipment being inspected, including an engine serial number, visible distinguishing identification (e.g., a license plate), and a full view of the equipment. See 2008 Prop 1B guidelines at Section III.D.8 (“Equipment project pre-inspections'), Section III.D.14 (“Equipment project post-inspections”), Section IV.D (“Equipment Project Application Requirements”) and Appendix A, Section F (“Application Information”); 2010 Prop 1B guidelines at Section IV.A.10 (“Equipment project pre-inspections”), Section IV.A.16 (“Equipment project post-inspections”), Section VI.D (“Equipment Project Application Requirements”) and Appendix A, Section F (“Application Information”); see also Proposal TSD at 14-15.

Similarly, the 2005, 2008 and 2011 Carl Moyer Program Guidelines require, among other things, that (1) all project applications include documentation of existing engine usage in previous years (e.g. miles traveled, hours operated, or fuel consumed per year); (2) that the District conduct a “pre-inspection” of each application deemed eligible for funding, to verify information regarding the baseline engine, vehicle, or equipment; (3) that the District conduct a “post-inspection” of each funded project to record, among other things, information regarding the new engines, vehicles/equipment, and retrofit devices as needed to provide a basis for emission calculations and to ensure contract enforceability; and (4) that the District's pre-inspection and post-project files include photographic documentation of the engine, vehicle, or equipment information, including a legible serial number and/or other identifying markings. See 2005 Carl Moyer Program Guidelines, Part I, Chapter 2 at Section V.D (“Project Applications”), Section IX.A (“Pre-Inspection”), and Section IX.B (“Post-Inspection”); 2008 Carl Moyer Program Guidelines, Part III, Part II at Section 26 (“Minimum Project Application Requirements”), Section 30 (“Project Pre-Inspections”), and Section 31 (“Post-Inspection”); 2011 Carl Moyer Program Guidelines, Part I, Chapter 3, at Section W (“Minimum Project Application Requirements”), Section AA (“Project Pre-Inspection”), and Section BB (“Project Post-Inspection”); see also Proposal TSD at 8-9.

Second, the applicable portions of the 2008 and 2010 Prop 1B guidelines and the 2005, 2008 and 2011 Carl Moyer Program guidelines specifically define the required elements of each contract and the types of actions that constitute violations of such contracts. For example, under the 2008 and 2010 Prop 1B guidelines, each equipment project contract must include: (1) A unique “tracking number”; (2) the equipment owner's contact information; (3) the original application submitted by the equipment owner; (4) requirements for the equipment owner to submit reports to the local agency annually or biennially; (5) the equipment owner's agreement to allow ongoing evaluations and audits of equipment and documentation by the District, CARB, or their designated representative(s); and (6) requirements for the equipment owner to retain all records pertaining to the program (i.e., invoices, contracts, and correspondence) for at least two years after the equipment project ends or three years after final payment, whichever is later. See 2008 Prop 1B guidelines at Section III.D.10 (“Equipment project contracts”) and 2010 Prop 1B guidelines at Section IV.A.11 (“Equipment project contracts”); see also Proposal TSD at 14-15. Additionally, under the same guidelines, the following actions (among others) are specifically identified as contract violations: (1) Failure to meet the terms and conditions of an executed equipment project contract, including equipment operating conditions and geographic restrictions; (2) failure to allow for an electronic monitoring device or tampering with an installed device or data; (3) insufficient, incomplete, or faulty equipment project documentation; and (4) failure to provide required documentation or reports in a timely manner. See 2008 Prop 1B guidelines at Section IV.G (“Equipment Project Non-Performance”) and 2010 Prop 1B guidelines at VI.I (“Equipment Project Non-Performance”); see also Proposal TSD at 14-15.

Similarly, under the 2005, 2008 and 2011 Carl Moyer Program Guidelines, each equipment project contract must include: (1) The name and contact information of the grantee; (2) specified timeframes for “project completion” (the date the project post-inspection confirms that the project has become operational) and “project implementation” (the project life used in the project cost-effectiveness calculation); (3) detailed information on both baseline and new vehicles, equipment, and/or engines, including documentation adequate to establish historical annual usage; (4) requirements for the grantee to maintain the vehicle, equipment and/or engine according to the manufacturer's specifications for the life of the project; (5) annual reporting requirements; (6) a provision authorizing the District, CARB, and their designees to conduct fiscal audits and to inspect the project engine, vehicle, and/or equipment and associated records during the contract term, and (7) requirements to maintain and retain project records for at least two years after contract expiration or three years after final project payment, whichever is later. See 2005 Carl Moyer Program Guidelines, Part I, Chapter 2 at Section VIII (“Minimum Contract Requirements”); 2008 Carl Moyer Program Guidelines, Part III, Part III at Section 29 (“Minimum Contract Requirements”); and 2011 Carl Moyer Program Guidelines, Part I, Chapter 3 at Section Z (“Minimum Contract Requirements”). Additionally, the 2011 Carl Moyer Program Guidelines explicitly require that each contract “specify that by executing the contract, the grantee understands and agrees to operate the vehicle, equipment, and/or engine according to the terms of the contract” and describe the potential repercussions to the grantee for non-compliance with contract requirements. See 2011 Carl Moyer Program Guidelines, Part I, Chapter 3 at Section Z.11 (“Repercussions for Non-Performance”) and Section FF (“Nonperforming Projects”); see also 2005 Carl Moyer Program Guidelines, Part I, Chapter 2 at Section VIII.G (“Repercussions for Nonperformance”); and 2008 Carl Moyer Program Guidelines, Part III, Part III at Section 35 (“Nonperforming Projects”). The 2011 Carl Moyer Program Guidelines also specifically identify types of actions on the part of the District that CARB may treat as violations of program requirements—e.g., misuse of Carl Moyer Program funds and insufficient, incomplete, or inaccurate project documentation. See 2011 Carl Moyer Program Guidelines at Section U (“Program Non-Performance”).

Third, the applicable portions of the Prop 1B guidelines and Carl Moyer Program guidelines require that all grantees submit specific types of project records to the District and also require the District to maintain such records for specified periods of time. Specifically, as discussed above, under the 2008 Prop 1B guidelines, the 2010 Prop 1B guidelines, and the 2005, 2008 and 2011 Carl Moyer Program guidelines, each contract executed by the District must require the grantee to maintain project records for at least two years after contract expiration or three years after final project payment, whichever is later, and to submit annual or biennial reports to the District. See 2008 Prop 1B guidelines at Section III.D.10 (“Equipment project contracts”), 2010 Prop 1B guidelines at Section IV.A.11 (“Equipment project contracts”), 2005 Carl Moyer Program Guidelines, Part I, Chapter 2 at Section VIII (“Minimum Contract Requirements”); 2008 Carl Moyer Program Guidelines, Part III, Part III at Section 29 (“Minimum Contract Requirements”); and 2011 Carl Moyer Program Guidelines, Part I, Chapter 3 at Section Z (“Minimum Contract Requirements”); see also Proposal TSD at 8-9 and 14-15. Additionally, the 2008 Prop 1B guidelines require the District to retain all “program records” (e.g., invoices, contracts, and correspondence) for at least two years after the project ends or three years after final payment, whichever is later. See 2008 Prop 1B guidelines, Chapter II, Section D.10.b (“General Program provisions”). The 2010 Prop 1B guidelines require the District to retain “program records” for 35 years after the bond issuance date providing the funds for the grant, or to send all records to CARB by the end date of the grant agreement. See 2010 Prop 1B guidelines, Chapter II, Section E.10.b (“General Program provisions”). Under the Carl Moyer Program Guidelines, the District must keep each “project file” for a minimum of two years after the end of the contract term or a minimum of three years after final payment, whichever is later. See 2011 Carl Moyer Program Guidelines, Chapter 3, Section V (“ARB Audit of Air Districts”) at 3-25. A “project file” generally includes a copy of the application, a completed pre- and post-inspection form, and the annual reports submitted by the grantee. See id. at Section X.6, Section AA.4, Section BB.1.(G), and Section DD.3. These requirements of the Carl Moyer Program and Prop 1B guidelines ensure that grantees submit, and that the District maintains, project documents sufficient for the EPA and the public to verify the emission reductions attributed to these projects in the Emission Reduction Report.

To demonstrate how the public can quantify and verify the emission reductions identified in the Emission Reduction Report, we randomly selected 0.5% of the projects in Appendix H of the Emission Reduction Report and requested that CARB provide to us the information necessary to verify the emission reduction calculations for these projects. From Appendix H.1, which lists the Carl Moyer projects included in the Emission Reduction Report, we randomly selected the projects identified in Table 1.

From Appendix H.2, which lists the Prop 1B Heavy Duty Diesel Truck Replacement projects included in the Emission Reduction Report, we randomly selected the projects identified in Table 2.

We independently calculated the emission reductions for the selected projects using additional project information submitted by CARB at our request and found that the emission reduction calculations for all of the selected projects were replicable, with the exception of one project that was erroneously included in the Emission Reduction Report and accounted for 0 reductions. See U.S. EPA Region 9, Memorandum to File dated April 26, 2016, “Sample emission reduction calculations for selected Carl Moyer and Prop 1B projects,” Docket No. EPA-R09-OAR-2015-0489 and references therein. Additionally, at our request, CARB submitted the project application, grant agreement and documentation of destruction for one Carl Moyer Program project (Project Number C-2570, Stationary and Portable Agricultural Engines, Repower, 2005 Carl Moyer Guidelines) and one Prop 1B Program project (Equipment Project ID G07GMCT3_01246, Heavy Duty Diesel Truck Replacement, 2008 Prop 1B Guidelines). See email dated April 19, 2016, from Sylvia Vanderspek (CARB) to Jeanhee Hong (USEPA Region 9), including attachments. We evaluated the information contained in these project records to verify CARB's emission reduction calculations in the Emission Reduction Report.

For Carl Moyer project C-2570, the project application contains information about the existing and new engine (including engine make, model year, horsepower, and tier), engine function and type (e.g., stationary or portable), the project life, the hours of operation, and percentage of usage in the San Joaquin Valley. See San Joaquin Unified Valley Air Pollution Control District (SJVUAPCD), Application C-2570, Heavy-Duty Engine Program Agricultural Pump Engine Component, Diesel Engine to Electric Motor Repower Option (“Carl Moyer Application C-2570”) at section 2, section 3 and accompanying table (“For Internal Use Only”)).2 The project agreement, which is the contract between the grantee and the SJVUAPCD, includes a description of the engines, a requirement to destroy the existing engine, the duration of the terms of the agreement, annual reporting requirements, a noncompliance provision for reporting, and provisions concerning District audits. See SJVUAPCD, Agreement C-2570, Heavy-Duty Engine Emission Reduction Incentive Program Funding Agreement (Electric Agricultural Pump Motor Repower), July 30, 2009 (“Carl Moyer Agreement C-2570”) at section 2, section 3, section 5, section 6, and section 21. Finally, pre- and post-inspection monitoring reports for project C-2570 include photographic evidence of engine information and destruction of the old engine. See Heavy-Duty Program Monitoring Report, pre-inspection and post inspection, project number C-2570 (“Carl Moyer Monitoring Reports C-2570”). Consistent with the requirements of the 2005 Carl Moyer Program guidelines at Part I, chapter 2, sections V.D, VIII, and IX, these project records contain all of the information necessary to verify whether project C-2570 was implemented as required and achieved the emission reductions calculated for this project.

Similarly, for Prop 1B project G07GMCT3_01246, the project application contains information about the existing and new engine (including engine make, model year, gross vehicle weight rating (GVWR), Vehicle Identification Number (VIN), and horsepower), the annual vehicle-miles-traveled (VMT) for both the existing and new engine, and percentage of usage in the San Joaquin Valley. See SJVUAPCD, Application P-0442,3 Proposition 1B: Good Movement Emission Reduction Program Component, Truck Replacement (“Prop 1B Application G07GMCT3_01246”) at sections 2-4.4 The project agreement, which is the contract between the grantee and the SJVUAPCD, includes a description of the existing and new engines, a requirement to destroy the existing engine, the duration of the terms of the agreement, annual reporting requirements, nonperformance provisions, and provisions concerning District audits. See SJVUAPCD, Agreement P-0442-A, Proposition 1B: Goods Movement Emission Reduction Program Funding Agreement (Truck Replacement), March 16, 2010 (“Prop 1B Agreement G07GMCT3_01246”) at sections 2, 3, 5, 6.F, 7, 12, and 23. Finally, post-inspection monitoring reports for project G07GMCT3_01246 include photographic evidence of engine information and destruction of the old engine. See Proposition 1B Program Truck Replacement Option, Exist (Old) Truck Post-Monitoring Inspection, Project Number P-0442-A (“Prop 1B Monitoring Reports G07GMCT3_01246”). Consistent with the requirements of the 2008 Prop 1B Guidelines at sections III.D.10, III.D.14, IV.D and Appendix A, Section F, these project records contain all of the information necessary to verify whether Project G07GMCT3_01246 was implemented as required and achieved the emission reductions calculated for this project.

Any member of the public can obtain project-related documents maintained by the State and/or District by submitting a request for such documents under the California Public Records Act. See Ca. Gov't Code §§ 6250-6276.48. Accordingly, the EPA and citizens can obtain the information necessary to quantify and verify the emission reductions identified in the Emission Reduction Report.

We also disagree with Earthjustice's assertion that there is no way to verify whether the emission reductions attributed to the projects identified in the Emission Reduction Report are “surplus” to existing requirements. As an initial matter, we note that both the Carl Moyer Program guidelines and the Prop 1B guidelines generally require that funded projects achieve emission reductions not required by any federal, state or local regulation or other legal mandate. See 2005 Carl Moyer Guidelines, Part I, Section VIII.D; 2008 Carl Moyer Guidelines, Part III, Section (27)(i); 2011 Carl Moyer Guidelines, Part 1, Chapter 2; 2008 Prop 1B Guidelines, Section III.B.1 at 47; and 2010 Prop 1B Guidelines, Section III.B.1 at 57.

Earthjustice highlights “stationary and portable farm engines” as a source category for which the project life varies from two to ten years and claims that there is no way to know whether or not these projects were counted for only the years in which their emission reductions were surplus. We assume the commenter intended to refer to the “Stationary and Portable Agricultural Engines” source category under the Carl Moyer Program. Two of the Carl Moyer projects that we randomly selected for evaluation (identified in Table 1) are within this source category (project numbers C-2570 and C-14205). According to CARB, these two projects were of the equipment type “Stationary Agricultural Irrigation Pump.” See email dated November 12, 2015, from Sylvia Vanderspek (CARB) to Andrew Steckel (USEPA Region 9). These engines are subject to CARB's Airborne Toxic Control Measure (ATCM) for Stationary Compression Ignition (CI) Engines in title 17, sections 93115—93115.15 of the California Code of Regulations (17 CCR §§ 93115—93115.15) (hereafter “Stationary Engine ATCM”). Table 7 of the Stationary Engine ATCM provides a summary of requirements for in-use noncertified stationary diesel-fueled engines used in agricultural operations and Table 8 of the Stationary Engine ATCM provides a summary of requirements for certified in-use Tier 1 and Tier 2 engines used in agricultural operations. See 17 CCR § 93115.8, Table 7 and Table 8.

The emission reductions attributed to project C-14205 and project C-2570 engine #1 during the January 1-December 31, 2014 timeframe were surplus to the requirements of the Stationary Engine ATCM because they occurred before the earliest ATCM compliance deadline applicable to these engines, which was December 31, 2014. The emission reductions attributed to project C-2570 engine #2 during the January 1-December 31, 2014 timeframe, however, were not entirely surplus because that engine was required to comply with the Stationary Engine ATCM's NOX and PM2.5 emission limits for in-use noncertified stationary diesel-fueled engines used in agricultural operations by December 31, 2010.5 See Table 3.

Given this information, we have assumed conservatively that all emission reductions attributed to Carl Moyer Program projects in the “Stationary and Portable Agricultural Engines” source category in the Emission Reduction Report are not surplus and, therefore, are not creditable for SIP purposes at this time. Stationary and portable agricultural engine projects account for 2.829 tpd of the NOX emission reductions and 0.066 tpd of the direct PM2.5 emission reductions identified in the Emission Reduction Report as shown in Table 4. See Emission Reduction Report, Appendix H1 at pp. 8-29.

We are therefore subtracting these amounts from the total amounts of NOX and direct PM2.5 emission reductions identified in the Emission Reduction Report (7.8 tpd of NOX emission reductions and 0.2 tpd direct PM2.5 emission reductions), and crediting the Emission Reduction Report with only 4.971 tpd of NOX emission reductions and 0.134 tpd of direct PM2.5 emission reductions toward the State's 2014 emission reduction commitment in the 2008 PM2.5 Plan.

Earthjustice argues that in order to determine whether these projects were counted only for the years during which they could be considered surplus, one would need to know the type of engine that was used as a replacement; the horsepower of the engine used as a replacement; the tier of the original agricultural engine; and fleetwide particulate matter (“PM”) levels. We agree that information about the type of engine that was used as a replacement, the horsepower of the new engine, and the tier of the original agricultural engine is necessary to determine whether the emission reductions attributed to a particular Carl Moyer project are surplus. As explained above, project documents that the District is required to maintain under the Carl Moyer and Prop 1B program guidelines, which CARB submitted to the EPA at our request, identify all of this information. With respect to fleetwide PM levels, we note that this information is not necessary to determine the ATCM compliance date applicable to a stationary agricultural engine, because the requirements of the Stationary Engine ATCM do not vary based on fleetwide PM levels. See generally 17 CCR §§ 93115-93115.15. Carl Moyer projects C-2570 and C-14205 are stationary agricultural engines subject to the Stationary Engine ATCM. See email dated November 12, 2015, from Sylvia Vanderspek (CARB) to Andrew Steckel (USEPA Region 9). Thus, information about fleetwide PM levels is not necessary to determine whether these projects achieved surplus emission reductions. We agree with Earthjustice that information concerning fleetwide PM levels is necessary to determine certain compliance dates under the ATCM for diesel particulate matter from portable engines. See 17 CCR § 93116.3. To the extent the commenter intended to argue that this information is necessary to determine whether a Carl Moyer project for a portable engine will achieve emission reductions that are surplus to existing requirements, we understand that CARB would provide such information upon request under the California Public Records Act and that the public can, therefore, verify whether the emission reductions attributed to any such project are surplus.

Based on these reviews, we find that the Emission Reduction Report contains information adequate to enable the EPA and citizens to obtain emissions-related information necessary to quantify and verify the emission reductions attributed to the identified Carl Moyer Program and Prop 1B projects.

Comment 3: Earthjustice states that incentive programs should not “be approved into the SIP as a replacement for emission reductions from regulations without fulfilling the four fundamental integrity elements” and urges the EPA to require that emission reductions be enforceable and quantifiable before approving them into the SIP.

Response 3: This action does not incorporate any portion of the Prop 1B program or Carl Moyer Program, or any related guidelines, into the SIP. To the extent Earthjustice intended to state that the EPA should not approve emission reductions from the projects identified in the Emission Reduction Report for credit toward a SIP commitment unless the applicable incentive programs satisfy the EPA's integrity elements, we agree. As explained in our proposed rule and further in Responses 1 and 2 above, the portions of the Prop 1B program and Carl Moyer Program guidelines that apply to the projects identified in the Emission Reduction Report adequately address the EPA's recommended integrity elements for discretionary EIPs. Based on our review of project-specific documentation submitted by CARB at our request, however, we have found that the emission reductions attributed to one Carl Moyer Program project within the “Stationary and Portable Agricultural Engines” category were not entirely surplus to existing requirements and, therefore, are not creditable for SIP purposes at this time, or until properly adjusted to account for existing regulations. As a result, we have conservatively assumed that all of the Stationary and Portable Agricultural Engine Carl Moyer projects identified in the Emission Reduction Report are not SIP-creditable and subtracted the emission reductions attributed to these projects from the total amounts of NOX and direct PM2.5 emission reductions identified in the Emission Reduction Report. See Response 2. We find that, with this one exception, the Carl Moyer Program and Prop 1B projects identified in the Emission Reduction Report have achieved the NOX and PM2.5 emission reductions attributed to them in the Emission Reduction Report. We are therefore approving 4.971 tpd of NOX emission reductions and 0.134 tpd of PM2.5 emission reductions for credit toward the State's 2014 emission reduction commitment in the 2008 PM2.5 Plan.

Under sections 110(k)(3) and 301(a) of the Act, the EPA is finalizing a limited approval and limited disapproval of the Emission Reduction Report and crediting the incentive projects identified therein with 4.971 tpd of NOX reductions and 0.134 tpd of PM2.5 reductions toward the State's 2014 emission reduction commitments in the 2008 PM2.5 Plan. We are finalizing a limited approval of the Emission Reduction Report because it largely satisfies the applicable CAA requirements. We are simultaneously finalizing a limited disapproval of the Emission Reduction Report because the demonstration therein concerning the Carl Moyer Stationary and Portable Agricultural Engines source category does not satisfy CAA requirements for SIP credit. Our reasons for disapproving the submitted demonstration on this basis are explained in our responses to comments above.

This limited disapproval does not trigger any sanctions clocks under CAA section 179(a) because the Emission Reduction Report was not submitted to address a requirement of part D, title I of the Act or in response to a finding of substantial inadequacy as described in CAA section 110(k)(5) (i.e., a “SIP Call”). The limited disapproval also does not trigger any obligation on the EPA to promulgate a federal implementation plan (FIP) because the disapproval does not create any deficiency in the SIP that must be corrected.

Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

This action does not impose an information collection burden under the PRA because this action does not impose additional requirements beyond those imposed by state law.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities beyond those imposed by state law.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by state law. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, will result from this action.

This action does not have federalism implications. It 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.

This action does not have tribal implications, as specified in Executive Order 13175, because the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, and will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not impose additional requirements beyond those imposed by state law.

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

Section 12(d) of the NTTAA directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. The EPA believes that this action is not subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with the CAA.

The EPA lacks the discretionary authority to address environmental justice in this rulemaking.

This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. 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 11, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

Throughout this document, “we,” “us,” and “our” means the EPA.

This rulemaking addresses an infrastructure SIP submittal from the State of Louisiana addressing, among other things, the requirements of CAA section 110(a)(2)(D)(i)(I), also known as the good neighbor provision, with respect to the 2008 ozone NAAQS. The background for this action is discussed in detail in our June 7, 2016 proposal (81 FR 36496). In that action we proposed to disapprove the portion of the June 4, 2013 Louisiana SIP submittal pertaining to CAA 110(a)(2)(D)(i)(I) which requires that the State prohibit the interstate transport of air pollution which will significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone NAAQS in other states.

In proposing to disapprove the State's SIP submittal as to the good neighbor provision, we noted two specific deficiencies in the Louisiana submission. First, Louisiana cited the State's approved Clean Air Interstate Rule (CAIR) SIP as support for its conclusion that the State satisfied its section 110(a)(2)(D)(i)(I) obligation with respect to the 2008 ozone NAAQS. However, as explained in our proposal, CAIR was invalidated by the D.C. Circuit in North Carolina v. EPA, 531 F.3d 896 (2008). Even if Louisiana could rely on its CAIR SIP the modeling and rulemaking conducted for both CAIR, or its successor, the Cross-State Air Pollution Rule (CSAPR), 76 FR 48208 (August 8, 2011) addressed the 1997 ozone NAAQS, not the more stringent 2008 ozone NAAQS at issue in this action. Because the Louisiana submittal addressed by this action concerns the State's interstate transport obligations for a different and more stringent standard (the 2008 ozone NAAQS), we stated it is not sufficient to merely cite to older EPA or state implemented programs as evidence of compliance with the current 2008 ozone NAAQS. Second, the State's submittal lacked any technical analysis evaluating or demonstrating whether emissions in Louisiana impacts air quality in another state. As such, we proposed that the submittal did not provide us with a basis to agree with the State's conclusion that the State already has adequate provisions in the SIP to address CAA section 110(a)(2)(D)(i)(I) requirements for the 2008 ozone NAAQS. We did not receive any comments regarding our proposal.

EPA is disapproving a portion of a June 4, 2013 SIP submittal from Louisiana pertaining to interstate transport of air pollution which will significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone NAAQS in other states. Disapproval will establish a 2-year deadline, under the CAA Section 110(c), for the EPA to promulgate a FIP for Louisiana to address the CAA interstate transport requirements pertaining to significant contribution to nonattainment and interference with maintenance of the 2008 ozone NAAQS in other states, unless the EPA approves a SIP that meets these requirements. Disapproval does not start a mandatory sanctions clock for Louisiana pursuant to CAA section 179 because this action does not pertain to a part D plan for nonattainment areas required under CAA section 110(a)(2)(I) or a SIP call pursuant to CAA section 110(k)(5).

This final action is not a “significant regulatory action” because it is not categorized as “significant” under section 3(f) of Executive Order 12866 and therefore was not submitted to the Office of Management and Budget for review.

This final action does not impose an information collection burden under the PRA because it does not contain any information collection activities.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action merely disapprove a SIP submission as not meeting the CAA.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector.

This action does not have federalism implications. It 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.

This action does not have tribal implications as specified in Executive Order 13175. This action does not apply on any Indian reservation land, any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, or non-reservation areas of Indian country. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it merely disapproves a SIP submission as not meeting the CAA.

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

This rulemaking does not involve technical standards.

EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations. This action merely disapproves a SIP submission as not meeting the CAA.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 11, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

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

This rulemaking addresses CAA section 110(a)(2)(D)(i) requirements in an infrastructure SIP submission addressing the applicable infrastructure requirements with respect to the 2008 ozone NAAQS, submitted by the Wisconsin Department of Natural Resources (WDNR) on June 20, 2013, and clarified in a letter dated January 28, 2015.

The requirement for states to make a SIP submission of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS.

Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address. EPA commonly refers to such state plans as “infrastructure SIPs.”

This rulemaking takes action on two CAA section 110(a)(2)(D)(i) requirements which apply to these submissions. In particular, section 110(a)(2)(D)(i)(I) requires SIPs to include provisions prohibiting any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS (“prong one”), or interfering with maintenance of the NAAQS (“prong two”), by any another state. Section 110(a)(2)(D)(i)(II) requires that infrastructure SIPs include provisions prohibiting any source or other type of emissions activity in one state from interfering with measures required to prevent significant deterioration (PSD) of air quality (“prong three”) and to protect visibility (“prong four”) in another state. This rulemaking addresses prongs one and two of this CAA section. The majority of the other infrastructure elements were approved in rulemakings on September 11, 2015 (80 FR 54725).

The proposed rulemaking associated with today's final action was published on March 16, 2016 (81 FR 14025). In that action, EPA proposed to disapprove the Wisconsin SIP for the prong two requirement because the WDNR SIP submission did not provide an adequate technical analysis demonstrating that the state's SIP contained adequate provisions prohibiting emissions that will significantly contribute to nonattainment or interfere with the 2008 ozone NAAQS in any other state and because EPA's most recent modeling indicated that emissions from Wisconsin were projected to contribute to projected downwind maintenance receptors in another state. EPA also proposed to approve the Wisconsin SIP for the prong one requirement because, although WDNR did not provide information or analyses explaining why existing SIP provisions are adequate to prevent significant contribution to nonattainment in downwind states, EPA's independent modeling presented in the Notice of Data Availability and the Cross-State Air Pollution Update Rule indicated that Wisconsin emissions were not linked to any projected downwind nonattainment receptors. Therefore, EPA proposed to find that the Wisconsin SIP had adequate provisions to prevent such significant contribution to nonattainment for the 2008 ozone standard.

During the comment period, which ended on April 15, 2016, EPA did not receive any comments on the Wisconsin portion of the proposed notice. Comments pertaining to Ohio and Indiana are addressed in a June 15, 2016 rulemaking (81 FR 38957).

EPA, as proposed, is approving prong one and disapproving prong two of a required infrastructure element with respect to CAA section 110(a)(2)(D)(i), interstate transport, for the 2008 ozone NAAQS. The approval is based on the June 20, 2013 SIP submission in which Wisconsin certified that the current SIP is sufficient to meet the CAA requirements. The disapproval portion of this action triggers an obligation under CAA section 110(c) for EPA to promulgate a Federal Implementation Plan (FIP) no later than two years from the effective date of this disapproval, if EPA has not approved a SIP revision or revisions addressing the deficiencies identified in this action. The disapproval in this action is not tied to attainment planning requirements and therefore does not start any sanction clocks.

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

This rule does not impose an information collection burden under the provisions of the PRA.

The Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. This action merely proposes to disapprove state law as not meeting Federal requirements and imposes no additional requirements beyond those imposed by state law.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector.

This action does not have federalism implications. It 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.

This action does not have tribal implications as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments. Thus, Executive Order 13175 does not apply to this rule.

This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children because it proposes to disapprove a state rule.

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

This rulemaking does not involve technical standards.

EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 11, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

EPA Region 2 is publishing this direct final NOD of the Site from the NPL. The NPL constitutes Appendix B of 40 CFR part 300, which is the NCP, which EPA promulgated pursuant to Section 105 of CERCLA, as amended. EPA maintains the NPL as the list of releases that appear to present a significant risk to public health, welfare, or the environment. The releases on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). As described in Section 300.425(e)(3) of the NCP, a site deleted from the NPL remains eligible for Fund-financed remedial action if future conditions at the site warrant such actions.

Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the Site and demonstrates how it meets the deletion criteria. Section V discusses EPA's action to delete the Site from the NPL unless adverse comments are received during the public comment period.

The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the State, whether any of the following criteria have been met:

i. Responsible parties or other parties have implemented all appropriate response actions required;

ii. all appropriate Fund-financed responses under CERCLA have been implemented, and no further action by responsible parties is appropriate; or

iii. the remedial investigation (RI) has shown that the release of hazardous substances poses no significant threat to public health or the environment and, therefore, taking of remedial measures is not appropriate.

Pursuant to CERCLA Section 121(c) and the NCP, EPA conducts five-year reviews to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants, or contaminants remain at a site above levels that allow for unlimited use and unrestricted exposure. EPA conducts such five-year reviews even if a site is deleted from the NPL. EPA may initiate further action to ensure continued protectiveness at a deleted site if new information becomes available that indicates it is appropriate. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.

The following procedures apply to the deletion of the Site:

(1) EPA consulted with the State of New York prior to developing this direct final NOD and the NOID also published today in the “Proposed Rules” section of the Federal Register.

(2) EPA has provided the State with 30 working days for review of this notice and the parallel NOID prior to their publication today, and the State, through NYSDEC, has concurred on the deletion of the Site from the NPL.

(3) Concurrent with the publication of this direct final NOD, a notice of the availability of the parallel NOID is being published in a major local newspaper, the Mineola American. The newspaper notice announces the 30-day public comment period concerning the NOID of the Site from the NPL.

(4) EPA placed copies of documents supporting the proposed deletion in the Deletion Docket and made these items available for public inspection and copying at the Site information repositories identified above.

(5) If adverse comments are received within the 30-day public comment period on this deletion action, EPA will publish a timely notice of withdrawal of this direct final NOD before its effective date and will prepare a response to comments. If appropriate, EPA may continue with the deletion process based on the NOID and the comments already received.

The NPL is designed primarily for informational purposes and to assist EPA's management of sites. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for further response actions should future conditions warrant such actions.

The following information provides the Agency's rationale for deleting the Site from the NPL.

The 1.5-acre Site (CERCLIS ID NYD001344456) contains a one-story, 43,000-square-foot building formerly used as a metal-forming facility and an approximately 10,000-square foot paved parking area. It is bordered to the north by commercial spaces and single-family dwellings, to the east by a two-story apartment complex, to the south by a daycare center, and to the west by an office building and restaurant.

The property was used from the mid-1970s until 1991 as a “roll form metal shapes” manufacturing facility. Degreasers, including tetrachloroethylene (PCE), trichloroethylene, and 1,1,1-trichloroethane, were used at the facility until 1985. Sludges from degreasing equipment were stored in drums and in an on-property 275-gallon tank.

The analytical results from samples collected by the Nassau County Department of Health (NCHD) in the early 1990s from within, around, and below three on-property dry wells indicated the presence of VOCs at depths down to 40 feet below the ground surface. VOCs were also detected in groundwater samples collected from monitoring wells located downgradient of the dry wells.

Dumping of wastes into the dry wells and spills and leaks from drums storing various chemicals during the facility's operations are the likely sources of the contamination that was found at the Site.

The Site was proposed for listing on the NPL on October 22, 1999 (40 CFR part 300 [FRL-6462-2]). The Site was listed on the NPL on February 4, 2000 (40 CFR part 300 [FRL-6532-7]).

Following the commencement of RI-related field work in October 2001, because of concerns about the proximity of the Site to the daycare center, NCHD performed air sampling inside the daycare center building. The air samples detected PCE at levels below the New York State Department of Health's (NYSDOH's) guideline for indoor PCE exposure. Given the sensitivity of the population exposed (preschool children), NCHD collected additional samples in December 2001. At that time, indoor testing was also conducted inside the Jackson Steel building and the restaurant located adjacent to the Site. The results indicated that PCE levels in the indoor air of several rooms in the daycare center were above NYSDOH's guideline for PCE. As a result, in January 2002, a subslab depressurization system (i.e., vapor intrusion mitigation system) was installed by EPA. In addition, a ventilation system was installed by the daycare center's contractor. Samples collected to assess the effectiveness of the implemented measures showed that the PCE levels in the air were significantly below NYSDOH's guideline and below EPA's acceptable noncancer risk levels. Because elevated PCE levels were also detected in a billiards club that shared common walls with the Site building and the daycare center, EPA installed a vapor intrusion mitigation system under the concrete slab of this building, as well. The billiards club was subsequently occupied as a retail store, and recently the daycare center (the Learn and Play Daycare Center) expanded to occupy this space, as well. The vapor intrusion mitigation systems were replaced by the property owner's contractor in May 2016.

The results of the RI, which was completed in 2002, indicated that VOCs, semi-volatile organic compounds, pesticides, and metals contamination were present in the surface soil, and VOC contamination was present at several subsurface soil locations. In addition, contamination was found in a trench and sumps located inside the building and dry wells located under the parking lot at the Site.

Groundwater from the three hydrogeologic units underlying the site—the Upper Glacial Aquifer (upper aquifer), Magothy Confining Bed (a low permeability, clay layer separating the upper and deep aquifers), and the Magothy Aquifer (deep aquifer)—were also sampled. VOC contamination above state and federal standards was detected both in the Upper Glacial Aquifer and Magothy Aquifer.

Based upon the results of the RI and a feasibility study, in September 2004, EPA selected a remedy for the Site in a Record of Decision (ROD). The ROD outlined the following remedial action objectives (RAOs):

• Minimize or eliminate contaminant migration from contaminated soils and dry wells to the groundwater;

• minimize or eliminate any contaminant migration from contaminated soils and groundwater to indoor air;

• restore groundwater to levels which meet state and federal standards within a reasonable time frame;

• mitigate the migration of the affected groundwater; and

• reduce or eliminate any direct contact, ingestion, or inhalation threat associated with contaminated soils, soil vapor, contaminated surfaces in the on-property building, and groundwater.

The selected remedy includes the following actions:

• Decontamination of the Jackson Steel building floor;

• in-situ soil vapor extraction (ISVE) to treat the contaminated subsurface soil;

• excavation and off-Site disposal of the contaminated surface soil and contaminated material in on-Site sumps, a trench, and dry wells;

• in-situ chemical oxidation (ISCO) to treat the contaminated groundwater in the Upper Glacial Aquifer;

• extraction and treatment of the contaminated groundwater in the deep aquifer if confirmatory groundwater sampling indicates that the Site is a principal source of the groundwater contamination to the aquifer underlying the Site;

• if it is determined that the Site is a principal source of the groundwater contamination to the deep aquifer underlying the Site, the selected remedy would be expanded, as necessary, to include off-property groundwater contamination; and

• long-term groundwater monitoring.

The soil cleanup objectives were established pursuant to New York State Technical and Administrative Guidance Memorandum (TAGM) No. 94-HWR-4046 objectives (Division Technical and Administrative Guidance Memorandum: Determination of Soil Cleanup Objectives and Cleanup Levels, Division of Hazardous Waste Remediation, January 24, 1994). As dictated by the TAGM objectives, the soil cleanup levels selected in the ROD were the more stringent cleanup level between a human-health protection value and a value based on protection of groundwater. The groundwater cleanup goals were the more stringent of the state or federal promulgated standards. EPA and New York State Department of Health promulgated health-based, protective Maximum Contaminant Levels (MCLs) that are enforceable standards for various drinking water contaminants. MCLs ensure that drinking water does not pose either a short- or long-term health risk.

The building decontamination and the excavation of the contaminated surface soil and the contaminated material in the building sumps and trench and in the dry wells and their disposal were performed from 2005 to 2006. A total of 170 cubic yards of material was excavated and disposed of at an EPA-approved off-Site facility.

Groundwater ISCO injections were performed between July and December 2005. Approximately, 15,000 gallons of iron-catalyzed sodium persulfate (with small amounts of buffering agents) and 600 gallons of hydrogen peroxide were injected into the aquifer through a network of 20 injection wells to treat the contamination in the Upper Glacial Aquifer.

After a successful pilot test, an ISVE system consisting of nine ISVE wells and 11 vapor monitoring probes began operating in 2005.

A supplemental groundwater investigation was conducted from 2005 to 2006 to determine the source of the Magothy Aquifer contamination underneath the Site and to establish whether there was a relationship between the contamination at the Site and the VOC contamination detected in nearby Village of Mineola Supply Well #4. Based on the results of the investigation, it was concluded that the Site was not a current source of contamination in the Magothy Aquifer. Therefore, EPA decided not to implement the Magothy Aquifer groundwater remedy. An Explanation of Significant Differences (ESD) was issued in 2007, documenting this decision.

While the cleanup objectives for the Upper Glacial Aquifer and soil were met in 2006 and 2008, respectively, EPA continued to operate the ISVE system until 2013 because VOC vapors were still being recovered from underneath the Jackson Steel building. The operation of the ISVE system was discontinued when the levels of vapor removal became too low for the system to continue to be efficient.

The aboveground ISVE infrastructure was removed by EPA in June 2013. From March to April 19, 2016, the groundwater monitoring wells, ISVE wells, vapor monitoring wells, ISCO injection wells, and ISCO monitoring wells, were decommissioned.

Although EPA successfully remediated the soil and the groundwater aquifer immediately underlying the Site, residual levels of VOCs remain. VOCs, even at low levels, can migrate as vapors through the soil into buildings. This process, which is called vapor intrusion, can result in unacceptable human exposures to VOCs inside occupied buildings. This pathway is currently incomplete at the Site, because the building on the site is currently unoccupied, and subslab vapor intrusion mitigation systems prevent the migration of vapors into an adjacent occupied building.

Because the residual levels of VOCs are expected to dissipate slowly, EPA concluded that preventing human exposure to VOCs at the occupied building will be needed for a number of years to ensure the protectiveness of the remedy. Therefore, the existing vapor intrusion mitigation systems will need to continue to operate, and additional actions, from monitoring to the installation of an additional vapor mitigation system, may be needed should the currently unoccupied building be occupied or replaced with another structure in the future. EPA determined that institutional controls (ICs) (i.e., property use restrictions) requiring the continued operation of the subslab vapor intrusion mitigation systems were needed. In addition, EPA determined that ICs requiring vapor intrusion sampling and/or mitigative measures were needed should the unoccupied Jackson Steel building be occupied or replaced with another structure in the future.

EPA issued an ESD on June 20, 2016, documenting its determination to incorporate into the remedy ICs to prevent exposure through vapor intrusion. The ICs will remain in place until the residual VOCs fully dissipate in the subsurface. EPA noted in the ESD that a Vapor Intrusion Management Plan (VIMP) and Institutional Control Implementation and Assurance Plan (ICIAP) would be prepared to ensure that the ICs were appropriately implemented and maintained. In addition, in the ESD EPA noted that it would communicate directly with the Village of Mineola Superintendent of Buildings, requesting that EPA and NYSDEC be notified if the existing building is to be refurbished and used for human occupancy or demolished and a new structure constructed. The correspondence would also request that the Village not issue a Certificate of Occupancy until necessary vapor intrusion-related actions identified by EPA and NYSDEC are carried out.

A VIMP and ICIAP were completed on June 20, 2016.

On June 20, 2016, EPA sent a letter to the Village of Mineola Superintendent of Buildings, requesting that EPA and NYSDEC be notified if the existing building is to be refurbished and used for human occupancy or demolished and a new structure constructed and requested that the Village not issue a Certificate of Occupancy until necessary vapor intrusion-related actions identified by EPA and NYSDEC are carried out. Periodic reminders will be issued to the Village to help ensure the effectiveness of this measure.

On July 27, 2016, notices were placed on the deed of the two parcels occupied by the daycare center and the parcel occupied by the Jackson Steel building. The notice on the deed of the daycare center requires that the subslab vapor intrusion mitigation systems be operated as long as elevated levels of vapors remain under the buildings on the property and the buildings are occupied. The notice on the deed of the Jackson Steel building alerts any potential purchaser, lessee, or other user of the property that EPA and NYSDEC must be notified if and when a determination is made that the existing building will be refurbished and used for human occupancy or demolished and a new structure constructed. EPA intends to effect an environmental easement on the Jackson Steel property in the future once a new owner takes control of the property.

It is the policy of EPA to conduct five-year reviews when remedial activities, including monitoring, will continue for more than five years. A five-year review that is required by policy is triggered by the date of the approval of the Preliminary Close-Out Report, which documents that EPA has determined that construction at a site has been completed. For this Site, the Preliminary Close-Out Report was approved on August 30, 2007.

The first five-year review was completed in August 2012. The review concluded that the remedy was functioning as intended in the decision documents and was protecting human health and the environment.

Subsequent to the 2012 five-year review, EPA determined that ICs were necessary to ensure the protectiveness of the remedy, as discussed above. Five-year reviews will be conducted as long as residual VOC levels remain that perpetuate the vapor intrusion concerns described in this ESD. The next five-year review will be conducted by August 2017.

Public participation activities for the Site have been satisfied as required pursuant to CERCLA Sections 113(k) and 117, 42 U.S.C. 9613(k) and 9617. As part of the remedy selection process, the public was invited to comment on the proposed remedy. All other documents and information that EPA relied on or considered in recommending this deletion are available for the public to review at the information repositories identified above.

All of the cleanup requirements for the Site have been met, as described in the September 2006 groundwater Interim Groundwater Remedial Action Report, September 2008 soil Remedial Action Report, August 2007 Preliminary Close-Out Report, July 2016 Final Close-Out Report, and 2012 Five-Year Review report. The State of New York, in a July 29, 2016 letter, concurred with the proposed deletion of the Site from the NPL.

The NCP specifies that EPA may delete a site from the NPL if “all appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate.” 40 CFR 300.425(e)(1)(ii). EPA, with the concurrence of the State of New York, through NYSDEC, believes that this criterion for the deletion of the Site has been met in that that the soil on the Site and the groundwater beneath the Site no longer pose a threat to public health or the environment. Consequently, EPA is deleting the Site from the NPL. Documents supporting this action are available in the deletion docket at http://www.regulations.gov and at the Site information repositories.

EPA, with the concurrence of the State of New York through NYSDEC, has determined that other than the ongoing operation and maintenance of the vapor intrusion mitigation systems at the daycare center, periodic vapor intrusion monitoring, insuring that the ICs are in place and effective, and five-year reviews, all appropriate responses under CERCLA have been completed at the Site. The soil and groundwater immediately underlying the Site no longer pose a threat to public health or the environment. Therefore, EPA is deleting the Site from the NPL. Periodic vapor intrusion monitoring and five-year reviews will still be required for the Site. The deletion does not preclude future action under CERCLA. Because EPA considers this action to be noncontroversial and routine, EPA is taking this action without prior publication. This action will be effective September 26, 2016 unless EPA receives adverse comments by September 12, 2016. If adverse comments are received within the 30-day public comment period of this action, EPA will publish a timely withdrawal of this direct final NOD before the effective date of the deletion and the deletion will not take effect. EPA will prepare a response to comments and continue with the deletion process on the basis of the NOID and the comments received. In such a case, there will be no additional opportunity to comment.

For the reasons set out in this document, 40 CFR part 300 is amended as follows:

On December 10, 2001, we published a proposal to list four subspecies of island foxes as endangered species (66 FR 63654). Please refer to this proposed rule for information on Federal actions prior to December 10, 2001. On March 5, 2004, we published a final rule listing the four subspecies of island foxes as endangered species (69 FR 10335). Please refer to the final Recovery Plan for Four Subspecies of Island Fox (Urocyon littoralis) (Service 2015, entire) for a detailed description of Federal actions concerning this species. We did not designate critical habitat for the four subspecies of island fox, as explained in our November 9, 2005, final critical habitat determination (70 FR 67924).

We published a notice announcing the initiation of a review of the status of the San Miguel Island fox, Santa Rosa Island fox, Santa Cruz Island fox, and Santa Catalina Island fox under section 4(c)(2) of the Act (16 U.S.C. 1531 et seq.) on March 9, 2015 (80 FR 12521), with the notice announcing the availability of the final recovery plan. On February 16, 2016, we published in the Federal Register a status review and proposed rule (81 FR 7723) to remove the San Miguel Island fox, Santa Rosa Island fox, and the Santa Cruz Island fox from the Federal List of Endangered and Threatened Wildlife, and to reclassify the Santa Catalina Island fox from an endangered species to a threatened species.

Please refer to the final Recovery Plan for Four Subspecies of Island Fox (Urocyon littoralis) (Service 2015, entire) for a summary of background information on island fox taxonomy, life history, and distribution. We prepared the Recovery Plan by working with a Recovery Team that included public agency representatives, landowners, conservancies, zoological institutions, nonprofits, and academics. The Recovery Plan includes discussion of the following: species description and taxonomy, habitat use, social organization, reproduction, distribution and abundance, threats to the subspecies, and recovery strategies.

The island fox (Urocyon littoralis), a diminutive relative of the gray fox (U. cinereoargenteus), is endemic to the California Channel Islands. Island foxes inhabit the six largest of the eight Channel Islands (San Miguel Island, Santa Rosa Island, Santa Cruz Island, Santa Catalina Island, San Nicolas Island, and San Clemente Island) and are recognized as distinct subspecies on each of the six islands. Both morphologic and genetic distinctions support the classification of separate subspecies of island foxes for each island (Collins 1993, entire; Gilbert et al. 1990, entire; Goldstein et al. 1999, entire; Wayne et al. 1991a, entire). We recognize the range of each subspecies to be the island that it inhabits. Islands inhabited by island foxes are owned by four major landowners: the National Park Service (NPS), the U.S. Navy, The Nature Conservancy (TNC), and the Santa Catalina Island Conservancy (CIC), all of whom have management authority for wildlife on their lands. NPS and TNC manage San Miguel Island, Santa Rosa Island, and Santa Cruz Island; in this rule, we reference these three islands as the northern Channel Islands CIC manages the majority of fox habitat on Santa Catalina Island, except the City of Avalon. Santa Catalina Island is the only island with a permanent human population. Human use of the three northern Channel Islands is restricted to visitors and NPS and TNC staff.

We did not make substantive changes in this final rule based on the comments that we received during the public comment period, but we added text to clarify some information presented in the proposed rule, added new information to the climate change analysis, and revised population data to reflect information updated since the publication of the proposed rule. For example, peer reviewers recommended we include information about genetic variability present in the current island fox populations and new information about climate change. This information and other clarifications are incorporated into the final rule where appropriate, including in the Summary of Comments and Recommendations, below.

Section 4(f) of the Act directs us to develop and implement recovery plans for the conservation and survival of endangered and threatened species unless we determine that such a plan will not promote the conservation of the species. We published a notice announcing the availability of the final recovery plan for the San Miguel Island fox, Santa Rosa Island fox, Santa Cruz Island fox, and Santa Catalina Island fox on March 9, 2015 (80 FR 12521).

The recovery plan (Service 2015, pp. 47-53) includes the recovery goals, recovery objectives, and recovery criteria that we outline below to reclassify the island fox subspecies from endangered species to threatened species and to remove island fox subspecies from the List of Endangered and Threatened Wildlife. Please see the February 16, 2016, proposed rule (81 FR 7723) for a detailed discussion of the recovery goal, objectives, and criteria and how they apply to the status of the San Miguel Island fox, Santa Rosa Island fox, Santa Cruz Island fox, and Santa Catalina Island fox. The objectives and progress toward these objectives (measured by explicit criteria) are summarized below.

Recovery objectives identify mechanisms for measuring progress toward and achieving the recovery goal of delisting for each subspecies.

Recovery Objective 1: Each federally listed subspecies of island fox exhibits demographic characteristics consistent with long-term viability.

Recovery Objective 2: Land managers are able to respond in a timely fashion to predation by nesting golden eagles (Aquila chrysaetos) or significant predation rates by transient golden eagles, to potential or incipient disease outbreaks, and to other identified threats using the best available technology.

In order for any one of the four listed subspecies of island fox to be considered for downlisting from endangered to threatened status, recovery objective 1 should be met for that subspecies. In order for any one of the four listed subspecies of island fox to be considered for delisting, recovery objectives 1 and 2 should be met for that subspecies.

Island fox recovery criteria are measurable standards for determining whether a subspecies has achieved its recovery objectives and may be considered for downlisting or delisting. Island fox recovery criteria in the recovery plan (Service 2015, pp. 50-55) are organized by factors under section 4(a)(1) of the Act to demonstrate how criteria indicate threats under that factor have been ameliorated. The following is a summary of the recovery criteria.

To address recovery objective 1, the subspecies must be protected from other natural or manmade factors known to affect their continued existence. This is accomplished when the following has occurred:

E/1: An island fox subspecies has no more than 5 percent risk of quasi-extinction over a 50-year period as determined by use of the population viability graphing/analysis tool found in appendix 2 of the recovery plan (Service 2015, pp. 131-136).

To address recovery objective 2, the magnitude and imminence of disease and predation threats must be reduced. This is accomplished when the following has occurred:

C/1: Golden eagle predation (applies only to the northern Channel Islands): The rate of golden eagle predation is reduced and maintained at a level no longer considered a threat to island fox recovery through development of a golden eagle management strategy, and the golden eagle prey base of mule deer (Odocoileus hemionus) and Roosevelt elk (Cervus canadensis roosevelti) is removed from Santa Rosa Island.

C/2: Disease: A disease management strategy is developed, approved, and implemented that includes vaccination recommendations and a monitoring program that provides for timely detection of a potential epidemic, and an associated emergency response strategy as recommended by the appropriate subject-matter experts.

Population monitoring has been implemented for each listed subspecies, and population viability analyses using the graphing/analysis tool found in appendix 2 of the recovery plan (Service 2015, pp. 131-136) indicate all subspecies have an acceptably small risk of extinction. The extinction risk has been less than 5 percent since 2008 for San Miguel, Santa Cruz, and Santa Catalina Islands, and since 2011 for Santa Rosa Island. As of 2015, island fox populations had increased to greater than 700 individuals on San Miguel Island, greater than 1,200 on Santa Rosa Island (Guglielmino and Coonan 2016, pp. 12, 18), greater than 2,100 on Santa Cruz Island (Boser 2016a, pers. comm.), and greater than 1,800 on Santa Catalina Island (King and Duncan 2016, p. 10). All populations with the exception of Santa Rosa Island are at or above their pre-decline population estimates (Coonan 2015a, pers. comm.; King and Duncan 2014, pp. 1, 10). On San Miguel Island, low reproductive effort coupled with declining survival suggests that the San Miguel Island subspecies has reached carrying capacity (the maximum population size of a species that the habitat can support) (Coonan 2015a, p. 8). We conclude, based on population viability analyses, that recovery objective 1 is achieved for all four island fox subspecies. Detailed results of the graphing/analysis tool through 2015 can be found in the supplementary material “Results of graphing/analysis tool to assess island fox recovery criterion E/1” (derived from Guglielmino and Coonan 2016, pp. 17, 22; Boser 2016b, pers. comm.; King and Duncan 2016, p. 13) on the Internet at http://www.regulations.gov at Docket No. FWS-R8-ES-2015-0170.

To ensure that land managers are able to respond in a timely fashion to predation by golden eagles, a final golden eagle management strategy has been approved (NPS 2015a, entire), and is being implemented by NPS and TNC. The strategy outlines actions, many of which have already been implemented by NPS and TNC, including: Complete removal of all golden eagles; ongoing prevention of golden eagle nesting; and removal of all nonnative golden eagle prey, including deer and elk from Santa Rosa Island.

To ensure that land managers are able to respond in a timely fashion to a potential or incipient disease outbreak, the epidemic response plans for northern Channel Islands foxes (Hudgens et al. 2013, entire) and Santa Catalina Island foxes (Hudgens et al. 2014, entire) are currently implemented by NPS, TNC, and CIC. These plans provide direction for monitoring, vaccination for canine distemper virus and rabies annually to a subset of each island fox population, and response if mortality is detected. Additionally, NPS and TNC are committed through signed conservation management agreements (CMAs) to monitor and conduct other management actions for detecting and appropriately responding to predation by golden eagles or a potential disease outbreak in the future, as recommended in the golden eagle management strategy and epidemic response plans (Service and NPS 2015; Service and TNC 2015). The golden eagle management strategy and epidemic response plans are found on the Internet at http://www.regulations.gov at Docket No. FWS-R8-ES-2015-0170 and on our Endangered Species Program's national Web site (http://endangered.fws.gov).

With the golden eagle management strategy in place, complete removal of golden eagles and their nonnative prey-base from the northern Channel Islands (San Miguel, Santa Rosa, and Santa Cruz Islands), development and implementation of an epidemic response plan, and population levels consistent with long-term viability, recovery objectives 1 and 2, and the associated recovery criteria, are met for the San Miguel, Santa Rosa, and Santa Cruz Island foxes. With population levels consistent with long-term viability, recovery objective 1 is met for the Santa Catalina Island fox. However, objective 2 has not been met for the Santa Catalina Island fox because currently there are no assurances that current monitoring and management actions will continue in the future, and, because Santa Catalina Island has an elevated risk compared to the northern Channel Islands of introduced pathogens from the mainland, a disease outbreak could occur without detection or appropriate response to mediate the threat to the subspecies.

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

A recovered species is one that no longer meets the Act's definition of an endangered species or a threatened species. Determining whether a species is recovered requires consideration of whether the species is endangered or threatened because of the five categories of threats specified in section 4(a)(1) of the Act. For species that are already listed as endangered or threatened species, this analysis of threats is an evaluation of both the threats currently facing the species and the threats that are reasonably likely to affect the species in the foreseeable future following the delisting or downlisting and the removal or reduction of the Act's protections.

A species is an “endangered species” for purposes of the Act if it is in danger of extinction throughout all or a significant portion of its range and is a “threatened species” if it is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act does not define the term “foreseeable future.” The population viability analyses used to determine the risk of quasi-extinction (the population level below which extinction is likely due to demographic or genetic effects), which we define as a population size of less than or equal to 30 individuals for each subspecies, estimates risk over a 50-year period (Bakker et al. 2009, entire; Service 2015, p. 52). Therefore, we estimate 50 years to be the timeframe in which, given the amount and substance of the best available data, we can anticipate events or effects, or reliably extrapolate threat trends, concerning the future as it relates to the status of the four subspecies of island fox (San Miguel, Santa Rosa, Santa Cruz, and Santa Catalina Island foxes). Consequently, we have assessed the threats discussed in this rule with reference to this 50-year foreseeable future timeframe.

The word “range” in the significant portion of its range phrase in the definition of endangered species and threatened species refers to the range in which a species currently exists. For the purposes of this analysis, we first evaluate the status of each subspecies throughout its range, which we consider to be the island that any given island fox subspecies inhabits. We then consider whether any of the subspecies are in danger of extinction or likely to become so in any significant portion of their ranges.

Primary threats to island foxes identified in the March 5, 2004, listing rule (69 FR 10335) include predation by golden eagles, disease, and stochastic risks to small populations and lack of genetic variability. Since the listing, impacts of feral cat aggression, poisoning, and entrapment on Santa Catalina Island, and fire, drought, and global climate change for all four islands were identified as possible new threats. A thorough analysis and discussion of the current status of the San Miguel, Santa Rosa, Santa Cruz, and Santa Catalina Island foxes are found in the recovery plan (Service 2015, pp. 21-29) and proposed rule to remove the San Miguel Island fox, Santa Rosa Island fox, and the Santa Cruz Island fox from the Federal List of Endangered and Threatened Wildlife, and to reclassify the Santa Catalina Island fox from an endangered species to a threatened species (81 FR 7723; February 16, 2016). The following sections provide a summary of the past, current, and potential future threats impacting the San Miguel, Santa Rosa, Santa Cruz, and Santa Catalina Island foxes.

At the time of listing in 2004, habitat modification by nonnative grazing animals (i.e., feral sheep, goats, rabbits, cattle, horses, Roosevelt elk, mule deer, and pigs) and nonnative plant invasion was identified as a threat under Factor A impacting island foxes (69 FR 10335; March 5, 2004). The impacts of nonnative herbivores and nonnative plants resulted in conversion of native coastal sage scrub, chaparral, and oak woodlands to annual grasses. Annual grasslands constitute less preferred habitat for island foxes (Laughrin 1977, p. 22; Roemer and Wayne 2003, pp. 1,256-1,257) and do not provide cover from predators such as golden eagles (Roemer 1999, pp. 99, 190-191). Annual grasslands also offer fewer food resources to foxes, and the seeds of annual grasses can become lodged in the eyes of island foxes, causing damage or temporary blindness (Laughrin 1977, p. 41).

Eradication programs on all islands have greatly reduced the number of nonnative herbivores on the islands and therefore the magnitude of impacts to the habitat and island foxes (Laughrin 1973, p. 14; Schoenherr et al. 1999, pp. 191-194; Parkes et al. 2010, p. 636; Jones et al. 2016, p. 2). Currently, impacts to island fox habitats are primarily attributed to continued modification by nonnative plant species, resulting in lower vegetation diversity, less diverse habitat structure, and reduced food availability.

NPS guidance supports the continued management of island fox habitat to benefit northern Channel Islands subspecies of island foxes. Title 54 of the U.S. Code, section 100101, paragraph (a), states that the NPS “shall promote and regulate the use of the National Park System . . . to conserve the scenery, natural and historic objects, and wild life in the System units and to provide for the enjoyment of the scenery, natural and historic objects, and wild life in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” Specifically, in its management plan, Channel Islands National Park identified restoration and maintenance of natural ecosystems and processes as a priority; NPS staff would continue to eradicate, where feasible, nonnative flora and fauna from the islands.

The majority of island fox habitat on all four islands is currently in some form of conservation ownership and management by NPS, TNC, or CIC. Therefore, we expect that habitat loss as a result of conversion due to development would be rare or limited. However, there is the potential for some development on privately owned lands that are not in conservation ownership. The island fox, as the species Urocyon littoralis (incorporating all six subspecies), is listed as threatened under the California Endangered Species Act (CESA), which provides a level of protection from possession or intentional killing of individual animals. CESA may also authorize take incidental to otherwise lawful activities, such as development on the privately owned TNC-managed lands on Santa Cruz Island and privately owned lands on Santa Catalina Island. For habitat conversion resulting from authorized development projects, minimization and mitigation of impacts resulting from authorized take are required under CESA and the environmental review process under the California Environmental Quality Act. Santa Catalina Island foxes are most likely to be impacted by the potential for land-use change on non-conserved lands, including development and recreational activities. CESA contributes to the conservation of the species by providing a mechanism to reduce or regulate some individual sources of mortality and to review and permit development projects that may impact island foxes and their habitat on private lands.

While past and ongoing effects of habitat modification by nonnative grazing animals (i.e., feral sheep, cattle, Roosevelt elk, mule deer, and pigs), nonnative plant invasion, and land-use change on non-conserved lands may continue to have some negative effects on island foxes, nonnative animals and plants no longer result in significant habitat impacts that could affect the island fox subspecies at either the population or rangewide scales that we would consider a current threat to any of the subspecies of island fox. Additionally, given planned continued management by NPS and other land owners, we do not anticipate that nonnative animals and plants will have significant habitat impacts in the future.

As stated in the listing rule (69 FR 10335; March 5, 2004), although island foxes were used in the past for their pelts by Native Americans (Collins 1991, p. 215), these activities no longer occur. Research scientists are currently engaged in recovery activities via Service-issued section 10(a)(1)(A) recovery permits. Researchers conducting studies on NPS property must have a valid Research and Collecting Permit through NPS. The State of California requires a Scientific Collecting Permit and Memorandum of Understanding to collect, capture, mark, or salvage species listed as threatened under CESA for scientific and educational purposes (Fish and Game Code section 1002; and title 14, sections 650 and 670.7). Currently, none of the four subspecies is being threatened by overutilization for any purposes, and we expect, even without the protections of the Act, research activities to be managed by the State and by land management agencies to ensure that such activities do not result in overutilization in the future.

For Santa Catalina Island fox at the time of listing, a canine distemper virus (CDV) epidemic was considered the primary threat (69 FR 10335; March 5, 2004) to the subspecies. The listing rule also expressed some concern regarding the potential impacts of canine adenovirus and canine parvovirus. For the northern Channel Islands foxes (San Miguel, Santa Rosa, and Santa Cruz Island foxes) at the time of listing, golden eagle predation was the primary threat (69 FR 10335; March 5, 2004), but potential for disease was also a concern, particularly given the small population sizes at the time.

Santa Catalina Island: In the past, disease severely impacted the island fox population on Santa Catalina Island. The eastern subpopulation of the Santa Catalina Island fox was estimated to be 1,342 in 1990 (Roemer et al. 1994, p. 393). Subsequent surveys conducted in 1999 and 2000 indicated the eastern island fox subpopulation had declined by over 90 percent in 10 years due to CDV (Timm et al. 2000, p. 17), likely transmitted from a raccoon that arrived from the mainland (Timm et al. 2009, p. 339). After a captive-rearing and augmentation program was initiated, the eastern and western subpopulations were estimated to have reached 219 and 141 foxes in 2004, respectively (Schmidt et al. 2005, p. 11; King and Duncan 2011, p. 19). Population estimates have since greatly increased on Santa Catalina Island, surpassing the estimate from 1990, reaching a total of 1,812 individuals island-wide in 2015 (King and Duncan 2016, p. 10).

In 2014, a final epidemic response plan was approved and is being implemented by CIC to detect and facilitate appropriate response to a potential future disease outbreak for Santa Catalina Island foxes (Hudgens et al. 2014, entire). CIC annually monitors sentinel foxes (unvaccinated, radio-collared foxes whose death will be detected by monitoring) inhabiting many areas of the island to facilitate early detection of a potential epidemic (King and Duncan 2011, p. 15). Island foxes have been and continue to be vaccinated against CDV and rabies (King 2015, pers. comm.). However, production of the CDV vaccine was discontinued and was not available in 2013. CIC vaccinated for both CDV and rabies in 2013 and 2014 with the last of the vaccine (King and Duncan 2015, pp. 13, 23). A new product was made available in 2015 (King and Duncan 2016, p. 9); however, the new vaccine does not appear to be as effective against CDV, and the authors suggest this is not an adequate replacement (King and Duncan 2016, p. 23). While foxes have been vaccinated and we expect vaccinations to continue as effective vaccines become available, efficacy and availability of vaccines will require ongoing evaluation by the Island Fox Conservation Working Group as part of implementing the epidemic response plan. The Island Fox Conservation Working Group is a multi-disciplinary group of experts, originally convened by NPS in 1999, to evaluate available island fox status information and develop strategies to recover the island fox populations to viable levels (Service 2015, p. 6).

In addition, ear tumor prevalence in the Santa Catalina Island fox population remains an actively managed source of mortality (Vickers et al. 2011, pp. 9-10). This cancer can have an aggressive clinical course, with local invasion, tissue damage, and metastasis, leading to death (Munson et al. 2009, p. 1). Ear inflammation correlated with cancer incidence in Santa Catalina Island foxes is triggered by ear mite infestations (Munson et al. 2009, pp. 3-4), and the severity can be reduced through aracacide application (Vickers et al. 2011, pp. 9-10). Treatment with aracacide is now standard practice by CIC during trapping of Santa Catalina Island foxes (King and Duncan 2011, p. 3).

While CIC is currently implementing ongoing monitoring and management, at this time there is no assurance of continued funding for long-term monitoring and management that could detect a novel disease outbreak and facilitate threat abatement, as recommended in the epidemic response plan. Lack of assurances for long-term monitoring and management for Santa Catalina Island fox is of particular concern because the island has a permanent human population, experiences heavy visitation, and has many points of access. The presence of a permanent human population on the island poses a greater risk of disease introduction than that for the northern Channel Islands. CIC manages the majority of fox habitat on the island but does not manage the City of Avalon, and, therefore, CIC does not control all potential avenues for introduction of possible disease vectors. Santa Catalina Island currently allows visitors and residents to own and transport pets, including domestic dogs and cats, to and from the island (King and Duncan 2011, p. 15), and dogs are frequently observed off-leash (Anderson 2012, pers. obs.; King 2012a, p. 1; Vissman and Anderson 2013 and 2014, pers. obs.; King 2015, p. 22). Transport of domestic and wild animals to and from Santa Catalina Island and their presence on the island increases the risk to island foxes of another disease outbreak. Additionally, with unrestricted access to the island by residents and visitors, there is the possibility of inadvertently transporting other animals that could carry disease; to date, four stowaway raccoons have been removed from the island, but a fifth observed in 2010 was not captured (King and Duncan 2011, p. 15). There is no quarantine period for transported pets, and proof of current vaccination is only required by the City of Avalon when licensing dogs (rabies only), and for CIC employees and lessees with pets living in company-owned housing (King and Duncan 2011, p. 15). Because access to the island by potentially unvaccinated or incompletely vaccinated domestic animals is not controlled or managed, there is a higher risk of disease introduction for Santa Catalina Island than for the three northern Channel Islands.

CIC manages the majority of fox habitat on the island (but not the City of Avalon) and implements measures intended to control introduction of disease. CIC regulations require all nonnative animals entering CIC property be licensed; they also require that all dogs and cats entering CIC property be vaccinated against distemper and rabies, and be leashed at all times (CIC 2015, http://www.catalinaconservancy.org). However, enforcement of CIC regulations is labor-intensive and costly, because the island is large, there are many remote coves and beaches where private boats can anchor, and CIC does not have the funding or staff to patrol these areas regularly. CIC also conducts outreach and education of local authorities and the public to promote efforts to reduce the risk of disease introduction. However, because of unrestricted transport of domestic animals to the island, the City of Avalon's limited vaccination requirements, and limited enforcement ability of CIC, current measures to control introduction of diseases by domestic animals and stowaway wildlife on Santa Catalina Island, while providing some protection, are limited.

Northern Channel Islands: Disease does not appear to be a significant mortality factor on the northern Channel Islands. Dogs and other pets are not permitted on the northern Channel Islands to reduce the risk of an introduced disease. Dogs are occasionally illegally brought onto the islands, but transport of domestic animals to the northern Channel Islands is much more limited than on Santa Catalina Island. Channel Islands National Park General Management Plan prohibits pets from all Park islands, except for guide dogs for visually impaired persons (NPS 2015b, pp. 468, 487).

In 2013, a final epidemic response plan was approved and is being implemented by NPS and TNC to detect and facilitate appropriate response to a potential disease outbreak for the northern Channel Islands (Hudgens et al. 2013, entire). Infection by parasites continues to be suspected as the cause of mortality in several island foxes, but is not considered a significant mortality factor (Coonan et al. 2005b, p. 38; Coonan 2014, p. 6). Sentinel foxes are also monitored on the northern Channel Islands to facilitate early detection of a potential epidemic (Hudgens et al. 2013, entire), and foxes have been and continue to be vaccinated against CDV and rabies. Efficacy and availability of vaccines will require ongoing evaluation by the Island Fox Conservation Working Group as part of implementing the epidemic response plan. Also, the NPS identified island foxes as an ecosystem element in the Mediterranean Coast Network Vital Signs Monitoring Plan, for which they will conduct long-term annual population monitoring as part of NPS's long-term ecological monitoring program, regardless of the island fox's status under the Act (Cameron et al. 2005, p. 3-3). Both NPS and TNC have committed through signed CMAs (Service and NPS 2015; Service and TNC 2015) to carrying out monitoring and management actions in the future as recommended in the epidemic response plan for northern Channel Island foxes (Hudgens et al. 2013, entire).

In summary, the possibility exists for domestic or wild animals carrying a disease or parasite to migrate or be transported to all the Channel Islands. The possibility is greater for Santa Catalina Island due to a permanent human population, heavy visitation, and many points of access. On all islands, an epidemic response plan is approved and being implemented (Hudgens et al. 2013 and 2014, entire), which includes that a subset of foxes are vaccinated when vaccines are available and monitored to detect and respond to a potential disease outbreak (Coonan 2010, pp. 24-29; see appendices 3 and 4 in recovery plan (Service 2015)). NPS and TNC have committed (Service and NPS 2015; Service and TNC 2015) to carrying out monitoring and management actions in the future as recommended in the epidemic response plan for northern Channel Island foxes (Hudgens et al. 2013, entire); therefore, we consider the potential threat of disease adequately controlled for the San Miguel, Santa Rosa, and Santa Cruz Island foxes now and in the future. We do not at this time have the assurance of continued implementation of the epidemic response plan on Santa Catalina Island. Disease was the main threat to Santa Catalina Island foxes at the time of listing in 2004, and given the increased risk of disease introduction and the lack of assurance for continued implementation of the epidemic response plan to detect and mitigate for future disease outbreaks, we still consider potential disease outbreaks to be a threat to the Santa Catalina Island fox now and in the future.

As identified in the 2004 listing rule, golden eagle predation was the primary cause for the decline of the northern Channel Islands fox subspecies and the primary reason for listing the species as endangered under the Act (69 FR 10335; March 5, 2004). Before golden eagles started using the northern Channel Islands in the 1990s, the only known predator of island foxes was the red-tailed hawk (Buteo jamaicensis), which preyed only occasionally on young island foxes (Laughrin 1973, pp. 10-11; Moore and Collins 1995, p. 4). Because of the lack of predators, island foxes did not evolve vigilance and were easy targets for golden eagles (Roemer et al. 2001, p. 316). Colonization of the northern Channel Islands by golden eagles was likely a combination of two factors: (1) Introduction of nonnative mammals on the northern Channel Islands, resulting in a historically unprecedented prey base for golden eagles (69 FR 10335, March 5, 2004, p. 10338); and (2) an open ecological niche created by the extirpation of bald eagles (Haliaeetus leucocephalus) from the islands as a result of dichlorodiphenyltrichloroethane (DDT) poisoning (Service 2004, p. 10343).

In the 2004 listing rule, the Federal Bald and Golden Eagle Protection Act (BGEPA; 16 U.S.C. 668-668d) and the California Fish and Game Code, section 3511, were thought to have delayed or precluded the implementation of needed recovery actions for island foxes. The protections afforded to golden eagles by the BGEPA were thought to limit lethal management alternatives to protect island foxes. The California Fish and Game Code, section 3511, deemed golden eagles a fully protected species, which did not allow any take to be authorized. In 2003, California amended this law to allow authorization of the take of fully protected species for scientific research, including research on recovery for other imperiled species (Senate Bill 412).

To address the unprecedented number of golden eagles and the effects they were having on island foxes, in August 1999, NPS and TNC initiated a nonlethal golden eagle removal program to protect island foxes on the northern Channel Islands. Between November 1999 and July 2006, 44 golden eagles, including 22 adults or near adults, were removed from Santa Rosa and Santa Cruz Islands and released in northeastern California (Latta et al. 2005, p. 348; Coonan et al. 2010, pp. 59-61). There has been no record of breeding golden eagles on the northern Channel Islands since that time.

To ensure that golden eagles would be less likely to attempt to establish territories again on Santa Rosa and Santa Cruz Islands, TNC and NPS initiated a program in 2005 and 2011, respectively, to remove nonnative animals from those islands (Macdonald and Walker 2007, p. 20). The last known feral pig was removed from Santa Cruz Island in January 2007 (Parkes et al. 2010, p. 636). Nonnative mule deer and elk were removed from Santa Rosa Island as part of an agreement with the former owners of the island. All elk and all but a few deer were removed by 2015, resulting in an island that was essentially ungulate-free for the first time in over 150 years (Coonan 2015b, pers. comm.).

The 2004 listing rule also identified the extirpation of bald eagles from the Channel Islands as a likely contributor to the colonization of the northern Channel Islands by golden eagles. Bald eagles aggressively defend their territories from golden eagles (69 FR 10335, March 5, 2004, pp. 10343-10344), and their presence on the islands likely would have discouraged dispersing golden eagles from establishing residence. Prior to listing, NPS, the Institute for Wildlife Studies, and TNC were actively engaged in the Montrose Settlements Restoration Program to reintroduce bald eagles to the Channel Islands, including Santa Catalina Island. The success of bald eagle reintroduction on the Channel Islands continues, with approximately 50 total resident bald eagles on the islands (Montrose Settlements Restoration Program 2015, p. 1).

In summary, although golden eagle predation of island foxes may occasionally occur (Coonan et al. 2014a, p. 374), predation has been extensively reduced and is no longer resulting in significant impacts at the population scale. This reduction in predation by golden eagles is in direct response to the extensive removal of golden eagles from the northern Channel Islands, golden eagle prey being removed successfully from Santa Rosa and Santa Cruz Islands, and the successful reintroduction of bald eagles.

To reduce the threat of disease, a subset of each island fox subspecies is protected from CDV and rabies through preventative vaccinations when available and through monitoring as recommended in epidemic response plans to detect and facilitate appropriate responses in the event of an epidemic. NPS and TNC are committed through signed conservation management agreements (CMAs) to monitor and conduct other management actions for detecting and appropriately responding to a potential disease outbreak in the future, as recommended in the epidemic response plans (Service and NPS 2015; Service and TNC 2015). Therefore, the best available data indicate potential disease outbreaks are no longer a threat to the Santa Rosa Island fox, San Miguel Island fox, and Santa Cruz Island fox now and in the future.

Mortality due to disease was the primary reason for the decline and listing of Santa Catalina Island foxes. Currently, the epidemic response plan is being implemented on Santa Catalina Island, but the potential for an epidemic remains on Santa Catalina Island because of heavy visitation, many points of access, and few controls for pets and stowaway wild animals that could carry disease. In addition, there is no assurance of continued implementation of the epidemic response plan in the future on Santa Catalina Island to detect and mitigate for future disease outbreaks, and the new CDV vaccine may not be adequate. Efficacy and availability of vaccines will require ongoing evaluation by the Island Fox Conservation Working Group as part of implementing the epidemic response plan. Overall, the best available data indicate potential disease outbreaks to be a threat to the Santa Catalina Island fox now and in the future.

Mortality due to golden eagle predation was the primary reason for the decline and listing of northern Channel Islands foxes (San Miguel, Santa Rosa, and Santa Cruz Island foxes). This threat has been substantially reduced by measures including the complete removal of golden eagles, eradication of golden eagles' nonnative prey, and reintroduction of bald eagles. Additionally, NPS and TNC are committed through signed CMAs to monitor and conduct other management actions for detecting and appropriately responding to predation by golden eagles in the future, as recommended in the golden eagle management strategy (Service and NPS 2015; Service and TNC 2015). Thus, given the recent golden eagle and prey-base eradication efforts and reintroduction of bald eagles to prevent golden eagle presence in the future, along with ongoing management commitments, we no longer consider predation by golden eagles to be a threat resulting in significant impacts at the population scale (e.g., result in a population decline) on the northern Channel Islands now or in the future.

Under this factor, we examine whether existing regulatory mechanisms are inadequate to address the threats to the four island fox subspecies discussed under other factors. Section 4(b)(1)(A) of the Act requires the Service to take into account “those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species.” In relation to Factor D under the Act, we interpret this language to require us to consider relevant Federal, State, and Tribal laws, regulations, and other such mechanisms that may minimize any of the threats we describe in the threats analyses under the other four factors, or otherwise enhance conservation of the species. We give strongest weight to statutes and their implementing regulations and to management direction that stems from those laws and regulations; an example would be State governmental actions enforced under a State statute or constitution, or Federal action under statute.

For currently listed species, we consider the adequacy of existing regulatory mechanisms to address threats to the species absent the protections of the Act. Therefore, we examine whether other regulatory mechanisms would remain in place if the species were delisted, and the extent to which those mechanisms will continue to help ensure that future threats will be reduced or minimized.

In our discussion under Factors A, B, C, and E, we evaluated the significance of the threat as mitigated by any such conservation efforts and existing regulatory mechanisms. Where threats exist, we analyze under Factor D the extent to which existing regulatory mechanisms are inadequate to address the specific threats to the species. Regulatory mechanisms, if they exist, may reduce or eliminate the impacts from one or more identified threats.

As noted in our discussion under the other factors, conservation measures and existing regulatory mechanisms (such as continued implementation of the epidemic response plan and golden eagle management strategy) have reduced the primary threats of disease and predation by golden eagles on the northern Channel Islands and will continue to be controlled through appropriate management. Other previously identified threats affecting the San Miguel Island fox, Santa Rosa Island fox, Santa Cruz Island fox, and Santa Catalina Island fox, such as habitat modification by nonnative grazing animals and nonnative plant invasion and habitat conversion (Factor A), have been and are continuing to be controlled through appropriate management, and we anticipate that these efforts will continue in the future. Other sources of mortality are assessed under Factor E and found to not exert significant impacts on island foxes at either the population or rangewide scales, now or in the future. Consequently, we find that conservation measures along with existing regulatory mechanisms are adequate to address these specific threats.

The remaining threat to island fox on Santa Catalina Island is the potential for a disease epidemic because of heavy visitation, many points of access, and few controls for pets and stowaway wild animals that could carry disease. In addition, we do not have the assurance of continued implementation of the epidemic response plan in the future on Santa Catalina Island to detect and mitigate for future disease outbreaks. Therefore, under Factor C, we still consider potential disease outbreaks to be a threat to the Santa Catalina Island fox at this time and in the future. Consequently, our analysis here examines how existing regulatory mechanisms address this remaining identified threat to the Santa Catalina Island fox.

There are currently no regulations restricting transport of domestic animals to the island, and limited vaccination requirements for domestic animals owned by City of Avalon residents, thus providing the potential for introduction of disease to the island. CIC manages the majority of fox habitat on Santa Catalina Island, but not the City of Avalon; CIC regulations require all nonnative animals entering CIC property be licensed and that all dogs and cats be vaccinated against distemper and rabies (CIC 2015, entire). Reduction of the risk of disease introduction also occurs through CIC outreach and education of local authorities and the public. However, enforcement of CIC regulations is labor-intensive and costly because the island is large with many remote coves and beaches where private boats can anchor, and CIC does not have the funding or staff to patrol these areas regularly. Therefore, current measures to control introduction of diseases by domestic animals and stowaway wildlife on Santa Catalina Island, while providing some protection, are limited and thus do not fully address the threat of disease to Santa Catalina Island fox (see Factor C discussion, above).

In summary, we have discussed that the threats previously facing the three northern Channel Islands subspecies of island fox have been removed or reduced and are being adequately managed; however, disease remains a threat to the Santa Catalina Island fox. In examining how existing regulatory mechanisms address this identified threat, we find current measures to control introduction of diseases by domestic animals and stowaway wildlife on Santa Catalina Island, while providing some protection, are limited in addressing the threat of potential disease outbreaks to Santa Catalina Island fox. Therefore, we still consider potential disease outbreaks to be a threat to the Santa Catalina Island fox now and in the future under Factor C, noting that this threat is not addressed by existing regulatory mechanisms.

The 2004 listing rule identified stochastic risks to small populations and lack of genetic variability as threats to all four island fox subspecies under Factor E (69 FR 10335; March 5, 2004). Road mortalities were also discussed under Factor E in the 2004 listing rule. Since the time of listing, the impacts of feral cat aggression, poisoning, and entrapment on Santa Catalina Island, as well as fire, drought, and global climate change for all four islands, have been identified as possible new threats.

Island endemics, such as island foxes, have a high extinction risk due to isolation and small total population sizes relative to mainland subspecies (MacArthur and Wilson 1967, entire), both of which make them more vulnerable, especially to stochastic events such as drought and wildfire (Miller et al. 2001, entire; Kohlman et al. 2005, entire). Each island fox subspecies is a single breeding population, with San Miguel Island being the smallest population, which makes their populations inherently small and thus they may become more vulnerable to extinction when the size of a breeding population declines. In addition to small population size and the associated increased probability of extinction, lower and reduced genetic variation may make an island species less adapted to existing pressures and less capable of adaptation to new threats. Thus, small population size and low genetic diversity can have synergistic effects with respect to population decline. During the period when the island fox populations were at their lowest, they were extremely vulnerable to extinction from stochastic events. The populations have now increased substantially, returning to historical population levels, and the threat of extinction from demographic stochasticity has accordingly been reduced.

Genetic diversity in island fox populations is considered low due to the population bottlenecks they experienced during past extreme, low population numbers (Gilbert et al. 1990; Wayne et al. 1991; Goldstein et al. 1999; Gray et al. 2001, p. 8; Gray 2002, entire; Aguilar et al. 2004; Funk et al. 2016, p. 11; Wayne et al. 2016, p. 4). This low genetic diversity could compromise the ability of island foxes to respond to future environmental change. This lack of variability could be attributed either to extensive inbreeding or to bottlenecking resulting from low population densities (Funk et al. 2016, p. 11). However, island foxes have apparently existed for thousands of years with low effective population sizes (the number of individuals that can contribute genes equally to the next generation; low is defined as 150 to 1,000) and low genetic variability (Wayne et al. 1991a, p. 1,858; 1991b, entire). While additional genetic diversity was lost during the recent declines, island foxes appear to be tolerant of low genetic variation, occasional bottlenecks, and higher inbreeding because there is little evidence of inbreeding depression in island foxes (Coonan et al. 2010, pp. 13-15). Therefore, we do not consider reduced genetic diversity to be causing population-level effects at this time or expect it to in the future.

The fearlessness of island foxes, coupled with relatively high vehicle traffic on Santa Catalina Island, results in multiple fox collisions each year. On the northern Channel Islands, vehicle use is limited, restricted to only land management personnel and researchers, and is expected to remain limited into the future. On Santa Catalina Island, 10 of the 21 fox mortalities in 2015 were caused by vehicle strikes (King and Duncan 2016, p. 18). The island-wide 25 mile per hour speed limit (CIC 2015, no page number) likely minimizes the number of vehicle strike mortalities that would otherwise occur. Even with current mortality of island foxes caused by various factors including vehicle strikes, the Santa Catalina Island fox population showed significant growth between 2002 and 2015, and has hovered around 1,800 individual foxes for the past 3 years. Given island fox population growth over the past 13 years during a time when the number of vehicles on the road has increased, we do not expect the population effect from vehicle mortality to increase in the future. Additionally, there is less than a 5 percent chance of the Santa Catalina Island fox subspecies going extinct given current and expected future conditions (King and Duncan 2016, pp. 12-13; Service 2015, pp. 167-168). Therefore, even though vehicle strikes remain the primary human-caused source of individual mortality on this island, mortality by motor vehicles is not considered a threat resulting in significant impacts at either the population or rangewide scales on Santa Catalina Island at this time or in the future.

Feral cats and domestic dogs occur on Santa Catalina Island and may negatively affect foxes through interactions including direct aggression and competition for food and habitat resources (Laughrin 1978, pp. 5-6; Kovach and Dow 1981, p. 443). Direct aggression between Santa Catalina Island foxes and cats has been documented in the wild, primarily near public coves and campgrounds that provide food and shelter for feral cats (Guttilla 2007, p. 9). Researchers have routinely captured foxes that have severe injuries consistent with cat encounters (Guttilla 2007, p. 9). Aggressive exclusion of foxes by feral cats has also been observed. When cats move into fox habitat, foxes are no longer observed; when cats are no longer resident, foxes move back in to occupy the area (King 2013c, pers. comm.; Anderson 2013, pers. obs.).

In the 2004 listing rule (69 FR 10335; March 5, 2004), we noted that California's Food and Agricultural Code 31752.5 prohibited lethal control of feral cats unless cats are held for a minimum of 6 days, which was thought to prevent CIC from taking steps to eradicate feral cats on Santa Catalina Island. In 2008, a Feral Animal Task Force was convened by the City of Avalon, with representatives of CIC and other island stakeholders, to address feral and free-ranging cats in the city and on the rest of the island, and most importantly, to draft legislation for consideration by the City Council for approval and incorporation into City ordinance. This task force is not currently active, however, and progress has stalled in initiating new feral cat control measures and enacting new legislation (King 2016, pers. comm.). Currently, the CIC practice regarding feral cats is consistent with that of the Catalina Island Humane Society: animals trapped accidentally during fox-trapping/monitoring are examined, and, if free from incurable and contagious disease, are spayed or neutered and released. Animals found to test positive for Feline Leukemia or Feline Immunodeficiency are humanely euthanized. Younger cats including kittens may be adopted from the Catalina Island Humane Society (CIC 2016, http://www.catalinaconservancy.org). Although competition and other negative interactions with feral cats can affect individual foxes, they are not currently resulting in significant impacts at either the population or rangewide scales.

Instances of fox mortality from domestic dog attacks have been observed over the past decade (Gaffney 2011, p. 1; Munson and Gaffney 2011, p. 1; King and Duncan 2011, pp. 12-13; King and Duncan 2012, p. 14; King 2012a, p. 1; 2012b, p. 1; King 2015, p. 1). While mortality due to domestic dog attacks has been reported, it is limited in effect to individual foxes, and does not have significant impacts to island fox at either the population or rangewide scales now nor do we anticipate that it will in the future.

We do not anticipate an increase in the number of feral cats and domestic dogs on Santa Catalina Island in the future. Because growth of the Santa Catalina Island fox population over the past 13 years occurred during a time when feral cats and foxes and domestic dogs and foxes have been interacting, we do not expect that interactions with feral cats or domestic dogs will result in negative population effects in the future. Overall, given the lack of significant impacts at either the population or rangewide scales, interactions with feral cats and domestic dogs are not considered a threat to the Santa Catalina Island fox now or in the future.

Other impacts to Santa Catalina Island foxes resulting from human interaction include mortality from poisoning and entrapment (Duncan and King 2012, p. 4; King and Duncan 2015, pp. 18, 20; Vickers 2012a, p. 2; Vickers 2012b, p. 1; King and Duncan 2015, p. 18). A Santa Catalina Island fox died in 2012 from rodenticide poisoning (Duncan and King 2012, p. 4), another was euthanized because of poisoning in 2014 (King and Duncan 2015, p. 18), and a third was sickened in 2014 by insecticide poisoning (King and Duncan 2015, p. 20). Entrapment of foxes may occur in areas where development projects are ongoing. Examples include: Two foxes falling into a power line pole construction pit (CIC 2009, http://www.catalinaconservancy.org); one fox drowning due to entanglement in a food container (Vickers 2012a p. 2); one fox death from being trapped in a recycling barrel (Vickers 2012b, p. 1); and two fox deaths in 2014 from drowning in water or sediment containers (King and Duncan 2015, p. 18). Types of human-caused harm other than vehicle strikes and domestic dog attacks in urbanized areas are varied, but they do not have a population-level impact at this time or in the future. Given the low numbers of foxes affected by poisoning or entrapment and the past and current population growth, we do not expect the population effect from poisoning or entrapment to increase in the future. Therefore, at this time, the best available information indicates neither poisoning nor entrapment is resulting in significant impacts at either the population or rangewide scales, and there is no indication that poisoning or entrapment on Santa Catalina Island will increase in the future.

On the northern Channel Islands, the frequency and intensity of wildland fire is less than on the adjacent mainland, because there are fewer ignition sources on the islands, and the typical maritime fog moisture inhibits fire spread. Natural lightning-strike fires are extremely rare; only three fires between 1836 and 1986 on the Channel Islands were started by lightning (Carroll et al. 1993, p. 77). On the northern Channel Islands, there are far fewer human-started fires than on the mainland or on Santa Catalina Island, as there are no permanent human occupants on the northern Channel Islands. Because of this, island foxes on the northern Channel Islands have experienced few large wildland fire events. The recent removal of nonnative grazers may increase fuel loads and thus the likelihood of larger fires; however, historically consistent cool and foggy conditions will continue to limit wildland fire spread, including in the future. Additionally, NPS adheres to a policy of total suppression on the Channel Islands, due to resource concerns (Kirkpatrick 2006, entire), reducing the chance that wildland fires will become large.

Though not identified as a threat at the time of listing, Santa Catalina Island regularly experiences wildfires (CIC 2011) that could reduce food availability, alter the habitat, or directly result in the loss of individual foxes (Service 2004, p. 10347). Duncan and King's (2009, p. 384) findings indicate fire seasonality has an influence on fox survival; fires that occur when pups are young and most dependent on adults for mobility are most damaging. However, in general, the best available data indicate that neither the 2006 Empire Fire nor the 2007 Island Fire had significant effects to island fox at the population level (Duncan and King 2009, p. 384).

In summary, wildfires are infrequent on the northern Channel Islands and more frequent on Santa Catalina Island. On all islands, while wildfire can result in mortality of individuals, especially juveniles depending on when the fires occur, the best available data indicate that wildfire does not pose significant impacts to the island fox at either the population or rangewide scales currently. In addition, there is no indication that fire frequency will increase in the future on the northern Channel Islands. On Santa Catalina Island, even given an increase in fire frequency since 1999, the island fox population has continued to increase (CIC 2016, http://www.catalinaconservancy.org). Therefore, we do not anticipate wildfire posing a significant population-level impact in the future.

The Channel Islands, as well as the rest of southern California, are currently in the midst of a drought that began in 2012, and, as of mid-April 2016, has not abated (United States Drought Monitor 2016, entire). Island foxes have endured many droughts during their 10,000-year persistence on the islands (California Department of Water Resources 2015, entire). Deep multi-year droughts have occurred on the Channel Islands about once every 2 decades since 1900 (Coonan 2015, unpubl. data). General drought conditions in the late 1920s and early 1930s, combined with overgrazing, denuded most vegetation, particularly on San Miguel Island, creating massive sand barrens, remnants of which are still evident today (Johnson 1980, entire). Even so, island foxes survived this period of soil erosion and episodic landscape stripping.

The current drought is the first opportunity to study the effect of drought on island foxes, since foxes have recovered to historic numbers. On San Miguel Island, average adult weights declined in 2013 and 2014, to the lowest ever recorded, and fox reproduction was negligible in 2013 and 2014 (Coonan et al. 2014, p. 28; Coonan 2015b, p. 7; Coonan 2015, unpubl. data). During this time, mortality also increased, and many fox carcasses were emaciated (Coonan 2014, pp. 6-7). However, San Miguel Island fox numbers have remained at or above pre-decline levels (Friends of the Island Fox 2015, p. 3). On Santa Catalina Island, data indicate that decreasing precipitation may result in a reproductive decline; however, adults' weights were not similarly affected during this time (King and Duncan 2015, pp. 21-22). These effects were not seen on neighboring Santa Rosa Island, where foxes are not yet at carrying capacity or pre-decline levels. Fox weights increased on Santa Rosa Island in the drought years, reproduction was higher, and foxes had higher body condition scores than on San Miguel Island (Coonan 2015b, pp. 7-8). It is apparent that one response of island foxes to drought is to curtail reproduction, especially if the population is at carrying capacity (Coonan et al. 2010, p. 28; Coonan 2015a, pp. 6, 13). Given the past demonstrated ability of island foxes to survive pervasive drought, current healthy population numbers, and apparent ability to respond to drought by shifting resource allocation, we do not consider drought to be a threat to island foxes at this time or in the future.

Our analyses under the Act include consideration of ongoing and projected changes in climate. Scientific measurements spanning several decades demonstrate that changes in climate are occurring, and that the rate of change has increased since the 1950s. Examples include warming of the global climate system, and substantial increases in precipitation in some regions of the world and decreases in other regions (e.g., Solomon et al. 2007, pp. 35-54, 82-85; IPCC 2013b, pp. 3-29; IPCC 2014, pp. 1-32). Results of scientific analyses presented by the Intergovernmental Panel on Climate Change (IPCC) show that most of the observed increase in global average temperature since the mid-20th century cannot be explained by natural variability in climate and is “very likely” (defined by the IPCC as 90 percent or higher probability) due to the observed increase in greenhouse gas (GHG) concentrations in the atmosphere as a result of human activities, particularly carbon dioxide emissions from use of fossil fuels (Solomon et al. 2007, pp. 21-35; IPCC 2013b, pp. 11-12 and figures SPM.4 and SPM.5). Further confirmation of the role of GHGs comes from analyses by Huber and Knutti (2011, p. 4), who concluded it is extremely likely that approximately 75 percent of global warming since 1950 has been caused by human activities.

Various changes in climate may have direct or indirect effects on species. These effects may be positive, neutral, or negative, and they may change over time, depending on the species and other relevant considerations, such as threats in combination and interactions of climate with other variables (for example, habitat fragmentation) (IPCC 2014, pp. 4-11). Identifying likely effects often involves aspects of climate change vulnerability analysis. Vulnerability refers to the degree to which a species (or system) is susceptible to, and unable to cope with, adverse effects of climate change, including climate variability and extremes. Vulnerability is a function of the type, magnitude, and rate of climate change and variation to which a species is exposed, its sensitivity, and its adaptive capacity (Glick et al. 2011, pp. 19-22; IPCC 2014, p. 5). There is no single method for conducting such analyses that applies to all situations (Glick et al. 2011, p. 3). We use our expert judgment and appropriate analytical approaches to weigh relevant information, including uncertainty, in our consideration of the best scientific information available regarding various aspects of climate change.

Statewide and regional probabilistic estimates of temperature and precipitation changes for California and the greater Los Angeles region were evaluated by Pierce et al. (2013, entire) and Sun et al. (2015, entire) using dynamic downscaled simulations. Pierce et al. (2013, p. 854) found that, averaging across all models and downscaling methods, the warmest Julys are likely to be far warmer than historical temperatures for California. Projections for changes in precipitation by the 2060s were less certain; they showed weak overall annual mean decreases in precipitation in the southern part of the State, but with an increase in summer rain (Pierce et al. 2013, p. 855). Sun et al. (2015, p. 4,625) found that temperatures in the greater Los Angeles region for two future time periods, midcentury (2041-60) and end of century (2081-2100), will almost certainly be outside the interannual variability range seen in the baseline (1981-2000), particularly during the summer and fall. However, in each scenario and time period, the coastal areas warm less than inland areas due to generally lower warming over the ocean and the land-sea breeze circulation, which introduces a marine influence in the coastal zone (Sun et al. 2015, pp. 4,621-4,622). This suggests that the Channel Islands, along with the mainland's highest elevations and a narrow swath near the coast, may be somewhat buffered from the more extreme effects of a warming climate.

Probably the most potentially vulnerable aspect of island fox biology to climate change is indirect effects from affected invertebrates that are parasites and disease vectors. Invertebrates, because they are exothermic (cold-blooded), are particularly responsive to the effects of a warming climate that typically speeds development and enhances survival. For disease vectors such as mosquitos, survival may occur where it was previously too cold during the coolest nights of the year for overwintering. Invertebrates are also particularly well-suited to adapt to a changing climate because they have short generation times and a high reproductive output (Parmesan 2006, pp. 654-656). The warming climate typically has resulted in increased abundance and expanded ranges of parasites such as nematodes and ticks, as well as diseases they transmit (Parmesan 2006, pp. 650-651; Studer et al. 2010, p. 11). Climate change also produces ecological perturbations that result in altered parasite transmission dynamics, increasing the potential for host switching (Brooks and Hoberg 2007, p. 571). Moller's (2010, p. 1,158) analysis of parasites on avian hosts over a 37-year period suggests climate change predictions for parasite effects should be made with caution, but that climate can alter the composition of the parasite community and may cause changes in the virulence of parasites (Moller 2010, p. 1,158). Climate change may change and could potentially increase the parasites and disease vectors to which island foxes are exposed. However, we anticipate ongoing monitoring and management will detect any increase or changes in parasites or disease vectors that affect the population health of island foxes.

Considering that island foxes are opportunistic feeders, and climate warming could increase the subspecies' insect prey base abundance, it is possible climate change could positively affect food quantity and quality. For example, increased consumption of insect species by mice associated with a warmer, drier climate on South African islands has been documented (Chown and Smith 1993, pp. 508-509). In addition, because island foxes have shown relative plasticity with regard to utilizing nonnative insects (Cypher et al. 2011, p. 13), most invasions of nonnative potential prey species are not likely to negatively affect island fox food resources. The only potential negative effect of climate change on the insect prey base of island foxes would be if increased storm intensity and frequency reduced prey abundance, as Roemer (1999, p. 187) hypothesized occurred on Santa Cruz Island in the mid-1990s.

Global climate change has the potential to negatively and positively affect island fox populations. There is still uncertainty associated with predictions relative to the timing, location, and magnitude of future climate changes. Probably the most vulnerable aspect of island fox biology to climate change is indirect effects to the fox from affected invertebrates. Given the indications that the Channel Islands may be somewhat buffered from the more extreme effects of a warming climate and past demonstrated ability of island foxes to survive pervasive drought, current healthy population numbers, and the apparent ability of foxes to respond to changes in precipitation by shifting resource allocation, we do not consider changes in temperature or precipitation projected due to climate change to be a threat to island foxes at this time or in the future. While we cannot accurately predict the effects of climate change on island fox subspecies, because the foxes are generalists and exhibit plasticity with regards to prey and habitat use, we do not expect negative effects of such magnitude that would result in significant impacts at either the population or rangewide scales (e.g., cause major declines). We anticipate ongoing monitoring and management will detect any significant changes in population health and allow for management responses, including possible relisting.

In summary, during the period when populations were at their lowest, the four subspecies of Channel Island foxes were extremely vulnerable to extinction from stochastic events. The populations have now increased substantially and the likelihood of extinction has accordingly been reduced. The combined effects of interactions with feral cats and domestic dogs, motor vehicle collisions, mortality due to wildfire, and other human-caused mortalities result in the deaths of multiple individuals throughout Santa Catalina Island on an annual basis, but they do not constitute a combined threat to the relatively large population at this time nor do we anticipate that they will in the future. Given the past demonstrated ability of island foxes to survive pervasive drought, their current healthy population numbers, and their apparent ability to respond to drought by shifting resource allocation, we do not consider drought to be a threat to island foxes at this time or in the future. While we cannot accurately predict the effects of climate change on island fox subspecies because the foxes are generalists and exhibit plasticity with regards to prey, habitat use, and resource allocation, we do not consider climate change to be a threat to island foxes now nor in the future.

At time of listing in 2004 (69 FR 10335; March 5, 2004), predation by golden eagles was the primary threat to San Miguel, Santa Rosa, and Santa Cruz Island foxes, and disease was the primary threat to the Santa Catalina Island fox. The threat of predation by golden eagles on the northern Channel Islands has been significantly reduced since the time of listing. This reduction in predation by golden eagles is in direct response to the extensive removal of golden eagles from the northern Channel Islands, golden eagle prey being removed successfully from Santa Rosa and Santa Cruz Islands, and the successful reintroduction of bald eagles.

Potential disease outbreaks continue to pose a threat to Santa Catalina Island foxes due to relatively uncontrolled movement of vectors from the mainland that carry diseases for which the population may not be vaccinated. The primary measures in place on all islands to reduce the threat of disease are vaccination of a subset of the fox population for CDV and rabies, and monitoring of population sentinels to detect the start of another epidemic and respond appropriately to mitigate the outbreak. While disease is currently controlled on Santa Catalina Island, we do not have assurance that monitoring and management of Santa Catalina Island foxes necessary to detect and mitigate an epidemic in Santa Catalina Island foxes will continue in the future.

During the period when the island fox populations were at their lowest, they were extremely vulnerable to extinction from stochastic events. There will always be some inherent risk of extinction due to stochastic events because each island fox subspecies is a single breeding population. However, the populations have now increased substantially, show stable or increasing trends, and are returning to historical population levels, and the threat of extinction from demographic stochasticity has accordingly been reduced.

Mortality due to motor vehicle strikes, habitat loss, feral cats, and domestic dogs results in loss of individuals, but these mortality factors are not resulting in significant impacts to island foxes at either the population or rangewide scales as documented by current population numbers and trends. When population numbers are healthy, island foxes respond to drought by shifting resource allocation; therefore, we do not consider drought to be a threat to island foxes at this time or in the future. The impacts of climate change are hard to predict. Some effects to island fox populations could be negative while others could be positive. Predicting likely future climate scenarios and understanding the complex effects of climate change are high priorities for island fox conservation planning. Climate change is not considered a threat now or in the future because of the past demonstrated ability of island foxes to survive pervasive drought, their current healthy population numbers, the indication that the Channel Islands may be somewhat buffered from the more extreme effects of a warming climate, and the apparent ability of foxes to respond to changes in precipitation by shifting resource allocation.

When mortality mechanisms or other stressors occur together, one may exacerbate the effects of another, causing effects not accounted for when stressors are analyzed individually. Synergistic or cumulative effects may be observed in a short amount of time or may not be noticeable for years into the future, and could affect the long-term viability of island fox populations. For example, if a stressor hinders island fox survival and reproduction or affects the availability of habitat that supports island foxes, then the number of individuals the following year(s) will be reduced, increasing vulnerability to stochastic events like a disease epidemic or wildfire. The combined effects of interactions with feral cats and domestic dogs, motor vehicle collisions, mortality due to wildfire, and other human-caused mortalities result in the deaths of multiple individuals throughout Santa Catalina Island on an annual basis, but they do not constitute a combined threat to the relatively large population at this time nor do we anticipate that they will in the future. Another example is San Miguel Island where there have been combined effects of low reproductive output, dry climate, parasites, and low genetic variability. However, population estimates for the total San Miguel Island fox population likely represents carrying capacity for the island (Coonan 2014, p. 8), which has resulted in a general decline in reproductive effort as the population has increased. In addition, according to population viability analyses the San Miguel Island fox subspecies is at acceptably low risk of extinction (Guglielmino and Coonan 2016, p. 17) indicating that low reproductive output, dry climate, parasites, and low genetic variability do not constitute a combined threat to the population at this time nor do we anticipate that they will in the future. In conducting this analysis, we have considered whether the individual stressors identified for each island, considered in combination, result in a threat to the species. The combination of low mortality and robust population growth puts each island fox subspecies at acceptably low risk of extinction, according to population viability analyses. While synergistic or cumulative effects may occur when mortality mechanisms or other stressors occur together, given the robust populations and ongoing management and monitoring, these effects do not pose significant impacts to San Miguel, Santa Rosa, and Santa Cruz Island foxes at either the population or rangewide scales at this time nor do we anticipate that they will in the future. Synergistic or cumulative effects do not pose significant impacts to Santa Catalina Island fox at either the population or rangewide scales at this time given the robust populations and current ongoing management and monitoring, but could in the future if there are lapses in monitoring and management in the future.

An assessment of the need for a species' protection under the Act is based on whether a species is in danger of extinction or likely to become so because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or human-made factors affecting its continued existence. As required by section 4(a)(1) of the Act, we conducted a review of the status of these species and assessed the five factors to evaluate whether the San Miguel, Santa Rosa, Santa Cruz, and Santa Catalina Island foxes are in danger of extinction, or likely to become so in the foreseeable future throughout all or a significant portion of their ranges. We examined the best scientific and commercial information available regarding the past, present, and future threats faced by these subspecies. We also consulted with species experts and land management staff with NPS, TNC, and CIC, who are actively managing for the conservation of island foxes.

In considering what factors might constitute threats, we must look beyond the mere exposure of the species to the factor to determine whether the exposure causes actual impacts to the species. If there is exposure to a factor, but no response, or only a positive response, that factor is not a threat. If there is exposure and the species responds negatively, the factor may be a threat and we then attempt to determine how significant the threat is. If the threat is significant, it may drive, or contribute to, the risk of extinction of the species such that the species warrants listing as an endangered species or threatened species as those terms are defined by the Act. This determination does not necessarily require empirical proof of a threat. The combination of exposure and some corroborating evidence of how the species is likely impacted could suffice. The mere identification of factors that could impact a species negatively is not sufficient to compel a finding that listing is appropriate; we require evidence that these factors are operative threats that act on the species to the point that the species meets the definition of an endangered species or threatened species under the Act.

At the time of listing in 2004 (69 FR 10335; March 5, 2004), the Santa Catalina Island fox experienced a devastating CDV epidemic that resulted in an almost complete loss of the eastern subpopulation, which made up the majority of the island population. The precipitous decline of the northern Channel Island foxes (San Miguel, Santa Rosa, and Santa Cruz Island foxes) that led to their listing as endangered species was the result of depredation by golden eagles, facilitated by the presence of a nonnative, mammalian prey-base on the northern Channel Islands.

As a result of concerted management efforts, golden eagle predation has been reduced to such a degree that it is no longer considered a threat to the northern island subspecies. Additional management efforts, including captive breeding and ongoing vaccinations for disease, have contributed to the substantial increase of all island fox populations. Although golden eagles will most likely continue to occasionally occur on the islands as transients, the removal of the nonnative prey-base and the constant presence of bald eagles are permanent, long-term deterrents to golden eagles establishing breeding territories and remaining on the northern Channel Islands. Ongoing management and monitoring are designed to detect any reemergence of threats and to take corrective actions should any threats be detected.

Based on the information presented in this final rule and the proposed rule (81 FR 7723; February 16, 2016), the recovery criteria in the recovery plan have been achieved and the recovery objectives identified in the recovery plan have been met for the three northern Channel Island subspecies of island fox. San Miguel, Santa Rosa, and Santa Cruz Island fox abundance has increased steadily to the point where the number of individuals is again within the range of historical population estimates, save Santa Rosa Island where numbers are returning to historical population levels. Population viability analyses strongly indicate that the northern Channel Island foxes have an acceptably small risk of extinction and current population levels are consistent with long-term viability. Additionally, the primary threat (golden eagles) to northern Channel Island foxes has been controlled, and ongoing management and monitoring are in place to ensure that threats continue to be managed in the future. This information indicates that these three subspecies are no longer at immediate risk of extinction, nor are they likely to experience reemergence of threats and associated population declines in the future. We, therefore, conclude that the San Miguel, Santa Rosa, and Santa Cruz Island foxes are no longer experiencing significant impacts at either the population or rangewide scales. Thus, these island fox subspecies are no longer in danger of extinction throughout all of their ranges, nor are they likely to become so within the foreseeable future.

Having determined that the San Miguel, Santa Rosa, and Santa Cruz Island foxes are not in danger of extinction, or likely to become so, throughout all of their ranges, we next consider whether there are any significant portions of their ranges in which the island foxes are in danger of extinction or likely to become so. Under the Act and our implementing regulations, a species may warrant listing if it is an endangered species or a threatened species. The Act defines “endangered species” as any species which is “in danger of extinction throughout all or a significant portion of its range,” and “threatened species” as any species which is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The term “species” includes “any subspecies of fish or wildlife or plants, and any distinct population segment [DPS] of any species of vertebrate fish or wildlife which interbreeds when mature.” On July 1, 2014, we published a final policy interpreting the phrase “significant portion of its range” (SPR) (79 FR 37578). The final policy states that (1) if a species is found to be endangered or threatened throughout a significant portion of its range, the entire species is listed as an endangered species or a threatened species, respectively, and the Act's protections apply to all individuals of the species wherever found; (2) a portion of the range of a species is “significant” if the species is not currently endangered or threatened throughout all of its range, but the portion's contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range; (3) the range of a species is considered to be the general geographical area within which that species can be found at the time the Service or the National Marine Fisheries Service makes any particular status determination; and (4) if a vertebrate species is endangered or threatened throughout an SPR, and the population in that significant portion is a valid DPS, we will list the DPS rather than the entire taxonomic species or subspecies.

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

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

If we identify any portions that may be both (1) significant and (2) endangered or threatened, we engage in a more detailed analysis. As discussed above, to determine whether a portion of the range of a species is significant, we consider whether, under a hypothetical scenario, the portion's contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction or likely to become so in the foreseeable future throughout all of its range. This analysis considers the contribution of that portion to the viability of the species based on the conservation biology principles of redundancy, resiliency, and representation. (These concepts can similarly be expressed in terms of abundance, spatial distribution, productivity, and diversity.) The identification of an SPR does not create a presumption, prejudgment, or other determination as to whether the species in that identified SPR is in danger of extinction or likely to become so. We must go through a separate analysis to determine whether the species is in danger of extinction or likely to become so in the SPR. To determine whether a species is endangered or threatened throughout an SPR, we will use the same standards and methodology that we use to determine if a species is endangered or threatened throughout its range.

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

Applying the process described above, we evaluated the respective ranges of the San Miguel Island fox, Santa Rosa Island fox, and Santa Cruz Island fox to determine if any area could be considered a significant portion of any one of the subspecies' ranges. As mentioned above, one way to identify portions for further analyses is to identify areas that may be significant, such as any natural divisions within the range that might be of individual biological or conservation importance to the species. We conducted our review based on examination of the recovery plan (Service 2015; entire) and other relevant and more recent information on the biology and life history of the northern Channel Island foxes. Because each of the three northern Channel Island fox subspecies is a narrow endemic where the foxes on each island constitute a single population, we determined that there are no natural divisions or separate areas of the range of each subspecies that contribute separately to the conservation of that particular subspecies. In other words, for each subspecies of island fox, there is only one biologically defined portion, and there are no notably separate or distinct portions that contribute independently to the conservation (i.e., to the redundancy, resiliency, and representation) of the species. We also examined whether any portions might be endangered or threatened by examining whether threats might be geographically concentrated in some way. Although some of the factors we evaluated under Summary of Factors Affecting the Species, above, may continue to affect each of the subspecies, the factors affecting island foxes generally occur at similarly low levels throughout each of their ranges. The entire population of each subspecies is equally affected by threats and by the amelioration of such threats throughout their ranges. Based on our evaluation of the biology of the subspecies and current and potential threats to the island foxes, we conclude that no portion of the ranges of the three subspecies of the northern Channel Islands foxes warrants further consideration to determine if it is significant. In other words, threats have been sufficiently ameliorated, and all individuals and all portions of the range of each subspecies interact to such an extent that it is not reasonable to conclude that any portion of the range can have a different status than any other portion.

We have carefully assessed the best scientific and commercial data available and determined that the San Miguel Island fox, Santa Rosa Island fox, and Santa Cruz Island fox are no longer in danger of extinction throughout all or significant portions of their ranges, nor are they likely to become so within the foreseeable future. As a consequence of this determination, we are removing the San Miguel, Santa Rosa, and Santa Cruz Island fox from the Federal List of Endangered and Threatened Wildlife.

The Santa Catalina Island fox exhibits demographic characteristics consistent with long-term viability. The population has continued to increase over the past 11 years, reaching an estimated high of 1,852 individuals in 2013 (King and Duncan 2015, p. 11), then dropping slightly to 1,812 in 2015 (King and Duncan 2016, p. 10). Population viability analysis indicates the Santa Catalina Island fox population has an acceptably small risk of extinction—less than 5 percent since 2008. With population levels consistent with long-term viability, the intent of recovery objective 1 has been met for the Santa Catalina Island fox. However, objective 2 has not been met because we do not have assurance that the monitoring and management as prescribed in the epidemic response plan for Santa Catalina Island foxes will be funded and implemented in the future to ensure that the threat of disease continues to be managed. While population levels are currently consistent with long-term viability (indicating that the subspecies is no longer currently in danger of extinction), lack of adequate control of potential vectors along with lack of assured long-term monitoring could allow for lapses in management and monitoring and reemergence of disease that may cause epidemics and population declines before they can be detected and acted upon. We coordinated with CIC to determine their ability to enter into an agreement to provide assurances for long-term funding and a commitment for long-term implementation of the epidemic response plan. Though we do not have assurances of long-term funding that would allow them to commit to long-term implementation of the epidemic response plan, we recognize that CIC's efforts have significantly contributed to a reduction of impacts to the Santa Catalina Island fox and its habitat. As a result, we have determined that the Santa Catalina Island fox is no longer in danger of extinction throughout all of its range, but instead is threatened with becoming endangered in the foreseeable future throughout all of its range. Therefore, we are reclassifying the status of the Santa Catalina Island fox from an endangered species to a threatened species. Because we have determined the Santa Catalina Island fox is likely to become an endangered species in the foreseeable future throughout all of its range, no portion of its range can be significant for purposes of the definitions of endangered species or threatened species (see 79 FR 37578; July 1, 2014) (also see Significant Portion of the Range, above).

Section 4(a)(3)(A) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that we designate critical habitat, to the maximum extent prudent and determinable, at the time a species is listed as endangered or threatened.

On November 9, 2005 (70 FR 67924), we determined that habitat on Santa Catalina Island (as well as the other three islands occupied by the island fox described herein) did not meet the definition of critical habitat under the Act. We made this determination based on the island fox being a generalist in all aspects of its life history. We stated that foxes are opportunistic omnivores that eat a wide variety of plants and animals in whatever habitat they use, and as such, they use all habitat available on each of the islands (70 FR 67927). We were not aware at that time nor are we aware currently of any existing or anticipated threats to Santa Catalina Island habitats that would likely affect the Santa Catalina Island fox. Accordingly, we continue to conclude that there is no information to support a conclusion that any specific habitat on Santa Catalina Island is essential to the conservation of the Santa Catalina Island fox. Thus, we do not find any habitat on Santa Catalina Island that meets the definition of critical habitat in section 3(5)(A) of the Act. Because there continues to be no habitat that meets the definition of critical habitat for the Santa Catalina Island fox, there is none to designate.

This final rule revises 50 CFR 17.11(h) by removing the San Miguel Island fox, Santa Rosa Island fox, and Santa Cruz Island fox from the Federal List of Endangered and Threatened Wildlife. The prohibitions and conservation measures provided by the Act, particularly through sections 7 and 9, no longer apply to these subspecies. Federal agencies are no longer required to consult with the Service under section 7 of the Act in to ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of these subspecies.

This rule also revises 50 CFR 17.11(h) to reclassify the Santa Catalina Island fox from an endangered species to a threatened species on the Federal List of Endangered and Threatened Wildlife. However, this reclassification does not change the protection afforded to this subspecies under the Act. Anyone taking, attempting to take, or otherwise possessing this species, or parts thereof, in violation of section 9 of the Act or its implementing regulations, is subject to a penalty under section 11 of the Act. Pursuant to section 7 of the Act, Federal agencies must ensure that any actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of the Santa Catalina Island fox. Whenever a species is listed as threatened, the Act allows promulgation of special rules under section 4(d) that modify the standard protections for threatened species found under section 9 of the Act and Service regulations at 50 CFR 17.31 (for wildlife) and 17.71 (for plants), when it is deemed necessary and advisable to provide for the conservation of the species. No special section 4(d) rules are proposed, or anticipated to be proposed, for Santa Catalina Island fox, because there is currently no conservation need to do so for this subspecies. Recovery actions directed at Santa Catalina Island fox will continue to be implemented, as funding allows, as outlined in the recovery plan for this species (Service 2015, entire).

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

NPS and TNC have agreed to partner with us in the implementation of the post-delisting monitoring for the northern Channel Island foxes. The post-delisting monitoring is designed to verify that San Miguel, Santa Rosa, and Santa Cruz Island foxes remain secure from risk of extinction after their removal from the Federal List of Endangered and Threatened Wildlife by detecting changes in population trend and mortality/survival. Post-delisting monitoring for the northern Channel Island fox subspecies will be conducted as recommended in the epidemic response plan for northern Channel Island foxes (Hudgens et al. 2013, entire) and golden eagle management strategy (NPS 2015a, entire). These documents are available on the Internet at https://www.regulations.gov at Docket No. FWS-R8-ES-2015-0170, and the Ventura Fish and Wildlife Office's Web site at http://www.fws.gov/Ventura/.

Although the Act has a minimum post-delisting monitoring requirement of 5 years, the post-delisting monitoring plan for northern Channel Island foxes includes a 10-year monitoring period to account for environmental variability (for example, extended drought) that may affect fox populations and to document the range of population fluctuation as fox populations reach carrying capacity. If a decline in abundance is observed or a substantial new threat arises, post-delisting monitoring may be extended or modified as described below.

Island foxes will be monitored for both population size and trend, and for annual survival and cause-specific mortality, as specified by the epidemic response plan for northern Channel island foxes (Hudgens et al. 2013, entire) and the golden eagle management strategy (NPS 2015a, entire). Monitoring as recommended in these plans is currently being implemented. Population size and trend are estimated using capture-mark-recapture data from trapping foxes on grids (Rubin et al. 2007, p. 2-1; Coonan 2014, p. 2). Such monitoring has been implemented for island foxes since the late 1980s. The monitoring provides a continuous record of population fluctuation, including decline and recovery, upon which population viability analysis was used to develop island fox demographic recovery objectives (Bakker and Doak 2009, entire; Bakker et al. 2009, entire).

Annual survival and cause-specific mortality of island foxes will be monitored, as they are now, via tracking of radio-collared foxes. Mortality checks will be conducted weekly on radio-collared foxes, and necropsies will be conducted on fox carcasses to determine the cause of mortality. A sample of at least 40 radio-collared foxes is maintained on each island, as that is the number of monitored foxes determined to be necessary to detect an annual predation rate of 2.5 percent (Rubin et al. 2007, p. 2-20). This level of radio-telemetry monitoring is part of the epidemic response plan and the golden eagle management strategy for island foxes on the northern Channel Islands (Hudgens et al. 2013, pp. 7-11).

In cooperation with NPS and TNC, we will annually review the results of monitoring, which include annual estimated adult population size, annual adult survival, and identified causes of mortality. If there are apparent sharp declines in population size or survival, or if the information indicates the appearance of significant mortality causes, the data will be reviewed by the Island Fox Conservation Working Group for evaluation and assessment of threat level. Monitoring results may also reach thresholds which precipitate increased monitoring or implementation of management actions, as specified in the epidemic response plan and golden eagle management strategy. At the end of the 10-year post-delisting monitoring period, NPS, TNC, and the Service will determine whether monitoring should continue beyond the 10-year monitoring period.

In the proposed rule published on February 16, 2016 (81 FR 7723) in the Federal Register, we requested that all interested parties submit written comments on the proposal by April 18, 2016. We also contacted appropriate Federal and State agencies, Tribal entities, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. We did not receive any requests for a public hearing. All substantive information provided during comment periods has either been incorporated directly into this final determination or is addressed below.

In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinion from three knowledgeable individuals with scientific expertise that included familiarity with the island fox and its habitat, biological needs, and threats. We received responses from all three of the peer reviewers.

We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding the status of the island fox. The peer reviewers generally concurred with our methods and conclusions, and provided new information and suggestions to improve the final rule. This information has been incorporated into the final rule as appropriate. The peer reviewer comments are addressed in the following summary.

(1) Comment: Two peer reviewers requested further mention of lack of genetic diversity as an important consideration for island foxes. They stated that numerous studies have now shown that island fox populations lack genetic variation, an outcome of long-term small population sizes and bottlenecks, coupled with the pervasive effects of genetic drift. The peer reviewers stated that although the threats to island fox populations on the northern Channel Islands have either been reduced or addressed and the populations have recovered to approximately historic levels, the various subspecies lack genetic variation, which could compromise their ability to respond to future environmental change if managers do not respond to a potential decline in a timely manner.

Our Response: We included the relevant scientific information presented by the peer reviewers related to lack of genetic variation in this final rule. We anticipate that ongoing monitoring and management as described in signed CMAs with NPS and TNC (Service and NPS 2015; Service and TNC 2015) will detect any significant changes in population health and allow for management responses, including possible relisting. If a decline is detected, we will act in concert with NPS and TNC in an expedient manner to uncover the agent of the decline and implement timely recovery actions as laid out in the golden eagle management strategy and epidemic response plans (Hudgens et al. 2013, entire; NPS 2015a, entire).

(2) Comment: One peer reviewer requested more information about evaluation of recovery objective 1 and recovery criteria E/1. In particular, the peer reviewer asked if demographic characteristics included measures of genetic characteristics, as the same standards should not apply to populations that have lost much of their genetic variation.

Our Response: Recovery objective 1 is that each federally listed subspecies of island fox exhibits demographic characteristics consistent with long-term viability. Recovery objective 1 is achieved when recovery criteria E/1 is met: an island fox subspecies has no more than 5 percent risk of quasi-extinction over a 50-year period; recovery criteria E/1 has been met. Recovery criteria E/1 is evaluated for each species using population viability models presented in Bakker et al. (2009) and appendix 2 of the recovery plan (Service 2015, pp. 135-140) that incorporate demographic information for each subspecies of island fox, which are influenced by genetics and the environment. Genetic variation is not one of the demographic characters that is measured, although we recognize that genetic variation has an influence on demographic characters.

(3) Comment: One peer reviewer asked how the quasi-extinction number of 30 individuals was derived. The peer reviewer asserted that if extreme bottleneck events have occurred, it is highly possible that quasi-extinction levels of 30 individuals are not appropriate, and numbers this low could essentially extirpate any genetic variation left in the population.

Our Response: Because short- to medium-term risk analysis is most important for island fox management, Bakker et al. (2009) ran each simulation for 50 years and used a quasi-extinction threshold of 30 foxes, set by the Service's island fox Recovery Team to further account for unidentified biological and sociopolitical uncertainties (Bakker et al. 2009, p. 92). We concur with the quasi-extinction level determined by the scientists on the island fox Recovery Team. However, we note that monitoring and management is designed to intervene well before a species would reach a quasi-extinction threshold. Quasi-extinction is not the threshold for action; rather, triggers for action would be if monitoring results indicate a sharp decline in population size or survival or the appearance of a significant mortality source. The intent is to avoid the quasi-extinction threshold by a wide margin by managing for a low risk of reaching such a threshold over a fairly long period of time.

(4) Comment: One peer reviewer asked what it would take to delist the Santa Catalina Island subspecies.

Our Response: The best available scientific data for Santa Catalina Island suggest that while Santa Catalina Island fox populations have increased to self-sustaining levels, potential disease epidemic remains an ongoing threat. Once disease and disease risk are controlled and managed to the point they are no longer a threat to the subspecies, and assuming no other stressors are resulting in significant impacts at either the population or rangewide scales, the Santa Catalina Island fox could be removed from the Federal List of Endangered and Threatened Wildlife (that is, delisted). Controlling the threat of disease would include assurances of long-term implementation of the epidemic response plan for Santa Catalina Island, which is currently being implemented by CIC. We coordinated with CIC to determine their ability to enter into an agreement to provide assurances, and they indicated they are currently unable to provide assurances for long-term funding and management. Though we do not have assurances of long-term funding that would allow them to commit to long-term implementation of the epidemic response plan, we recognize that CIC's efforts have significantly contributed to a reduction of impacts to the Santa Catalina Island fox and its habitat.

We requested written comments from the public on the proposed rule. To that end, we specifically sought comments concerning: (1) Additional information on the distribution, population size, and population trends of the San Miguel, Santa Rosa, Santa Cruz, and Santa Catalina Island foxes; (2) relevant information concerning any current or likely future threats (or lack thereof) to the island foxes; (3) current or planned activities within the range of the island foxes and their possible impacts; (4) regional climate change models and whether they are reliable and credible to use in assessing the effects of climate change on the island foxes and their habitats; and (5) our draft post-delisting monitoring plan.

During the open comment period, which closed on April 18, 2016, we received 10 comment letters from organizations or individuals directly addressing the proposed removal of the San Miguel, Santa Rosa, and Santa Cruz Island fox from the Federal List of Endangered and Threatened Wildlife, or reclassification of the Santa Catalina Island fox from an endangered to a threatened species. Seven of these letters opposed the proposal, and three provided support. Two of these letters provided substantive comments (beyond a succinct expression of agreement or opposition) on the proposed rule, one of which supported and one of which opposed our proposal. Substantive information has been incorporated into the final rule as appropriate. The public comments are addressed in the following summary.

(5) Comment: One commenter suggested we conduct a more detailed analysis of the effects of global climate change and that we hold public meetings to develop a response plan for climate change.

Our Response: We incorporated additional information into the climate change discussion in this rule based on new information that was provided by the peer reviewers. While we cannot accurately predict the effects of climate change on island fox subspecies, because the foxes are generalists and exhibit plasticity with regards to prey and habitat use, we do not expect negative effects of such magnitude that would result in significant impacts at either the population or rangewide scales (e.g., cause major population declines). However, we anticipate ongoing monitoring and management will detect any significant changes in population health and allow for management responses, including possible relisting; therefore, public meetings to develop a response plan were not planned.

(6) Comment: One commenter expressed concern that if the northern Channel Islands subspecies are delisted, the disease and predator management programs may potentially be defunded.

Our Response: The post-delisting monitoring is designed to verify that northern Channel Island foxes remain secure from risk of extinction after their removal from the Federal List of Endangered and Threatened Wildlife by detecting changes in population trend and mortality/survival. Post-delisting monitoring for the northern Channel Island fox subspecies will be conducted as recommended in the epidemic response plan for northern Channel Island foxes (Hudgens et al. 2013, entire) and golden eagle management strategy (NPS 2015a, entire). Funding and implementation of post-delisting monitoring is assured for 10 years by signed CMAs between the Service, NPS, and TNC (Service and NPS 2015; Service and TNC 2015). At the end of the 10-year post-delisting monitoring period, the Service, NPS, and TNC will determine whether monitoring should continue beyond the 10-year monitoring period. In addition, NPS identified island foxes as an ecosystem element for which they will conduct long-term annual population monitoring as part of Channel Island National Park's long-term ecological monitoring program, regardless of their status under the Act.

(7) Comment: One commenter stated that the San Miguel Island fox population declined from 581 individuals in 2011 (Coonan and Gugliolmino 2011, p. 14) to 538 individuals in 2012 (Coonan 2013, p. 10), despite the high number of pups caught and low number of known mortalities. The commenter questioned the 2015 data presented in the proposed rule, which indicate that the San Miguel Island population rose by approximately 200 from 2014, despite less than a quarter of the number of captured pups compared to 2012 and more than triple the number of known mortalities. The commenter also pointed out that Santa Rosa Island foxes have yet to meet their carrying capacity, and so, given that population's limited size, delisting is inappropriate at this time.

Our Response: The population estimates presented in this rule for the San Miguel Island fox are based on the best available scientific information as reported to the Service by NPS. San Miguel Island fox population estimates for the total population (both adults and juveniles) reveal that the subspecies has hovered around at least 550 foxes since 2010, and this likely represents carrying capacity for that island (Coonan 2014, p. 8). This is supported by the general decline in reproductive effort as the population has increased. On the San Miguel Island monitoring grids, only three pups were caught in 2013 and 2014, and only seven were caught in 2015, compared to 32 caught in 2012 (Guglielmino and Coonan 2016, p. 13). The low reproductive output is likely due both to high fox density and extended drought. Even given this, the overall combination of low mortality and robust population growth continues to put the San Miguel Island fox subspecies at acceptably low risk of extinction, according to population viability analyses (Guglielmino and Coonan 2016, p. 17). The San Miguel population reached this level of acceptable extinction risk in 2009, and even recent mortality due to drought has not moved the population away from acceptable extinction risk.

Santa Rosa Island foxes have likely not reached carrying capacity. Carrying capacity is not a threshold for recovery or for healthy populations; rather, carrying capacity is the maximum number of individuals that the habitat can support. Most populations function below that threshold and still exhibit demographic characteristics for healthy, stable populations. Populations do not need to be at carrying capacity to have stable or increasing demographics consistent with long-term viability. On Santa Rosa Island, significant mortality during the early phase of reintroduction and again in 2010 prevented the Santa Rosa subspecies from attaining the level of biological recovery that the San Miguel and Santa Cruz Islands subspecies had attained by 2013. However, the predicted extinction risk (over the next 50 years) has been less than 5 percent since 2011 for Santa Rosa Island (Guglielmino and Coonan 2016, p. 22). As of 2015, all Roosevelt elk and mule deer have been removed from Santa Rosa Island, and the island fox population has increased to greater than 1,200 foxes (Coonan 2015b, pers. comm.; Guglielmino and Coonan 2016, p. 18). With the golden eagle management strategy in place, complete removal of golden eagles and their nonnative prey-base from the northern Channel Islands, development and implementation of an epidemic response plan, and population levels consistent with long-term viability, the intent of recovery objectives 1 and 2, and the associated recovery criteria, are met for the San Miguel, Santa Rosa, and Santa Cruz Island foxes.

(8) Comment: One commenter presented information on Acanthocephalan parasites, which affect the gut of island foxes. The commenter stated that Acanthocephalans have been identified as a factor in the deaths of over 20 island foxes since 2013. In addition, the commenter pointed out that most of the foxes on San Miguel Island have become increasingly underweight and probably infected. The commenter expressed that the effect this parasite could have on the San Miguel population of island foxes is significant and there is too little information on this significant issue to proceed with the proposed delisting.

Our Response: In 2013, necropsies of five radio-collared San Miguel Island foxes revealed substantial, and in several cases massive, parasitism by an unidentified Acanthocephalan (spiny-headed) parasite in the intestines (Coonan et al. 2014b, pp. 11, 12). Six of the 16 mortalities in 2014 through June 2015 had infection by an Acanthocephalan parasite, as did five in 2013 (Coonan 2015b, pp. 7, 8). The parasite burdens were associated with one or a combination of colitis, enteritis, and emaciation, and likely contributed to mortality of the individuals, but have not yet been determined as the cause of mortality (Coonan 2015b, p. 2). In 2015, the Island Fox Health Working Group discussed the impact of Acanthocephalans to island foxes on San Miguel Island and determined that no specific management action or treatment is recommended at this time, as cases are continuing, but do not appear to be increasing or causing a population decline (Coonan 2015b, p. 15). Continued monitoring of mortality causes will determine whether the parasite is a significant mortality source for San Miguel foxes, and requires management. Thus, at this time, the best available data indicate that although potential impacts from Acanthocephalan parasites may be impacting San Miguel Island fox individuals, there are no significant impacts at the population scale such that this parasite would be considered a threat to the subspecies. We anticipate that ongoing monitoring and management as described in signed CMAs with NPS and TNC (Service and NPS 2015; Service and TNC 2015) will detect any significant changes in population health and allow for management responses, including listing in the future if warranted.

(9) Comment: One commenter presented information that the San Miguel Island fox population is aging and that there are problems in reproduction or survival of pups. Information was presented by the commenter that 73 percent of the collared foxes are 4 to 10 years old, while 47 percent are 6 to 10 years old. Only 27 percent of these foxes are young animals of 1 to 3 years old, which reflects 3 consecutive years of poor recruitment for the population, signifying poor birth years or poor pup survival. The commenter stated that such an age structure puts this population at risk, particularly given the small size of the population, dry climate, parasite issue, and low genetic diversity among the San Miguel Island foxes.

Our Response: Population estimates for the total San Miguel Island fox population (both adults and juveniles) reveal that it has hovered around 550 foxes since 2010, and this likely represents carrying capacity for the island (Coonan 2014, p. 8). This is supported by the general decline in reproductive effort as the population has increased. During annual monitoring efforts, only three pups were caught in 2013 and 2014, and only seven were caught in 2015, compared to 32 caught in 2012 (Guglielmino and Coonan 2016, p. 13). The low reproductive output is likely due both to high fox density and extended drought, and is to be expected as the population hovers around carrying capacity and responds to extended drought. This does not in and of itself constitute a threat to the San Miguel Island fox population, and low reproductive effort has not been identified as a current threat to any island fox population.

The combination of low mortality and the population at likely carrying capacity (i.e., 550 foxes since 2010 (Coonan 2014, p. 8)) puts the San Miguel Island fox subspecies at acceptably low risk of extinction, according to population viability analyses (Guglielmino and Coonan 2016, p. 17). We anticipate that ongoing monitoring and management as described in signed CMAs with NPS and TNC (Service and NPS 2015; Service and TNC 2015) will detect any significant changes in population health and allow for management responses, including listing in the future if warranted. If a significant decline is detected, we will act in concert with NPS and TNC in an expedient manner to uncover the agent of the decline and implement timely recovery actions as laid out in the golden eagle management strategy and epidemic response plans (Hudgens et al. 2013, entire; NPS 2015a, entire).

We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act, need not be prepared in connection with listing, delisting, or reclassification of a species as an endangered or threatened species under the Endangered Species Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

A complete list of references cited in this rulemaking is available on the Internet at http://www.regulations.gov under Docket No. FWS-R8-ES-2015-0170 or upon request from the Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

The primary authors of this final rule are staff members of the Ventura Fish and Wildlife Office in Ventura, California, in coordination with the Pacific Southwest Regional Office in Sacramento, California, and the Carlsbad Fish and Wildlife Office in Carlsbad, California.

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