Federal Register Vol. 81, No.196,

Section 1424 of the Food Security Act of 1985, Public Law 99-198, amended Section 1472(b) of the National Agricultural Research, Extension, and Teaching Policy Act of 1977 (7 U.S.C. 3318(b)) to authorize the Secretary to use a cooperative agreement as a legal instrument reflecting a relationship between the Secretary and a State cooperative institution, State department of agriculture, college, university, other research or educational institution or organization, Federal or private agency or organization, individual, or any other party, if the Secretary determines (a) the objectives of the agreement will serve a mutual interest of the parties to the agreement in agricultural research, extension, and teaching activities, including statistical reporting; and (b) all parties will contribute resources to the accomplishment of those objectives.

The cooperative agreements authorized by 7 U.S.C. 3318(b) have been determined to be neither procurement nor assistance in nature and, therefore, not subject to the provisions of Federal Grant and Cooperative Agreement Act of 1977 or the OMB Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards codified at 2 CFR part 200. Many of the standards and provisions of the OMB grants management circulars were adopted in whole or in part in 7 CFR part 550. Subparts A through D of Part 550, consisting of sections 550.1 through 550.62, included specific provisions of Federal assistance regulations and cost principles because they embody principles of good management and sound financial stewardship important to all Federal assistance and non-assistance awards.

Although the non-assistance cooperative agreements described in this rule are substantially different than the Federal assistance-type cooperative agreements used by most Federal awarding agencies, as a matter of good business practice REE is amending 7 CFR part 550 to adopt 2 CFR part 200, “Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards,” (78 FR 78589) published on December 26, 2013, as supplemented by this part, and to update and streamline the existing REE administrative requirements applicable to non-assistance cooperative agreements. This rulemaking will reduce administrative burden for non-Federal entities receiving Federal funds under non-assistance cooperative agreements while reducing the risk of waste, fraud, and abuse. Accordingly, proper use of these non-assistance cooperative agreements promote and facilitate partnerships between the REE Agency and the Cooperator in support of research, extension, and education projects of mutual benefit to each party.

For the reasons stated in the preamble, the Department of Agriculture, REE, revises 7 CFR part 550 to read as follows:

On March 14, 2016 (81 FR 13265), the NRC published a direct final rule amending its regulations in § 72.214 of title 10 of the Code of Federal Regulations (10 CFR) by revising the Holtec HI-STORM 100 Cask System listing within the “List of approved spent fuel storage casks” to include Amendment No. 10 to CoC No. 1014. Amendment No. 10 adds new fuel classes to the contents approved for the loading of 16 × 16 class fuel assemblies into a HI-STORM 100 Cask System; allows a minor increase in manganese in an alloy material for the system's overpack and transfer cask; clarifies the minimum water displacement required of a dummy fuel rod (i.e., a rod not filled with uranium pellets); and clarifies the design pressures needed for normal operation of forced helium drying systems. Additionally, Amendment No. 10 revises Condition No. 9 of CoC No. 1014 to provide clearer direction on the measurement of air velocity and modeling of heat distribution through the storage system.

The NRC received four comment submissions with 22 individual comments on the companion proposed rule (81 FR 13295; March 14, 2016). Electronic copies of these comments can be obtained from the Federal Rulemaking Web site, http://www.regulations.gov, by searching for Docket ID NRC-2015-0270. The comments are also available in ADAMS under Accession Nos. ML16105A426, ML16105A425, ML16105A424, and ML16105A423. As explained in the March 14, 2016, direct final rule, the NRC would withdraw the direct final rule only if it received a “significant adverse comment.” This is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:

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

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

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

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

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

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

The NRC determined that none of the comments submitted on the direct final rule met any of these criteria and confirmed the effective date of May 31, 2016, for the direct final rule on May 31, 2016 (81 FR 34241). The comments either were already addressed by the NRC staff's preliminary safety evaluation report (SER) (ADAMS Accession No. ML15331A309) for this rulemaking, were beyond the scope of this rulemaking, or were already addressed in a previous rulemaking. The NRC did not make any changes to the direct final rule as a result of the public comments. However, in Section II, “Public Comment Analysis,” of this document, the NRC is taking this opportunity to respond to the comments in an effort to clarify information about the 10 CFR part 72 CoC rulemaking process.

For rulemakings amending or revising a CoC, the scope of the rulemaking is limited to the specific changes in the applicant's request for the amendment or amendment revision. Therefore, comments about the system or spent fuel storage in general that are not applicable to the changes requested are outside the scope of this rulemaking. Comments about details of the particular system subject to the rulemaking that do not address the rulemaking's specific proposed changes have already been resolved in prior rulemakings. Persons who have concerns about prior rulemakings and the resulting final rules may consider the NRC's process for petitions for rulemaking under 10 CFR 2.802. Additionally, safety concerns about any NRC-regulated activity may be reported to the NRC in accordance with the guidance posted on the NRC's Web site at http://www.nrc.gov/about-nrc/regulatory/allegations/safety-concern.html. This Web page provides information on how to notify the NRC of emergency or non-emergency issues.

The following paragraphs summarize each individual comment followed by the NRC response.

Comment 1: Noting that this is Holtec's tenth request to amend CoC No. 1014 for the HI-STORM 100 Cask System, one commenter stated that many people find this pattern disturbing. The nine earlier amendments and revisions to CoC No. 1014 suggest that Holtec's overall performance in achieving technical accuracy has been poor, not only in the originally-submitted TSs and quality assurance (QA) for this cask, but in the nine subsequent amendments and revisions that the NRC has approved. Because this is Holtec's tenth amendment, this commenter asserted that Holtec has failed to address the full range of the cask's technical deficiencies comprehensively, and appears instead to have applied the needed QA only in incremental steps.

NRC Response: This comment is not within the scope of this rulemaking, which is limited to the specific revisions proposed in Amendment No. 10 to CoC No. 1014. The NRC is providing a specific response, however, to clarify the NRC's process for issuing and amending CoCs for dry storage system (DSS) casks.

When the NRC first approves a CoC for a particular storage cask design, the CoC is based on a postulated generic spent fuel design using a composite of fuel characteristics and engineered features of the DSS. Important fuel characteristics include the level of the uranium enrichment in the fuel pellets and their burnup time in the reactor. Fuel assembly variables include the composition of the alloys used in the fuel cladding and assembly hardware; the diameter, number, and length of the fuel rods; and the spacing between them. These fuel characteristics and assembly design variables affect the overall heat load that the cask and multipurpose canister (MPC) holding the fuel assemblies inside the cask must be able to withstand, with a conservative margin of safety, to maintain their integrity for long-term storage under normal, off-normal, and accident conditions. The residual heat and level of uranium burnup in the spent fuel, and the spacing of the fuel in the assemblies, in turn affect the number of fuel assemblies that can be loaded into the MPC, which must have internal components tailored to maintain the configuration of the fuel in the canister. Burnup also affects the composition and physical configuration of the neutron-absorbing materials arranged around the assemblies within the MPC. Each of these considerations must be evaluated with each fuel design to ensure the long-term performance of the overall cask system with an adequate margin of safety.

Fuel and fuel assembly designs have evolved since each storage cask design was originally certified by the NRC. Contemporary fuel assembly designs now differ in several important respects from the generic designs postulated for the casks' original CoCs. To save costs and reduce worker exposures to radiation, for example, many contemporary assembly designs are optimized for fuel with higher enrichment levels to stay in the reactor's core to “burn,” or fission, a larger fraction of uranium for a longer period. This produces fewer spent fuel assemblies per unit of power generated. It also stretches out the time between re-fuelings, when workers need to remove the reactor's head to load new fuel assemblies, off-load used ones, and rearrange partially-burned assemblies to maintain the efficiency of the overall fuel burnup within the reactor core. To accommodate the changes in fuel enrichment, fuel cladding materials, and fuel assembly materials and configurations, a similar evolution is continuing in MPC componentry, including neutron-absorbing alloys and other materials, so that casks can safely accept evolving fuel designs.

Therefore, the nine amendments to CoC No. 1014, like amendments to other CoCs, each represent an NRC safety finding about the vendor's analysis of proposed measures to adapt the cask to a new fuel design for long-term storage. The nine amendments, and the tenth issued in May 2016, are not the product of trial and error, nor of the incremental application of QA, which must be applied in a safety-graded fashion to all aspects of cask design, fabrication, loading, and deployment.

The NRC made no changes to the rule as a result of this comment.

Comment 2: One commenter asserted that in the absence of actual evidence from operational experience or testing, using computer models to estimate a system's behavior or performance has produced “extreme failures” and “major departures between [the computer model's] predictions and [the system's] actual performance.” These departures, the commenter stated, resulted in a January 2012, radiation release at San Onofre Nuclear Generating Station's (SONGS) Unit 2 that eventually led to its premature retirement.

NRC Response: This comment is not within the scope of this rulemaking, which is limited to the specific revisions proposed in Amendment No. 10 to CoC No. 1014. The commenter does not identify an issue related to any of the specific revisions proposed in Amendment No. 10 to CoC No. 1014. Instead, this comment is about a reactor licensee's computer models for the performance of a reactor system, not the cask vendor's models for the performance of the HI-STORM 100 Cask System at issue in this rulemaking. Different types of computer models are typically validated using different methods. The NRC uses industry accepted practices to evaluate an applicant's computational modeling software for storage casks in accordance with Interim Staff Guidance SFST-ISG-21, “Use of Computational Modeling Software” (ADAMS Accession No. ML061080669). Because Amendment No. 10 does not involve computational modeling for reactor systems, the comment is not within the scope of this rulemaking.

As the commenter pointed out, there was a radiation release to the environment at SONGS in January 2012. This comment too is about an issue beyond the scope of this rulemaking. The commenter can obtain more information about the release, which was well below allowable limits, in Southern California Edison's (SCE) report to the NRC on the incident (ADAMS Accession No. ML12090A153), and a report by the NRC Office of the Inspector General (ADAMS Accession No. ML14276A478).

The NRC made no changes to the rule as a result of this comment.

Comment 3: One commenter stated that the proposed CoC amendment pertains to the same or similar Holtec cask as that to be installed at SONGS, and southern California stakeholders are “extremely disappointed” that SONGS' licensee, SCE, has chosen Holtec's 5/8″ thin metal cask over 14″-to-20″ thick casks that the commenter stated can be inspected in real time to monitor the condition of the spent fuel and measure the depth of stress corrosion cracking.

NRC Response: This comment is not within the scope of this rulemaking, which is limited to the specific revisions proposed in Amendment No. 10 to CoC No. 1014. The commenter does not identify an issue related to any of the specific revisions proposed in Amendment No. 10 to CoC No. 1014, and this rulemaking does not concern SCE's choice of cask products. In addition, the NRC has not approved any spent fuel dry storage cask design that permits the continuous real time inspection or monitoring of the condition of the fuel in the cask, or the continuous or periodic direct measurement of the extent or depth of stress corrosion cracking. Such inspection, monitoring, and measurement cannot be accomplished without the additional worker radiation exposures that would be necessary to open the cask overpack and canister. The NRC's regulation at 10 CFR 20.1101(b), however, requires radiation doses to workers and members of the public to be as low as is reasonably achievable. This makes such additional exposures to open casks and overpacks difficult to justify in light of the very slow rates of degradation in the cask system and its contents that have been measured under realistic conditions in a laboratory.

The commenter's description of Holtec's product as a “5/8″ thin metal cask,” however, compels a response for clarification purposes. The comment appears to conflate the MPC, which is not a cask, with the entirety of the HI-STORM dry cask storage system. The HI-STORM 100 MPC, which has 1/2″ thick stainless steel walls, holds the spent fuel assemblies and their hardware within an overpack. The overpack consists of outer and inner steel walls with the annulus between them filled with concrete. The overpack, with 291/2″ thick concrete and steel walls, provides radiation shielding and mass for stability against such natural phenomena as winds, floods, and earthquakes. The MPC, an internal component of the cask system, is not directly exposed to these outside phenomena.

The NRC made no changes to the rule as a result of this comment.

Comment 4: One commenter stated that the NRC has “mostly `dismissed' multiple credible public safety concerns.” The commenter also noted that SCE's “Community Engagement Panel” has failed to function as an independent advisory panel of experts, and instead “functions more as a promotional extension of [SCE's] marketing and media platforms.”

NRC Response: These comments are not within the scope of this rulemaking, which is limited to the specific revisions proposed in Amendment No. 10 to CoC No. 1014. The commenter did not identify any of the “multiple credible public safety concerns” that the NRC is said to have dismissed. Nor did the commenter explain how any of these concerns pertain to any specific revision proposed in Amendment No. 10 to CoC No. 1014.

The NRC made no changes to the rule as a result of these comments.

Comment 5: One commenter asserted that many stakeholders believe that the NRC has allowed “a utility to improperly apply credit for performing an `educational' function” that has involved, among other things, “extensive private meetings with elected officials in adjacent communities in San Diego and Orange County.”

NRC Response: The comment is not within the scope of this rulemaking, which is limited to the specific revisions proposed in Amendment No. 10 to CoC No. 1014. In addition, the NRC's safety-focused mission does not include authority to allow or prohibit a licensee from engaging in public relations activities, which do not directly relate to the design, fabrication, configuration, loading, or deployment of the dry cask storage system at issue here.

The NRC made no changes to the rule as a result of this comment.

Comment 6: A commenter stated that many stakeholders are asserting that SONGS licensee, SCE, “consistently underestimates” the actual extent of potential public safety risks associated with its decommissioning plan.

NRC Response: The comment is not within the scope of this rulemaking, which is limited to the specific revisions proposed in Amendment No. 10 to CoC No. 1014. The SCE's decommissioning plan does not pertain to the specific revisions proposed in Amendment No. 10 to CoC No. 1014; nor does the comment identify any specific potential public safety risks pertinent to the other purposes of this amendment.

The NRC has a safety hotline that members of the public can use to report any identified public safety risk, such as may be associated with any decommissioning action. The hotline number is 1-800-695-7403. Note that a call during normal business hours (7:00 a.m. to 5:00 p.m., Eastern Time) will automatically be directed to the NRC Regional Office for the caller's geographical area. If the call is placed after normal business hours, or can't be answered by the Regional Office during its normal business hours, the call will be directed to the NRC's Headquarters Operations Center, which is staffed 24 hours a day and has a recorded telephone line.

The NRC made no changes to the rule as a result of this comment.

Comment 7: A commenter stated that the licensee expecting to acquire the Holtec casks subject to Amendment No. 10 for spent fuel storage at SONGS has “severely overestimated performance capabilities of equipment, components and parts, defense in depth, operator training, emergency response capability, system reliability, cost containment, and technical capability to safely implement Aging Management Programs.”

NRC Response: The comment is not within the scope of this rulemaking, which is limited to the specific revisions proposed in Amendment No. 10 to CoC No. 1014. As noted in the response to Comment 6, the NRC has a safety hotline that members of the public can use to report any identified public safety risk.

The NRC made no changes to the rule as a result of this comment.

Comment 8: Noting the “large inventory” of high-burnup fuel (HBF) in storage at SONGS, a commenter stated that stakeholders have “extreme safety concerns” about the accuracy of the predicted service life of the Holtec underground maximum capacity (UMAX) casks containing HBF, which typically has higher heat loads and radiation levels. Among these concerns, the commenter explained, are “thermal tolerance variability, measurement of air velocity, modeling of heat load distribution, performance capability and integrity of fuel cladding.”

This commenter also stated that with the applicant's proposed changes in the composition of alloy material in MPC componentry, stakeholders have concerns about the accuracy of predicted helium pressure limits for the MPC in underground installations where closed loop forced helium dehydration (FHD) is mandatory for drying MPCs with one or more HBF assemblies or a higher heat load.

NRC Response: The comment about HBF storage at SONGS is not within the scope of this rulemaking, which is limited to the specific revisions proposed in Amendment No. 10 to CoC No. 1014. None of these revisions included a change in spent fuel burnup specifications. The comment is about the HI-STORM UMAX Canister Storage system, which was authorized generically for underground emplacement under CoC No. 1040 and approved on March 6, 2015 (80 FR 12073). The SONGS will be utilizing cask systems specified by Amendment No. 1 to CoC No. 1040, not Amendment No. 10 to CoC No. 1014.

The commenter also expressed concerns about the accuracy of predicted helium pressure limits for the MPC where closed loop forced FHD is mandatory for drying MPCs with one or more HBF assemblies or a higher heat load. The comment does not explain the basis for the commenter's concern about the predicted pressure limit for drying. This limit was established to provide an ample safety margin against both inadequate pressure for thorough drying and excessive pressure that could result in damage to the spent fuel or other hardware. To maintain this margin, helium pressure limits are controlled during FHD operations at all times. During FHD drying, the MPC's inlet (drain port) and exit (vent port) each have calibrated pressure-indicating devices that show inlet and outlet pressure during drying operations. Trained operators use the helium regulator in accordance with the site's procedures to ensure that the 75-psi limit is not exceeded.

The NRC made no changes to the rule as a result of this comment.

Comment 9: One stakeholder stated that despite Holtec's unproven assurances about the performance capabilities of its casks, a 2015 Sandia National Laboratory report contained evidence that similar thin-metal casks had through-wall cracks in only 5 years.

NRC Response: The comment is not within the scope of this rulemaking, which is limited to the specific revisions proposed in Amendment No. 10 to CoC No. 1014. The Sandia National Laboratory report referred to by the commenter was for a set of design specifications for a Standardized Transportation, Aging, and Disposal (STAD) canister for eventual emplacement in a geologic repository (ADAMS Accession No. ML16132A321). The NRC could find nothing in this report to support the commenter's assertion that it “contained evidence that similar thin metal casks had through-wall cracks in only 5 years.”

The NRC made no changes to the rule as a result of this comment.

Comment 10: As evidence that Holtec casks are “an inferior choice” for spent fuel storage, one commenter, speaking for “stakeholders in California,” referred the NRC to the Web site “sanonofresafety.org.”

NRC Response: The comment is not within the scope of this rulemaking, which is limited to the specific revisions proposed in Amendment No. 10 to CoC No. 1014 and does not concern SCE's choice of cask products. Beyond the issue of SCE's choice, if the commenter has concerns about prior spent fuel storage cask rulemakings, or other issues beyond the scope of this rulemaking that make Holtec casks “an inferior choice,” the commenter may consider the NRC's process for petitions for rulemaking under 10 CFR 2.802. Additionally, safety concerns about any NRC-regulated activity may be reported to the NRC in accordance with the guidance posted on the NRC's Web site at http://www.nrc.gov/about-nrc/regulatory/allegations/safety-concern.html. This Web page provides information on how to notify the NRC of emergency or non-emergency issues.

The NRC made no changes to the rule as a result of this comment.

Comment 11: One commenter criticized the NRC for giving in to Holtec's corporate lawyers and failing to hold the company responsible for “creating inadequate safety measures within this [cask] design.” The commenter exhorted the NRC to “stop paying for fraud” and force Holtec to “spend [its] own treasure . . ., not tax dollars,” to fix the problem.

NRC Response: This comment does not provide sufficient information to identify the “inadequate safety measures” in the Holtec cask's design that the commenter has in mind. With respect to the concern regarding payment for the NRC's review and oversight, these functions are not performed at taxpayers' expense. The vendor, in this case Holtec, pays for the NRC's evaluation of the application, as the NRC bills the vendor for the review.

The NRC made no changes to the rule as a result of this comment.

Comment 12: A commenter expressed concern that in permitting a cask system to accept additional classes of spent fuel, the NRC does not decrease the ability of these storage systems to contain the fuel under adverse conditions. The commenter wanted to know whether current requirements for the durability of spent fuel storage systems are sufficient to contain these additional fuels, whatever they may be, in the event of a disaster.

NRC Response: The general issue of the durability of spent fuel storage systems to contain additional types of spent fuel in the event of a disaster is not within the scope of this rulemaking, which is limited to the specific revisions proposed in Amendment No. 10 to CoC No. 1014. The NRC is addressing the commenter's concern, however, for educational and clarification purposes.

The NRC addressed a similar comment about the ability of HI-STORM UMAX Canister Storage Systems to withstand seismic events during the CoC No. 1040 certification rulemaking. It should be noted that the certification provided by approval of the HI-STORM 100 Cask System does not, in and of itself, authorize the use of this system at any specific site. Under 10 CFR 72.212(b)(5), before applying the changes authorized by an amended CoC and loading a cask, a general licensee wishing to use this cask system must perform written evaluations in accordance with 10 CFR 72.212 to establish, among other things, that:

• Cask storage pads and areas have been designed to adequately support the static and dynamic loads of the stored casks, considering potential amplification of earthquakes through soil-structure interaction, and soil liquefaction potential or other soil instability due to vibratory ground motion; and

• The independent spent fuel storage installation at the reactor site where the casks will be located will meet the requirements of 10 CFR 72.104 to ensure that radiation doses beyond the reactor's controlled area do not exceed 0.25 mSv (25 mrem) to the whole body, 0.75 mSv (75 mrem) to the thyroid, and 0.25 mSv (25 mrem) to any other critical organ, and are further controlled to a level as low as is reasonably achievable.

The seismic design levels of the HI-STORM 100 Cask System CoC are acceptable for most areas in the continental United States. For locations with potential for seismic activity beyond those analyzed for this system, additional NRC evaluations and certifications may be required before the system may be used in those locations.

Similarly, although the design levels of the HI-STORM 100 Cask System CoC for flooding are also acceptable for most areas in the continental United States—again depending on site-specific analyses—the NRC staff previously evaluated the impacts of flooding during the review of the initial certification for the HI-STORM Flood/Wind (FW) System. In its March 28, 2011, SER for the initial certification of the HI-STORM FW MPC Storage System (see Sections 4.8.2 and 7.3.1 of ADAMS Accession No. ML103020151), the NRC staff considered both full and partial flooding for both the vertical and horizontal positions for the MPC. The NRC staff found that the fully flooded condition would produce the highest reactivity in the spent fuel, and that the fully flooded model for safety evaluations “is acceptable and applicable to all of the assembly configurations that are to be stored in the HI-STORM FW MPC Storage system,” including damaged fuel configurations. In its March 28, 2011, SER, the NRC staff also noted the system's design measures to limit the rise in fuel cladding temperature under the most adverse flood event (one with a water level just high enough to block the MPC overpack's air convection inlet duct). The changes requested in Amendment No. 10 to CoC No. 1014 do not affect the NRC's prior flooding evaluation for the initial certification of this system.

In addition, under 10 CFR 72.212(b)(6), before using the general license, the reactor licensee must review the Safety Analysis Report (SAR) referenced in the CoC or amended CoC and the NRC's SER evaluating the SAR to determine whether the reactor site parameters, including analyses of earthquake intensity, tornado missiles, and flooding, are enveloped by the cask design bases considered in these reports. Like those for seismic activity, the flooding and tornado missile design levels of the HI-STORM 100 Cask System CoC are acceptable for most areas in the continental United States. For locations with potential for flooding or tornado activity beyond those analyzed for this system, additional NRC evaluations and certifications may be required before the system may be used in those locations.

Therefore, the ability of a particular cask system to protect additional spent fuel types against postulated natural disasters is required to be subject to rigorous analyses, both generic and site-specific, before the fuel can be loaded at any given site. If the design basis of the HI-STORM 100 Cask System CoC No. 1014, Amendment No. 10, cannot be shown to envelop a particular site's parameters, Holtec or another vendor would need to obtain NRC certification for another system meeting the design specifications of the subject spent fuel before it could be loaded for dry storage.

The NRC made no changes to the rule as a result of this comment.

Comment 13: One commenter suggested that the NRC was in collusion with the licensee and cited an email exchange between the licensee and a member of the NRC staff as evidence of such collusion.

NRC Response: The NRC disagrees with the comment. In its capacity as a regulator, the NRC regularly engages in discussions with licensees and applicants to facilitate a mutual understanding of the need for any licensing action, as well as the scope and intent of the licensing action. The NRC strives to make as much information as possible, including these interactions, publicly available whenever possible except where legal obligations dictate otherwise, such as for proprietary or security-related sensitive information. (see NRC Management Directive 3.4, “Release of Information to the Public” (ADAMS Accession No. ML080310417)). The email exchange cited by the commenter, which is a publicly available document in ADAMS, is one such example of this type of discussion. The NRC grounds its licensing actions on thorough and documented reviews of technical documents that enable the NRC to reach findings that public health and safety, as well as the common defense and security, will be adequately protected.

The NRC made no changes to the rule as a result of this comment.

Comment 14: One commenter objected to the use of a newer American Society of Mechanical Engineers (ASME) code standard for the manganese content in a carbon steel alloy used in some components of the cask system and one commenter asserted that at the 1.5 percent manganese content in the proposed standard, the steel becomes brittle. Furthermore, the commenter contended, these standards are not specific to the nuclear industry, and cannot compensate for poor design. Therefore, the alloy formula must be tested and specific for this particular design and nuclear spent fuel use.

NRC Response: The NRC disagrees with these comments, and has provided its detailed assessment in the preliminary SER for Amendment No. 10 to CoC No. 1014 (ADAMS Accession No. ML15331A309). The minor change in manganese and carbon content of the proposed alloy has been endorsed by the ASME. This endorsement provides a high level of confidence in the quality and safety of the material for nuclear as well as non-nuclear applications. Any change in an ASME standard must be documented by rigorous testing under carefully controlled conditions. Based on this extensive and peer-reviewed testing, the fact that there is no change to the properties used in the original technical basis for the HI-STORM 100 Cask System CoC, and the fact that none of the safety analyses for this CoC are affected by the minor change in manganese content, the NRC believes that further testing for this specific application is unnecessary.

The proposed increase in manganese content from 1.2 percent to 1.5 percent maintains, if not improves, the toughness properties of the SA-516 Grade 70 steel used in the HI-STORM 100 Cask System overpack. The NRC's preliminary SER for Amendment No. 10 to CoC No. 1014 analyzed this proposed amendment and related Holtec documents and found that there is no change to the material strength, material density, or thermal properties of the SA-516 alloy steel, as indicated in the ASME 2007 and 2010 codes. In order to use the alloy approved in the updated 2007-2010 ASME codes, Holtec was required to request an amendment to use these codes for this alloy because the original HI-STORM 100 Cask System CoC references only the 1995-1997 ASME codes.

The NRC made no changes to the rule as a result of this comment.

Comment 15: A commenter stated that concrete temperature should be properly measured on a continuous basis. The same commenter also stated that each cask should be tested due to possible defects or damage during loading, as well as differences in the types and ages of spent fuel. Because conditions change over time, monitoring should be constant.

NRC Response: The comment is not within the scope of this rulemaking, which is limited to the specific revisions proposed in Amendment No. 10 to CoC No. 1014. The NRC agrees that concrete temperatures are important and should be properly measured, but disagrees that continuous measurement of these temperatures and constant monitoring are needed. Continuous measurement and constant monitoring of temperatures are unnecessary in an operating environment of very gradual temperature changes. Revision 1 of NUREG-1536, “Standard Review Plan for Spent Fuel Dry Storage Systems at a General License Facility” (ADAMS Accession No. ML101040620), notes that for storage systems with internal air flow passages, the NRC has accepted periodic visual inspection of vents coupled with temperature measurements to verify proper thermal performance and detect flow blockages. The inspections are to take place within an interval that will allow sufficient time for corrective actions to be taken before the limiting accident temperature for spent fuel cladding is reached. The inspection interval should be more frequent than the time interval required for the fuel to heat up to the established accident temperature criteria, assuming a total blockage of all inlets and outlets.

The NRC made no changes to the rule as a result of this comment.

Comment 16: A commenter contended that all airflow and temperature measurements should be made “constantly . . . not one time only,” and performed “on intake and output and within the annulus and with an up to date measurement device and not an antiquated anemometer.”

NRC Response: The NRC disagrees with these comments. The NRC evaluated the proposed conditions for airflow and temperature measurements in its final SER (ADAMS Accession No. ML003711865) for the initial issuance of CoC No. 1014 in 2000, and did not find that constant temperature measurements were necessary. That SER noted that in addition to the mandatory initial air temperature rise test when the system is first placed in service, the overpack air inlet and outlet vents would be periodically surveyed or an optional overpack air temperature program would be implemented to verify continued operability of the heat removal system. Operating experience with this cask system since that time has given the NRC no reason to change its initial position on the need for constant temperature measurement.

Concerning the commenter's statement about the need for an up-to-date measurement device, the NRC has not specifically required the use of hot-wire anemometer or any other airflow measurement technology. The applicant may propose the use of any technology it believes will measure airflow with sufficient accuracy and reliability. The NRC is not aware of any basis to prohibit the use of hot-wire anemometer technology for measuring airflow or temperature.

The NRC made no changes to the rule as a result of these comments.

Comment 17: The same commenter that provided Comment 16 objected that Holtec and the NRC did not provide adequate information on “other topics,” and that this must be presumed to diminish the safety of the “flimsy” Holtec cask system.

NRC Response: The commenter did not specify any grounds for pronouncing the HI-STORM 100 Cask System flimsy, or any “other topics” for which additional information might be considered adequate.

The NRC made no changes to the rule as a result of this comment.

Comment 18: A commenter contended that “measurements are not supposed to validate methods outside of experiments testing theory,” and that the requirement to “demonstrate” an airflow model with measurements implies “fraudulent” intent to “play with numbers to get what [NRC] and/or Holtec want” to show the safety of the storage cask system.

NRC Response: These comments are not within the scope of this rulemaking, which is limited to the specific revisions proposed in Amendment No. 10 to CoC No. 1014. The NRC also disagrees with these comments. The NRC does not require measurements to validate methods that cannot be tested experimentally. The commenter particularly disapproved of a draft NRC requirement in an email to Holtec (ADAMS Accession No. ML15327A043) in which users of the HI-STORM 100 Cask System would be required to perform a “thermal validation test” to measure the total air mass flow rate through the cask system using direct measurements of air velocity in the inlet vents. The user would then be required to do an analysis of the cask system with these measurements “to demonstrate that the measurements validate the analytic methods” described in Chapter 4 of Holtec's Final Safety Analysis Report (ADAMS Accession No. ML14086A412), supporting its application for CoC No. 1014. The NRC has reason to require a licensee to demonstrate that an analytic method for thermal modeling of airflow through a cask is supported by real-world measurements. In making this demonstration, a licensee could “play with numbers” if it were allowed to measure anywhere it chose, but that is not the case here. The licensee is required to take measurements at NRC-specified locations.

The NRC made no changes to the rule as a result of these comments.

Comment 19: Citing NRC regulations at 10 CFR 72.236, “Specific requirements for spent fuel storage cask approval and fabrication,” one commenter alleged that Holtec violated U.S. law because “the only protection from lethal radiation leaks is the 1/2 inch MPC, whereas `The spent fuel storage cask must be designed to provide redundant sealing of confinement systems.' ”

NRC Response: The comment is not within the scope of this rulemaking, which is limited to the specific revisions proposed in Amendment No. 10 to CoC No. 1014. The NRC also disagrees with this comment. The MPC does provide protection from radiation leaks, but it is not the only protective barrier. Radiation shielding is also provided by the HI-STORM 100 Cask System overpack that is composed of inner and outer steel shells with the annulus between them filled with concrete, which is the primary radiation shielding material. If the commenter was referring only to leakage of radioactive materials from the MPC, however, Section 7.1 of the SER (ADAMS Accession No. ML003711865) for the HI-STORM 100 Cask System confirms the presence of redundant sealing of confinement systems in the canister's design:

The [MPC] confinement boundary includes the MPC shell, the bottom baseplate, the MPC lid (including the vent and drain port cover plates), the MPC closure ring, and the associated welds. . . . The MPC lid (with the vent and drain port cover plates welded to the lid) and closure ring are welded to the upper part of the MPC shell at the loading site. This provides redundant sealing of the confinement boundary. . . . The redundant closures of the MPC satisfy the requirements of 10 CFR 72.236(e) for redundant sealing of confinement systems.

The MPC's confinement design has multiple related purposes. The confinement design ensures that potentially contaminated air is contained within the MPC and that the MPC remains filled with helium coolant, so that the MPC can fulfill a third purpose: to keep outside air from contacting the spent nuclear fuel for the licensed life of the system.

In addition to the redundant barriers to airborne radiation leakage in the design of the HI-STORM 100 MPC and cask system, there are procedural requirements to ensure that the system and its components function in operation as designed. In accordance with the CoC itself (ADAMS Accession No. ML15331A307), the design, purchase, fabrication, assembly, inspection, testing, operation, maintenance, repair, and modification of all structures, systems, and components that are important to safety, both for the MPC and the system as a whole, must be conducted in accordance with a Commission-approved quality assurance program that satisfies the applicable requirements of 10 CFR part 72, subpart G.

The CoC also requires that when the MPC shell is welded to its baseplate, the fabricator must perform a helium leak test of the MPC weld's confinement using a helium mass spectrometer. This weld leakage test must include the base metals of the MPC shell and baseplate. Another helium leak test must be performed on the base metal of the fabricated MPC lid. Then, in the field, a helium leak test must be performed on the vent and drain port confinement welds and cover plate base metal before the loaded MPC can be emplaced within the concrete overpack. All MPC confinement boundary leakage rate tests must be performed in accordance with ANSI N14.5 to “leaktight” criteria. If the user detects a leakage rate exceeding the acceptance criteria, the user must determine the area of leakage and repair it to meet ASME Code Section III, Subsection NB requirements. The affected area must then be re-tested until the leakage rate acceptance criterion is met.

The NRC made no changes to the rule as a result of this comment.

Comment 20: Citing NRC regulations at 10 CFR 72.236, “Specific requirements for spent fuel storage cask approval and fabrication,” a commenter asserted that Holtec violated U.S. law also because its storage cask is not designed to provide adequate heat removal capacity without active cooling systems, and “[t]he refusal to properly test [the cask's heat removal capacity] appears intentional to avoid knowing if it properly removes heat.”

NRC Response: The comment is not within the scope of this rulemaking, which is limited to the specific revisions proposed in Amendment No. 10 to CoC No. 1014. The comment also does not explain how Holtec storage casks are not designed to meet the 10 CFR 72.236 requirement to provide adequate heat removal capacity without active cooling systems. HI-STORM 100 Cask Systems have been deployed at independent spent fuel storage installations for more than a decade without active cooling systems.

The NRC disagrees with the comment. The NRC's preliminary SER evaluated Holtec's supporting thermal analysis for Amendment No. 10 to CoC No. 1014 and found that the HI-STORM 100 Cask System certification “continues to be designed with a heat-removal capability having verifiability and reliability consistent with its importance to safety.” The SER also found that spent fuel cladding continues to be protected against thermal degradation leading to gross ruptures, and other cask component temperatures continue to be maintained below the allowable limits for the accidents evaluated.

There has been no refusal to test the cask system's heat removal capacity. The CoC language has been revised to require CoC No. 1014, Amendment No. 10, users to submit thermal validation test and analysis results in a letter report to the NRC within 180 days of either the user's loading of the first cask or undertaking the first spent fuel transfer operation with a cask fabricated to Amendment No. 10 specifications. The revised condition also states, however, that for casks of the same system type, users may document in their 10 CFR 72.212 report a previously performed test and analysis that has demonstrated adequate validation of the analytic thermal methods. The NRC will evaluate whether this previous test and analysis continues to demonstrate adequate validation of thermal analysis methods in light of the uncertainty of airflow measurements at the previously-specified locations.

The NRC made no changes to the rule as a result of this comment.

Comment 21: One commenter stated that the NRC has violated the Plain Writing Act of 2010 by failing to make the topics associated with this rulemaking clear, and failing to “attach . . . the relevant documents in an orderly, clear manner.”

NRC Response: The NRC disagrees with these comments. The topics associated with this rulemaking must necessarily address the CoC amendments requested by the applicant, and these are by nature highly technical. The March 14, 2016 (81 FR 13265), Federal Register notice of the direct final rule does, however, seek to explain in language as non-technical as possible the practical effects of the amendment requests for the use of the Holtec HI-STORM 100 Cask System under Amendment No. 10 of CoC No. 1014. In general, the NRC strives to write agency documents in a clear, concise, well-organized manner that also follows other best practices appropriate to the subject and the intended audience.

As to the comment that documents relevant to this rulemaking were not “attached . . . in an orderly, clear manner,” the NRC followed its normal process of providing the ADAMS accession numbers to referenced documents so that interested persons may obtain access to the documents. If the commenter was referring instead to the table of references provided in the Federal Register notice for the direct final rule, the NRC also disagrees that the relevant documents were not presented in an orderly, clear manner. The order of the references starts with the applicant's amendment request, moves to the proposed revised CoC and TS documents supporting it, and concludes with the NRC's response to these submittals in the form of its SER on the proposed revisions.

The NRC made no changes to the rule as a result of these comments.

Comment 22: One commenter stated that the percentage of the NRC's budget that must be recovered should be recovered in fines and not fees.

NRC Response: The comment is not within the scope of this rulemaking, which is limited to the specific revisions proposed in Amendment No. 10 to CoC No. 1014. Under the Omnibus Budget Reconciliation Act of 1990, as amended, the NRC is required by law to recover 90 percent of its budget through fees for licensing and other actions. Therefore, any change in this requirement can only be achieved by an act of Congress.

The NRC made no changes to the rule as a result of this comment.

In summary, the NRC did not receive any comments that warranted withdrawal of the direct final rule. Therefore, none of these comments required a change in the rule's effective date of May 31, 2016.

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 737-600, -700, -700C, -800, -900 and -900ER series airplanes. The NPRM published in the Federal Register on April 5, 2016 (81 FR 19512) (“the NPRM”). The NPRM was prompted by an evaluation by the DAH indicating that certain fastener locations in the window corner surround structure are subject to WFD. The NPRM proposed to require repetitive HFEC inspections for cracking in certain fastener locations in the window corner surround structure, and repair if necessary. We are issuing this AD to detect and correct fatigue cracking around certain fastener locations that could cause multiple window corner skin cracks, which could result in rapid decompression and consequent loss of structural integrity of the airplane.

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

Boeing and the Airline Pilots Association, International supported the content of the NPRM.

Aviation Partners Boeing stated that accomplishing the supplemental type certificate (STC) ST00830SE does not affect compliance with the actions specified in the NPRM.

We agree with the commenter. We have redesignated paragraph (c) as (c)(1) and added a new paragraph (c)(2) to this AD to state that installation of STC ST00830SE does not affect the ability to accomplish the actions required by this final rule. Therefore, for airplanes on which STC ST00830SE is installed, a “change in product” alternative method of compliance (AMOC) approval request is not necessary to comply with the requirements of 14 CFR 39.17.

Southwest Airlines (SWA) asked for clarification that the Boeing ODA identified in paragraph (i)(3) of the proposed AD can provide an AMOC for any “repair, modification, or alteration” that includes the authority to approve existing repairs in the inspection area that inhibit accomplishment of the AD requirements as terminating action to paragraph (g) of the proposed AD. SWA also asked if the ODA has the authority to provide alternative inspection procedures for repaired areas where the inspection in paragraph (g) of the proposed AD cannot be accomplished. Additionally, SWA asked that we clarify that the Boeing ODA identified in paragraph (i)(3) of the proposed AD is able to issue an AMOC to the proposed AD for an existing repair at the S-14 lap joint (where the location of the repair inhibits accomplishing the initial inspection), provided the repair was approved by any FAA designation authority, and there is a minimum of three fastener rows above and below the lap joint. SWA stated that neither Boeing Alert Service Bulletin 737-53A1351, dated July 8, 2015, nor the NPRM clearly state how to address existing repairs that prevent accomplishment of the inspections specified in paragraph (g) of the proposed AD.

We agree with the commenter that clarification of the extent of the authority of the Boeing ODA is necessary. The Boeing ODA has the authority to evaluate existing repairs and provide alternative inspection programs in the repaired area, including authority to approve alternative inspections as AMOCs if needed.

We infer that SWA is also asking if the Boeing ODA can issue a global AMOC for the referenced repair at the S-14 lap joint. The Boeing ODA does not have the authority to approve global AMOCs. In addition, we have not received any information from Boeing that defines such a repair that would be considered for a global AMOC. If Boeing provides supporting data, we will evaluate the data to determine if that repair and any associated inspections provide an acceptable level of safety for such an AMOC. We have not changed this AD in this regard.

We have determined that the end level effect of the unsafe condition in the NPRM should be changed to more closely match the service information. Therefore, we have changed“. . . reduced structural integrity” to“. . . loss of structural integrity” in the SUMMARY and SUPPLEMENTARY INFORMATION sections and in paragraph (e) of this AD accordingly.

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 Boeing Alert Service Bulletin 737-53A1351, dated July 8, 2015. The service information describes procedures for HFEC inspections and repair for cracking in certain fastener locations in the window corner surround 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 1,528 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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

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

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 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:

On September 16, 2016, we published a temporary deviation entitled “Drawbridge Operation Regulation; James River, Isle of Wight and Newport News, VA” in the Federal Register (81 FR 63700). The temporary deviation concerned allowed the bridge to remain in the closed-to-navigation position to facilitate repairs to the aerial electrical cable connecting the north tower to the south tower. This deviation from the operating regulations was authorized under 33 CFR 117.35.

On September 26, 2016, The Virginia Department of Transportation, that owns and operates the James River Bridge (US17), across the James River, mile 5.0, at Isle of Wight and Newport News, VA, notified the Coast Guard that repairs had been completed on September 24, 2016, and that the temporary deviation was no longer needed.

This document identifies updates to the market dominant and the competitive product lists, which appear as 39 CFR Appendix A to Subpart A of Part 3020—Market Dominant Product List and 39 CFR Appendix B to Subpart A of Part 3020—Competitive Product List, respectively. Publication of the updated product lists in the Federal Register is addressed in the Postal Accountability and Enhancement Act (PAEA) of 2006.

Authorization. The Commission process for periodic publication of updates was established in Docket Nos. MC2010-21 and CP2010-36, Order No. 445, April 22, 2010, at 8.

Changes. The product lists are being updated by publishing replacements in their entirety of 39 CFR Appendix A to Subpart A of Part 3020—Market Dominant Product List and 39 CFR Appendix B to Subpart A of Part 3020—Competitive Product List. The following products are being added, removed, or moved within the product lists:

1. Priority Mail & First-Class Package Service Contract 20 (MC2016-158 and CP2016-229) (Order No. 3414), added July 6, 2016.

2. Priority Mail Contract 228 (MC2016-157 and CP2016-228) (Order No. 3415), added July 6, 2016.

3. Priority Mail Express Contract 38 (MC2016-161 and CP2016-232) (Order No. 3416), added July 7, 2016.

4. Priority Mail Express, Priority Mail & First-Class Package Service Contract 10 (MC2016-160 and CP2016-231) (Order No. 3417), added July 7, 2016.

5. Priority Mail Contract 229 (MC2016-159 and CP2016-230) (Order No. 3418), added July 7, 2016.

6. Priority Mail Contract 214 (MC2016-131 and CP2016-167) (Order No. 3419), added July 8, 2016.

7. Priority Mail Contract 230 (MC2016-162 and CP2016-235) (Order No. 3425), added July 13, 2016.

8. Priority Mail Contract 231 (MC2016-163 and CP2016-236) (Order No. 3426), added July 13, 2016.

9. Priority Mail & First-Class Package Service Contract 21 (MC2016-165 and CP2016-239) (Order No. 3437), added July 19, 2016.

10. Priority Mail Express Contract 39 (MC2016-164 and CP2016-238) (Order No. 3438), added July 19, 2016.

11. Priority Mail & First-Class Package Service Contract 22 (MC2016-166 and CP2016-240) (Order No. 3439), added July 19, 2016.

12. Priority Mail & First-Class Package Service Contract 23 (MC2016-167 and CP2016-241) (Order No. 3440), added July 19, 2016.

13. First-Class Package Service Contract 58 (MC2016-170 and CP2016-248) (Order No. 3452), added August 1, 2016.

14. First-Class Package Service Contract 59 (MC2016-171 and CP2016-249) (Order No. 3453), added August 1, 2016.

15. Priority Mail Express Contract 40 (MC2016-169 and CP2016-247) (Order No. 3454), added August 1, 2016.

16. Priority Mail & First-Class Package Service Contract 24 (MC2016-173 and CP2016-252) (Order No. 3464), added August 15, 2016.

17. Priority Mail & First-Class Package Service Contract 25 (MC2016-174 and CP2016-253) (Order No. 3465), added August 15, 2016.

18. Priority Mail Express & Priority Mail Contract 30 (MC2016-175 and CP2016-254) (Order No. 3466), added August 15, 2016.

19. Inbound Market Dominant Registered Service Agreement 1 (MC2016-168 and R2016-6) (Order No. 3471), added August 17, 2016.

20. Priority Mail & First-Class Package Service Contract 26 (MC2016-177 and CP2016-256) (Order No. 3476), added August 23, 2016.

21. First-Class Package Service Contract 60 (MC2016-176 and CP2016-255) (Order No. 3477), added August 23, 2016.

22. Priority Mail Contract 233 (MC2016-179 and CP2016-258) (Order No. 3478), added August 23, 2016.

23. Priority Mail Express Contract 41 (MC2016-180 and CP2016-259) (Order No. 3479), added August 23, 2016.

24. Priority Mail Contract 234 (MC2016-181 and CP2016-260) (Order No. 3480), added August 23, 2016.

25. Priority Mail Contract 232 (MC2016-178 and CP2016-257) (Order No. 3481), added August 24, 2016.

26. Priority Mail Express & Priority Mail Contract 31 (MC2016-182 and CP2016-262) (Order No. 3483), added August 25, 2016.

27. Priority Mail & First-Class Package Service Contract 27 (MC2016-183 and CP2016-263) (Order No. 3485), added August 25, 2016.

28. Priority Mail & First-Class Package Service Contract 28 (MC2016-184 and CP2016-264) (Order No. 3486), added August 25, 2016.

29. Priority Mail Express & Priority Mail Contract 33 (MC2016-186 and CP2016-267) (Order No. 3503), added September 9, 2016.

30. Priority Mail Express & Priority Mail Contract 32 (MC2016-185 and CP2016-266) (Order No. 3504), added September 9, 2016.

31. Priority Mail Express & Priority Mail Contract 34 (MC2016-187 and CP2016-268) (Order No. 3508), added September 9, 2016.

32. Priority Mail Contract 236 (MC2016-191 and CP2016-274) (Order No. 3512), added September 14, 2016.

33. Priority Mail Contract 237 (MC2016-192 and CP2016-275) (Order No. 3513), added September 14, 2016.

34. Priority Mail & First-Class Package Service Contract 30 (MC2016-189 and CP2016-272) (Order No. 3514), added September 14, 2016.

35. Priority Mail Contract 235 (MC2016-190 and CP2016-273) (Order No. 3515), added September 14, 2016.

36. Priority Mail & First-Class Package Service Contract 29 (MC2016-188 and CP2016-271) (Order No. 3516), added September 14, 2016.

37. Priority Mail Contract 238 (MC2016-193 and CP2016-276) (Order No. 3522), added September 20, 2016.

38. Priority Mail & First-Class Package Service Contract 31 (MC2016-194 and CP2016-277) (Order No. 3523), added September 20, 2016.

39. First-Class Package Service Contract 61 (MC2016-195 and CP2016-278) (Order No. 3524), added September 20, 2016.

40. First-Class Package Service Contract 63 (MC2016-198 and CP2016-282) (Order No. 3529), added September 23, 2016.

41. Priority Mail Contract 239 (MC2016-199 and CP2016-283) (Order No. 3533), added September 23, 2016.

42. First-Class Package Service Contract 62 (MC2016-197 and CP2016-281) (Order No. 3534), added September 23, 2016.

43. Global Expedited Package Services 7 Contracts (MC2016-196 and CP2016-280) (Order No. 3542), added September 27, 2016.

The following negotiated service agreements have expired and are being deleted from the Competitive Product List:

1. Priority Mail Contract 60 (MC2013-54 and CP2013-70) (Order No. 1773).

2. Priority Mail Contract 61 (MC2013-55 and CP2013-73) (Order No. 1790).

3. Priority Mail Contract 62 (MC2013-56 and CP2013-74) (Order No. 1784).

4. Priority Mail Express & Priority Mail Contract 14 (MC2013-58 and CP2013-79) (Order No. 1831).

5. Priority Mail Express & Priority Mail Contract 26 (MC2016-56 and CP2016-71) (Order No. 2990).

6. Parcel Select Contract 5 (MC2012-34 and CP2012-42) (Order No. 1416).

7. Parcel Select Contract 7 (MC2013-59 and CP2013-80) (Order No. 1832).

8. Priority Mail & First-Class Package Service Contract 5 (MC2015-57 and CP2015-85) (Order No. 2560).

The following market test has expired and is being deleted from the Competitive Product List:

1. International Merchandise Return Service Non-Published Rates (MT2013-2) (Order No. 1806).

Updated product lists. The referenced changes to the product lists are incorporated into 39 CFR Appendix A to Subpart A of Part 3020—Market Dominant Product List and 39 CFR Appendix B to Subpart A of Part 3020—Competitive Product List.

For the reasons discussed in the preamble, the Postal Regulatory Commission amends chapter III of title 39 of the Code of Federal Regulations as follows:

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

This action addresses BCAQMD Rule 300, “Open Burning Requirements, Prohibitions and Exemptions” as amended by the district on August 27, 2015 and submitted to the EPA on March 11, 2016 by the California Air Resources Board.

On April 19, 2016, the EPA determined that the submittal for BCAQMD Rule 300 met the completeness criteria in 40 CFR part 51 Appendix V, which must be met before formal EPA review.

The EPA promulgated a limited approval of an earlier version of Rule 300 into the SIP on July 8, 2015 (80 FR 38966). The EPA also simultaneously promulgated a limited disapproval because two provisions in the rule provided discretion to the District Air Pollution Control Officer (APCO) to independently interpret the SIP without explicit and replicable procedures within the rule.

PM, including PM equal to or less than 2.5 microns in diameter (PM2.5) and PM equal to or less than 10 microns in diameter (PM10), contributes to effects that are harmful to human health and the environment, including premature mortality, aggravation of respiratory and cardiovascular disease, decreased lung function, visibility impairment, and damage to vegetation and ecosystems. Section 110(a) of the CAA requires States to submit regulations that control PM emissions.

BCAQMD Rule 300 controls PM emissions by establishing requirements on when and how to conduct various types of open burning activities, including but not limited to agricultural burning, non-agricultural burning (such as land use conversion), and residential burning. The EPA finalized a limited approval of a previous version of this rule because it is largely consistent with applicable CAA requirements. However, the EPA simultaneously promulgated a limited disapproval of the rule for two instances of APCO discretion that did not meet CAA requirements for enforceability. BCAQMD's 2015 rule revision corrects the two deficiencies identified in our previous action. The EPA's technical support document (TSD) has more information about this rule.

SIP rules must be enforceable (see CAA section 110(a)(2)), must not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements (see CAA section 110(l)), and must not modify certain SIP control requirements in nonattainment areas without ensuring equivalent or greater emissions reductions (see CAA section 193).

Generally, SIP rules must implement Reasonably Available Control Measures (RACM) in moderate PM nonattainment areas (see CAA sections 172(c)(1) and 189(a)(1)(C)). BCAQMD regulates the Chico nonattainment area, which was classified as “nonattainment” for the 2006 24-hour PM2.5 NAAQS on November 13, 2009 (74 FR 58688). On September 10, 2013 (78 FR 55225), EPA issued a determination that the area had attained the 2006 24-hour PM2.5 standard based on complete, quality-assured, and certified ambient air monitoring data for the 2010-2012 monitoring period. Under EPA's Clean Data Policy and the regulations that embody it (40 CFR 51.1004(c) for PM2.5), an EPA determination that an area is attaining the relevant standard suspends the area's obligations to submit RACM for as long as the area continues to attain. Therefore, BCAQMD is not currently required to implement RACM for PM2.5. If the Chico nonattainment area is redesignated to attainment, RACM requirements for PM2.5 will no longer apply.

Guidance and policy documents that we use to evaluate enforceability, revision/relaxation and rule stringency requirements for the applicable criteria pollutants include the following:

We believe this rule is consistent with the relevant policy and guidance regarding enforceability and SIP relaxations. The TSD has more information on our evaluation.

The TSD describes additional rule revisions that we recommend for the next time the local agency modifies the rule but are not currently the basis for rule disapproval.

As authorized in section 110(k)(3) of the Act, the EPA is fully approving the submitted rule because we believe it fulfills all relevant requirements.1 This approval remedies both deficiencies identified by our limited approval and limited disapproval action at 80 FR 38966, and therefore terminates the CAA sanction and Federal Implementation Plan clocks triggered by that action. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register, we are simultaneously proposing approval of the same submitted rule. If we receive adverse comments by November 10, 2016, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on December 12, 2016. This will incorporate the rule into the federally enforceable SIP.

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 of the BCAQMD rule described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents available through www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

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

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

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

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

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

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

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

• does not provide 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 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. 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 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 December 12, 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 the 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)).

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

On January 20, 2016, the District of Columbia (the District) through the District of Columbia Department of Energy and Environment submitted a revision to the District's SIP. The SIP revision consists of revisions to the DCMR for sulfur content of fuel oil which is used for combustion. The revisions to the DCMR reduce the sulfur content of fuel oil that can be combusted within the District and prohibit the combustion of certain higher sulfur content fuel oils.

The combustion of fuel oil which contains sulfur leads to emissions of fine particulate matter (PM2.5) and sulfur dioxide (SO2), which is a precursor to PM2.5. In addition, SO2 oxidizes to form sulfates, which are one of the largest contributors to the formation of regional haze. Sulfates cause visibility impairment, also known as regional haze, by the scattering and absorption of sunlight by fine particles. Visibility impairment reduces the clarity, color, and visible distance that one can see. The District asserts these regulations will decrease SO2 emissions in the District from certain fuel combustion sources and therefore strengthen the District's SIP. The reduction to SO2 emissions helps the District to maintain the national ambient air quality standards (NAAQS) for SO2 and PM2.5. Additional SO2 emission reductions and subsequent reductions in sulfates from District sources combusting lower sulfur fuel will assist the District in achieving further reasonable progress towards reducing regional haze. Under section 169A of the CAA, it is a national goal to remedy and prevent regional haze in any Class I areas.1 Section 169A requires states which contain Class I areas and states from which emissions may reasonably be anticipated to cause or contribute to visibility impairment in Class I areas to submit SIP revisions to make reasonable progress toward meeting the national goal (“regional haze SIPs”). The District's regional haze program to address visibility impairment requirements in Class I areas was fully approved into the District's SIP by EPA on February 2, 2012. See 77 FR 5191.2 The District has submitted revised regulations for SIP approval to implement its low sulfur fuel oil program.

The SIP revision consists of revisions to the DCMR Chapters 1, 5, and 8 of Title 20. These revisions to the DCMR reduce the allowable sulfur content of fuel oils that are used in oil-burning combustion units in the District. These revisions require that the sulfur content of number 2 (No. 2) fuel oil be no greater than 500 parts per million (ppm); the sulfur content of No. 4 fuel oil be no greater than 2,500 ppm; and prohibit the use of No. 5 and heavier fuel oils in the District. Additionally, beginning July 1, 2018, the sulfur content of No. 2 fuel can be no greater than 15 ppm. Any fuel oil stored by the ultimate consumer in the District prior to the applicable compliance date may be used after the applicable compliance date. The revisions also include changes to reporting and recordkeeping requirements related to the use and storage of the aforementioned fuel oils. Definitions for terminology which relate to reporting and recordkeeping requirements were added.

The updates to Chapter 1 include amendments to the definitions of American Standards of Testing Materials (ASTM) and distillate oil. The revision to Chapter 5 includes updates to the sampling and testing practices for fuel oils. The amended Chapter 5 regulations require the use of various ASTM methods for the sampling of petroleum; an ASTM standard for the determination of fuel oil grade; and various ASTM methods for the determination of sulfur content in fuel oil. Chapter 8 includes the revised sulfur content for No. 2 and No. 4 fuel oils and prohibits combustion of No. 5 and heavier fuel oils in the District. Chapter 8 also includes the aforementioned compliance provision and definitions related to reporting and recordkeeping requirements.3

By reducing the sulfur in fuel oils, sulfur oxide emissions and PM2.5 emissions will be reduced, which will improve visibility while also helping the District to maintain the NAAQS for SO2 and PM2.5. EPA believes these regulations strengthen the District's SIP. EPA notes that existing provisions and the adoption of a low sulfur fuel oil program in the District will lead to SO2 emission reductions and provide additional SO2 and PM2.5 emission reductions from the District to achieve further reasonable progress towards reducing regional haze in Class I areas which may be impacted by emissions from the District.

EPA is approving revisions to the DCMR Chapters 1, 5, and 8 of Title 20 as meeting the requirements of the CAA in section 110 with limits on sulfur content in fuels to be combusted within the District. EPA is approving the amendments to the District's regulations for fuel oil sulfur limits for combustion units. EPA is publishing this rule without prior proposal because EPA views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on December 12, 2016 without further notice unless EPA receives adverse comment by November 10, 2016. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must 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.

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 DCMR Chapters 1, 5, and 8 of Title 20. Therefore, these materials have been approved by EPA for inclusion in the SIP, 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 of the SIP compilation.4 EPA has made, and will continue to make, these materials generally available through www.regulations.gov and/or at the EPA Region III 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 (Public Law 104-4);

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

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

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

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

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

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 12, 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 action. This action which proposes to approve revisions to the District of Columbia's regulations to lower the sulfur content of fuel oil 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 EPA. This section provides additional information by addressing the following:

EPA is approving revisions into the SIP to include amendments to title 129 of the Nebraska Air Quality Regulations as they apply to chapter 4, “Ambient Air Quality Standards”; chapter 19, “Prevention of Significant Deterioration of Air Quality”; and chapter 22, “Incinerators; Emission Standards”. Chapter 4 is amended making it consistent with the Federal standards found at 40 CFR part 50, in regards to the NAAQS for all six criteria air pollutants, as of July 14, 2014. The amendments submitted on March 6, 2014, make formatting and grammatical corrections to chapters 19 and 22. For additional information on the revisions to chapter 4, 19 and 22 see the detailed discussion table in the docket.

The state submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submittal also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

EPA is approving the state's request submitted on July 14, 2014, to revise the SIP to include revisions to the National Ambient Air Quality Standards for all six criteria pollutants consistent with the Federal standards, as of the date of the state's submittal. Per the state's March 6, 2014, submittal EPA is also approving minor formatting and grammatical corrections to chapters 19 and 22.

We are publishing this direct final rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. EPA does not anticipate adverse comment because the revisions to the existing rules are routine and consistent with the Federal regulations, thereby, strengthening the SIP. However, in the “Proposed Rules” section of this Federal Register, we are publishing a separate document that will serve as the proposed rule to revise title 129 of the Nebraska Air Quality Regulations, chapters 4, 19 and 22 if adverse comments are received on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document. If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. We will address all public comments in any subsequent final rule based on the proposed rule.

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 Nebraska Regulations described in the direct final 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 electronically through www.regulations.gov and at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

Under the Clean Air Act (CAA), the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, 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).

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 December 12, 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 stated in the preamble, EPA amends 40 CFR part 52 as set forth below:

Throughout this document “we,” “us,” and “our” refer to EPA. This section provides additional information by addressing the following:

The submission from Missouri revises 10 CSR 10-6.060, Construction Permits Required, and 10 CSR 10-6.065, Operating Permits. Missouri's revisions increase fees for permitting services provided by the air quality program, including construction permit applications and operating permit applications. Missouri also removed the basic operating permit requirement, under 10 CSR 10-6.065, for incinerators with emissions less than the de minimis levels. While EPA has never approved the basic operating permit program into the Missouri's SIP or Missouri's Operating Permits Program, one statement on incinerators, 10 CSR 6.065(1)(B), in the approved SIP and Operating Permits Program is removed by the submission. This statement applied 10 CSR 10-6.065 to all incinerators within the State. Any Permittees with incinerators already required to have either Intermediate State Operating Permits or part 70 Operating Permits will still have the same permitting requirements. This revision does not exempt any incinerators from appropriate permitting. Likewise, any future permittees with incinerators under the former version of the SIP and Operating Permits Program would have required either an Intermediate State Operating Permits or a part 70 Operating Permits will still have the same permitting requirement under the revised SIP and Operating Permits Program. Finally the submission from Missouri makes non-substantive style changes.

The revisions increase the fees charged for construction and operating permits. After stakeholder outreach, Missouri has increased fees in order to ensure that the department can continue to provide services and to keep the Air program solvent. The De minimis, the Minor, and the Temporary/Pilot construction permit filing fees increased from one hundred dollars ($100) to two hundred fifty dollars ($250). The New Source Review (NSR), the Prevention of Significant Deterioration (PSD), the Hazardous Air Pollutants (HAP), and the Initial Plantwide applicability limit (PAL) construction permit filing fees increased from one hundred dollars ($100) to five thousand dollars ($5,000). The Renewal PAL construction permit filing fee increased from one hundred dollars ($100) to two thousand five hundred dollars ($2,500). The Portable Source Relocation Request construction permit filing fee increased from two hundred dollars ($200) to three hundred dollars ($300). The processing fees for all types of construction permits, except the Portable Source Relocation Request, increased from fifty dollars per hour ($50/hr) to seventy-five dollars per hour ($75/hr). The initial and renewal Intermediate State Operating Permit and part 70 Operating Permit filing fees increased from a flat one hundred dollar ($100) fee to a variable fee based on number of units and additional complexity. The operating permit filing fees have a cap of six thousand dollars ($6,000).

Specifically, revisions in the SIP add new fee tables within the following rule sections:

• 10 CSR 10-6.060(10)—Permit Fees and Amendments;

• 10 CSR 10-6.065(5)—Intermediate State Operating Permits; and

• 10 CSR 10-6.065(6)—Part 70 Operating Permits.

Revisions in the SIP amend the following rules to reference the new fee tables as follows:

• 10 CSR 10-6.060(4)—Portable Equipment;

• 10 CSR 10-6.060(10)(A)—Permit Fees and Amendments; and

• 10 CSR 10-6.060(12)(A)—Appendix A, Permit Review Procedures.

Revision in the SIP remove the blanket applicability of operating permits to incinerators as follows:

• 10 CSR 10-6.065(1)(B)—Applicability, Incinerators.

Revisions in the SIP also make non-substantive style changes throughout.

Details of Missouri's SIP revisions can be found in the Technical Support Document located in this docket.

The initial and renewal Intermediate State Operating Permit and part 70 Operating Permit filing fees increased from a flat one hundred dollar ($100) fee to a variable fee based on number of units and additional complexity. The filing fee has a cap of six thousand dollars ($6,000).

Revisions in part 70 add new fee tables within the following rule sections:

• 10 CSR 10-6.065(5)—Intermediate State Operating Permits; and

• 10 CSR 10-6.065(6)—Part 70 Operating Permits.

Revision in the SIP remove the blanket applicability of operating permits to incinerators as follows:

• 10 CSR 10-6.065(1)(B)—Applicability, Incinerators.

Revisions in the SIP also make non-substantive style changes throughout.

Details of Missouri's part 70 revisions can be found in the Technical Support Document located in this docket.

Missouri's submission indicated that the revisions made to 10 CSR 10-6.065 “include any revisions necessary to retain 112(l) approval under the Clean Air Act.” The John S. Seitz Memo of April 13, 1993, titled “Title V Program Approval Criteria for Section 112 Activities,” provides guidance on revisions to state Title V programs and how they intersect with section 112 requirements. It states, “As for part 70 program revisions, no formal amendment to the initial title V program should typically be needed with respect to section 112 requirements taking effect after the effective date of the program. The State's up-front commitment and demonstrations (i.e., legal authorities and mechanisms to adopt additional section 112 requirements) coupled with EPA's ability to review individual permits and to audit part 70 programs periodically should provide reasonable assurance of adequate State implementation.” The guidance further explains that, “The State, however, remains responsible for maintaining and enhancing as necessary its authority to implement section 112, including any new regulations. In light of the demonstrations and/or commitments required for part 70 approval, the EPA will presume that a State's request for approval of its operating permits program will be an implicit request under section 112(l) for delegation of authority to implement Federally-promulgated section 112 requirements in the same form in which EPA issues them.” Our September 25, 1995, 112(l) delegation to Missouri remains in effect.

The state submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The State of Missouri provided the rule changes for public notice on September 29, 2016. The State of Missouri held a public hearing on the rule changes on October 29, 2016. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained above and in more detail in the technical support document which is part of this docket, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

We are publishing this direct final rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. The Missouri conducted outreach with stakeholders prior to proposing the rule changes; and, conducted public notice on the rule changes. The Missouri received substantive comments on one topic, the fee for PAL renewal. Missouri revised the fee based on those comments. Based on the rulemaking history, we do not anticipate adverse comments. However, in the “Proposed Rules” section of this Federal Register, we are publishing a separate document that will serve as the proposed rule to approve the SIP and Operating Permit Program if adverse comments are received on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document. If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. We will address all public comments in any subsequent final rule based on the proposed rule.

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 Missouri Construction Permit Required Rule, 10 CSR 10-6.060, and Operating Permit Rule, 10 CSR 10-6.065. 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 electronically through www.regulations.gov and at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011). This action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rulemaking will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rulemaking would approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it 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).

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).

This action also does not have Federalism implications because it does 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). Thus Executive Order 13132 does not apply to this action. This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rulemaking also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) because it approves a state rule implementing a Federal standard.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a state submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA when it reviews a state submission, to use VCS in place of a state submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Burden is defined at 5 CFR 1320.3(b).

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 proposed 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 December 12, 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. 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 this 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 final rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, EPA amends 40 CFR parts 52 and 70 as set forth below:

This action presents EPA's most recent decision to list as acceptable several substitutes in the refrigeration and air conditioning and fire suppression and explosion protection sectors. New substitutes are:

• R-448A in retail food refrigeration—refrigerated food processing and dispensing equipment;

• R-449A in retail food refrigeration—refrigerated food processing and dispensing equipment;

• R-449B in several refrigeration end-uses; and

• trans-1-chloro-3,3,3,-trifluoroprop-1-ene in total flooding fire suppression.

For copies of the full list of acceptable substitutes for ozone depleting substances (ODS) in all industrial sectors, visit the SNAP portion of EPA's Ozone Layer Protection Web site at www.epa.gov/snap/substitutes-sector. Substitutes listed as unacceptable; acceptable, subject to narrowed use limits; or acceptable, subject to use conditions are also listed in the appendices to 40 CFR part 82, subpart G.

The sections below discuss each substitute listing in detail. Appendix A contains tables summarizing today's listing decisions for these new substitutes. The statements in the “Further Information” column in the tables provide additional information, but are not legally binding under section 612 of the Clean Air Act (CAA). In addition, the “Further Information” column may not include a comprehensive list of other legal obligations you may need to meet when using the substitute. Although you are not required to follow recommendations in the “Further Information” column of the table to use a substitute consistent with section 612 of the CAA, some of these statements may refer to obligations that are enforceable or binding under federal or state programs other than the SNAP program. In many instances, the information simply refers to standard operating practices in existing industry standards and/or building codes. When using these substitutes, EPA strongly encourages you to apply the information in this column. Many of these recommendations, if adopted, would not require significant changes to existing operating practices.

You can find submissions to EPA for the substitutes listed in this document, as well as other materials supporting the decisions in this action, in Docket EPA-HQ-OAR-2003-0118 at www.regulations.gov.

EPA's decision: EPA finds R-448A acceptable as a substitute for use in:

R-448A, marketed under the trade name Solstice® N-40, is a weighted blend of 26 percent HFC-32, which is also known as difluoromethane (CAS Reg. No. 75-10-5); 26 percent HFC-125, which is also known as 1,1,1,2,2-pentafluoroethane (CAS Reg. No. 354-33-6); 21 percent HFC-134a, which is also known as 1,1,1,2-tetrafluoroethane (CAS Reg. No. 811-97-2); 20 percent HFO-1234yf, which is also known as 2,3,3,3-tetrafluoroprop-1-ene (CAS Reg. No 754-12-1); and 7 percent HFO-1234ze(E), which is also known as trans-1,3,3,3-tetrafluoroprop-1-ene (CAS Reg. No. 29118-24-9).

You may find the redacted submission in Docket EPA-HQ-OAR-2003-0118 at www.regulations.gov under the name, “Solstice® N-40 (R-448A) SNAP Information Notice.” EPA performed assessments to examine the health and environmental risks of this substitute. These assessments are available in Docket EPA-HQ-OAR-2003-0118 under the following name:

EPA previously listed R-448A as an acceptable refrigerant in a number of other refrigeration and air conditioning end-uses (e.g., July, 16, 2015, 80 FR 42053).

Environmental information: R-448A has an ODP of zero. Its components, HFC-32, HFC-125, HFC-134a, HFO-1234yf, and HFO-1234ze(E) have a 100-year integrated global warming potentials (100-yr GWPs) of 675; 3,500; 1,430; one to four; 1 2 and one to six; 3 respectively. If these values are weighted by mass percentage, then R-448A has a GWP of about 1,390. The components of R-448A are excluded from the definition of volatile organic compound (VOC) under CAA regulations (see 40 CFR 51.100(s)) addressing the development of State Implementation Plans (SIPs) to attain and maintain the National Ambient Air Quality Standards (NAAQS). Knowingly venting or releasing this refrigerant blend is limited by the venting prohibition under section 608(c)(2) of the CAA, codified at 40 CFR 82.154(a)(1).

Flammability information: R-448A, as formulated and even considering the worst-case of fractionation for flammability, is not flammable.

Toxicity and exposure data: Potential health effects of exposure to this substitute include drowsiness or dizziness. The substitute may also irritate the skin or eyes or cause frostbite. At sufficiently high concentrations, the substitute may cause irregular heartbeat. The substitute could cause asphyxiation if air is displaced by vapors in a confined space. These potential health effects are common to many refrigerants.

The American Industrial Hygiene Association (AIHA) has established Workplace Environmental Exposure Levels (WEELs) of 1,000 ppm as an 8-hr time-weighted average (TWA) for HFC-32, HFC-125, and HFC-134a; 500 ppm for HFO-1234yf; and 800 ppm for HFO-1234ze(E), the components of R-448A. The manufacturer of R-448A recommends an acceptable exposure limit (AEL) of 890 ppm on an 8-hour TWA for the blend. EPA anticipates that users will be able to meet the AIHA WEELs and manufacturer's AEL, and address potential health risks by following requirements and recommendations in the manufacturer's safety data sheet (SDS), in the American Society for Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE) Standard 15, and other safety precautions common to the refrigeration and air conditioning industry.

Comparison to other substitutes in this end-use: R-448A has an ODP of zero, comparable 4 to or lower than other listed substitutes in this end-use, with ODPs ranging from zero to 0.098.

R-448A's GWP of about 1,390 is comparable to or lower than that of HFC-134a with a GWP of 1,430 and a number of HFC blends in this end-use. R-448A's GWP of about 1,390 is higher than those of some other acceptable substitutes in this end-use, including ammonia vapor compression with a secondary loop, CO2, R-450A, R-513A, and certain blends with GWPs ranging from zero to 920; of these substitutes, ammonia and CO2 are not listed as acceptable for use in retrofit equipment. We note that R-448A has a GWP toward the higher end of the scale of acceptable alternatives in this end-use. This end-use is a subset of retail food refrigeration and in some instances the equipment in this end use has specialized technical requirements that may limit or prevent use of acceptable substitutes with lower GWPs. In this end-use, we are not aware of significant success in the United States using alternatives with GWPs significantly lower than that for R-448A. However, if it is demonstrated in the future that lower GWP alternatives—either those currently listed or new alternatives added to the list in the future—can be used in this end-use, EPA may evaluate whether those alternatives pose lower overall risk than R-448A and other listed substitutes with similar GWPs.

Flammability and toxicity risks are comparable to or lower than flammability and toxicity risks of other available substitutes in the same end-use. Flammability risks are low, as discussed above. Toxicity risks can be minimized by use consistent with the AIHA WEELs, ASHRAE 15 and other industry standards, recommendations in the SDS, and other safety precautions common in the refrigeration and air conditioning industry.

EPA finds R-448A acceptable in the end-use listed above, because the overall environmental and human health risk posed by R-448A is lower than or comparable to the risks posed by other available substitutes in the same end-use.

EPA's decision: EPA finds R-449A acceptable as a substitute for use in:

R-449A, marketed under the trade name Opteon® XP 40, is a weighted blend of 24.3 percent HFC-32, which is also known as difluoromethane (CAS Reg. No. 75-10-5); 24.7 percent HFC-125, which is also known as 1,1,1,2,2-pentafluoroethane (CAS Reg. No. 354-33-6); 25.7 percent HFC-134a, which is also known as 1,1,1,2-tetrafluoroethane (CAS Reg. No. 811-97-2); and 25.3 percent HFO-1234yf, which is also known as 2,3,3,3-tetrafluoroprop-1-ene (CAS Reg. No. 754-12-1).

You may find the redacted submission in Docket EPA-HQ-OAR-2003-0118 at www.regulations.gov under the name, “Opteon® XP 40 (R-449A) SNAP Information Notice.” EPA performed assessments to examine the health and environmental risks of this substitute. These assessments are available in Docket EPA-HQ-OAR-2003-0118 under the following name:

EPA previously listed R-449A as an acceptable refrigerant in a number of other refrigeration and air conditioning end-uses (e.g., July, 16, 2015, 80 FR 42053).

Environmental information: R-449A has an ODP of zero. Its components, HFC-32, HFC-125, HFC-134a, and HFO-1234yf have GWPs of 675; 3,500; 1,430; and one to four,5 respectively. If these values are weighted by mass percentage, then R-449A has a GWP of about 1,400. The components of R-449A are excluded from the definition of VOC under CAA regulations (see 40 CFR 51.100(s)) addressing the development of SIPs to attain and maintain the NAAQS. Knowingly venting or releasing this refrigerant blend is limited by the venting prohibition under section 608(c)(2) of the CAA, codified at 40 CFR 82.154(a)(1).

Flammability information: R-449A, as formulated and even considering the worst-case of fractionation for flammability, is not flammable.

Toxicity and exposure data: Potential health effects of exposure to this substitute include drowsiness or dizziness. The substitute may also irritate the skin or eyes or cause frostbite. At sufficiently high concentrations, the substitute may cause irregular heartbeat. The substitute could cause asphyxiation if air is displaced by vapors in a confined space. These potential health effects are common to many refrigerants.

The AIHA has established WEELs of 1,000 ppm as an 8-hr TWA for HFC-32, HFC-125, and HFC-134a; and 500 ppm for HFO-1234yf, the components of R-449A. The manufacturer of R-449A recommends an AEL of 830 ppm on an 8-hour TWA for the blend. EPA anticipates that users will be able to meet each of the AIHA WEELs and the manufacturer's AEL and address potential health risks by following requirements and recommendations in the SDS, in ASHRAE 15, and other safety precautions common to the refrigeration and air conditioning industry.

Comparison to other substitutes in these end-uses: R-449A has an ODP of zero, comparable 6 to or lower than the other listed substitutes in this end-use, with ODPs ranging from zero to 0.098.

R-449A's GWP of about 1,400 is comparable to or lower than that of HFC-134a with a GWP of 1,430 and a number of HFC blends in this end-use. R-449A's GWP of about 1,400 is higher than those of some other acceptable substitutes in this end-use, including ammonia vapor compression with a secondary loop, CO2, R-450A, R-513A, and certain blends, with GWPs ranging from zero to 920. Ammonia and CO2 are not listed as acceptable for use in retrofit equipment. We note that R-449A has a GWP toward the higher end of the scale of acceptable alternatives in this end-use. This end-use is a subset of retail food refrigeration with equipment that in some instances has specialized technical requirements that may limit or prevent use of acceptable substitutes with lower GWPs. In this end-use, we are not aware of significant success in the United States using alternatives with GWPs significantly lower than that for R-449A. However, if it is demonstrated in the future that lower GWP alternatives—either those currently listed or new alternatives added to the list in the future—can be used in this end-use, EPA may evaluate whether those alternatives pose lower overall risk than R-449A and other listed substitutes with similar GWPs. Flammability and toxicity risks are comparable to or lower than flammability and toxicity risks of other available substitutes in the same end-use. Flammability risks are low, as discussed above. Toxicity risks can be minimized by use consistent with the AIHA WEELs, ASHRAE 15 and other industry standards, recommendations in the SDS, and other safety precautions common in the refrigeration and air conditioning industry.

EPA finds R-449A acceptable in the end-use listed above, because the overall environmental and human health risk posed by R-449A is lower than or comparable to the risks posed by other available substitutes in the same end-use.

EPA's decision: EPA finds R-449B acceptable as a substitute for use in:

R-449B, marketed under the trade name Forane® 449B, is a weighted blend of 25.2 percent HFC-32, which is also known as difluoromethane (CAS Reg. No. 75-10-5); 24.3 percent HFC-125, which is also known as 1,1,1,2,2-pentafluoroethane (CAS Reg. No. 354-33-6); 27.3 percent HFC-134a, which is also known as 1,1,1,2-tetrafluoroethane (CAS Reg. No. 811-97-2); and 23.2 percent HFO-1234yf, which is also known as 2,3,3,3-tetrafluoroprop-1-ene (CAS Reg. No. 754-12-1).

You may find the redacted submission in Docket EPA-HQ-OAR-2003-0118 at www.regulations.gov under the name, “Forane® 449B (R-449B) SNAP Information Notice.” EPA performed assessments to examine the health and environmental risks of this substitute. These assessments are available in Docket EPA-HQ-OAR-2003-0118 under the following names:

Environmental information: R-449B has an ODP of zero. Its components, HFC-32, HFC-125, HFC-134a, and HFO-1234yf have GWPs of 675; 3,500; 1,430; and one to four,7 respectively. If these values are weighted by mass percentage, then R-449B has a GWP of about 1,410. The components of R-449B are excluded from the definition of VOC under CAA regulations (see 40 CFR 51.100(s)) addressing the development of SIPs to attain and maintain the NAAQS. Knowingly venting or releasing this refrigerant blend is limited by the venting prohibition under section 608(c)(2) of the CAA, codified at 40 CFR 82.154(a)(1).

Flammability information: R-449B, as formulated and even considering the worst-case of fractionation for flammability, is not flammable.

Toxicity and exposure data: Potential health effects of exposure to this substitute include drowsiness or dizziness. The substitute may also irritate the skin or eyes or cause frostbite. At sufficiently high concentrations, the substitute may cause irregular heartbeat. The substitute could cause asphyxiation if air is displaced by vapors in a confined space. These potential health effects are common to many refrigerants.

The AIHA has established WEELs of 1,000 ppm as an 8-hr TWA for HFC-32, HFC-125, and HFC-134a; and 500 ppm for HFO-1234yf, the components of R-449B. The manufacturer of R-449B recommends an AEL of 865 ppm on an 8-hour TWA for the blend. EPA anticipates that users will be able to meet each of the AIHA WEELs and the manufacturer's AEL and address potential health risks by following requirements and recommendations in the SDS, in ASHRAE 15, and other safety precautions common to the refrigeration and air conditioning industry.

Comparison to other substitutes in these end-uses: R-449B has an ODP of zero, comparable 8 to or lower than the other listed substitutes in these end-uses, with ODPs ranging from zero to 0.098.

For commercial ice machines, many substitutes listed as acceptable have comparable or higher GWPs than R-449B's GWP of about 1,410, such as HFC-134a, R-404A, R-448A, R-449A, and other HFC refrigerant blends, with GWPs ranging from 1,390 to approximately 3,990; other substitutes listed as acceptable substitutes for commercial ice machines have a lower GWP including ammonia absorption, ammonia vapor compression, Stirling cycle, propane,9 R-450A, and R-513A with GWPs ranging from zero to about 630.

In refrigerated transport, many substitutes listed as acceptable have comparable or higher GWPs than R-449B's GWP of about 1,410, such as HFC-134a, R-404A, R-448A, R-449A, and other HFC refrigerant blends, with GWPs ranging from 1,390 to approximately 3,990; other substitutes listed as acceptable substitutes for refrigerated transport have a lower GWP including R-450A, R-513A, CO2, direct nitrogen expansion, and Stirling cycle, with GWPs ranging from zero to about 630.

R-449B's GWP of about 1,410 is comparable to or lower than that of HFC-134a and a number of HFC and HFC/HFO blends in retail food refrigeration—refrigerated food processing and dispensing equipment. R-449B's GWP of about 1,410 is higher than those of some other acceptable substitutes in new retail food refrigeration—refrigerated food processing and dispensing equipment, including ammonia vapor compression with a secondary loop, CO2, R-450A, R-513A, and certain blends, with GWPs ranging from zero to 920. Ammonia and CO2 are not listed as acceptable for use in retrofit equipment. We note that R-449B has a GWP toward the higher end of the scale of acceptable alternatives in this end-use. This end-use is a subset of retail food refrigeration with equipment that in some instances has specialized technical requirements that may limit or prevent use of acceptable substitutes with lower GWPs. In this end-use, we are not aware of significant success in the United States using alternatives with GWPs significantly lower than that for R-449B. However, if it is demonstrated in the future that lower GWP alternatives—either those currently listed or new alternatives added to the list in the future—can be used in this end-use, EPA may evaluate whether those alternatives pose lower overall risk than R-449B and other listed substitutes with similar GWPs.

R-449B's GWP of about 1,410 is comparable to or lower than a number of other substitutes listed as acceptable in retail food refrigeration—supermarket systems and remote condensing units, including HFC-134a, R-407A, R-448A, R-449A, and other HFC refrigerant blends, with GWPs ranging from 1,390 to approximately 2,110. R-449B's GWP of about 1,410 is higher than the GWP of some other acceptable substitutes in retail food refrigeration-supermarket refrigeration systems and remote condensing units, including CO2, R-450A, and R-513A with GWPs ranging from zero to about 630.

R-449B's GWP of about 1,410 is comparable to the GWP of substitutes listed as acceptable for retail food refrigeration-low-temperature stand-alone equipment, including the HFO/HFC blends R-448A and R-449A with GWPs of 1,390 and 1,400, HFC-134a with a GWP of 1,430, as well as other HFC blends. R-449B's GWP of about 1,410 is higher than the GWP of some other listed substitutes in this end-use, including CO2, propane, isobutane, R-441A, R-450A, and R-513A, with GWPs ranging from one to approximately 630.10 We note that R-449B has a GWP toward the higher end of the scale of acceptable alternatives in the retail food refrigeration—low temperature stand-alone equipment end-use. This end-use is a subset of retail food refrigeration with equipment that in some instances have specialized technical requirements that may limit use of acceptable substitutes with lower GWPs. In this end-use, we are not aware of significant success in the United States using alternatives with GWPs significantly lower than that for R-449B. However, if it is demonstrated in the future that lower GWP alternatives—either those currently listed or new alternatives added to the list in the future—can be used in this end-use, EPA may evaluate whether those alternatives pose lower overall risk than R-449B and other listed substitutes with similar GWPs.

Flammability and toxicity risks are comparable to or lower than flammability and toxicity risks of other available substitutes in the same end-use. Flammability risks are low, as discussed above. Toxicity risks can be minimized by use consistent with the AIHA WEELs, ASHRAE 15 and other industry standards, recommendations in the SDS, and other safety precautions common in the refrigeration and air conditioning industry.

EPA finds R-449B acceptable in the end-uses listed above, because the overall environmental and human health risk posed by R-449B is lower than or comparable to the risks posed by other available substitutes in the same end-uses.

EPA's decision: EPA finds trans-1-chloro-3,3,3-trifluoroprop-1-ene acceptable as a substitute for use in:

Trans-1-chloro-3,3,3-trifluoroprop-1-ene ((E)-1-chloro-3,3,3-trifluoroprop-1-ene, CAS Reg. No. 102687-65-0) is a chlorofluoroalkene marketed under the trade name Solstice® FS for this end-use. Solstice® FS is proposed for use in applications including data centers, telecommunication centers, power plants, manufacturing plants, historical buildings, warehouses, and engine nacelles and auxiliary power units (APUs) aboard aircraft.

You may find the redacted submission in Docket item EPA-HQ-OAR-2003-0118-0285 in Docket EPA-HQ-OAR-2003-0118 at www.regulations.gov. EPA has performed an assessment to examine the health and environmental risks of this substitute. This assessment is available in docket EPA-HQ-OAR-2003-0118 under the name, “Risk Screen on Substitutes for Total Flooding Systems in Normally Occupied and Unoccupied Spaces—Substitute: Trans-1-Chloro-3,3,3,-trifluoroprop-1-ene (Solstice® FS).”

We have previously listed trans-1-chloro-3,3,3-trifluoroprop-1-ene as a refrigerant for use in new equipment in centrifugal chillers and non-mechanical heat transfer, as a foam blowing agent, as a cleaning solvent, as an aerosol solvent, and as a carrier solvent in adhesives coatings, and inks (e.g., August 10, 2012, 77 FR 47768; October 21, 2014, 79 FR 62863).

Environmental information: Solstice® FS has an ODP of 0.00024-0.001512.11 12 13 The submitter indicates that Solstice® FS has a GWP of 4.7-7 and an atmospheric lifetime of approximately 26 days. Solstice® FS is excluded from the definition of VOC under CAA regulations (see 40 CFR 51.100(s)).

Flammability information: Solstice® FS is not flammable.

Toxicity and exposure data: Potential health effects of this substitute include serious eye irritation, skin irritation, and frostbite. It may cause central nervous system effects such as drowsiness and dizziness. The substitute could cause asphyxiation if air is displaced by vapors in a confined space. The potential health effects of Solstice® FS are unlikely to occur when following good industrial hygiene practices and the personnel protective equipment (PPE) and engineering control (e.g., ventilation) recommendations outlined in the Safety Data Sheet (SDS) for Solstice® FS.

To assess potential health risks from exposure to this substitute, EPA considered both occupational and end-user exposure. We evaluated potential risks from chronic occupational exposure, such as during manufacture, installation, and servicing. The AIHA has established a WEEL of 800 ppm for trans-1-chloro-3,3,3,-trifluoroprop-1-ene. The WEEL represents the maximum 8-hour TWA at which a worker can be exposed regularly without adverse effects. The Solstice® FS cylinder filling process utilizes quick coupling devices to transfer the substitute from a storage supply to the agent container, which minimizes agent release and keeps potential exposures to levels significantly below the 8-hour WEEL.

During installation or servicing of Solstice® FS total flooding systems, if the proper instructions on system installation and servicing included in manuals for the Solstice® FS systems and relevant industry standards (i.e., latest edition of the National Fire Protection Association (NFPA) 2001 Standard for Clean Agent Fire Extinguishing Systems and Underwriters' Laboratories (UL) 2166) are adhered to, exposure to the substitute is not likely. In the event of an accidental release of the substitute from the total flooding system, potential acute exposures may be of concern, primarily cardiac sensitization. The manufacturer's maximum design concentration of 6.8 percent covering Class C hazards (energized electrical fires) is significantly below the cardiotoxic NOAEL of 10 percent. Appropriate protective measures should be taken and proper training administered for the manufacture, clean-up and disposal of this product and for the installation and maintenance of the total flooding systems using this product.

NFPA 2001 provides that in the case of accidental release in normally occupied spaces, required engineering controls as specified in NFPA 2001 should be employed to limit personnel exposure to clean agent discharges. Specifically, audible and visual pre-discharge alarms and a 30-60 second time delay should be employed within the protected space to indicate the operation of the system and pending discharge to ensure egress for all personnel prior to activation.

EPA's evaluation indicates that the use of Solstice® FS is not expected to pose a significant toxicity risk to personnel or the general population. In addition, the risks it may pose after exposure are common to many total flooding agents, including those already listed as acceptable under SNAP for this same end-use. EPA evaluated the risks associated with potential exposures to Solstice® FS during production operations as well as in the case of an inadvertent discharge of the system during maintenance activities on the fire extinguishing system. EPA's review of the human health impacts of Solstice® FS, including the summary of available toxicity studies, is in the docket for this action (EPA-HQ-OAR-2003-0118).14

Protective gloves and tightly sealed goggles should be worn for installation and servicing activities, to protect workers in any event of potential discharge of the proposed substitute, accidental or otherwise. Filling or servicing operations should be performed in well-ventilated areas. Toxicity risks can be minimized by use consistent with NFPA 2001 standard, recommendations in the SDS, and other safety precautions common in the fire suppression industry. In the “Further Information” column of the listing for total flooding agents, EPA is providing the following additional information for establishments manufacturing, installing and maintaining equipment using this agent:

• In the case that Solstice® FS is inhaled, person(s) should be immediately removed and exposed to fresh air; if breathing is difficult, person(s) should seek medical attention.

• Eye wash and quick drench facilities should be available. In case of ocular exposure, person(s) should immediately flush the eyes, including under the eyelids, with water for 15 minutes; should frostbite occur, affected areas should be rinsed with lukewarm water, and medical attention should be sought if irritation develops or persists.

• In the case of dermal exposure, the SDS recommends that person(s) should immediately wash the affected area with water and remove all contaminated clothing to avoid irritation; should frostbite occur, bathe (do not rub) the affected area with lukewarm, no hot, water. If water is not available, cover the affected area with a clean soft cloth; and medical attention should be sought if irritation develops or persists.

• Although unlikely, in case of ingestion of Solstice® FS, the person(s) should drink a cup of water, if fully conscious, and consult a physician immediately.

• Manufacturing space should be equipped with engineering controls, specifically an adequate exhaust ventilation system, to effectively mitigate potential occupational exposure.

• Employees responsible for chemical processing should wear the appropriate personnel protective equipment (PPE), such as protective gloves, tightly sealed goggles, protective work clothing, and suitable respiratory protection in case of accidental release or insufficient ventilation.

• All spills should be cleaned up immediately in accordance with good industrial hygiene practices.

• Training for safe handling procedures should be provided to all employees that would be likely to handle containers of the agent or extinguishing units filled with the agent.

• This agent should be used in accordance with the safety guidelines in the latest edition of the NFPA 2001 Standard for Clean Agent Fire Extinguishing Systems.

• Safety features that are typical of total flooding systems such as pre-discharge alarms, time delays, and system abort switches should be provided, as directed by applicable OSHA regulations and NFPA standards.

Comparison to other substitutes in these end-uses: Solstice® FS has an ODP of 0.00024-0.001512 which is comparable to or lower than the ODP of other acceptable total flooding agents with ODPs that range from zero to 0.048. Solstice® FS's GWP of 4.7-7 is significantly lower than that of some of the other alternatives listed as acceptable total flooding agents- such as HFC-227ea, other HFCs, the H-Galden hydrofluoropolyethers, and some HCFC fire suppressants, with GWPs which range from about 1,550 to 14,800. Other acceptable substitutes in this end-use have comparable GWPs ranging from zero to one, such as water, C6-perfluoroketone, and inert gases. Like a number of other acceptable substitutes in this end-use, Solstice® FS is excluded from the definition of VOC under CAA regulations (see 40 CFR 51.100(s).

The toxicity risks due to inhalation exposure are common to many total flooding agents, including those already listed as acceptable under SNAP for this same end-use, such as C6-perfluoroketone. Solstice® FS is nonflammable, as are all other available total flooding agents.

EPA finds Solstice® FS acceptable in the end-use listed above, because the overall environmental and human health risk posed by Solstice® FS is lower than or comparable to the risks posed by other available substitutes in the same end-use.

Section 612 of the CAA requires EPA to develop a program for evaluating alternatives to ozone-depleting substances. EPA refers to this program as the Significant New Alternatives Policy (SNAP) program. The major provisions of section 612 are:

Section 612(c) requires EPA to promulgate rules making it unlawful to replace any class I substance (CFC, halon, carbon tetrachloride, methyl chloroform, methyl bromide, hydrobromofluorocarbon, and chlorobromomethane) or class II substance (HCFC) with any substitute that the Administrator determines may present adverse effects to human health or the environment where the Administrator has identified an alternative that (1) reduces the overall risk to human health and the environment, and (2) is currently or potentially available.

Section 612(c) requires EPA to publish a list of the substitutes unacceptable for specific uses and to publish a corresponding list of acceptable alternatives for specific uses. The list of “acceptable” substitutes is found at www.epa.gov/snap/substitutes-sector and the lists of “unacceptable,” “acceptable subject to use conditions,” and “acceptable subject to narrowed use limits” substitutes are found in the appendices to 40 CFR part 82 subpart G.

Section 612(d) grants the right to any person to petition EPA to add a substance to, or delete a substance from, the lists published in accordance with section 612(c). The Agency has 90 days to grant or deny a petition. Where the Agency grants the petition, EPA must publish the revised lists within an additional six months.

Section 612(e) directs EPA to require any person who produces a chemical substitute for a class I substance to notify the Agency not less than 90 days before new or existing chemicals are introduced into interstate commerce for significant new uses as substitutes for a class I substance. The producer must also provide the Agency with the producer's unpublished health and safety studies on such substitutes.

Section 612(b)(1) states that the Administrator shall seek to maximize the use of federal research facilities and resources to assist users of class I and II substances in identifying and developing alternatives to the use of such substances in key commercial applications.

Section 612(b)(4) requires the Agency to set up a public clearinghouse of alternative chemicals, product substitutes, and alternative manufacturing processes that are available for products and manufacturing processes which use class I and II substances.

On March 18, 1994, EPA published the initial SNAP rule (59 FR 13044) which established the process for administering the SNAP program and issued EPA's first lists identifying acceptable and unacceptable substitutes in the major industrial use sectors (subpart G of 40 CFR part 82). These sectors are the following: Refrigeration and air conditioning; foam blowing; solvents cleaning; fire suppression and explosion protection; sterilants; aerosols; adhesives, coatings and inks; and tobacco expansion. These sectors comprise the principal industrial sectors that historically consumed the largest volumes of ODS.

Section 612 of the CAA requires EPA to list as acceptable those substitutes that do not present a significantly greater risk to human health and the environment as compared with other substitutes that are currently or potentially available.

Under the SNAP regulations, anyone who plans to market or produce a substitute to replace a class I substance or class II substance in one of the eight major industrial use sectors must provide the Agency with notice and the required health and safety information on the substitute at least 90 days before introducing it into interstate commerce for significant new use as an alternative (40 CFR 82.176(a)). While this requirement typically applies to chemical manufacturers as the entity likely to be planning to introduce the substitute into interstate commerce,15 it may also apply to importers, formulators, equipment manufacturers, and end users 16 when they are responsible for introducing a substitute into commerce. The 90-day SNAP review process begins once EPA receives the submission and determines that the submission includes complete and adequate data (40 CFR 82.180(a)). The CAA and the SNAP regulations, 40 CFR 82.174(a), prohibit use of a substitute earlier than 90 days after notice has been provided to the agency.

The Agency has identified four possible decision categories for substitute submissions: Acceptable; acceptable subject to use conditions; acceptable subject to narrowed use limits; and unacceptable (40 CFR 82.180(b)).17 Use conditions and narrowed use limits are both considered “use restrictions” and are explained below. Substitutes that are deemed acceptable without use conditions may be used for all applications within the relevant end-uses within the sector and without limits under SNAP on how they may be used. Substitutes that are acceptable subject to use restrictions may be used only in accordance with those restrictions. Substitutes that are found to be unacceptable may not be used after the date specified in the rulemaking adding such substitute to the list of unacceptable substitutes.18

After reviewing a substitute, the Agency may make a determination that a substitute is acceptable only if certain conditions in the way that the substitute is used are met to minimize risks to human health and the environment. EPA describes such substitutes as “acceptable subject to use conditions.” Entities that use these substitutes without meeting the associated use conditions are in violation of EPA's SNAP regulations (40 CFR 82.174(c)).

For some substitutes, the Agency may permit a narrowed range of use within an end-use or sector. For example, the Agency may limit the use of a substitute to certain end-uses or specific applications within an industry sector. The Agency generally requires a user of a substitute subject to narrowed use limits to demonstrate that no other acceptable substitutes are available for their specific application.19 EPA describes these substitutes as “acceptable subject to narrowed use limits.” A person using a substitute that is acceptable subject to narrowed use limits in applications and end-uses that are not consistent with the narrowed use limit is using the substitute in violation of section 612 of the CAA and EPA's SNAP regulations (40 CFR 82.174(c)).

The section 612 mandate for EPA to prohibit the use of a substitute that may present risk to human health or the environment where a lower risk alternative is available or potentially available 20 provides EPA with the authority to change the listing status of a particular substitute if such a change is justified by new information or changed circumstance.

As described in this document and elsewhere, including the initial SNAP rule published in the Federal Register at 59 FR 13044 on March 18, 1994, the SNAP program evaluates substitutes within a comparative risk framework. The SNAP program compares new substitutes both to the ozone-depleting substances being phased out under the Montreal Protocol on Substances that Deplete the Ozone Layer and the CAA, and to other available or potentially available alternatives for the same end-uses. The environmental and health risk factors that the SNAP program considers include ozone depletion potential, flammability, toxicity, occupational and consumer health and safety, as well as contributions to global warming and other environmental factors. Environmental and human health exposures can vary significantly depending on the particular application of a substitute—and over time, information applicable to a substitute can change. This approach does not imply fundamental tradeoffs with respect to different types of risk, either to the environment or to human health. Over the past twenty years, the menu of substitutes has become much broader and a great deal of new information has been developed on many substitutes. Because the overall goal of the SNAP program is to ensure that substitutes listed as acceptable do not pose significantly greater risk to human health and the environment than other available substitutes, the SNAP criteria should be informed by our current overall understanding of environmental and human health impacts and our experience with and current knowledge about available and potentially available substitutes. Over time, the range of substitutes reviewed by SNAP has changed, and, at the same time, scientific approaches have evolved to more accurately assess the potential environmental and human health impacts of these chemicals and alternative technologies. The Agency publishes its SNAP program decisions in the Federal Register. EPA uses notice-and-comment rulemaking to place any alternative on the list of prohibited substitutes, to list a substitute as acceptable only subject to use conditions or narrowed use limits, or to remove a substitute from either the list of prohibited or acceptable substitutes.

In contrast, EPA publishes “notices of acceptability” or “determinations of acceptability,” to notify the public of substitutes that are deemed acceptable with no restrictions. As described in the preamble to the rule initially implementing the SNAP program (59 FR 13044; March 18, 1994), EPA does not believe that rulemaking procedures are necessary to list alternatives that are acceptable without restrictions because such listings neither impose any sanction nor prevent anyone from using a substitute.

Many SNAP listings include “comments” or “further information” to provide additional information on substitutes. Since this additional information is not part of the regulatory decision, these statements are not binding for use of the substitute under the SNAP program. However, regulatory requirements so listed are binding under other regulatory programs (e.g., worker protection regulations promulgated by OSHA). The “further information” classification does not necessarily include all other legal obligations pertaining to the use of the substitute. While the items listed are not legally binding under the SNAP program, EPA encourages users of substitutes to apply all statements in the “further information” column in their use of these substitutes. In many instances, the information simply refers to sound operating practices that have already been identified in existing industry and/or building codes or standards. Thus many of the statements, if adopted, would not require the affected user to make significant changes in existing operating practices.

For copies of the comprehensive SNAP lists of substitutes or additional information on SNAP, refer to EPA's Ozone Depletion Web site at: www.epa.gov/snap. For more information on the agency's process for administering the SNAP program or criteria for evaluation of substitutes, refer to the initial SNAP rulemaking published March 18, 1994 (59 FR 13044), codified at 40 CFR part 82, subpart G. SNAP decisions and the appropriate Federal Register citations are found at: www.epa.gov/snap/snap-regulations.

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2014-0285 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before December 12, 2016. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2014-0285, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html. Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

In the Federal Register of December 17, 2014 (79 FR 75107) (FRL-9918-90), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 3F8224) by Valent U.S.A., Corporation,1600 Riviera Ave., Suite 200, Walnut Creek, California, 94596. The petition requested that 40 CFR 180 be amended by establishing tolerances for residues of the fungicide mandestrobin, (2-[(2,5-dimethylphenoxy)methyl]-α-methoxy-N-methyl-benzeneacetamide), in or on small fruit vine climbing except fuzzy kiwifruit crop subgroup 13-07F, fruit at 5 parts per million (ppm), juice at 7 ppm, and dried fruit at 10 ppm; low growing berry subgroup 13-07G, fruit at 3 ppm; and rapeseed crop subgroup 20A, seed at 0.6 ppm. That document referenced a summary of the petition prepared by Valent U.S.A. Corporation, the registrant, which is available to the public in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

Based upon review of the data supporting the petition, EPA lowered the requested tolerance levels for grape, raisin. Tolerances for juice and dried fruit are not required. At this time, EPA is not granting a tolerance for rapeseed crop group 20A. The reason for these changes is explained in Unit IV.C.

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

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

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

The main target organs for mandestrobin toxicity in all mammalian species tested are the liver and gall bladder with effects ranging from hepatocyte hypertrophy and increased liver weight (usually considered not adverse in the absence of corroborative hepatic enzyme changes or histopathology) to centrilobular degeneration, hepatocyte and bile duct pigmentation, periductular inflammation and gall stones. Dogs were more sensitive to the adverse liver effects than rats; mice showed only non-adverse liver effects.

Thyroid effects were observed in rats (increased weight, follicular cell hypertrophy, decreased serum hormone levels) at higher doses than early signs of liver effects suggesting that effects in the thyroid may be secondary to liver effects.

Gonadal effects were observed at higher doses than the liver effects, and were more evident in dogs (immature prostate and/or testes, low sperm count, immature ovaries, decrease uterus weight) but equivocal and/or not adverse in rats. Gonadal effects did not affect the reproductive capacity of rats.

No developmental effects were observed in rats or rabbits, and no adverse reproductive, immunotoxic, or neurotoxic effects were observed in any of the studies. No adverse effects were seen in a route-specific dermal toxicity study. Mutagenicity studies were negative. There is no evidence of carcinogenicity because there was no increase in tumor incidence in rat and mouse long-term studies. The Agency classified mandestrobin as “not likely to be a human carcinogen”.

Specific information on the studies received and the nature of the toxic effects caused by mandestrobin as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in: Mandestrobin. Human Health Risk Assessment for Proposed Foliar Uses on Small Fruit Vine Climbing (Except Fuzzy Kiwifruit) (Subgroup 13-07F), Low Growing Berry (Subgroup 13-07G) (Except Cranberry), Turf, and Seed Treatment Uses on Corn (Field, Pop, Sweet), Sorghum Grain (Milo), and Legume Vegetables (Crop Group 6C) (Except Cowpea and Field Pea) at page 18 in docket ID number EPA-HQ-OPP-2014-0285.

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

A summary of the toxicological endpoints for mandestrobin used for human risk assessment is shown in Table 1.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to mandestrobin, EPA considered exposure from the petitioned-for tolerances only as there are no existing mandestrobin tolerances. EPA assessed dietary exposures from mandestrobin in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. No such effects were identified in the toxicological studies for mandestrobin; therefore, a quantitative acute dietary exposure assessment is unnecessary.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the U.S. Department of Agriculture's (USDA's) National Health and Nutrition Examination Survey, What We Eat in America, (NHANES/WWEIA). As to residue levels in food, EPA assumed tolerance-level residues, 100 percent crops treated (PCT), and default processing factors for all proposed commodities.

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

iv. Anticipated residue and PCT information. EPA did not use anticipated residue or PCT information in the dietary assessment for mandestrobin. Tolerance-level residues and 100 PCT were assumed for all food commodities.

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

Based on the First Index Reservoir Screening Tool (FIRST) and Pesticide Root Zone Model Ground Water (PRZM GW), the estimated drinking water concentrations (EDWCs) of mandestrobin for chronic exposures for non-cancer assessments are estimated to be 38 parts per billion (ppb) for surface water and 3.9 ppb for ground water.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For chronic dietary risk assessment, the water concentration of value 38 ppb was used to assess the contribution to drinking water.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Mandestrobin is currently proposed for use on turf at golf courses, sod farms, recreational/athletic fields, and residential/commercial lawns. EPA assessed residential exposure using the following scenarios. For residential handlers, the worst-case scenario was determined to be short-term inhalation exposures to adults from mixing, loading, and applying mandestrobin to turf. For post-application exposures, the worst-case scenario was determined to be short-term post-application incidental oral exposure to children from hand-to-mouth activities on turf. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/standard-operating-procedures-residential-pesticide.

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

EPA has not found mandestrobin to share a common mechanism of toxicity with any other substances, and mandestrobin does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that mandestrobin does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides.

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

2. Prenatal and postnatal sensitivity. There is no evidence of sensitivity/susceptibility in the offspring following mandestrobin exposure, including developmental toxicity studies in rats and rabbits, and a 2-generation reproductive study in rats. Although pup weights were decreased in the rat reproductive study, this change was observed at the same dose as maternal liver effects, which included periportal/bile duct pigment, periductular inflammatory cell infiltration, and bile duct proliferation.

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

i. The toxicity database for the mandestrobin tolerances being established is complete.

ii. There is no indication that mandestrobin is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.

iii. There is no evidence that mandestrobin results in increased susceptibility in in utero rats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study.

iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to mandestrobin in drinking water. EPA used similarly conservative assumptions to assess post-application exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by mandestrobin.

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

1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. No adverse effect resulting from a single oral exposure was identified and no acute dietary endpoint was selected. Therefore, mandestrobin is not expected to pose an acute risk.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to mandestrobin from food and water will utilize 2.6% of the cPAD for children 1-2 years old, the population group receiving the greatest exposure. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of mandestrobin is not expected.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Mandestrobin could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to mandestrobin.

Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 19,000 for adults and 2,900 for children 1-2 years old. Because EPA's level of concern for mandestrobin is a MOE of 100 or below, these MOEs are not of concern.

4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Since the short-and intermediate-term PODs are the same and short-term exposure estimates are greater than their intermediate-term counterparts, the short-term aggregate risk assessment is protective of the intermediate-term aggregate exposure. Therefore a separate intermediate-term aggregate assessment is not necessary.

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

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

Adequate enforcement methodology (RM-48C-2A, which uses high performance liquid chromatography with tandem mass spectrometry (HPLC/MS-MS)) is available to enforce the tolerance expression.

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

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

The Codex has not established a MRL for mandestrobin.

Based on an analysis of residue levels from crop field trials, EPA is establishing a tolerance for grape, raisin at 7 ppm, rather than the requested level of 10 ppm. The highest average field trial (HAFT) for grape and the processing factor for raisins supports a 7 ppm tolerance.

The petitioner requested tolerances for juice and dried fruit covered under crop subgroup 13-07F, small fruit. The available processing data for grape, the representative commodity for subgroup 13-07F, indicates that residues in juice will be covered by the tolerance being established for subgroup 13-07F. At this time, the Agency is not aware of any dried commodities derived from crops in subgroup 13-07F other than raisin, for which the Agency is establishing a separate tolerance, as indicated in the paragraph above.

After the petitioner submitted its petition for tolerances on subgroup 13-07G, it withdrew its request to include cranberry; therefore, the Agency is only establishing tolerances for subgroup 13-07G, except cranberry.

At this time, EPA is not establishing a tolerance for rapeseed subgroup 20A. The full three year freezer storage stability data (OPPTS guideline number 860.1380) for crop field trial data are needed to support tolerances. These data are required since samples from crop field trials are often stored for a number of years prior to analysis. Therefore, it is a requirement to ensure that the residues that are found multiple years later are actually representative of the residues that would be found on the day of harvest. This ensures that the Agency has set a tolerance high enough to cover residues expected in/on the commodity of interest. Accordingly, EPA has not made a determination with regard to this petitioned-for tolerance at this time.

Therefore, tolerances are established for residues of mandestrobin, 2-[(2,5-dimethylphenoxy)methyl]-α-methoxy-N-methylbenzeneacetamide, in or on berry, low growing, subgroup 13-07G, except cranberry at 3.0 ppm; fruit, small vine climbing, except fuzzy kiwifruit, subgroup 13-07F at 5.0 ppm; grape, raisin at 7.0 ppm.

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

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

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

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

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

This document contains: (1) A final rule to remove Solidago albopilosa from the Federal List of Endangered and Threatened Plants at 50 CFR 17.12(h); and (2) a notice of availability of a final PDM plan.

Species addressed—Solidago albopilosa (white-haired goldenrod) is an upright, herbaceous plant with soft, white hairs covering its leaves and stems (Andreasen and Eshbaugh 1973, p. 123). The species produces clusters of small, fragrant, yellow flowers from September to November. S. albopilosa is restricted to sandstone rock shelters or rocky ledges of a highly dissected region known as the Red River Gorge in Menifee, Powell, and Wolfe Counties, KY.

The Service listed Solidago albopilosa as a threatened species under the Endangered Species Act of 1973, as amended (Act; 16 U.S.C. 1531 et seq.), primarily because of its limited range and threats associated with ground disturbance and trampling caused by unlawful archaeological activities and recreational activities such as camping, hiking, and rock climbing (53 FR 11612, April 7, 1988). Other identified threats included the inadequacy of regulatory mechanisms and minor vegetational changes in the surrounding forest.

When the recovery plan for S. albopilosa (white-haired goldenrod) (Recovery Plan) was completed in 1993, the Service knew of 90 extant occurrences of S. albopilosa (Service 1993, p. 2), containing an estimated 45,000 stems (each individual plant can have multiple stems (or branches); stem counts have been the focus of most survey efforts, rather than the number of individual plants, which is often not discernable) (Service 1993, p. 2). The Recovery Plan defined an occurrence as a “discrete group of plants beneath a single rock shelter or on a single rock ledge.” All of these locations were situated within the proclamation boundary of the Daniel Boone National Forest (DBNF), and 69 occurrences (77 percent) were in Federal ownership.

Currently, 117 extant occurrences of S. albopilosa are known, containing an estimated 174,000 stems. All extant occurrences continue to be located within the proclamation boundary of the DBNF, and 111 occurrences (95 percent) are in Federal ownership and receive management and protection through DBNF's Land and Resource Management Plan (LRMP) (U.S. Forest Service (USFS) 2004, pp. 1.1-1.10). We consider 81 of the extant occurrences (69 percent) to be stable, meaning no change has been detected in their general rank or status over the last 12 years. We consider 46 of the 81 stable occurrences to be adequately protected and self-sustaining as defined by the Recovery Plan, and these occurrences account for approximately 131,000 stems, or about 75 percent of the species' total number.

Over the past 12 years, the Service has worked closely with the Kentucky State Nature Preserves Commission (KSNPC) and DBNF on the management and protection of the species. Management activities have included trail diversion (away from S. albopilosa occurrences), installation of protective fencing, and placement of informational signs in rock shelters, along trails, and at trailheads. These activities and other management actions included in the DBNF's LRMP (USFS 2004, pp. 3.5-3.8) have assisted in recovery of the species. Furthermore, a new cooperative management agreement among the Service, DBNF, and KSNPC, which was signed on August 29, 2016, will assist in the long-term protection of the species.

Considering the number of stable, self-sustaining, protected occurrences, the management and protection of habitats provided by DBNF's LRMP and the new cooperative management agreement, and the lack of significant threats to the species or its habitats, we conclude that Solidago albopilosa no longer meets the definition of a threatened species under the Act.

Purpose of the Regulatory Action—The purpose of this action is to remove Solidago albopilosa from the Federal List of Endangered and Threatened Plants, based on the reduction or removal of threats.

Basis for the Regulatory Action—Under the Act, we may determine that a species is an endangered or threatened species because of one or more of the five factors described in section 4(a)(1) of the Act. We must consider the same factors in removing a species from the List (delisting). Further, we may delist a species if the best scientific and commercial data indicate the species is neither a threatened species nor an endangered species for one or more of the following reasons: (1) the species is extinct; (2) the species has recovered and is no longer threatened or endangered; or (3) the original scientific data used at the time the species was classified were in error. Here, in addition to the application of the five factors, we are delisting the species based on recovery.

We reviewed the best available scientific and commercial information pertaining to the five threat factors for white-haired goldenrod. All 4 peer reviewers and 7 of 10 public commenters supported the proposed action to delist white-haired goldenrod. Our results are summarized as follows:

• We consider Solidago albopilosa to be recovered because all substantial threats to this species have been eliminated or reduced and adequate regulatory mechanisms exist.

• The species has met all recovery criteria as outlined in the Recovery Plan (there is a sufficient number of distinct, stable, self-sustaining, and adequately protected occurrences).

Please refer to the proposed rule to remove Solidago albopilosa from the Federal List of Endangered and Threatened Plants (80 FR 52717, September 1, 2015) for a detailed description of previous Federal actions concerning this species. We reopened the comment period for the proposed rule on February 26, 2016 (81 FR 9798), in order to conduct peer review and provide interested parties an additional opportunity to comment on the proposed rule and draft post-delisting monitoring plan. We requested that all interested parties submit written comments by March 28, 2016.

It is our intent to discuss in this final rule only those topics directly relevant to the removal of Solidago albopilosa from the Federal List of Endangered and Threatened Plants.

The following section contains information updated from that presented in the proposed rule.

Species Description and Life History—Solidago albopilosa (Braun 1942) is an upright to slightly arching, herbaceous, perennial plant that attains a height of 30 to 100 centimeters (12 to 39 inches). The species is commonly multi-stemmed because it produces rhizomes (horizontal, usually underground stems) that often root below and produce new stems above. Because of this, the number of plants at a single site is often not discernable from above ground stem distributions. The long, soft, white hairs that cover the leaves and stems are the species' most distinguishing characteristic (Andreasen and Eshbaugh 1973, p. 123). The alternate leaves of S. albopilosa are widest at their base and are prominently veined with a dark-green upper surface and a pale underside. They vary in length from 6 to 10 centimeters (2.5 to 4.0 inches), with the larger leaves closer to the base of the stem. Hairs cover both surfaces of the leaves and are most dense along the veins. The stem is cylindrical and densely covered with fine white hairs. Axillary (positioned along the main axis of the plant) clusters of small, fragrant, yellow flowers begin blooming in late August. The flower heads are composed of three to five ray florets (small flowers in the marginal part of the flower head) and more than 15 disk florets (small flowers in the central part of the flower head). The ray florets are about 6 mm long (0.24 inch), and the disk flowers are about 3 mm long (0.12 inch). The pale-brown, pubescent, oblong achenes (dry single-seed fruits) appear in October (Braun 1942, pp. 1-4; Andreasen and Eshbaugh 1973, p. 123; Service 1993, p. 1).

Solidago albopilosa flowers from September through November and sets fruit in mid-October through December. The flowers are visited by bees (Families Apidae and Halictidae), moths (Order Lepidoptera), and syrphid flies (Family Syrphidae), which are likely attracted by the fragrant, yellow flowers (Braun 1942, pp. 1-4; Service 1993, p. 6). Viability of the species' pollen is reported to be high (Andreason and Eshbaugh 1973, pp. 129-130). Seeds are most likely dispersed by wind, but germination rates and the extent of vegetative reproduction in the wild are unknown (Service 1993, p. 6). Seedlings are observed frequently in the wild, but the percentage of seeds that germinate in the wild is unknown (Taylor 2016, U.S. Forest Service, pers. comm.). Germination of seed collected from the wild has high viability in the laboratory (near 100 percent), and plants grow readily from seed (Taylor 2016, pers. comm.).

Braun (1942, pp. 1-4) described S. albopilosa based on specimens discovered in the summer of 1940 in the Red River Gorge area of Menifee County, KY. S. albopilosa is in the family Asteraceae, and there are no synonyms for the species. Andreasen and Eshbaugh (1973, pp. 126-128) studied variation among four separate occurrences (populations) of S. albopilosa in Menifee and Powell Counties. Their population analysis of characteristics such as plant height, leaf length and width, stem pubescence, and number of ray flowers per head showed that some morphological characteristics (e.g., plant height, leaf shape and size, stem pubescence) can vary widely between populations.

Solidago albopilosa can be distinguished from its closest relative, S. flexicaulis (broad-leaf goldenrod), by its shorter height, smaller and thinner leaves, and generally downy (hairy) appearance (the leaves of S. flexicaulis have a slick, smooth appearance) (Medley 1980, p. 6). The two species also differ in habitat preference. S. albopilosa is restricted to sandstone rock shelters or ledges, while S. flexicaulis is a woodland species that occurs on the forest floor. Esselman and Crawford (1997, pp. 245-256) used molecular and morphological analyses to examine the relationship between S. albopilosa and S. flexicaulis. They concluded that S. albopilosa is most closely related to S. flexicaulis; however, there was no evidence that either S. flexicaulis or S. caesia (wreath or blue-stemmed goldenrod) is a parent or has a recent close relationship with S. albopilosa as was previously speculated by Braun (1942, pp. 1-4). Esselman and Crawford (1997, pp. 245-256) also examined genetic diversity within the species S. albopilosa (using Random Amplified Polymorphic DNA and isozyme markers) and reported genetic variation both within and between populations (genetic diversity is widely spread among populations, and populations are not very genetically homogenous). The highest level of genetic diversity was observed among (across) versus within populations. Consequently, Esselman and Crawford (1997, pp. 245-256) recommended that conservation efforts include the maintenance of as many populations as possible to capture the full genetic diversity of the species.

Solidago albopilosa is restricted to outcroppings of Pottsville sandstone in a rugged, highly dissected area known as the Red River Gorge in Menifee, Powell, and Wolfe Counties, KY (Service 1993, p. 2; White and Drozda 2006, p. 124). The Red River Gorge is well known for its scenic beauty and outdoor recreational opportunities, and much of the area is located within the DBNF, an approximate 2,860-km2 (706,000-acre) area in eastern Kentucky that is managed by the U.S. Forest Service (White and Drozda 2006, p. 124). The Red River Gorge lies within the Northern Forested Plateau Escarpment of the Western Allegheny Plateau ecoregion (Woods et al. 2002, p. 1). The hills and ridges of this region are characterized as rugged and highly dissected, with erosion-resistant, Pennsylvanian quartzose sandstone (contains 90 percent quartz) capping the ridges and exposed layers of Mississippian limestone, shale, and siltstone on lower slopes and in the valleys.

Solidago albopilosa occurs on the floors of sandstone rock shelters (natural, shallow, cave-like formations) and on sheltered cliffs (cliffs with overhanging ledges) at elevations between 243 and 396 m (800 and 1,300 ft) (Andreasen and Eshbaugh 1973; Service 1993, p. 5). The species may also be found on ledges or vertical walls of these habitats, but, regardless of the specific location, S. albopilosa is restricted to areas of partial shade behind the dripline (53 FR 11612; April 7, 1988) and typically does not grow in the deepest part of rock shelters (Harker et al. 1981, p. 4). Campbell et al. (1989, p. 40) noted that this plant species is known from all possible moisture regimes and aspects in these habitats, but plants on northern exposures appeared to be smaller than average. Seven of nine occurrences examined by Nieves and Day (2014, pp. 8-9) were located in easterly or northerly facing shelters, which receive minimal direct sunlight. Nieves and Day examined only a small percentage of the species' 117 known occurrences (8 percent), so further study is required to determine the importance of the solar aspect on the species' biology and distribution. Ten rock shelter habitats examined by Nieves and Day (2014, p. 7) were significantly cooler and more humid than the surrounding environment (areas outside and above the rock shelter), but the species' requirements with respect to air temperature and relative humidity are unknown.

Typical herbaceous associates of this plant include roundleaf catchfly (Silene rotundifolia) and alumroot (Heuchera parviflora) and less commonly white baneberry (Actaea pacypoda), maidenhair fern (Adiantum pedatum), fourleaf yam (Dioscorea quaternata), intermediate woodfern (Dryopteris intermedia), Indian cucumber-root (Medeola virginiana), Japanese stilt grass (Microstegium vimineum; invasive, non-native), Christmas fern (Polystichum acrostichoides), rhododendron (Rhododendron maximum), and little mountain meadow-rue (Thalicturm mirabile) (Braun 1942, pp. 1-4; Andreason and Eshbaugh 1973, p. 128; Kral 1983, p. 1253; Campbell et al. 1989, p. 40; White and Drozda 2006, p. 124). Associated woody species of the mixed mesophytic forest adjacent to S. albopilosa occurrences include red maple (Acer rubrum), sugar maple (Acer saccharum), American beech (Fagus grandifolia), American holly (Ilex opaca), mountain laurel (Kalmia latifolia), tulip poplar (Liriodendron tulipifera), bigleaf magnolia (Magnolia macrophylla), umbrella magnolia (M. tripetala), black gum (Nyssa sylvatica), oaks (Quercus spp.), basswood (Tilia americana), and eastern hemlock (Tsuga canadensis) (Andreason and Eshbaugh 1973, p. 128; Kral 1983, p. 1253; Campbell et al. 1989, p. 40).

When the Recovery Plan was completed in 1993, 90 extant occurrences were known (Service 1993, p. 2), containing an estimated 45,000 stems (Service 1993, p. 2). All of these locations were situated within the proclamation boundary of the DBNF, and 69 occurrences (approximately 76 percent) were located on Federal lands. The remaining occurrences (21) were located on private property. Rather than try to determine what constituted a population, the Recovery Plan (Service 1993, p. 1) used “occurrence,” defining it as a “discrete group of plants beneath a single rock shelter or on a single rock ledge.” In making this definition, the Service (1993, p. 6) explained that pollinators (bees and syrphid flies) likely carried pollen between rock shelters and may even move between adjacent ravines. If there were sufficient gene flow between occurrences via pollinators, clusters of nearby rock shelters or adjacent ravines could comprise a population. However, without additional research, it was impossible to determine the species' actual population boundaries.

Subsequently, the KSNPC completed surveys in 1996, 1999, 2002, 2004, and 2005 (White and Drozda 2006, pp. 124-128; KSNPC 2010, p. 4), and these surveys documented an increase in the number of S. albopilosa occurrences from 90 to 141. Despite the increased number of occurrences, the total range of S. albopilosa did not increase significantly as it was still restricted to the same general area within the Red River Gorge. KSNPC (2010, pp. 4-8) completed the first range-wide survey during the 2008 and 2009 field seasons. During this 2-year period, KSNPC ranked each occurrence based on population size and viability, habitat condition, and degree of threat. KSNPC also evaluated the stability of each occurrence by comparing their 2008-2009 survey data with data collected in previous years. The following specifications were used to rank the occurrences (KSNPC 2010, p. 21):

A (excellent estimated viability): 2,500 or more stems in habitat with low degree of recreational impact or a minimum of 4,000 stems where the degree of recreational impact is medium or high.

B (good estimated viability): 1,000 to 2,499 stems and some areas of habitat with a low degree of recreational impact or higher numbers of stems (2,500 to 4,000) at sites where the degree of recreational impact is medium or high.

C (fair estimated viability): 300 to 999 stems where recreational impacts are low or higher numbers of stems (1,000 to 2,000) at sites affected by a medium or high degree of recreational impact; may also include sites with little opportunity for habitat recovery or population expansion.

D (poor estimated viability): fewer than 300 stems in any habitat.

H (historical): taxon or natural community has not been reliably reported in Kentucky since 1990 but is not considered extinct or extirpated.

X (extirpated): A taxon for which habitat loss has been pervasive and/or concerted efforts by knowledgeable biologists to collect or observe specimens within appropriate habitats have failed.

F (failed to find): occurrence not located in current survey; original mapping may be in wrong location.

During their 2-year range wide survey, KSNPC (2010, p. 6) documented a total of 116 extant occurrences, producing ranks with the following categorical results: A-rank (11 occurrences), B (26), C (25), and D (54) (see table 1). The remaining 25 occurrences were considered to be historical, extirpated, or could not be relocated (failed to find). The goldenrod's range has been searched extensively by KSNPC and of the 116 extant occurrences, only 6 were located on private land, with the remainder located on the DBNF. There is limited private ownership in the area where this plant occurs and the species' habitat as described above has only been located in a few privately-owned occurrences and nowhere else that has been surveyed. For all extant occurrences, 79 (68 percent) were considered to be stable, including ranks of A (10 occurrences), B (21), C (18), and D (30). Stability was estimated through comparisons of historical and more recent survey data. Occurrences were considered “stable” if no change was detected in their general rank/status over the course of monitoring, stem numbers increased over the course of monitoring, and/or slight decreases in stem numbers could be attributed to natural climatic variation. Ranks were based on population size and perceived viability, habitat condition, and degree of threat. For all stable occurrences, KSNPC reported an average monitoring period of 10.2 years and an average of 3.6 monitoring events for each occurrence. Also, the level or degree of recreational impact is based on KSNPC's assessment of recreational use and threats from that use at each occurrence. For those sites where the degree of impact was higher, more stems were required to achieve a higher rank (i.e., fair to excellent viability). For example, 4 of the 11 “A” ranked occurrences had a medium/high degree of impact (equals a minimum of 4,000 stems). The rest of the 11 “A” ranked occurrences had a low degree of impact (equals 2,500 stems or more). All of the “A” ranked occurrences have proven stable (for over 11 years) with a high number of stems. Due to future conservation actions with DBNF, we expect the 4 “A” ranked occurrences with medium to high recreational impacts to remain stable (numbers of stems will remain constant or increase) and the degree of recreational impact may decrease.

For the remaining extant occurrences, 31 were considered to be declining and 6 were of unknown status. For the declining occurrences, ranks included B (5 occurrences), C (4), and D (22). For the unknown occurrences, ranks included A (1 occurrence), C (3), and D (2). Occurrences were considered to be declining if a negative change was detected in the general rank/status over the course of monitoring and/or there was a greater than 30 percent decline in stem count. Unknown status meant surveys of that occurrence were not performed more than once or prior surveys could not be compared to more recent surveys due to discrepancies in survey methodology.

KSNPC and the Service completed additional surveys from June to October 2013 at 30 widely separated occurrences, resulting in the discovery of one new occurrence and revised status information for two unknown occurrences (USFWS 2014, entire). Combining these results with occurrence totals reported by KSNPC (2010, 24 pp.), there are now 81 stable occurrences with the following categorical results: A (11 occurrences), B (22), C (18), and D (30) (table 2). The average monitoring period increased from 10.2 to 11.1 years, with an average of 3.7 monitoring events for each occurrence. The total number of stems now stands at 174,357, compared to 45,000 when the Recovery Plan was completed.

In summary, considering recent survey efforts by KSNPC and the Service (KSNPC 2010, entire; USFWS 2014, entire), the following conditions exist for white-haired goldenrod:

(1) A total of 117 extant occurrences are known. Of these, 81 occurrences are considered to be stable with the following categorical results: A (11 occurrences), B (22), C (18), and D (30). As of 2015, the average monitoring period per occurrence was 11.1 years, with an average of 3.7 monitoring events for each occurrence.

(2) Fifty-one of the 81 stable occurrences (all A-, B-, and C-ranked occurrences) are considered to be self-sustaining as defined by the Recovery Plan. These occurrences are considered to be self-sustaining because there is evidence of successful reproduction and the number of stems is stable or increasing.

(3) Forty-six of the 51 stable, self-sustaining occurrences are adequately protected as defined by the recovery plan (species is legally protected, has received adequate physical protection, and is assured of all required management).

(4) The total number of stems now stands at approximately 174,000, and the 46 secure, self-sustaining occurrences contain approximately 131,000 stems, or about 75 percent of the species' total number.

Background—Section 4(f) of the Act (16 U.S.C. 1531 et seq.) 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. Under section 4(f)(1)(B)(ii), recovery plans must, to the maximum extent practicable, include objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of section 4 of the Act, that the species be removed from the list. However, revisions to the list (adding, removing, or reclassifying a species) must reflect determinations made in accordance with sections 4(a)(1) and 4(b) of the Act. Section 4(a)(1) requires that the Secretary determine whether a species is endangered or threatened (or not) because of one or more of five threat factors. Section 4(b) of the Act requires that the determination be made “solely on the basis of the best scientific and commercial data available.” Therefore, recovery criteria should help indicate when we would anticipate that an analysis of the five threat factors under section 4(a)(1) would result in a determination that the species is no longer an endangered species or threatened species because of any of the five statutory factors (see Summary of Factors Affecting the Species section). However, while recovery plans provide important guidance to the Service, States, and other partners on methods of minimizing threats to listed species and measurable criteria against which to measure progress towards recovery, they are not regulatory documents and cannot substitute for the determinations and promulgation of regulations required under section 4(a)(1) of the Act. A decision to revise the status of or remove a species from the Federal List of Endangered and Threatened Plants at 50 CFR 17.12(h) is ultimately based on an analysis of the best scientific and commercial data available to determine whether a species is no longer an endangered or threatened species, regardless of whether that information differs from the recovery plan.

Recovery plans may be revised to address continuing or new threats to the species, as new, substantive information becomes available. The recovery plan identifies site-specific management actions that will achieve recovery of the species, measurable criteria that set a trigger for review of the species' status, and methods for monitoring recovery progress. Recovery plans are intended to establish goals for long-term conservation of listed species and define criteria that are designed to indicate when the substantial threats facing a species have been removed or reduced to such an extent that the species may no longer need the protections of the Act.

There are many paths to accomplishing recovery of a species, and recovery may be achieved without all criteria being fully met. For example, one or more criteria may be exceeded while other criteria may not yet be accomplished. In that instance, we may determine that the threats are minimized sufficiently and the species is robust enough to delist. In other cases, recovery opportunities may be discovered that were not known when the recovery plan was finalized. These opportunities may be used instead of methods identified in the recovery plan. Likewise, information on the species may be discovered that was not known at the time the recovery plan was finalized. The new information may change the extent to which criteria need to be met for recognizing recovery of the species. Recovery of a species is a dynamic process requiring adaptive management that may, or may not, fully follow the guidance provided in a recovery plan.

Recovery Planning and Implementation—The Recovery Plan was approved by the Service on September 28, 1993 (Service 1993, 40 pp.). The Recovery Plan includes recovery criteria intended to indicate when threats to the species have been adequately addressed, and prescribes actions necessary to achieve those criteria. We first discuss progress on completing the primary recovery actions, then discuss recovery criteria. The Recovery Plan identifies five primary actions necessary for recovering S. albopilosa:

(1) Protect existing occurrences;

(2) Continue inventories;

(3) Conduct studies on life history and ecological requirements;

(4) Maintain plants and seeds ex situ; and

(5) Provide the public with information.

Three of five recovery actions (1, 2, and 5) have been accomplished. Completion of the remaining actions (3 and 4) is discussed in greater detail below.

The Service entered into a cooperative agreement with KSNPC in 1986, under section 6 of the Act, for the conservation of endangered and threatened plant species. This agreement has provided a mechanism for KSNPC to acquire Federal funds that have supported much of the recovery work described here. The Commonwealth of Kentucky and other partners have also provided matching funds under this agreement that have assisted in the species' recovery.

The Recovery Plan states that an occurrence will be “adequately protected” when it is legally protected, has received adequate physical protection, and is assured of all required management (USFWS 1993, 40 pp.). Based on these criteria, we consider a total of 46 A-, B-, or C-ranked occurrences on the DBNF to be adequately protected. We base our decision regarding their level of protection on the location of these occurrences (all are in DNBF ownership, and many are in remote locations not visited by the public); trends in occurrence data gathered by KSNPC, DBNF, and the Service; observations about threats reported by KSNPC (2010, pp. 5-18); conservation actions described in DBNF's Land and Resource Management Plan (LRMP); and information in our files concerning specific DBNF conservation actions, such as trail closure, placement of signs, and fencing. We have chosen to exclude five, stable, self-sustaining occurrences from the list of “protected” occurrences because they are in private ownership, and no conservation agreement or plan is in place to ensure their long-term protection.

The species' primary threat has been identified as ground disturbance and trampling associated with recreational activities (i.e., camping, hiking, and rock-climbing) within the Red River Gorge. To address these threats, the DBNF began to redirect trails and install fencing (chicken wire) around selected S. albopilosa rock shelters in February 2000. The DBNF focused on these occurrences because they were near DBNF user-defined trails and were suffering obvious recreational impacts—trampling and ground disturbance associated with camping, rock climbing, and hiking. The DBNF also placed informational signs at these shelters and at trailheads, alerting visitors to the presence of the species and warning them against potential damage to plants.

Signs or fencing were placed and have been maintained at a total of 21 occurrences identified as being impacted in the past, and DBNF personnel continue to visit these sites annually, checking the condition of signs and fencing and making repairs as needed. To guard against future impacts, the DBNF and KSNPC have proposed the addition of new or expanded fencing at five occurrences. As stated below in this recovery section, this new and expanded fencing is included as a conservation action in the Service's signed cooperative management agreement with DBNF and KSNPC (USFWS August 2016).

Monitoring results show that implementation of the LRMP, including specific conservation actions described above (fencing and sign placement), have had a positive effect on the species (KSNPC 2010, 24 pp.). Specifically, it has been demonstrated that disturbance from trampling, camping, and rock climbing is low at remote occurrences, and impacts have been reduced at more visited sites. The number of stems has remained stable or increased at 20 of 21 occurrences (95 percent) where fencing or informational signs have been added. For all extant occurrences on the DBNF, 75 (68 percent) of 111 extant occurrences are considered stable to increasing, and we consider 46 occurrences to be self-sustaining (A-, B-, or C-ranked occurrences that are stable and reproducing). Based on all these factors, we consider this recovery action to be complete.

There were 90 extant occurrences of S. albopilosa when the Recovery Plan was completed (Service 1993, p. 2). In subsequent years, KSNPC completed surveys within the Red River Gorge in 1996, 1999, 2002, 2004, and 2005 (White and Drozda 2006, pp. 124-128; KSNPC 2010, p. 2), raising the number of documented S. albopilosa occurrences from 90 to 141. Surveys in other areas of Kentucky and adjacent States with suitable habitat (e.g., sandstone rock shelters) did not show evidence of additional occurrences of the species (Campbell et al. 1989, pp. 29-43; Palmer-Ball et al. 1988, pp. 19-25; Walck et al. 1996, pp. 339-341; Norris and Harmon 2000, pp. 2-3). The first range-wide survey in the Red River Gorge was completed during the field seasons of 2008 and 2009 (KSNPC 2010, pp. 4-8), and KSNPC and the Service completed follow-up surveys at 30 extant occurrences in 2013 (See the Species Information section above for detail on surveys). During these efforts, KSNPC and the Service documented a total of 117 extant occurrences, and, of these, we consider the A-, B-, and C-ranked occurrences (total of 46) to be secure and self-sustaining. Because systematic searches for new occurrences have been conducted since the completion of the Recovery Plan and led to the discovery of previously unknown occurrences, we consider this recovery action to be completed.

This recovery action is incomplete (not all subactivities have been addressed completely) but significant progress has been made. Since publication of the Recovery Plan (Service 1993), studies of the species' life history and ecological requirements have included Esselman (1995, pp. 5-10), Esselman and Crawford (1997, pp. 246-251), White and Drozda (2006, p. 125), KSNPC (2010, p. 5), and Nieves and Day (2014, pp. 1-12). Esselman (1995, pp. 5-10) and Esselman and Crawford (1997, pp. 246-251) studied the ancestry of S. albopilosa, examined gene flow and genetic diversity within and between populations, and investigated life-history traits (i.e., seed set, importance of pollinators, self-incompatibility (the inability of a plant to produce seeds when its flowers are pollinated from its own flowers or from flowers of plants that are genetically the same)). The ancestry of S. albopilosa was unclear, but it had the most morphological and genetic similarity with S. flexicaulis. Despite this, the two species were reported as genetically different, and there was no evidence of recent gene flow. Esselman (1995, pp. 16-23) and Esselman and Crawford (1997, pp. 251-253) observed the highest levels of genetic diversity between populations rather than within populations. The levels of seed production appeared to be about equal to that of other goldenrods, but the amount of seed set varied between populations and appeared to increase with increasing occurrence size. Pollination experiments indicated that pollinators are necessary for seed set, and the species is self-incompatible.

During field surveys between 1996 and 2009, KSNPC collected occurrence information throughout the species' range, recording such information as stem count, patch size, percent vegetative versus sexual reproduction, recreational disturbance (ranked from low to high), other perceived threats, and general habitat condition (White and Drozda 2006, p. 125; KSNPC 2010, p. 5). In its 2-year range-wide study, KSNPC (2010, p. 5) used a two-page plant survey form to record more detailed biological information at each occurrence: Population structure (percent stems exhibiting vegetative versus reproductive growth), occurrence size (square meters [m2]), plant height, number of stems, number of rosettes, population density, plant vigor, and an evaluation of threats (e.g., trampling, camping, invasive plants, herbivory). KSNPC (2010, p. 5) also photographed each occurrence and made sketches that showed individual patch locations within each occurrence or rock shelter.

Nieves and Day (2014, pp. 1-12) conducted a preliminary assessment of the microclimatic and pedological (soil) conditions of 10 rock shelters inhabited by the species. They documented significant differences between the inside of rock shelters and the surrounding environment with respect to temperature and relative humidity (habitats inside rock shelters were wetter and more humid) but no significant differences with respect to soil characteristics (macronutrients and acidity/alkalinity (pH)). Most of the rock shelters they investigated were easterly or northerly facing, but their small sample size prevents any significant conclusions with respect to the importance of sunlight and solar radiation.

Under recovery action 3.0, two of seven subactivities remain to be completed—the use of quantitative, permanent plots (3.1) and determination of specific habitat requirements (3.3). Permanent plots have not been established, but the species' known occurrences have been visited and evaluated repeatedly (average of 3.6 times) since completion of the recovery plan. These visits have allowed us to evaluate the species' status and track the number of stems and flowers. The purpose of recovery subactivity 3.1 was to evaluate demography, and we believe the visits and work done in cooperation with KSNPC provided enough population data on this plant for us to propose delisting it without establishing permanent plots. The species' specific habitat requirements (e.g., light, moisture, soils) are not well understood, but preliminary investigations into the microclimate and soil conditions of rock shelters were completed by Nieves and Day (2014, pp. 1-12), and additional research is planned (Nieves and Day 2014, pp. 11-12). In partnership with DBNF and KSNPC, we have done extensive work together to reduce threats such as disturbance. The purpose of recovery subactivity 3.3 was to learn about habitat requirements of this plant for the purposes of determining if reintroduction or artificial propagation may be necessary to help recover this plant. Solidago albopilosa occurrences have grown in number and size as recovery implementation actions have been implemented and threats have been removed or reduced. These successful actions have negated the necessity of having to reintroduce or augment plants. We will continue to learn more about the species' habitat requirements as we work with DBNF and KSNPC through post-delisting monitoring. In the course of this work, if a new threat of any kind presents itself, we have identified in the PDM plan how we will evaluate it.

The majority of recovery subactivities (3.2, 3.4-3.7) have been addressed; information has been gained regarding the species' life history and ecological requirements; and the species' status has improved since publication of the recovery plan. We were able to obtain the intended information identified in recovery subactivity 3.3 (analyze habitat requirements) through implementation of other actions. Although the need to conduct subactivity 3.3 has been removed with positive progress in this plant's recovery program, we intend throughout post-delisting monitoring to continue to work closely with researchers as they learn more about this species and its habitat.

Seeds and plants of S. albopilosa have not been maintained ex situ in any museum, botanical garden, or other seed storage facility; however, an August 29, 2016, conservation agreement between the Service, the Kentucky Natural Lands Trust, and the Missouri Botanical Garden (MOBOT) will facilitate a seed-banking effort for S. albopilosa. Through the agreement, MOBOT has secured funding that will allow it to collect, curate, and maintain genetically diverse and representative seed-bank accessions to safeguard against future population declines. These efforts will take place as part of post-delisting monitoring activities and will involve collection of seed from across the species' range with deposition of the material at the MOBOT. Seed collection will occur in the fall of 2016. Because of the conservation agreement described above, which outlines future seed-banking activities by MOBOT, we consider this recovery action to be on a path toward completion and sufficient to contribute towards delisting.

The KSNPC and DBNF have prepared several species factsheets and signs that have been posted at gas stations, restaurants, kiosks, and trailheads throughout the Red River Gorge. These signs are intended to educate Red River Gorge visitors about the species and its threats. Signs about S. albopilosa have also been posted in five archaeologically sensitive rock shelters to aid in the protection of historical artifacts while promoting the conservation of S. albopilosa. DBNF also displays photographs and provides information on S. albopilosa at its Gladie Cultural-Environmental Learning Center. KSNPC makes available on its Web site (http://naturepreserves.ky.gov) an S. albopilosa factsheet and several threatened and endangered species lists that include information on S. albopilosa. In June 2009, the Kentucky Department of Fish and Wildlife Resources published 2,000 copies of a revised threatened and endangered species booklet (second edition), which contained a species account for S. albopilosa. Because of the numerous public information and education projects listed above, we consider this recovery action completed.

The Recovery Plan states that S. albopilosa will be considered for delisting when 40 geographically distinct, self-sustaining occurrences are adequately protected and have been maintained for 10 years. An occurrence is considered as self-sustaining if there is evidence of successful reproduction and the number of stems is stable or increasing. An occurrence is considered to be adequately protected when it is legally protected, receives adequate physical protection, and is assured of all required management. The Recovery Plan also noted that the requirements for delisting were preliminary and could change as more information about the biology of the species was known. Based on our current understanding of the species' range, biology, and threats, we believe that the delisting criteria continue to be relevant. While the number of occurrences has increased since completion of the Recovery Plan, the species' overall range and the type of threats have not changed dramatically. Furthermore, our current knowledge of the species' biology indicates that multiple, distinct populations should be maintained in order to provide redundancy (protect against stochastic events) and preserve genetic diversity. We believe the recovery goal of 40 stable, self-sustaining, and protected occurrences is sufficient to address these needs. The species' current number of stable, self-sustaining, and protected occurrences (46) has exceeded this recovery goal (see discussion of Recovery Action 1 above). These occurrences are distributed across the species' range and contain more than 75 percent of the species' total number of stems.

The criteria for delisting S. albopilosa have been met, as described below. Additionally, the level of protection currently afforded to the species and its habitat, as well as the current status of threats, are outlined below in the Summary of Factors Affecting the Species section.

Currently, there are 117 extant occurrences. As described above, an occurrence is defined as a “discrete group of plants beneath a single rock shelter or on a single rock ledge,” and each occurrence is considered “geographically distinct” as described in the recovery criteria. We currently consider 81 (69 percent) of the 117 extant Solidago albopilosa occurrences to be stable, meaning no change has been detected (over an average monitoring period of 11.1 years) in their general rank or status. Of these, we consider the A-, B-, and C-ranked occurrences (total of 46) to be adequately protected and self-sustaining as defined by the Recovery Plan. We consider these occurrences to be self-sustaining for the following reasons:

(1) The number of stems at these occurrences has been stable or increasing over an average monitoring period of 11.1 years;

(2) these natural occurrences contain a relatively high number of stems (range of 797-9,200);

(3) the estimated viability of these occurrences ranges from fair to excellent;

(4) the threat level at these occurrences is generally low (average recreational impact of 2.5 or less on a scale of 1 (low impact) to 5 (high)); and

(5) the observed reproduction (flowering stems) at these occurrences has been relatively high, averaging 75-90 percent of stems in nearly all cases (KSNPC 2010, p. 10).

We consider these occurrences to be adequately protected because of their location (all are located on DBNF land); trends in occurrence data gathered by KSNPC, DBNF, and the Service; observations about threats reported by KSNPC (2010, pp. 5-18); conservation actions described in DBNF's LRMP; and information in our files concerning specific DBNF conservation actions, such as trail closure, placement of signs, and fencing. We do not consider the stable, D-ranked occurrences (total of 30) to be self-sustaining, primarily due to their poor estimated viability and the low number of stems (fewer than 300) observed at these sites. However, due to the existence of 46 geographically distinct, self-sustaining occurrences, we conclude that we have met and exceeded the criterion of 40 geographically distinct, self-sustaining occurrences.

While we consider only 46 out of the 117 total extant occurrences to currently be secure (adequately protected) and self-sustaining (approximately 39 percent of the total occurrences), these occurrences contain the majority of the total number of stems of the species. The total number of stems now stands at approximately 174,000, and the 46 secure, self-sustaining occurrences contain approximately 131,000 stems, or about 75 percent of the species' total number. If we consider the five additional self-sustaining occurrences located on private property, the total number of stems increases to 140,500 stems, or about 81 percent of the species' total number. While the remaining 65 occurrences on DBNF are not currently considered self-sustaining, all of these occurrences will continue to receive protection and management under DBNF's LRMP and we expect, based on the past 10 years of monitoring, their status will likely remain stable or continue to improve.

With respect to protection, 111 of 117 extant occurrences (95 percent) occur on the DBNF and receive management and protection through DBNF's LRMP (USFS 2004, pp. 1.1-1.10). As specified in the LRMP, S. albopilosa habitats receive protection and management consideration as part of the Cliffline Community Prescription (or management) Area (USFS 2004, pp. 3.5-3.8). The Cliffline Community is defined as the area between 100-feet slope-distance from the top of the cliff and 200-feet slope-distance from the dripline of the cliffline. A cliffline is defined as a naturally occurring, exposed, and nearly vertical rock structure at least 10 feet (3.05 meters (m)) tall and 100 feet (30.05 m) long. All known S. albopilosa occurrences occur within habitats fitting this description and, therefore, are included in this Prescription Area. For the Cliffline Community area, conservation goals in the LRMP include: (1) Maintenance of the unique physical and microclimatic conditions in these habitats, (2) the recovery of S. albopilosa, and (3) the protection of these habitats against anthropogenic disturbance (USFS 2004, p. 3.6). To meet these goals, the following activities or resource uses are prohibited within the cliffline zone: Mineral, oil, or gas exploration and development (Forest Service Standard 1.C-MIN-1); road construction (1.C-ENG-1); recreational facilities (1.C-REC-1); recreational activities such as rock climbing and rappelling (C-REC-2); camping (1.C-REC-3); and campfires (1.C-REC-4). Other activities such as wildlife management (1.C-WLF) and vegetation management (1.C-VEG) are limited and strictly controlled. This Prescription Area is classified as “Unsuitable for Timber Production,” but timber harvests may occur on an unscheduled basis to attain a desired future condition. Harvest of wood products may occur only as an output in pursuing other resource objectives (USFS 2004, pp. 3.5-3.8). DBNF monitors cliffline habitats and protects them as needed through law enforcement activities, construction of fences, trail diversion, and placement of signs.

Since the species was listed, we have worked closely with KSNPC and DBNF on the management and protection of S. albopilosa. Management activities have included trail diversion (away from S. albopilosa occurrences), installation of protective fencing, and placement of informational signs in rock shelters, along trails, and at trailheads. These activities and other management actions included in the DBNF's LRMP (USFS 2004, pp. 3.5-3.8) have assisted in recovery of the species, as reflected in the large number of stable occurrences (81), self-sustaining occurrences (51 occurrences with ranks of A, B, or C), and the long period (greater than 11 years) during which this trend has been maintained. On August 29, 2016, we finalized a cooperative management agreement among the Service, DBNF, and KSNPC that will provide for the long-term protection of the species. The management agreement outlines a number of conservation actions that will benefit the species:

(1) Maintenance of current fencing;

(2) installation and maintenance of fencing at five new occurrences;

(3) evaluation of trail diversion, rerouting, or closure at 39 occurrences identified by KSNPC (2010, entire);

(4) placement of new informational signs at occurrences with high visitation;

(5) monitoring of extant occurrences;

(6) protection of extant occurrences through DBNF patrols; and

(7) continuation of education and outreach efforts. The cooperative management agreement will remain in place until August 2022.

In summary, most major recovery actions are complete, and significant progress has been made on the remaining actions (life history/ecological studies and ex situ seed conservation). Completion of these actions has contributed to achieving and exceeding the recovery criteria: 40 geographically distinct, self-sustaining occurrences are adequately protected and have been maintained for over 10 years. The 46 secure, self-sustaining occurrences contain 75 percent of the species' total number of stems, and thus represent 75 percent of the species' total population. These secure, self-sustaining occurrences, as well as 93 percent of the species' remaining occurrences, currently receive protection and management through implementation of DBNF's LRMP. Therefore, we conclude that the goals and criteria outlined in the Recovery Plan have been achieved.

In the proposed rule published September 1, 2015 (80 FR 52717), we requested that all interested parties submit written comments on the proposal by November 2, 2015. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. Legal notices inviting general public comment were published in the Lexington Herald-Leader and Louisville Courier Journal. We reopened the comment period on February 26, 2016 (81 FR 9798), in order to conduct peer review and provide interested parties an additional opportunity to comment on the proposed rule and draft post-delisting monitoring plan. We requested that all interested parties submit written comments by March 28, 2016.

During both comment periods for the proposed rule, we received a total of 14 comment letters or statements directly addressing the proposed action. These included 4 comment letters from peer reviewers and 10 comment letters from the general public that are posted on Federal docket no. FWS-R4-ES-2014-0054. All 4 peer reviewers and 7 of 10 public commenters supported the proposed action to delist white-haired goldenrod. Three public commenters objected to the proposed action.

Several public commenters simply expressed opposition to or support for the proposed delisting of Solidago albopilosa without providing any additional supporting information. We have noted those responses but, as stated in our proposed rule, submissions merely stating support for or opposition to the action under consideration without providing supporting information will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that a determination as to whether any species is a threatened or endangered species must be made “solely on the basis of the best scientific and commercial data available.”

In accordance with our peer review policy, which was published on July 1, 1994 (59 FR 34270), we solicited expert opinion on the proposed rule and the draft post-delisting monitoring plan from four knowledgeable, independent individuals with scientific expertise that includes familiarity with Solidago albopilosa and its habitat, biological needs, threats, and recovery efforts. We received responses from all four peer reviewers. All peer reviewers supported our conclusions and provided additional information, clarifications, and suggestions to improve the final rule.

Section 4(b)(5)(A)(ii) of the Act states that the Secretary must give actual notice of a proposed regulation under section 4(a) to the State agency in each State in which the species is believed to occur, and invite the comments of such agency. Section 4(i) of the Act directs that the Secretary will submit to the State agency a written justification for his or her failure to adopt regulations consistent with the agency's comments or petition. The Service submitted the proposed regulation to KNSPC, the State agency responsible for the conservation of listed plants in Kentucky. KSNPC's chief botanist provided peer review of the proposed rule.

We reviewed all comments received from the peer reviewers for substantive issues and new information regarding the delisting of white-haired goldenrod. Peer reviewer comments are addressed in the following summary.

Comment (1): Two peer reviewers stated that management may be needed beyond the period (5 years) covered by the post-delisting monitoring plan to address potential impacts from invasive plants and recreational activities (e.g., hiking, rock climbing). This comment relates to just our PDM plan. Both reviewers commented that cooperative efforts among the Service, DBNF, and KSNPC should address any future threats to the species.

Our response: We agree with the reviewers that invasive plants and recreational use in some areas may adversely affect S. albopilosa occurrences in the future; however, the best scientific and commercial data available to the Service demonstrate that S. albopilosa is recovered and no longer requires the protection of the Act. Nonetheless, the Service intends to work closely with all Federal and State conservation agencies during the course of post-delisting monitoring. We will follow the benchmarks in the plan for evaluating success of efforts for this plant. We also believe protections outlined by DBNF's LRMP, which are described in the Recovery Criteria section of this document, will provide long-lasting benefits to the species. DBNF's LRMP was completed in 2004 and is still in effect, and USFS LRMPs are generally revised every 10 to 15 years or when conditions change significantly. Actually, the last LRMP to cover DBNF was in effect for 18 years (1985 to 2003). Also, on August 29, 2016, we finalized a cooperative management agreement among the Service, DBNF, and KSNPC that will provide for the long-term protection of the species until 2022.

Comment (2): Three commenters disagreed with the proposed delisting of white-haired goldenrod. In general, they stated that an insufficient number of protected, viable occurrences were known for delisting to be considered.

Our response: Under the Recovery Plan, Solidago albopilosa may be considered for delisting when 40 geographically distinct, self-sustaining occurrences are adequately protected and have been maintained for 10 years. Currently, a total of 46 geographically distinct occurrences are considered to be self-sustaining (viable) and adequately protected, and these occurrences have been maintained for more than 11 years. All remaining occurrences (of all ranks) will contribute to the viability and persistence of S. albopilosa into the future. Therefore, the recovery criteria for this species have been met. In addition, threats to this plant have been removed or reduced to a point where it no longer requires protection under the Act.

Comment (3): One commenter agreed with the delisting of Solidago albopilosa but stated that the State of Kentucky should conduct routine monitoring of rare plants, such as S. albopilosa, and pass legislation that protects these species.

Our response: Most Solidago albopilosa occurrences (about 95 percent) are located on Federal property (DBNF) and receive management and protection under DBNF's LRMP. The remaining occurrences are located on private property and, while they could benefit from protections provided by State legislation, the Service cannot require a State to pass such legislation. With respect to monitoring and protection of rare plants like S. albopilosa, the DBNF and KSNPC have worked closely with the Service and other conservation partners over the past 20 years to implement conservation actions, including monitoring, that have benefited this and other rare species. We expect these collaborations to continue.

We have considered all comments and information received during both comment periods for the proposed rule to delist white-haired goldenrod. In this final rule, we have made only minor changes based on comments received during the public comment period. We received supplementary information from DBNF on seed germination, seedling viability, and the potential threat posed by fungal infection. These details have been incorporated into this final rule.

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. We may determine that a species is an endangered or threatened species because of one or more 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 manmade factors affecting its continued existence.

We must consider these same five factors in delisting a species.

A recovered species is one that no longer meets the Act's definition of endangered or threatened. Determining whether the status of a species has improved to the point that it can be delisted or downlisted requires consideration of same five categories of threats identified above. This analysis 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 and the removal of the Act's protections.

The following analysis examines all five factors currently affecting or that are likely to affect S. albopilosa within the foreseeable future. It contains updated information from that presented in the proposed rule (80 FR 52717, September 1, 2015).

The final rule to list S. albopilosa as threatened (53 FR 11612, April 7, 1988) identified the following habitat threats: ground disturbance and trampling associated with unlawful archaeological activities and recreational activities such as camping, hiking, and rock climbing. The species occupies a scenic and unique geological area that is heavily visited by hikers, campers, rock-climbers, and other nature enthusiasts. The U.S. Forest Service estimates recreational use of the Red River Gorge at approximately 500,000 visitor days per year (Taylor pers. comm. 2013). Recreational activities such as camping, hiking, and rock climbing can pose a threat to the species through inadvertent trampling and ground disturbance of S. albopilosa habitats. Evidence of trampling and ground disturbance within rock shelters has been observed repeatedly by KSNPC and DBNF personnel (KSNPC 2010, pp. 13-14).

Habitat disturbance and trampling associated with recreational activities (camping, hiking, and rock climbing) and archaeological looting in the past have posed a significant threat to the species. The Red River Gorge is a popular recreational area (Taylor pers. comm. 2013). Many trails and recreational areas within the Gorge are located near Solidago albopilosa occurrences, and rock shelters are often targeted as rock climbing, hiking, and camping sites. Use of rock shelters and cliff lines by campers, hikers, and rock climbers has contributed to physical habitat disturbance and has led to trampling of plants in rock shelters (Service 1993, p. 7; White and Drozda 2006, pp. 124-125; KSNPC 2010, pp. 13-14). In addition to habitat disturbance caused by recreationists, the presence of Native American artifacts within the Red River Gorge has contributed to digging and archaeological looting in S. albopilosa habitats (rock shelters). Approximately 18 Solidago albopilosa occurrences have been extirpated due to human activities, and many heavily visited rock shelters have been modified to the point that these habitats are no longer suitable for the species (KSNPC 2010, pp. 6-7).

According to the DBNF, impacts from archaeological looting are now infrequent, and these activities no longer pose a significant threat to S. albopilosa within the Red River Gorge (Taylor pers. comm. 2013). As for recreational impacts, most Solidago albopilosa occurrences are located in remote ravines of the Red River Gorge or grow along inaccessible cliff lines that are seldom visited or disturbed by campers, hikers, and rock climbers. Therefore, the threat magnitude at these sites is low.

Occurrences located in areas with more frequent visitor use, typically areas near DBNF and user-defined trails, generally have suffered more severe habitat disturbance and trampling in the past. Site protection and habitat management efforts by DBNF, working cooperatively with KSNPC and the Service, have helped to reduce the magnitude of threats at these sites. These occurrences have benefited from their location on the DBNF and management and protective actions provided under DBNF's LRMP (USFS 2004, pp. 1.1-1.10), which prevents general land disturbance and prohibits or limits logging and other DBNF-defined activities near cliffline habitats. The LRMP also protects rock shelters from vandalism and forbids removal of threatened and endangered species from these areas (see details in Recovery Criteria section).

The DBNF monitors these sites and protects them as needed through law enforcement efforts, construction of fences, trail diversion, and placement of signs. To protect occurrences from trampling, fire-building, and digging, signs have been posted at all entry points to the Red River Gorge asking visitors not to remove or disturb historical resources and providing visitors with biological and status information on S. albopilosa. Similar signs were also placed inside at least five archaeologically significant rock shelters that contained S. albopilosa. Beginning in February 2000, DBNF began to redirect trails and install fencing (chicken wire) around selected rock shelters (those with greatest visitation) containing S. albopilosa. Signs were also placed at these shelters, alerting visitors to the presence of the species and warning them against potential damage to plants. Signs and/or fencing were placed and have been maintained at a total of 21 occurrences, and DBNF personnel continue to visit these sites annually, checking the condition of signs and fencing and making repairs as needed.

Monitoring results show that implementation of DBNF's LRMP and the completion of additional conservation actions such as fencing and sign placement have had a positive effect on the species, the number of stems has increased, and the level of habitat disturbance and trampling associated with recreational activities has been reduced (KSNPC 2010, 24 pp.). Of the 21 occurrences on the DBNF where fencing and signs were added, 20 are considered to be stable and the 1 declining occurrence will be protected through expanded fencing. Additional evidence that these conservation efforts have improved the status of S. albopilosa occurrences on the DBNF is the large number of stable occurrences (75) and the relatively high number of secure, self-sustaining occurrences (46) observed by DBNF, KSNPC, and the Service. The 46 secure, self-sustaining occurrences exceed the number identified in the recovery criteria to allow consideration of delisting.

Additional evidence that conservation actions have had a positive effect on the species is the relatively low recreational impacts observed by KSNPC (2010, pp. 13-14) at the majority of DBNF occurrences. Recreational impacts have been assessed by KSNPC since the mid-1990s (White and Drozda 2006, pp. 124-125; KSNPC 2010, pp. 13-14). Their qualitative ranking scheme estimates the percent disturbance of available habitat and uses a scale of 1 (little or no impact) to 5 (high impact, greater than 50 percent of available habitat disturbed) to produce a disturbance rank. Based on recent evaluations by KSNPC (KSNPC 2010, 40 pp.; White pers. comm. 2014), 70 occurrences (60 percent) are classified as low impact (rank of 1-2), 8 occurrences (7 percent) are classified as medium impact (rank of 3), and 39 occurrences (33 percent) are classified as high impact (rank of 4-5). Overall, 67 percent of DBNF's occurrences are considered to be exposed to low to medium recreational impacts. KSNPC (2010, p. 14) also noted that they did not observe many new recreational impacts during their surveys in 2008 and 2009. Most of the documented recreational impacts such as established trails, permanent structures within rock shelters (couches, chairs, fire pits), and camp sites had been in place since before S. albopilosa monitoring began in 1996 (KSNPC 2010, p. 14).

The six occurrences on privately owned lands currently do not benefit from any formal protection or management and, therefore, could face higher magnitude threats (e.g., habitat disturbance) than those located on the DBNF. However, based on recent survey results by KSNPC, all six of these private occurrences have been ranked as “stable,” and five of the six are considered to be self-sustaining (A-, B-, or C-rank) (KSNPC 2010, p. 8). While these occurrences potentially could face a greater level of threats, they currently do not appear to be facing a greater level of impact, and they represent a small proportion (five percent) of the overall population of the species.

Summary of Factor A: Impacts associated with archaeological looting and recreational activities have been well documented in the past, but current monitoring data suggest that the magnitude of these threats has sufficiently decreased. Implementation of the DBNF's LRMP and specific conservation actions such as fencing and sign placement have had a positive effect on the species and have reduced the threat associated with recreational disturbance. The recovery goal of 40 stable, self-sustaining, protected occurrences has been exceeded by 6, and these trends have held for more than 10 years. Because we expect that the lands containing the 46 secure and self-sustaining occurrences will remain permanently protected in Federal ownership and will be managed to maintain or improve current habitat conditions (see Service 2016, entire), we find that the present or threatened destruction, modification, or curtailment of its habitat or range is no longer a threat to the continued existence of S. albopilosa.

Both the final rule to list S. albopilosa as threatened (53 FR 11612, April 7, 1988) and the Recovery Plan (Service 1993, p. 7) identified overutilization for recreational purposes as a threat to the species. However, while the use of habitat for recreational purposes, as discussed under Factor A, has impacted the species in the past, there is no evidence that the plant itself is or was utilized for commercial, recreational, scientific, or educational purposes. We, therefore, discuss impacts from recreational use of habitat for S. albopilosa under Factor A above.

Summary of Factor B: We conclude that overutilization is not a threat to S. albopilosa.

The listing rule for S. albopilosa (53 FR 11612, April 7, 1988) did not identify disease or predation as a threat to the species. Plants are occasionally browsed by herbivores, such as white-tailed deer (Odocoileus virginianus), wood rats (Neotoma spp.), and caterpillars (Order Lepidoptera), but we have no information that grazing by these species represents a threat to the species (Taylor 2016, pers. comm.). In 2014, the DBNF observed a rust fungus on the leaves in one population, but the fungus was not extensive within the population and did not appear to harm the plants. The fungus may have been triggered by weather conditions in 2014 and was not observed by DBNF in 2015 (Taylor 2016, pers. comm.).

Summary of Factor C: We continue to conclude that neither disease nor predation are threats to S. albopilosa.

Populations of S. albopilosa within the DBNF are protected from damage and unauthorized taking by Federal regulation (36 CFR 261.9). This regulation would apply regardless of whether the species is listed because S. albopilosa would still be considered a sensitive, rare, or unique species on the DBNF under this Federal regulation. However, the final listing rule (53 FR 11612, April 7, 1988) identified inadequate regulatory mechanisms as a threat to S. albopilosa because limited manpower and the remoteness of many occurrences on the DBNF makes enforcement difficult. The DBNF has taken several steps to remedy this situation. As noted above, S. albopilosa receives management and protection through DBNF's LRMP and its conservation goals for the Cliffline Community Prescription Area. The National Forest Management Act (NFMA), and regulations and policies implementing the NFMA are the main regulatory mechanisms that guide land management on the DBNF, which contains 111 of the 117 extant occurrences of S. albopilosa. Since listing, the DBNF has included S. albopilosa and its habitat in its resource management plans. These plans are required by the NFMA and the Federal Land Policy and Management Act of 1976. The NFMA requires revision of the Plans every 15 years; however, plans may be amended or revised as needed. Management plans are required to be in effect at all times (in other words, if the revision does not occur, the previous plan remains in effect) and to be in compliance with various Federal regulations. We expect continued implementation of the LRMP and expect that any future revisions will consider conservation of S. albopilosa and its Cliffline Community habitats.

Specific actions that DBNF has taken under the LRMP include measures to reduce impacts of recreational activities to S. albopilosa and its habitat as discussed under Factor A. As discussed above, these and other protection and management actions taken by DBNF under their LRMP (USFS 2004, pp. 1.1-1.10) have been successful at improving the status of the species. Monitoring results from these occurrences show that these efforts have had a positive effect on the species. Specifically, disturbance from trampling, camping, and rock climbing has been reduced in these areas, and the number of stems has increased.

The species is listed as endangered by the State of Kentucky (KSNPC 2005), but this designation conveys no legal protection to occurrences located on private property. Consequently, occurrences on privately owned land could face higher magnitude threats (e.g., habitat disturbance) than those located on the DBNF. Based on recent survey results by KSNPC, however, only 6 of 117 extant S. albopilosa occurrences (5 percent) are located on private land, and 5 of these occurrences have been ranked as “stable” (A-, B-, or C-rank) by KSNPC (KSNPC 2010, p. 8). Therefore, based on this greater than 10-year data set, the majority of private occurrences are also stable.

Summary of Factor D: Occurrences of S. albopilosa located on the DBNF receive protection due to their location on Federal property, and these occurrences are managed and protected under DBNF's LRMP (USFS 2004, pp. 1.1-1.10). This protected status and management actions included in the LRMP will continue to provide adequate regulatory protection for these occurrences. Monitoring results show that DBNF's management actions have had a positive effect on the species. Specifically, disturbance from trampling, camping, and rock climbing has been reduced and the number of stems has stabilized or increased. Based on the best available information for both private and public lands occurrences, and the fact that existing regulatory mechanisms and associated management practices will continue on public lands, we conclude that existing regulatory mechanisms are adequate.

Other natural or manmade factors were first identified as a threat to Solidago albopilosa due to the species' specialized habitats (sandstone rock shelters and cliff habitats of the Red River Gorge) and the perceived vulnerability of these habitats to any physical or climatic change (52 FR 13798, April 24, 1987; 53 FR 11612, April 7, 1988). In the species' final listing rule (53 FR 11612) published in 1988, the Service concluded that even minor changes in the surrounding forest (e.g., loss of canopy trees) could impact the species through drying, erosion, and competition with sun-tolerant species. At the time, these potential changes were not considered to be an imminent threat to white-haired goldenrod, but the final listing rule identified the need for management planning that would take into account the requirements of the species to ensure its continued existence.

Some surveys and status assessments of Solidago albopilosa identified several potential threats under Factor E. These included competition from invasive plants, the loss of eastern hemlock (Tsuga canadensis), low genetic diversity and small population size, and the effects of climate change (Service 2009a, p. 9; Service 2009b, p. 2; KSNPC 2010, pp. 13-14). KSNPC (2010, p. 14) reported several invasive plant species in habitats occupied by white-haired goldenrod, but the most common species included Japanese stilt grass (Microstegium vimineum), princess tree (Paulownia tomentosa), Japanese spiraea (Spiraea japonica), common chickweed (Stellaria media), and common mullein (Verbascum thapsus). Of the invasive plant species, Japanese stilt grass was the most common species. It was observed growing in direct competition with 23 S. albopilosa occurrences. However, invasive species were absent from 94 of 117 extant S. albopilosa occurrences (about 80 percent) and 53 of 81 stable occurrences (65 percent) (KSNPC 2010, p. 14; Service 2014, pp. 1-6). For the 23 occurrences in direct competition with invasive plants, most (16 of 23 (70 percent)) were stable or increased over the 10-year monitoring period (KSNPC 2010, p. 14; Service 2014, pp. 1-6).

We do not have data that specifically address the effects of climate change with regard to invasive species attributes such as distribution or range and the relation to white haired goldenrod. There are some data showing that more common aggressive invasive species like kudzu (Pueraria lobata) may expand into greater ranges due to possible effects of climate change (Bradley et al. 2009). However, species like Japanese stilt grass are more recent invaders to this area of the Southeast, and other than the data presented above, we do not have further information or data that indicates competition from invasive plants will change in significance as a threat to the species. Our current data suggest that Japanese stilt grass is not a significant threat to S. albopilosa as 70 percent of occurrences in direct competition with Japanese stilt grass were stable or increased over the last 10 years. Therefore, we do not believe that competition from invasive plants is a significant threat to the species now or in the foreseeable future.

The hemlock woolly adelgid (Adeleges tsugae), an aphid-like insect that is native to Asia, has been identified as a potential threat to Solidago albopilosa because it has the potential to severely damage stands of eastern hemlocks (Tsuga canadensis) that occur near rock shelters and cliffs occupied by the species (Service 2009b, p. 2; KSNPC 2010, p. 15). The hemlock woolly adelgid was introduced in the Pacific Northwest during the 1920s and has since spread throughout the eastern United States, reaching Kentucky by 2006. The species creates an extreme amount of damage to natural stands of hemlock, specifically eastern hemlock and Carolina hemlock (Tsuga caroliniana). The Recovery action plan (Service 2009b, p. 2) concluded that the loss of eastern hemlock within the Red River Gorge could result in microclimatic changes (increased light, decreased moisture, increased leaf litter) in and near rock shelters that may negatively affect white-haired goldenrod. Despite this potential threat, KSNPC (2010, p. 15) demonstrated in their evaluation that eastern hemlock was actually a minor component of the canopy surrounding rock shelters inhabited by the species. Consequently, the eventual loss of eastern hemlocks would not represent a significant change to the canopy surrounding these rock shelters and would, therefore, not represent a significant threat to the species.

Potential impacts that may be associated with low genetic variability such as inbreeding depression, reduced fitness, or reduced adaptive capacity (ability to respond to and adapt to changing conditions) have been identified as a potential threat to other listed plant species, but we have no information suggesting that low genetic variability affects S. albopilosa (53 FR 11614, April 7, 1988; Service 2009a, entire; KSNPC 2010, 24 pp.). Esselman and Crawford (1997, pp. 245-257) reported that S. albopilosa exhibits genetic diversity both within and between populations (genetic diversity is widely spread among populations, and populations are not genetically homogenous). The highest level of genetic diversity was observed within (as opposed to between) populations. Consequently, we do not believe that the potential effects associated with low genetic variability threaten the continued existence of S. albopilosa now or in the foreseeable future.

Some Solidago albopilosa occurrences may be more vulnerable to extirpation due to their small population size and poor estimated viability. The low number of stems (typically less than 300), poor estimated viability, and high recreational impacts associated with D-ranked occurrences make these occurrences more vulnerable to stochastic events. Currently, 62 of the species' 117 extant occurrences (53 percent) are D-ranked. Even though these occurrences may be more vulnerable to extirpation, the overall threat to the species is minimal because these occurrences contain less than 20 percent of the species' total number of stems. Additionally, a small population size in and of itself is not indicative of being in danger of extinction, and this was likely never a naturally common or abundant species. Some Solidago albopilosa occurrences may have always had fewer plants in rock shelters with less favorable conditions (e.g., small size, drier conditions).

The Intergovernmental Panel on Climate Change (IPCC) concluded that warming of the climate system is unequivocal (IPCC 2014, p. 3). Effects associated with changes in climate have been observed including changes in arctic temperatures and ice, widespread changes in precipitation amounts, ocean salinity, and wind patterns and aspects of extreme weather including droughts, heavy precipitation, heat waves, and the intensity of tropical cyclones (IPCC 2014, p. 4). Species that are dependent on specialized habitat types, limited in distribution, or at the extreme periphery of their range may be most susceptible to the impacts of climate change (Byers and Norris 2011, p. 17; Anacker and Leidholm 2012, p. 2). However, while continued change is certain, the magnitude and rate of change is unknown in many cases. The magnitude and rate of change could be affected by many factors (e.g., circulation patterns), but we have no additional information or data regarding these factors with respect to white-haired goldenrod.

There is evidence that some terrestrial plant populations have been able to adapt and respond to changing climatic conditions (Franks et al. 2013, entire). Both plastic (phenotypic change such as leaf size or phenology) and evolutionary (shift in allelic frequencies) responses to changes in climate have been detected. Both can occur rapidly and often simultaneously (Franks et al. 2013, p. 135). Relatively few studies are available, however, that (1) directly examine plant responses over time, (2) clearly demonstrate adaptation or the causal climatic driver of the responses, or (3) use quantitative methods to distinguish plastic versus evolutionary responses (Franks et al. 2013, p. 135).

To generate future climate projections across the range of white-haired goldenrod, one tool we used was the National Climate Change Viewer (NCCV), a climate-visualization Web site tool developed by the U.S. Geological Survey (USGS) that allows the user to visualize climate projections at the State, county, and watershed level (Adler and Hostetler 2013, entire; http://www.usgs.gov/climate_landuse/clu_rd/nccv.asp). Initially, the viewer was designed to provide information for States and counties on projected temperature and precipitation through the 21st century. The viewer was expanded in 2014 to provide information on associated projected changes in snowpack, soil moisture, runoff, and evaporative deficit for U.S. States and counties and for USGS Hydrologic Units or watersheds as simulated by a simple water-balance model. The model provides a way to simulate the response of the water balance to changes in temperature and precipitation in the climate models (30 separate models developed by the National Aeronautic and Space Administration). Combining the climate data with the water balance data provides further insights into the potential for climate-driven change in water resources. The viewer uses tools such as climographs (plots of monthly averages); histograms showing the distribution or spread of model simulations; monthly time series spanning 1950-2099; and tables that summarize changes (and extremes) in temperature and precipitation during these periods. The application also provides access to comprehensive, three-page summary reports for States, counties, and watersheds.

Using the NCCV and assuming the more extreme Representative Concentration Pathways (RCP) greenhouse gas emission scenario (RCP 8.5), in which greenhouse gas emissions continue to rise unchecked through the end of the century leading to an equivalent radiative forcing of 8.5 Watts m2, we calculated projected annual mean changes for maximum temperature (+3.6 degrees Celsius (°C) (+6.5 degrees Fahrenheit (°F)), precipitation (+0.02-0.03 cm/day (+0.008-0.012 in/day)), runoff (−0.25 cm/month (−0.1 in/month), snowfall (−0.5 cm (−0.2 in)), soil storage (−2.5 cm (−1.0 in)), and evaporative deficit (+0.75 cm/month (+0.3 in/month)) for the period 2050-2074 in Menifee, Powell, and Wolfe Counties (Adler and Hostetler 2013, entire). Based on these results, all three counties within the range of Solidago albopilosa will be subjected to higher maximum temperatures (annual mean increase of 3.6 °C (6.5 °F)) and slightly higher precipitation (annual mean increase of 0.02-0.03 cm/day (+0.008-0.012 in/day)) relative to the period 1950-2005. Because the average annual increase in precipitation is predicted to be only slightly higher, the increased evaporative deficit and the loss in runoff, snowfall, and soil storage is primarily a result of higher maximum and minimum temperatures. The most dramatic shift is predicted for soil storage, which will decrease significantly between mid-May and late November relative to 1950-2005. Despite the slight increase in predicted precipitation, the coincident warming means that habitats are unlikely to maintain their current moisture status.

To evaluate the vulnerability of Solidago albopilosa to the effects of climate change, we also used NatureServe's Climate Change Vulnerability Index (CCVI) (Young et al. 2015, entire), a climate change model that uses downscaled climate predictions from tools such as Climate Wizard (Givertz et al. 2009, entire) and combines these with readily available information about a species' natural history, distribution, and landscape circumstances to predict whether it will likely suffer a range contraction and/or population reductions due to the effects of climate change. The CCVI uses an Excel platform that allows users to enter numerical or categorical weighted responses to a series of questions about risk factors related to species exposure and sensitivity to climate change. The CCVI separates vulnerability into its two primary components: A species' exposure to changes in climate within a particular assessment area and its inherent sensitivity to the effects of climate change. The tool gauges 20 scientifically documented factors and indicators of these components, as well as documented responses to climate change where they exist.

While the Index calculates anticipated increases or declines in populations of individual species, it also accommodates inherent uncertainties about how species respond within their ecological contexts. The CCVI generated a vulnerability rating of “extremely vulnerable” to “highly vulnerable” for white-haired goldenrod, suggesting that the species' abundance and/or range extent could change substantially or possibly disappear by 2050 (Young et al. 2015, p. 44). Factors influencing the species' high vulnerability were its poor movement/dispersal ability, its connection with uncommon geologic features, and its unique hydrological niche (humid, shaded rock shelters). Byers and Norris (2011, p. 16) completed a CCVI for plants in an adjacent state, West Virginia, and concluded that top risk factors included poor dispersal ability, natural and anthropogenic barriers to dispersal, dependence on wetland habitats, restriction to areas with unique geology, and genetic bottlenecks (Byers and Norris 2011, p. 16).

Although the CCVI model (Young et al. 2015, entire) suggested that Solidago albopilosa is greatly exposed and sensitive to climate change and could be adversely affected in future years, Anacker and Leidholm 2012 (pp. 16-17) noted that there are a number of weaknesses associated with the CCVI: (1) It is weighted too heavily towards direct exposure to climate change (projected changes to future temperature and precipitation conditions that have high levels of uncertainties); (2) some important plant attributes are missing (mating system and pollinator specificity); (3) it is very difficult to complete scoring for a given species because some information is simply lacking; and (4) some scoring guidelines are too simplistic (Anacker and Leidholm (2012, pp. 16-17). Topographic complexity was considered to be a potential complementary factor in assessing vulnerability to climate change (Anacker and Leidholm 2012, pp. 12-16). Topographically complex areas, such as the Red River Gorge region, have been predicted to be less vulnerable to the effects of climate change (Anacker and Leidholm 2012, pp. 15-16), so species such as Solidago albopilosa may also be less vulnerable to such effects as compared to plants that occur in areas with low topographic complexity.

Additionally, Phillips (2010, entire) found that efforts to predict responses to climate change and to interpret both modern and paleoclimate indicators are influenced by several levels of potential amplifiers, which can either increase or exaggerate climate impacts, and/or filters, which reduce or mute impacts. He notes that climate forcings (factors that drive or “force” the climate system to change such as the energy output of the sun, volcanic eruptions, or changes in greenhouse gases) are partly mediated by ecological, hydrological, and other processes that may amplify or filter impacts on surface processes and landforms. For example, resistance or resilience of geomorphic systems may minimize the effects of changes. Thus, a given geomorphic response to climate could represent amplification and/or filtering (Phillips 2010, p. 571). Due to white-haired goldenrod's habitat specificity in rock shelters and cliff overhangs, the effects of climate change are likely muted or diminished due to this species' specific habitat conditions.

Based on observations of climatic conditions over a period of 25 years (KSNPC (2010, p. 13), there is some biological and historical evidence to suggest that S. albopilosa is adapted to endure some of the potential effects of climate change, including more frequent droughts and an estimated 2.6-3.6 °C (4.7-6.5 °F) increase in average annual maximum temperature. Habitats within the Red River Gorge often experience multiyear droughts, and S. albopilosa occurrences can become stressed during these periods. For example, the Cumberland Plateau region of Kentucky experienced a several-year drought prior to KSNPC's 2008-2009 survey. These dry conditions continued during 2008, and KSNPC observed many drought-stressed occurrences. The following year (2009) was relatively wet, and several of these drought-stressed occurrences quickly improved (KSNPC 2010, p. 13). Despite this most recent dry period and others in the past, the species has demonstrated a resiliency to prolonged periods of drought. Although downscaling models exist at the county level (Alder and Hostetler 2013), we do not have data at the proper scale (inside rock shelters or in cliff overhangs) to determine, for example, how the species is affected by decreased relative humidity during a drought year, but periodic drought may be a normal cyclical event needed to increase production. The shaded, cooler, and more humid environment of rock shelters (Nieves and Day 2014, p. 7) and the topographic complexity of the Red River Gorge region (Anacker and Leidholm 2012, pp. 15-16) may offer some relief from drying and may contribute to the species' ability to survive these conditions.

Although climate change is almost certain to affect terrestrial habitats in the Red River Gorge region of Kentucky (Adler and Hostetler 2013, entire), there is uncertainty about the specific effects of climate change on white-haired goldenrod. Currently, we have no evidence that climate change effects observed to date have had any adverse impact on S. albopilosa or its habitats, and we are uncertain about how projected future changes in temperature, precipitation, and other factors will influence the species. However, the best available information indicates that the effects of climate change do not represent an imminent threat now or in the foreseeable future.

Summary of Factor E: Other potential threats such as minor vegetational changes in the surrounding forest, competition with invasive species, low genetic variability, small population size, and the effects of climate change have been identified as potential threats to S. albopilosa. Invasive species occur in only 23 of 117 extant occurrences, and most of these occurrences (16) have remained stable. We do not expect the loss of eastern hemlock to have a significant impact on the species because eastern hemlock is a minor component of the forest canopy surrounding S. albopilosa occurrences. The potential effects of low genetic diversity do not represent a threat as the species has relatively high genetic diversity. Small populations may be vulnerable to stochastic events, but these occurrences contain only a small proportion of the species' total number of stems. We do not consider climate change to be an imminent threat based on the species' current status, its demonstrated resiliency to periods of drought, and our uncertainty regarding the species' vulnerability to the effects of climate change. Based on all these factors, we find that other natural or manmade factors considered here are no longer a significant threat to S. albopilosa.

The primary factors that led to white-haired goldenrod's listing under the Act were its limited range and habitat threats associated with ground disturbance and trampling caused by unlawful archaeological activities and recreational activities such as camping, hiking, and rock climbing. Other factors included the inadequate protection of occurrences on the DBNF and potential minor vegetational changes in forests surrounding Solidago albopilosa occurrences. We have carefully assessed the best scientific and commercial information available regarding the threats faced by white-haired goldenrod. These threats have been removed or ameliorated by conservation actions of multiple conservation partners for more than 20 years. These activities and other management actions included in the DBNF's LRMP (USFS 2004, pp. 3.5-3.8) have assisted in recovery of the species as reflected in the large number of stable, self-sustaining, protected occurrences (46), and the long period (greater than 11 years) during which this trend has been maintained. Furthermore, a new cooperative management agreement among the Service, DBNF, and KSNPC was signed on August 29, 2016, and will provide for the long-term protection of the species.

Based on our assessment of factors potentially impacting the species and its habitat, the species' improved status (a sufficient number of viable occurrences), and multiple conservation efforts by the Service and its partners, we conclude that Solidago albopilosa is not in danger of extinction throughout all of its range or likely to become endangered within the foreseeable future throughout all of its range.

Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to and removing species from the Federal Lists of Endangered and Threatened Wildlife and Plants. 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 as required by section 4(a)(1) of the Act. We conducted a review of the status of this species and assessed the five factors to evaluate whether Solidago albopilosa is endangered or threatened throughout all of its range. We examined the best scientific and commercial information available regarding the past, present, and future threats faced by Solidago albopilosa and its habitat. We reviewed the information available in our files and other available published and unpublished information, and we consulted with recognized experts and other Federal and State agencies.

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 endangered or threatened 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.

During our analysis, we did not identify any factors that reach a magnitude that threaten the continued existence of the species. Significant impacts at the time of listing that could have resulted in the extirpation of all or parts of populations have been eliminated or reduced since listing, and we do not expect any of these conditions to substantially change post-delisting and into the foreseeable future. We conclude that the previously recognized impacts to Solidago albopilosa from the present or threatened destruction, modification, or curtailment of its habitat or range (Factor A), the inadequacy of regulatory mechanisms (Factor D), and minor vegetational changes in the surrounding forest (Factor E), have been ameliorated or reduced such that S. albopilosa is no longer in danger of extinction throughout all of its range or likely to become endangered within the foreseeable future throughout all of its range. We, therefore, conclude that S. albopilosa does not meet the definition of a threatened species, nor is it likely to become so in the foreseeable future.

Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so throughout all or a significant portion of its range. Having determined that Solidago albopilosa is not endangered or threatened throughout all of its range, we next consider whether there are any significant portions of its range in which Solidago albopilosa is in danger of extinction or likely to become so. We published a final policy interpreting the phrase “Significant Portion of its Range” (SPR) (79 FR 37578; July 1, 2014). In pertinent part, 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 endangered or threatened, 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; and (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 makes any particular status determination.

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 endangered in the foreseeable future throughout all of its range, we list the species as an endangered species or threatened species and no SPR analysis will be required. If the species is neither in danger of extinction nor likely to become so throughout all of its range, as we have found here, we next determine whether the species is in danger of extinction or likely to become so throughout a significant portion of its range. If it is, we will continue to list the species as an endangered species or threatened species, respectively; if it is not, we conclude that listing the species is no longer warranted.

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 in analyzing portions of the range that have no reasonable potential to be significant or in analyzing portions of the range in which there is no reasonable potential for the species to be endangered or threatened. To identify only those portions that warrant further consideration, we determine whether substantial information indicates that: (1) The portions may be “significant” and (2) the species may be in danger of extinction there or likely to become so within the foreseeable future. Depending on the biology of the species, its range, and the threats it faces, it might be more efficient for us to address 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.” In practice, a key part of the determination that a species is in danger of extinction in a significant portion of its range 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 have a greater risk of extinction, and thus would not 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 would not warrant further consideration. 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.

If we identify any portions that may be both (1) significant and (2) endangered or threatened, we engage in a more detailed analysis to determine whether these standards are indeed met. The identification of an SPR does not create a presumption, prejudgment, or other determination as to whether the species in that identified SPR is endangered or threatened. We must go through a separate analysis to determine whether the species is endangered or threatened in an 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 the “significant” 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, in considering delisting S. albopilosa, we evaluated the range of this plant to determine if any areas could be considered a significant portion of its range. While there is some variability in the habitats occupied by S. albopilosa across its range, the basic ecological components required for the species to complete its life cycle (e.g., adequate sunlight, shade, moisture, soils) are present throughout the habitats occupied by the species. No specific location within the current range of the species provides a unique or biologically significant function that is not found in other portions of the range. The currently occupied range of S. albopilosa encompasses approximately 114 km2 (44 mi2) in Menifee, Powell, and Wolfe Counties, KY. Based on examination of information on the biology and life history of the species, we determined that there are no separate areas of the range that are significantly different from others or that are likely to be of greater biological or conservation importance than any other areas.

We next examined whether any threats are geographically concentrated in some way that would indicate the species could be in danger of extinction, or likely to become so, in that area. Through our review of potential threats, we identified some areas where Solidago albopilosa may experience greater threats or a greater likelihood of extirpation and, therefore, may be in danger of extinction or likely to become so in those areas. These include occurrences on private lands and occurrences that are not currently considered self-sustaining. The majority (94.8 percent) of Solidago albopilosa occurrences are now located on DBNF and benefit from management and conservation actions implemented under the LRMP. The remaining (6 of the 117) extant occurrences are located on private lands. As explained above, these occurrences currently do not benefit from any formal protection or management and, therefore, could face higher magnitude threats. While these occurrences do not receive any formal protection, five of the six occurrences are considered to be stable and self-sustaining, indicating a low level of current impacts to those occurrences. Although the occurrences on private lands could face greater threats in the future due to lack of formal protections, these occurrences represent only 5 percent of extant occurrences and a very small proportion of the range of the species. Additionally, even if future potential threats were to cause the loss of these occurrences, that loss would not appreciably reduce the long-term viability of the species, much less cause the species in the remainder of its range to be in danger of extinction or likely to become so.

We also evaluated whether the occurrences that are not considered self-sustaining could be considered a significant portion of the species' range. We have determined that 46 secure and self-sustaining occurrences presently are distributed throughout the species' range, which accounted for more than 75 percent of the total stems estimated to exist in 2013. Of the remaining 71 extant occurrences, the 6 occurrences on private lands are not considered secure (but all 6 have been shown to be stable, and 5 have been shown to be self-sustaining). These occurrences were discussed above.

The remaining 65 occurrences are on DBNF land, and thus protected, but currently are not considered self-sustaining. Some of these occurrences have a status of declining or their status is unknown, while others are considered not self-sustaining primarily due to poor estimated viability and low number of stems observed. These occurrences could be at greater risk of extinction due to vulnerability to demographic and environmental stochasticity because of their smaller population sizes. These 65 occurrences, along with the 6 occurrences on private lands, account for the remaining 25 percent of the total stems estimated to exist in 2013. The threats to these occurrences from recreational activities are being managed and are not different from the threats affecting the 46 secure, self-sustaining occurrences.

Because these 46 occurrences exhibit stable or increasing trends, contain a relatively high number of stems, have fair to excellent viability, and exhibit relatively high reproductive rates, we expect these occurrences to persist into the future. While most of the remaining occurrences also receive protections and are not at immediate risk of extirpation, their lower population sizes and poorer viability put them at a greater risk of extirpation. However, while these occurrences may have a greater potential to become extirpated due to demographic or environmental stochasticity, the loss of some or all of those occurrences would not cause the species in the remainder of its range to be in danger of extinction or likely to become so.

In conclusion, we have determined that none of the existing or potential threats, either alone or in combination with others, are likely to cause S. albopilosa to be in danger of extinction throughout all or a significant portion of its range, nor is it likely to become endangered within the foreseeable future throughout all or a significant portion of its range. On the basis of this evaluation, we conclude S. albopilosa no longer requires the protection of the Act, and remove S. albopilosa from the Federal List of Endangered and Threatened Plants (50 CFR 17.12 (h)).

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 delisted due to recovery. Post-delisting monitoring (PDM) refers to activities undertaken to verify that a species that has been delisted due to recovery remains secure from the risk of extinction after the protections of the Act no longer apply. The primary goal of PDM is to ensure that the species' status does not deteriorate, and if a decline is detected, to take measures to halt the decline so that proposing it as threatened or endangered is not again needed. 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. At the conclusion of the monitoring period, we will review all available information to determine if relisting, the continuation of monitoring, or the termination of monitoring is appropriate.

In August 2016, the Service finalized a final PDM plan in cooperation with DBNF and KSNPC (Service 2016, entire). The Plan:

(1) Summarizes the species' status at the time of delisting;

(2) Defines thresholds or triggers for potential monitoring outcomes and conclusions;

(3) Lays out frequency and duration of monitoring;

(4) Articulates monitoring methods including sampling considerations;

(5) Outlines data compilation and reporting procedures and responsibilities; and

(6) Provides a post-delisting monitoring implementation schedule including timing and responsible parties.

We will post the final PDM plan and any future revisions if necessary on our national Web site (http://endangered.fws.gov) and on the Kentucky Fish and Wildlife Office's Web site (http://www.fws.gov/frankfort).

This final rule revises 50 CFR 17.12 by removing Solidago albopilosa from the Federal List of Endangered and Threatened Plants. Therefore, as of the effective date of this rule (see DATES), the prohibitions and conservation measures provided by the Act, particularly through sections 7 and 9, no longer apply to white-haired goldenrod. Removal of S. albopilosa from the Federal List of Endangered and Threatened Plants relieves Federal agencies from the need to consult with us under section 7 of the Act.

We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), need not be prepared in connection with regulations pursuant to section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. We have determined that no tribal lands or interests are affected by this rulemaking action.

A complete list of all references cited in this final rule is available at http://www.regulations.gov at Docket No. FWS-R4-ES-2014-0054, or upon request from the Kentucky Fish and Wildlife Office (see ADDRESSES).

The primary author of this rule is Dr. Michael A. Floyd in the Service's Kentucky Fish and Wildlife Service Office (see ADDRESSES and FOR FURTHER INFORMATION CONTACT).

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