Federal Register Vol. 81, No.28,

Federal Register Volume 81, Issue 28 (February 11, 2016)

Page Range7195-7440
FR Document

81_FR_28
Current View
Page and SubjectPDF
81 FR 7344 - Request for Medicare Payment Advisory Commission NominationsPDF
81 FR 7406 - Qualification of Drivers; Exemption Applications; VisionPDF
81 FR 7377 - Regular Board of Directors Sunshine Act MeetingPDF
81 FR 7377 - Audit Committee Sunshine Act MeetingPDF
81 FR 7379 - Sunshine Act MeetingPDF
81 FR 7337 - Certain New Chemicals; Receipt and Status Information for December 2015PDF
81 FR 7362 - Accreditation and Approval of SGS North America, Inc., as a Commercial Gauger and LaboratoryPDF
81 FR 7365 - Accreditation and Approval of Camin Cargo Control, Inc., as a Commercial Gauger and LaboratoryPDF
81 FR 7361 - Accreditation and Approval of SGS North America, Inc., as a Commercial Gauger and LaboratoryPDF
81 FR 7365 - Agency Information Collection Activities: Application To Establish a Centralized Examination StationPDF
81 FR 7364 - Accreditation and Approval of Pan Pacific Surveyors, Inc., as a Commercial Gauger and LaboratoryPDF
81 FR 7361 - Agency Information Collection Activities: Application-Permit-Special License Unlading-Lading-Overtime ServicesPDF
81 FR 7363 - Agency Information Collection Activities: Regulations Relating to Recordation and Enforcement of Trademarks and CopyrightsPDF
81 FR 7195 - Importation of Phalaenopsis Spp. Plants for Planting in Approved Growing Media From China to the Continental United StatesPDF
81 FR 7337 - Registration Review Interim Decisions; Notice of Availability; CorrectionPDF
81 FR 7376 - NASA Advisory Council; Institutional Committee; Meeting.PDF
81 FR 7343 - Information Collection; Cost Accounting Standards AdministrationPDF
81 FR 7328 - Agency Information Collection Activities; Comment Request; Fiscal Operations Report for 2014-2015 and Application To Participate 2016-2017 (FISAP) and Reallocation FormPDF
81 FR 7353 - Notice of Kidney Interagency Coordinating Committee MeetingPDF
81 FR 7329 - Applications for New Awards; American Indian Vocational Rehabilitation ServicesPDF
81 FR 7300 - Codex Alimentarius Commission: Meeting of the Codex Committee on Contaminants in FoodPDF
81 FR 7305 - Export Trade Certificate of ReviewPDF
81 FR 7404 - Biodiversity Beyond National Jurisdiction; Notice of Public MeetingPDF
81 FR 7305 - Seamless Carbon and Alloy Steel Standard, Line, and Pressure Pipe From the People's Republic of China: Final Results of the Expedited Sunset Review of the Antidumping Duty OrderPDF
81 FR 7303 - Foreign-Trade Zone (FTZ) 183-Austin, Texas, Authorization of Production Activity, Flextronics America, LLC (Automatic Data Processing Machines), Austin, TexasPDF
81 FR 7319 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Rocky Intertidal Monitoring Surveys Along the Oregon and California CoastsPDF
81 FR 7307 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the U.S. Air Force Conducting Maritime Weapon Systems Evaluation Program Operational Testing Within the Eglin Gulf Test and Training RangePDF
81 FR 7371 - Multistate Conservation Grant Program; Fiscal Year 2016 Priority List and Approval for Award of the Conservation ProjectsPDF
81 FR 7345 - Medicare Program: Notice of Seven Membership Appointments to the Advisory Panel on Hospital Outpatient PaymentPDF
81 FR 7373 - Public Land Order No. 7850; Extension of Public Land Order No. 7184, Elk River Wild and Scenic Corridor; OregonPDF
81 FR 7204 - Foreign Futures and Options TransactionsPDF
81 FR 7359 - Center for Substance Abuse Treatment; Notice of MeetingPDF
81 FR 7334 - Secretary of Energy Advisory BoardPDF
81 FR 7333 - Hydrogen and Fuel Cell Technical Advisory Committee (HTAC)PDF
81 FR 7333 - Environmental Management Site-Specific Advisory Board, PortsmouthPDF
81 FR 7325 - Privacy Act of 1974; System of RecordsPDF
81 FR 7302 - MeetingsPDF
81 FR 7351 - Pharmacy Compounding Advisory Committee; Notice of MeetingPDF
81 FR 7378 - License Renewal Application for LaSalle County Station, Units 1 and 2PDF
81 FR 7346 - Office of the Assistant Secretary, Office of the Deputy Assistant Secretary for Early Childhood Development, Office of Head Start, Office of Child Care; Statement of Organization, Functions, and Delegations of AuthorityPDF
81 FR 7324 - Gulf of Mexico Fishery Management Council; Public MeetingPDF
81 FR 7341 - Notice of Proposals To Engage in or To Acquire Companies Engaged in Permissible Nonbanking ActivitiesPDF
81 FR 7341 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
81 FR 7360 - National Offshore Safety Advisory CommitteePDF
81 FR 7207 - Drawbridge Operation Regulation; Des Allemands Bayou, Des Allemands, LAPDF
81 FR 7208 - Drawbridge Operation Regulation; Gulf Intracoastal Waterway, Galveston, TXPDF
81 FR 7406 - Petition for Waiver of CompliancePDF
81 FR 7358 - Notice of MeetingPDF
81 FR 7358 - Advisory Committee for Women's Services (ACWS); Notice of MeetingPDF
81 FR 7359 - Notice of MeetingPDF
81 FR 7253 - Additional Limitation on Suspension of Benefits Applicable to Certain Pension Plans Under the Multiemployer Pension Reform Act of 2014PDF
81 FR 7304 - Bureau of Industry and SecurityPDF
81 FR 7327 - Privacy Act of 1974; System of RecordsPDF
81 FR 7342 - General Workings Inc. (Also Doing Business as Vulcun); Analysis of Proposed Consent Order To Aid Public CommentPDF
81 FR 7306 - Manufacturing Extension Partnership Advisory BoardPDF
81 FR 7373 - Meeting of the California Desert District Advisory CouncilPDF
81 FR 7406 - Environmental Impact Statement: Cherokee and Forsyth Counties, Georgia.PDF
81 FR 7344 - 30-Day-16-15BHD]PDF
81 FR 7391 - Good Hill Partners LP and Good Hill ETF Trust; Notice of ApplicationPDF
81 FR 7198 - Special Conditions: The Boeing Company, Model 737-8 Airplanes; Design Roll-Maneuver RequirementsPDF
81 FR 7249 - Special Conditions: The Boeing Company, Boeing Model 737-8 Airplane; Non-Rechargeable Lithium Battery InstallationsPDF
81 FR 7303 - Notice of Public Meeting of the North Carolina (State) Advisory Committee (SAC) for a Meeting To Discuss Potential Project TopicsPDF
81 FR 7337 - Talen Energy Marketing, LLC; Notice of Institution of Section 206 Proceeding and Refund Effective DatePDF
81 FR 7334 - Combined Notice of Filings #2PDF
81 FR 7335 - Tennessee Gas Pipeline Company, L.L.C; Notice of Revised Schedule for Environmental Review of the Susquehanna West ProjectPDF
81 FR 7336 - Elba Liquefaction Company, LLC, Southern LNG Company, LLC, Elba Express Company, LLC; Notice of Availability of the Environmental Assessment for the Proposed Elba Liquefaction ProjectPDF
81 FR 7335 - Combined Notice of Filings #1PDF
81 FR 7371 - Washington; Major Disaster and Related DeterminationsPDF
81 FR 7368 - Idaho; Major Disaster and Related DeterminationsPDF
81 FR 7370 - Oklahoma; Amendment No. 1 to Notice of a Major Disaster DeclarationPDF
81 FR 7284 - Notice of Request for an Extension of Approval of an Information Collection; Specimen SubmissionPDF
81 FR 7375 - Extension of Information Collection; Comment RequestPDF
81 FR 7374 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Explosive Materials and Blasting Units in Metal and Nonmetal Underground Gassy MinesPDF
81 FR 7366 - Proposed Flood Hazard DeterminationsPDF
81 FR 7368 - Changes in Flood Hazard DeterminationsPDF
81 FR 7201 - Energy Labeling RulePDF
81 FR 7302 - Submission for OMB Review; Comment RequestPDF
81 FR 7208 - Rules of Practice Before the Postal Service Board of Contract AppealsPDF
81 FR 7198 - Capital Planning and Stress Testing-Schedule ShiftPDF
81 FR 7394 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing of Amendment No. 1 and Order Granting Accelerated Approval of Proposed Rule Change, as Modified by Amendment No. 1, To Provide That the Co-Location Services Offered by the Exchange Include Three Time Feeds and Four Partial Cabinet Bundle OptionsPDF
81 FR 7382 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing of Amendment No. 2 and Order Granting Accelerated Approval of Proposed Rule Change, as Modified by Amendment No. 2, To Provide That the Co-Location Services Offered by the Exchange Include Three Time Feeds and Four Partial Cabinet Bundle OptionsPDF
81 FR 7401 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Amendment No. 2 and Order Granting Accelerated Approval of Proposed Rule Change, as Modified by Amendment No. 2, To Provide That the Co-Location Services Offered by the Exchange Include Three Time Feeds and Four Partial Cabinet Bundle OptionsPDF
81 FR 7386 - Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Chapter XXI of BZX Options To Further Align the Rules With Those of EDGX OptionsPDF
81 FR 7390 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending the NYSE Arca Options Fee SchedulePDF
81 FR 7398 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing of Proposed Rule Change To Amend Rule 4120PDF
81 FR 7379 - Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Related to Fees for Use of BATS Exchange, Inc.PDF
81 FR 7392 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending Supplementary Material .10 to Rule 103B-Equities To Provide That Any Senior Official of a Listed Company With the Rank of Corporate Secretary or Higher Can Sign the Written Request of a Listed Company Seeking To Change Its Designated Market Maker UnitPDF
81 FR 7373 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public InterestPDF
81 FR 7408 - Ferrari North America, Inc., Grant of Petition for Decision of Inconsequential NoncompliancePDF
81 FR 7269 - Air Plan Approval and Designation of Areas; MS; Redesignation of the DeSoto County, 2008 8-Hour Ozone Nonattainment Area to AttainmentPDF
81 FR 7259 - Approval of Air Plan Revisions; Arizona; Rescissions and CorrectionsPDF
81 FR 7407 - Tesla Motors, Inc. (Tesla), Grant of Petition for Decision of Inconsequential NoncompliancePDF
81 FR 7410 - Automobili Lamborghini S.p.A., Grant of Petition for Decision of Inconsequential NoncompliancePDF
81 FR 7209 - Approval of Air Plan Revisions; Arizona; Rescissions and CorrectionsPDF
81 FR 7355 - Eunice Kennedy Shriver National Institute of Child Health and Human Development; Notice of Closed MeetingsPDF
81 FR 7356 - Center for Scientific Review; Notice of Closed MeetingsPDF
81 FR 7356 - Center for Scientific Review; Notice of Closed MeetingPDF
81 FR 7352 - National Institute of Biomedical Imaging and Bioengineering; Notice of Closed MeetingsPDF
81 FR 7352 - National Institute on Aging; Notice of Closed MeetingPDF
81 FR 7357 - National Cancer Institute; Notice of Closed MeetingsPDF
81 FR 7353 - Center for Scientific Review; Notice of Closed MeetingsPDF
81 FR 7357 - Center for Scientific Review; Notice of Closed MeetingsPDF
81 FR 7412 - Pipeline Safety: Dangers of Abnormal Snow and Ice Build-Up on Gas Distribution SystemsPDF
81 FR 7354 - Workshop on Shift Work at Night, Artificial Light at Night, and Circadian Disruption; Notice of Public Meeting; Registration InformationPDF
81 FR 7413 - Listing Endangered and Threatened Species and Designating Critical Habitat; Implementing Changes to the Regulations for Designating Critical HabitatPDF
81 FR 7226 - Policy Regarding Implementation of Section 4(b)(2) of the Endangered Species ActPDF
81 FR 7214 - Interagency Cooperation-Endangered Species Act of 1973, as Amended; Definition of Destruction or Adverse Modification of Critical HabitatPDF
81 FR 7251 - Proposed Establishment of Class E Airspace; Coldwater, KSPDF
81 FR 7200 - Establishment of Class E Airspace; Clinton ARPDF
81 FR 7279 - Revision of Federal Migratory Bird Hunting and Conservation Stamp (Duck Stamp) Contest RegulationsPDF
81 FR 7256 - Safety Zone; Cooper River Bridge Run, Cooper River, and Town Creek Reaches, Charleston, SCPDF
81 FR 7259 - Approval and Promulgation of Implementation Plans; Mississippi; Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality StandardPDF
81 FR 7285 - New Performance Standards for Salmonella and Campylobacter in Not-Ready-to-Eat Comminuted Chicken and Turkey Products and Raw Chicken Parts and Changes to Related Agency Verification Procedures: Response to Comments and Announcement of Implementation SchedulePDF
81 FR 7405 - Seventh Meeting: RTCA Special Committee (230) Airborne Weather Detection Systems (Joint With EUROCAE WG-95)PDF
81 FR 7325 - Notice of MeetingPDF

Issue

81 28 Thursday, February 11, 2016 Contents Agriculture Agriculture Department See

Animal and Plant Health Inspection Service

See

Food and Nutrition Service

See

Food Safety and Inspection Service

Animal Animal and Plant Health Inspection Service RULES Importation of Phalaenopsis Spp. Plants for Planting in Approved Growing Media From China to the Continental United States, 7195-7198 2016-02822 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Specimen Submission, 7284 2016-02751 Architectural Architectural and Transportation Barriers Compliance Board NOTICES Meetings: Architectural and Transportation Barriers Compliance Board, 7302-7303 2016-02787 Centers Disease Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 7344-7345 2016-02765 Centers Medicare Centers for Medicare & Medicaid Services NOTICES Medicare Programs: Seven Membership Appointments to the Advisory Panel on Hospital Outpatient Payment, 7345-7346 2016-02798 Children Children and Families Administration NOTICES Statement of Organization, Functions, and Delegations of Authority, 7346-7351 2016-02784 Civil Rights Civil Rights Commission NOTICES Meetings: North Carolina (State) Advisory Committee, 7303 2016-02760 Coast Guard Coast Guard RULES Drawbridge Operations: Des Allemands Bayou, Des Allemands, LA, 7207 2016-02778 Gulf Intracoastal Waterway, Galveston, TX, 7208 2016-02777 PROPOSED RULES Safety Zones: Cooper River Bridge Run, Cooper River, and Town Creek Reaches, Charleston, SC, 7256-7259 2016-02621 NOTICES Meetings: National Offshore Safety Advisory Committee, 7360-7361 2016-02779 Commerce Commerce Department See

Foreign-Trade Zones Board

See

Industry and Security Bureau

See

International Trade Administration

See

National Institute of Standards and Technology

See

National Oceanic and Atmospheric Administration

Commission Fine Commission of Fine Arts NOTICES Meetings: U.S. Commission of Fine Arts, 7325 2016-02541 Commodity Futures Commodity Futures Trading Commission RULES Foreign Futures and Options Transactions, 7204-7207 2016-02795 Defense Department Defense Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Cost Accounting Standards Administration, 7343-7344 2016-02812 Privacy Act; Systems of Records, 7325-7328 2016-02770 2016-02788 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Fiscal Operations Report for 2014-2015 and Application to Participate 2016-2017 (FISAP) and Reallocation Form, 7328 2016-02811 Applications for New Awards: American Indian Vocational Rehabilitation Services, 7329-7333 2016-02808 Energy Department Energy Department See

Federal Energy Regulatory Commission

NOTICES Meetings: Environmental Management Site-Specific Advisory Board, Portsmouth, 7333-7334 2016-02790 Hydrogen and Fuel Cell Technical Advisory Committee, 7333 2016-02791 Secretary of Energy Advisory Board, 7334 2016-02792
Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Rescissions and Corrections; Arizona, 7209-7214 2016-02714 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Arizona; Rescissions and Corrections, 7259 2016-02724 Mississippi; Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality Standard, 7259-7269 2016-02608 Mississippi; Redesignation of the DeSoto County, 2008 8-Hour Ozone Nonattainment Area to Attainment, 7269-7279 2016-02725 NOTICES Certain New Chemicals: Receipt and Status Information for December 2015, 7337-7341 2016-02830 Registration Review Interim Decisions; Correction, 7337 2016-02820 Federal Aviation Federal Aviation Administration RULES Establishment of Class E Airspace: Clinton, AR, 7200-7201 2016-02672 Special Conditions: The Boeing Company, Model 737-8 airplanes; Design Roll-Maneuver Requirements, 7198-7200 2016-02762 PROPOSED RULES Establishment of Class E Airspace: Coldwater, KS, 7251-7252 2016-02674 Special Conditions: The Boeing Company, Boeing Model 737-8 Airplane; Non-Rechargeable Lithium Battery Installations, 7249-7251 2016-02761 NOTICES Meetings: RTCA Special Committee (230) Airborne Weather Detection Systems (Joint with EUROCAE WG-95), 7405-7406 2016-02547 Federal Emergency Federal Emergency Management Agency NOTICES Changes in Flood Hazard Determinations, 7368-7370 2016-02746 Flood Hazard Determinations; Proposals, 7366-7368 2016-02747 Major Disaster Declarations: Idaho, 7368 2016-02753 Oklahoma; Amendment No. 1, 7370 2016-02752 Washington, 7371 2016-02754 Federal Energy Federal Energy Regulatory Commission NOTICES Combined Filings, 7334-7336 2016-02755 2016-02758 Environmental Assessments; Availability, etc.: Elba Liquefaction Project; Elba Liquefaction Co., LLC; Southern LNG Co., LLC; Elba Express Co., LLC, 7336-7337 2016-02756 Susquehanna West Project; Tennessee Gas Pipeline Co., LLC, 7335 2016-02757 Filings: Talen Energy Marketing, LLC, 7337 2016-02759 Federal Highway Federal Highway Administration NOTICES Environmental Impact Statements; Availability, etc.: Cherokee and Forsyth Counties, GA, 7406 2016-02766 Federal Motor Federal Motor Carrier Safety Administration NOTICES Qualification of Drivers; Exemption Applications: Vision, 7406 C1--2016--00472 Federal Railroad Federal Railroad Administration NOTICES Petitions for Waivers of Compliance, 7406-7407 2016-02776 Federal Reserve Federal Reserve System NOTICES Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 7341-7342 2016-02780 Proposals to Engage in or to Acquire Companies Engaged in Permissible Nonbanking Activities, 7341 2016-02781 Federal Trade Federal Trade Commission RULES Energy Labeling, 7201-7204 2016-02744 NOTICES Proposed Consent Orders: General Workings Inc., Also Doing Business as Vulcun, 7342-7343 2016-02769 Fish Fish and Wildlife Service RULES Interagency Cooperation—Endangered Species Act of 1973: Definition of Destruction or Adverse Modification of Critical Habitat, 7214-7226 2016-02675 Listing Endangered and Threatened Species and Designating Critical Habitat, 7414-7440 2016-02680 Policy Regarding Implementation of Exclusions of Critical Habitat under the Endangered Species Act, 7226-7248 2016-02677 PROPOSED RULES Federal Migratory Bird Hunting and Conservation Stamp (Duck Stamp) Contest, 7279-7283 2016-02665 NOTICES Multistate Conservation Grant Program; Fiscal Year 2016 Priority List and Approval for Award of the Conservation Projects, 7371-7373 2016-02799 Food and Drug Food and Drug Administration NOTICES Meetings: Pharmacy Compounding Advisory Committee, 7351-7352 2016-02786 Food and Nutrition Food and Nutrition Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 7302 2016-02742 Food Safety Food Safety and Inspection Service NOTICES Meetings: Codex Alimentarius Commission; Codex Committee on Contaminants in Food, 7300-7302 2016-02807 New Performance Standards for Salmonella and Campylobacter in Not-Ready-to-Eat Comminuted Chicken and Turkey Products and Raw Chicken Parts and Changes to Related Agency Verification Procedures, 7285-7300 2016-02586 Foreign Trade Foreign-Trade Zones Board NOTICES Authorization of Production Activities: Foreign-Trade Zone 183; Flextronics America, LLC, Austin, TX, 7303 2016-02803 General Services General Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Cost Accounting Standards Administration, 7343-7344 2016-02812 Government Accountability Government Accountability Office NOTICES Requests for Nominations: Medicare Payment Advisory Commission, 7344 C1--2016--01264 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Centers for Medicare & Medicaid Services

See

Children and Families Administration

See

Food and Drug Administration

See

National Institutes of Health

See

Substance Abuse and Mental Health Services Administration

Homeland Homeland Security Department See

Coast Guard

See

Federal Emergency Management Agency

See

U.S. Customs and Border Protection

Industry Industry and Security Bureau NOTICES Denials of Export Privileges: Qiang Hu, a/k/a Johnson Hu, 7304 2016-02771 Interior Interior Department See

Fish and Wildlife Service

See

Land Management Bureau

Internal Revenue Internal Revenue Service PROPOSED RULES Additional Limitation on Suspension of Benefits Applicable to Certain Pension Plans under the Multiemployer Pension Reform Act, 7253-7256 2016-02772 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Seamless Carbon and Alloy Steel Standard, Line, and Pressure Pipe from the People's Republic of China, 7305 2016-02804 Export Trade Certificate of Review, 7305-7306 2016-02806 International Trade Com International Trade Commission NOTICES Complaints: Certain Pumping Bras, 7373-7374 2016-02727 Labor Department Labor Department See

Labor-Management Standards Office

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Explosive Materials and Blasting Units in Metal and Nonmetal Underground Gassy Mines, 7374-7375 2016-02748
Labor Management Standards Labor-Management Standards Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 7375-7376 2016-02750 Land Land Management Bureau NOTICES Meetings: California Desert District Advisory Council, 7373 2016-02767 Public Land Orders: Elk River Wild and Scenic Corridor; OR, 7373 2016-02797 NASA National Aeronautics and Space Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Cost Accounting Standards Administration, 7343-7344 2016-02812 Meetings: NASA Advisory Council Institutional Committee, 7376-7377 2016-02813 National Credit National Credit Union Administration RULES Capital Planning and Stress Testing—Schedule Shift; Correction, 7198 2016-02740 National Highway National Highway Traffic Safety Administration NOTICES Petitions for Decision of Inconsequential Noncompliance: Automobili Lamborghini S.p.A., 7410-7411 2016-02721 Ferrari North America, Inc., 7408-7410 2016-02726 Tesla Motors, Inc., 7407-7408 2016-02722 National Institute National Institute of Standards and Technology NOTICES Meetings: Manufacturing Extension Partnership Advisory Board, 7306-7307 2016-02768 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 7353-7354, 7356-7357 2016-02705 2016-02706 2016-02710 2016-02711 Eunice Kennedy Shriver National Institute of Child Health and Human Development, 7355-7356 2016-02712 Kidney Interagency Coordinating Committee, 7353 2016-02809 National Cancer Institute, 7357-7358 2016-02707 National Institute of Biomedical Imaging and Bioengineering, 7352 2016-02709 National Institute on Aging, 7352-7353 2016-02708 Shift Work at Night, Artificial Light at Night, and Circadian Disruption; Workshop, 7354-7355 2016-02703 National Oceanic National Oceanic and Atmospheric Administration RULES Interagency Cooperation—Endangered Species Act of 1973: Definition of Destruction or Adverse Modification of Critical Habitat, 7214-7226 2016-02675 Listing Endangered and Threatened Species and Designating Critical Habitat, 7414-7440 2016-02680 Policy Regarding Implementation of Exclusions of Critical Habitat under the Endangered Species Act, 7226-7248 2016-02677 NOTICES Meetings: Gulf of Mexico Fishery Management Council, 7324-7325 2016-02783 Takes of Marine Mammals Incidental to Specified Activities: Rocky Intertidal Monitoring Surveys along the Oregon and California Coasts, 7319-7324 2016-02802 U.S. Air Force Maritime Weapon Systems Evaluation Program Operational Testing Eglin Gulf Test and Training Range, 7307-7319 2016-02801 Neighborhood Neighborhood Reinvestment Corporation NOTICES Meetings; Sunshine Act, 7377 2016-02944 2016-02945 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Environmental Impact Statements; Availability, etc.: License Renewal Application for LaSalle County Station, Units 1 and 2, 7378-7379 2016-02785 Meetings; Sunshine Act, 7379 2016-02866 Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Advisory Bulletins: Pipeline Safety: Dangers of Abnormal Snow and Ice Build-Up on Gas Distribution Systems, 7412 2016-02704 Postal Service Postal Service RULES Rules of Practice before the Postal Service Board of Contract Appeals, 7208 2016-02741 Securities Securities and Exchange Commission NOTICES Applications: Good Hill Partners, LP and Good Hill ETF Trust, 7391-7392 2016-02764 Self-Regulatory Organizations; Proposed Rule Changes: BATS Exchange, Inc., 7379-7382, 7386-7389 2016-02730 2016-02733 New York Stock Exchange, LLC, 7394-7398 2016-02736 NYSE Arca, Inc., 7390-7391, 7401-7404 2016-02732 2016-02734 NYSE MKT, LLC, 7382-7386, 7392-7394 2016-02729 2016-02735 The NASDAQ Stock Market, LLC, 7398-7400 2016-02731 State Department State Department NOTICES Meetings: Biodiversity Beyond National Jurisdiction, 7404-7405 2016-02805 Substance Substance Abuse and Mental Health Services Administration NOTICES Meetings: Advisory Committee for Women's Services, 7358 2016-02774 Center for Substance Abuse Treatment, 7359-7360 2016-02794 National Advisory Council, 7358-7359 2016-02773 2016-02775 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Highway Administration

See

Federal Motor Carrier Safety Administration

See

Federal Railroad Administration

See

National Highway Traffic Safety Administration

See

Pipeline and Hazardous Materials Safety Administration

Treasury Treasury Department See

Internal Revenue Service

Customs U.S. Customs and Border Protection NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application to Establish a Centralized Examination Station, 7365-7366 2016-02826 Application-Permit-Special License Unlading-Lading-Overtime Services, 7361 2016-02824 Regulations Relating to Recordation and Enforcement of Trademarks and Copyrights, 7363-7364 2016-02823 Commercial Gaugers and Laboratories; Accreditations and Approvals: Camin Cargo Control, Inc., 7365 2016-02828 Pan Pacific Surveyors, Inc., 7364 2016-02825 SGS North America, Inc., 7361-7363 2016-02827 2016-02829 Separate Parts In This Issue Part II Commerce Department, National Oceanic and Atmospheric Administration, 7414-7440 2016-02680 Interior Department, Fish and Wildlife Service, 7414-7440 2016-02680 Reader Aids

Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.

To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.thefederalregister.org and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.

81 28 Thursday, February 11, 2016 Rules and Regulations DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 7 CFR Part 319 [Docket No. APHIS-2014-0106] RIN 0579-AE10 Importation of Phalaenopsis Spp. Plants for Planting in Approved Growing Media From China to the Continental United States AGENCY:

Animal and Plant Health Inspection Service, USDA.

ACTION:

Final rule.

SUMMARY:

We are amending the regulations governing the importation of plants for planting to authorize the importation of Phalaenopsis spp. plants for planting from China in approved growing media into the continental United States, subject to a systems approach. The systems approach consists of measures that are currently specified in the regulations as generally applicable to all plants for planting authorized for importation into the United States in approved growing media. This rule allows for the importation of Phalaenopsis spp. plants for planting from China in approved growing media, while providing protection against the introduction of quarantine plant pests.

DATES:

Effective March 14, 2016.

FOR FURTHER INFORMATION CONTACT:

Ms. Lydia E. Colón, PPQ, APHIS, 4700 River Road, Unit 133, Riverdale, MD 20737-1236; (301) 851-2302.

SUPPLEMENTARY INFORMATION:

Background

The regulations in 7 CFR part 319 prohibit or restrict the importation of certain plants and plant products into the United States to prevent the introduction of quarantine plant pests. The regulations contained in “Subpart—Plants for Planting,” §§ 319.37 through 319.37-14 (referred to below as the regulations), prohibit or restrict, among other things, the importation of living plants, plant parts, and seeds for propagation or planting.

The regulations differentiate between prohibited articles and restricted articles. Prohibited articles are plants for planting whose importation into the United States is not authorized due to the risk the articles present of introducing or disseminating quarantine plant pests. Restricted articles are articles authorized for importation into the United States, provided that the articles are subject to mitigation measures to address such risk.

Conditions for the importation into the United States of restricted articles in growing media are found in § 319.37-8. Within that section, the introductory text of paragraph (e) lists taxa of restricted articles that may be imported into the United States in approved growing media, subject to the provisions of a systems approach. Paragraph (e)(1) of § 319.37-8 lists the approved growing media, while paragraph (e)(2) contains the provisions of the systems approach. Within paragraph (e)(2), paragraphs (i) through (viii) contain provisions that are generally applicable to all the taxa listed in the introductory text of paragraph (e), while paragraphs (ix) through (xii) contain additional, taxon-specific provisions.

In response to a request from the national plant protection organization (NPPO) of China, on June 1, 2015, in a proposed rule 1 published in the Federal Register (80 FR 30959-30961, Docket No. APHIS-2014-0106), we proposed to amend the introductory text of paragraph (e) of § 319.37-8 to add Phalaenopsis spp. plants for planting from China to the list of taxa authorized for importation into the United States in approved growing media. We also proposed to add a paragraph (e)(2)(xii) to § 319.37-8 that would specify that such plants for planting may only be imported into the continental United States.

1 To view the proposed rule, its supporting documents, or the comments that we received, go to http://www.regulations.gov/#!docketDetail;D=APHIS-2014-0106.

We solicited comments concerning our proposal for 60 days ending July 31, 2015. We received eight comments by that date. They were from the NPPO of China, two State departments of agriculture, an organization representing State departments of agriculture, an organization representing horticulture in the State of Hawaii, a plant pathologist specializing in Phalaenopsis spp. plants for planting, and private citizens.

One commenter suggested we finalize the rule, as written. The remaining commenters had questions and comments regarding the rule and its supporting documents. We discuss the comments that we received below, by topic.

Comments Regarding the Pest Risk Assessment and Risk Management Document

In response to the NPPO of China's request, we prepared a pest risk assessment (PRA), titled “Importation of Phalaenopsis spp. Orchids in Growing Media from China into the Continental United States: A Pathway-Initiated Risk Assessment,” to analyze the potential pest risk associated with the importation of Phalaenopsis spp. plants for planting in approved growing media into the continental United States from China. We also prepared a risk management document (RMD), titled “Importation of Phalaenopsis spp. Orchids in Approved Growing Media from China into the Continental United States,” to identify the phytosanitary measures necessary to ensure the safe importation into the continental United States of Phalaenopsis spp. plants for planting in approved growing media from China.

One commenter stated that the PRA did not consider the possibility that viral pathogens of Phalaenopsis spp. plants for planting could be introduced into the continental United States through the importation of Phalaenopsis spp. plants for planting in approved growing media from China.

In developing our PRAs, we first prepare a list of pests of the commodity that we have determined to occur in the particular foreign region. We then determine whether the pests are quarantine pests, which the regulations define as plant pests that are of potential economic importance to the United States and not yet present in the United States, or present but not widely distributed and being officially controlled. If the pests are quarantine pests, we then assess whether they could be introduced into the United States through the importation of the commodity.

The PRA identified five viral pathogens of Phalaenopsis spp. plants for planting that we have determined to occur in China. However, none of these pathogens are quarantine pests. Accordingly, we did not assess whether they are likely to follow the pathway on Phalaenopsis spp. plants for planting in approved growing media from China to the continental United States.

One commenter pointed out that, in the PRA, the list of plant pests of Phalaenopsis spp. plants for planting that are known to occur in China did not include Dickeya dieffenbachiae, a bacterial pathogen, and Colletotrichum karstii, a pathogenic fungus. The commenter stated that these pests occur in China and could follow the pathway on Phalaenopsis spp. plants for planting in approved growing media from China to the continental United States. The commenter concluded that the pests therefore should be added to the PRA, and mitigation measures specific to the pests should be added to the RMD and rule.

D. dieffenbachiae and C. karstii were detected in China after the PRA and RMD were drafted, and we agree with the commenter that they could follow the pathway on Phalaenopsis spp. plants for planting in approved growing media from China to the continental United States. However, we do not consider it necessary to revise the RMD or rule to specify mitigation measures for these pests. We reserve pest-specific mitigation measures for quarantine pests. Neither D. dieffenbachiae nor C. karstii is a quarantine pest: Both are present in the United States, and neither pest is under official control.

Two commenters pointed out that the PRA identified four quarantine pests that could follow the pathway on Phalaenopsis spp. plants for planting in approved growing media from China to the continental United States: Spodoptera litura, Thrips palmi, Cylindrosporium phalaenopsidis, and Lissachatina fulica. The commenters stated that, if these pests became established throughout the United States, they could result in significant economic losses for domestic producers. For this reason, the commenters did not support the proposed rule.

We agree that, if the quarantine pests identified by the PRA were to become established throughout the United States, they could cause economic losses for domestic producers. However, for the reasons specified in the RMD and the proposed rule itself, if the provisions of this rule are adhered to, we have determined that they will mitigate the plant pest risk associated with the importation of Phalaenopsis spp. plants for planting in approved growing media from China.

Because we had identified more pests that could follow the pathway on orchids from Taiwan to the United States than from China to the continental United States, one commenter surmised that we were establishing more favorable trading conditions for China than for Taiwan regarding the export of orchids to the United States.

The commenter's assumption is incorrect. There are more quarantine pests of Oncidium spp. known to occur in Taiwan that could follow the pathway on Oncidium spp. plants for planting in approved growing media from Taiwan to the United States than there are of Phalaenopsis spp. known to occur in China that could follow the pathway on Phalaenopsis spp. plants for planting in approved growing media from China to the continental United States.

Finally, one commenter asked whether we were confident that the PRA had identified all the plant pests of Phalaenopsis spp. plants for planting in China, given China's size.

We are confident. In the PRA, we took into consideration China's size and relied on multiple sources to identify pests of Phalaenopsis spp. plants for planting in China.

Comments Regarding Movement to Hawaii

One commenter noted that the rule only proposed to authorize the importation of Phalaenopsis spp. plants for planting in approved growing media from China to the continental United States, and did not propose to authorize such importation to Hawaii or the territories of the United States. The commenter asked whether, once Phalaenopsis spp. plants for planting in approved growing media from China enter the continental United States, they subsequently may be shipped to Hawaii or the territories. If the rule does not authorize such reshipment, the commenter asked how we intended to prevent it from occurring.

This rule expressly prohibits such reshipment, and we will use inspections to prevent it from occurring.

Comments Regarding the Proposed Systems Approach

We proposed that the Phalaenopsis spp. plants for planting would have to be grown in a greenhouse in which sanitary procedures adequate to exclude quarantine pests are always employed. We proposed that, at a minimum, the greenhouse would have to be free from sand and soil, have screenings with openings of not more than 0.6 mm on all vents and openings except entryways, have entryways equipped with automatic closing doors, regularly clean and disinfect floors, benches, and tools, and use only rainwater that has been boiled or pasteurized, clean well water, or potable water to water the plants.

One commenter stated that plant pest population densities can vary significantly within a foreign region. The commenter expressed concern that sanitary procedures that are adequate to exclude quarantine pests from a greenhouse in one region of China may not be adequate to do so in another region.

Growers must employ sanitary procedures that are adequate to exclude quarantine pests from the Phalaenopsis spp. plants for planting grown at the greenhouse that are intended for export to the United States. These sanitary procedures must therefore correspond to the quarantine pest risk associated with the area in which the greenhouse is located. Accordingly, if the greenhouse is located in an area of China with particularly high population densities of a certain quarantine pest, the grower may need to employ additional safeguards to exclude that pest from affecting plants for planting at the greenhouse. The NPPO of China will make this determination regarding whether additional safeguards are necessary, and will communicate the safeguards needed to the greenhouse in an agreement with the grower. The grower must enter into such an agreement with the NPPO in order to export Phalaenopsis spp. plants for planting in approved growing media to the United States.

Another commenter expressed concern that screenings with openings of 0.6 mm would not preclude T. palmi from entering the greenhouses. The commenter cited studies indicating that 40 to 50 percent of T. palmi that attempt to pass through such an opening can do so.

We agree that screenings with openings of 0.6 mm may not preclude all T. palmi from entering the greenhouse. However, as we mentioned above, in order to comply with the provisions of the systems approach, growers will have to employ sanitary procedures that are sufficient to exclude quarantine pests from the Phalaenopsis spp. intended for export to the United States. Accordingly, growers in areas where T. palmi are present will be expected to develop a pest management plan for T. palmi to address incursions of this pest into the greenhouse; the plan must have sufficient safeguards to prevent Phalaenopsis spp. plants for planting intended for export to the United States from becoming infested with T. palmi. The agreement that the grower enters into with the NPPO of China will specify the additional safeguards that the grower will use.

In the proposed rule, we proposed to add a condition restricting the importation of Phalaenopsis spp. from China in approved growing media to the continental United States to § 319.37-8 as paragraph (e)(2)(xii). In this final rule, it is added as paragraph (e)(2)(xiii).

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

Executive Order 12866 and Regulatory Flexibility Act

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

In accordance with 5 U.S.C. 604, we have performed a final regulatory flexibility analysis, which is summarized below, regarding the economic effects of this rule on small entities. Copies of the full analysis are available on the Regulations.gov Web site (see footnote 1 in this document for a link to Regulations.gov) or by contacting the person listed under FOR FURTHER INFORMATION CONTACT.

APHIS is amending the regulations in 7 CFR 319.37-8(e) to allow the importation from China into the continental United States of orchids of the genus Phalaenopsis established in an approved growing medium, subject to specified growing, inspection, and certification requirements.

Prior to this rule, Phalaenopsis spp. imported from China were required to be bare-rooted. Eliminating this requirement is expected to increase the number and quality of orchids imported from China by U.S. producers, who then finish the plants for the retail market. This change could result in cost savings for these U.S. producers, which may or may not be passed on to U.S. buyers. The amended regulations could also result in the importation of market-ready Phalaenopsis spp. in approved growing media from China that would directly compete at wholesale and retail levels with U.S. finished potted orchids. The latter scenario is considered unlikely, given the technical challenges and additional marketing costs incurred when shipping finished plants in pots.

While many of the U.S. entities that will be affected by the rule such as orchid producers and importers may be small by Small Business Administration standards, we expect economic effects for these entities to be modest.

Executive Order 12988

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

National Environmental Policy Act

An environmental assessment and finding of no significant impact have been prepared for this final rule. The environmental assessment provides a basis for the conclusion that the importation of Phalaenopsis spp. plants for planting from China, subject to a required systems approach, will not have a significant impact on the quality of the human environment. Based on the finding of no significant impact, the Administrator of the Animal and Plant Health Inspection Service has determined that an environmental impact statement need not be prepared.

The environmental assessment and finding of no significant impact were prepared in accordance with: (1) The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq.), (2) regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) USDA regulations implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA Implementing Procedures (7 CFR part 372).

The environmental assessment and finding of no significant impact may be viewed on the Regulations.gov Web site. Copies of the environmental assessment and finding of no significant impact are also available for public inspection at USDA, Room 1141, South Building, 14th Street and Independence Avenue SW., Washington, DC, between 8 a.m. and 4:30 p.m., Monday through Friday, except holidays. Persons wishing to inspect copies are requested to call ahead on (202) 799-7039 to facilitate entry into the reading room. In addition, copies may be obtained by writing to the individual listed under FOR FURTHER INFORMATION CONTACT.

Paperwork Reduction Act

In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the information collection or recordkeeping requirements included in this final rule, which were filed under 0579-0439, have been submitted for approval to the Office of Management and Budget (OMB). When OMB notifies us of its decision, if approval is denied, we will publish a document in the Federal Register providing notice of what action we plan to take.

E-Government Act Compliance

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

List of Subjects in 7 CFR Part 319

Coffee, Cotton, Fruits, Imports, Logs, Nursery stock, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Rice, Vegetables.

Accordingly, we are amending 7 CFR part 319 as follows:

PART 319—FOREIGN QUARANTINE NOTICES 1. The authority citation for part 319 continues to read as follows: Authority:

7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.

2. Section 319.37-8 is amended as follows: a. In paragraph (e) introductory text, in the entry for “Phalaenopsis spp. from Taiwan”, add the words “and the People's Republic of China” after the word “Taiwan”. b. Add paragraph (e)(2)(xiii). c. Revise the OMB citation at the end of the section.

The addition and revision read as follows:

§ 319.37-8 Growing media.

(e) * * *

(2) * * *

(xiii) Plants for planting of Phalaenopsis spp. from the People's Republic of China may only be imported into the continental United States, and may not be imported or moved into Hawaii or the territories of the United States.

(Approved by the Office of Management and Budget under control numbers 0579-0266, 0579-0431, and 0579-0439)
Done in Washington, DC, this 5th day of February 2015. Kevin Shea, Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2016-02822 Filed 2-10-16; 8:45 am] BILLING CODE 3410-34-P
NATIONAL CREDIT UNION ADMINISTRATION 12 CFR Part 702 RIN 3133-AE44 Capital Planning and Stress Testing—Schedule Shift AGENCY:

National Credit Union Administration (NCUA).

ACTION:

Final rule; correcting amendment.

SUMMARY:

The NCUA Board (Board) published a final rule in the Federal Register on August 11, 2015, regarding the capital planning and stress testing provisions in NCUA's regulations. This amendment corrects the regulations by reinstating a provision that was inadvertently removed by the August 2015 final rule.

DATES:

This correcting amendment is effective February 11, 2016.

FOR FURTHER INFORMATION CONTACT:

Marvin Shaw, Staff Attorney, Office of General Counsel, 1775 Duke Street, Alexandria VA 22314 or telephone (703) 518-6553.

SUPPLEMENTARY INFORMATION:

NCUA is correcting a technical error in the final rule NCUA published in the Federal Register on August 11, 2015 (80 FR 48012). This amendment corrects § 702.504(a) of NCUA's regulations by reinstating § 702.504(a)(2) which was inadvertently removed by the August 2015 final rule.

List of Subjects in 12 CFR Part 702

Capital, Credit unions, Reporting and recordkeeping requirements.

By the National Credit Union Administration Board on February 5, 2016.

Gerard Poliquin, Secretary of the Board.

For the reasons discussed above, the National Credit Union Administration amends part 702 as follows:

PART 702—CAPITAL ADEQUACY 1. The authority citation for part 702 continues to read as follows: Authority:

12 U.S.C. 1766(a), 1790d.

2. In § 702.504, revise paragraph (a) to read as follows:
§ 702.504 Capital planning.

(a) Annual capital planning. (1) A covered credit union must develop and maintain a capital plan. It must submit this plan and its capital policy to NCUA by May 31 each year, or such later date as directed by NCUA. The plan must be based on the credit union's financial data as of December 31 of the preceding calendar year, or such other date as directed by NCUA. NCUA will assess whether the capital planning and analysis process is sufficiently robust in determining whether to accept a credit union's capital plan.

(2) A covered credit union's board of directors (or a designated committee of the board) must at least annually, and prior to the submission of the capital plan under paragraph (a)(1) of this section:

(i) Review the credit union's process for assessing capital adequacy;

(ii) Ensure that any deficiencies in the credit union's process for assessing capital adequacy are appropriately remedied; and

(iii) Approve the credit union's capital plan.

[FR Doc. 2016-02740 Filed 2-10-16; 8:45 am] BILLING CODE 7535-01-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2015-5877; Special Conditions No. 25-610-SC] Special Conditions: The Boeing Company, Model 737-8 Airplanes; Design Roll-Maneuver Requirements AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final special conditions; request for comments.

SUMMARY:

These special conditions are issued for Boeing Model 737-8 airplanes. These airplanes will have a novel or unusual design feature associated with an electronic flight-control system that provides roll control of the airplane through pilot inputs to the flight computers. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

DATES:

This action is effective on the Boeing Company on February 11, 2016. We must receive your comments by March 28, 2016.

ADDRESSES:

Send comments identified by docket no. FAA-2015-5877 using any of the following methods:

Federal eRegulations Portal: Go to http://www.regulations.gov/ and follow the online instructions for sending your comments electronically.

Mail: Send comments to Docket Operations, M-30, U.S. Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room W12-140, West Building Ground Floor, Washington, DC, 20590-0001.

Hand Delivery or Courier: Take comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Fax: Fax comments to Docket Operations at 202-493-2251.

Privacy: The FAA will post all comments it receives, without change, to http://www.regulations.gov/, including any personal information the commenter provides. Using the search function of the docket Web site, anyone can find and read the electronic form of all comments received into any FAA docket, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). DOT's complete Privacy Act Statement can be found in the Federal Register published on April 11, 2000 (65 FR 19477-19478), as well as at http://DocketsInfo.dot.gov/.

Docket: Background documents or comments received may be read at http://www.regulations.gov/ at any time. Follow the online instructions for accessing the docket, or go to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Mark Freisthler, FAA, Airframe and Cabin Safety Branch, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington, 98057-3356; telephone 425-227-1119; facsimile 425-227-1232.

SUPPLEMENTARY INFORMATION:

The FAA has determined that notice of, and opportunity for prior public comment on, these special conditions is impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected airplane.

In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon publication in the Federal Register.

Comments Invited

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

Background

On January 27, 2012, The Boeing Company applied for an amendment to Type Certificate No. A16WE to include a new Model 737-8 airplane. The Model 737-8 airplane is a narrow-body, transport-category airplane that is a derivative of the Model 737-800 airplane with two CFM LEAP-1B wing-mounted engines.

The Model 737-8 airplane will include electronic flight controls that affect maneuvering.

The current design roll-maneuver requirements in Title 14, Code of Federal Regulations (14 CFR) part 25 are inadequate for addressing an airplane with electronic flight controls that affect maneuvering. These special conditions adjust the current roll-maneuver requirement, § 25.349, to take into account the effects of an electronic flight-control system.

Type Certification Basis

Under the provisions of § 21.101, The Boeing Company must show that the Model 737-8 series airplanes meet the applicable provisions of the regulations listed in type certificate no. A16WE, or the applicable regulations in effect on the date of application for the change except for earlier amendments as agreed upon by the FAA.

The regulations listed in the type certificate are commonly referred to as the “original type-certification basis.” The regulations listed in type certificate no. A16WE are as follows:

14 CFR part 25, effective February 1, 1965, including Amendments 25-1 through 25-134. In addition, the certification basis includes certain special conditions, exemptions, or later amended sections of the applicable part that are not relevant to these special conditions.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Model 737-8 series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Model 737-8 series airplanes must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under § 21.101.

Novel or Unusual Design Features

The Model 737-8 series airplanes will incorporate the following novel or unusual design features:

The airplanes are equipped with an electronic flight-control system that provides control through pilot inputs to the flight computer. Current part 25 airworthiness regulations account for control laws for which aileron deflection is proportional to control-stick deflection. They do not address nonlinearities or other effects on aileron actuation that electronic flight controls may cause. Because this type of system may affect flight loads, and therefore the structural capability of the airplanes, special conditions are needed to address these effects.

Discussion

These special conditions differ from current requirements in that they require that the roll maneuver is based on defined actuation of the cockpit roll control as opposed to defined deflections of the aileron itself. Also, the special conditions require an additional load condition at VA, in which the cockpit roll control is returned to neutral following the initial roll input.

These special conditions differ from similar special conditions applied on previous programs. These special conditions are limited to the roll axis only, whereas previous special conditions also included the pitch and yaw axes. Special conditions are no longer needed for the pitch or yaw axes, because Amendment 25-91 takes into account the effects of an electronic flight-control system in those axes (§ 25.331 for pitch and § 25.351 for yaw). On the Model 737-8 series airplanes, only the flight spoilers are fly-by-wire.

These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

Applicability

As discussed above, these special conditions are applicable to the Boeing Model 737-8 series airplanes. Should Boeing apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

Conclusion

This action affects only certain novel or unusual design features on Boeing Model 737-8 series airplanes. It is not a rule of general applicability.

The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, because a delay would significantly affect the certification of the airplane, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the Federal Register. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

List of Subjects in 14 CFR Part 25

Aircraft, Aviation safety, Reporting and recordkeeping requirements.

The authority citation for these special conditions is as follows:

Authority:

49 U.S.C. 106(g), 40113, 44701, 44702, 44704.

The Special Conditions Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the Boeing Model 737-8 series airplanes. Design Roll Maneuver Condition

In lieu of compliance to § 25.349(a):

The following conditions, speeds, and cockpit roll-control motions (except as the motions may be limited by pilot effort) must be considered in combination with an airplane load factor of zero and of two-thirds of the positive maneuvering factor used in design. In determining the resulting control-surface deflections, the torsional flexibility of the wing must be considered in accordance with § 25.301(b):

1. The applicant must investigate conditions corresponding to steady rolling velocities. In addition, conditions corresponding to maximum angular acceleration must be investigated for airplanes with engines or other weight concentrations outboard of the fuselage. For the angular acceleration conditions, zero rolling velocity may be assumed in the absence of a rational time-history investigation of the maneuver.

2. At VA, sudden movement of the cockpit roll control up to the limit is assumed. The position of the cockpit roll control must be maintained until a steady roll rate is achieved and then must be returned suddenly to the neutral position.

3. At VC, the cockpit roll control must be moved suddenly and maintained so as to achieve a roll rate not less than that obtained in Special Condition 2, above.

4. At VD, the cockpit roll control must be moved suddenly and maintained so as to achieve a roll rate not less than one third of that obtained in Special Condition 2, above.

Issued in Renton, Washington, on January 20, 2016. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
[FR Doc. 2016-02762 Filed 2-10-16; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2015-3967; Airspace Docket No. 15-ASW-12] Establishment of Class E Airspace; Clinton AR AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

This action establishes Class E airspace extending upward from 700 feet above the surface at Clinton Municipal Airport, Clinton, AR, to accommodate new Standard Instrument Approach Procedures (SIAPs) for the safety and management of Instrument Flight Rules (IFR) operations at the airport. This action also corrects the state identifier in the legal airspace description.

DATES:

Effective 0901 UTC, May 26, 2016. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.

ADDRESSES:

FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed on line at http://www.faa.gov/air_traffic/publications. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 29591; telephone: 202-267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of FAA Order 7400.9Z at NARA, call 202-741-6030, or go to http://www.archives.gov/federal_register/code_of_federal-regulations/ibr_locations.html.

FAA Order 7400.9, Airspace Designations and Reporting Points is published yearly and effective on September 15.

FOR FURTHER INFORMATION CONTACT:

Rebecca Shelby, Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone: 817-222-5857.

SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

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

History

On November 30, 2015, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class E airspace extending upward from 700 feet above the surface at Clinton Municipal Airport, Clinton, AR. (80 FR 74736). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. The FAA also notes that in the NPRM, the state identifier was incorrectly written as LA, and is corrected in the airspace description to AR.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

Availability and Summary of Documents for Incorporation by Reference

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

The Rule

This action amends Title 14, Code of Federal Regulations (14 CFR), Part 71 by establishing Class E airspace extending upward from 700 feet above the surface within a 6.0-mile radius of Clinton Municipal Airport, Clinton, AR, to accommodate new Standard Instrument Approach Procedures for IFR operations at the airport. Also, the correct state identifier is noted in the airspace description, changing it from LA to AR.

Regulatory Notices and Analyses

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

Environmental Review

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

List of Subjects in 14 CFR Part 71

Airspace, Incorporation by reference, Navigation (air).

Adoption of the Amendment

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

PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for Part 71 continues to read as follows: Authority:

49 U.S.C. 106(f), 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

§ 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015, is amended as follows: Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. ASW AR E5 Clinton, AR [New] Clinton Municipal Airport, AR (Lat. 35°35′52″ N., long. 092°27′06″ W.)

That airspace extending upward from 700 feet above the surface within a 6.0-mile radius of Clinton Municipal Airport.

Issued in Fort Worth, TX, on February 3, 2016. Vonnie Royal, Acting Manager, Operations Support Group, ATO Central Service Center.
[FR Doc. 2016-02672 Filed 2-10-16; 8:45 am] BILLING CODE 4910-13-P
FEDERAL TRADE COMMISSION 16 CFR Part 305 RIN 3084-AB03 Energy Labeling Rule AGENCY:

Federal Trade Commission.

ACTION:

Final rule.

SUMMARY:

The Federal Trade Commission (“Commission”) amends its Energy Labeling Rule (“Rule”) by publishing new ranges of comparability for required EnergyGuide labels on clothes washers.

DATES:

The amendments announced in this document will become effective May 11, 2016.

FOR FURTHER INFORMATION CONTACT:

Hampton Newsome, Attorney, Division of Enforcement, Federal Trade Commission, Washington, DC 20580 (202-326-2889).

SUPPLEMENTARY INFORMATION:

I. Background

The Commission issued the Energy Labeling Rule in 1979, 44 FR 66466 (Nov. 19, 1979) pursuant to the Energy Policy and Conservation Act of 1975 (“EPCA”).1 The Rule covers several categories of major household products, including clothes washers. It requires manufacturers of covered products to disclose specific energy consumption or efficiency information (derived from Department of Energy (“DOE”) test procedures) at the point-of-sale. In addition, each label must include a “range of comparability” indicating the highest and lowest energy consumption or efficiencies for comparable models. The Commission updates these ranges periodically.

1 42 U.S.C. 6294. EPCA also requires the Department of Energy (“DOE”) to set minimum efficiency standards and develop test procedures to measure energy use.

II. Range Updates for Clothes Washers

The Commission amends its comparability ranges for clothes washers in the Rule based on manufacturer model data derived from the DOE test procedures and submitted to DOE (https://www.regulations.doe.gov/ccms).2 The amendments update the ranges in Appendix F1 and F2 and the sample labels in Appendix L of the Rule. The amendments also include conforming changes to sections 305.7, 305.10, and 305.11 to remove obsolete regulatory text applicable to models produced before March 7, 2015. Manufacturers have until May 11, 2016 to begin using the updated ranges on their labels. As indicated in section 305.10(a) of the Rule, products that have been labeled prior to this effective date need not be relabeled.

2 Previously, the Commission announced its intention to update the clothes washer ranges based on test data derived from updated DOE test requirements. See 80 FR 67351, 67355, n. 29 (Nov. 2, 2015).

III. Administrative Procedure Act

The amendments published in this document involve routine, technical and minor, or conforming changes to the labeling requirements in the Rule. Accordingly, the Commission has good cause under section 553(b)(B) of the APA to forgo notice-and comment procedures for these rule amendments. 5 U.S.C. 553(b)(B). These technical amendments merely provide a routine, conforming change to the range information required on EnergyGuide labels. The Commission therefore finds for good cause that public comment for these technical, procedural amendments is impractical and unnecessary.

IV. Regulatory Flexibility Act

The provisions of the Regulatory Flexibility Act relating to a Regulatory Flexibility Act analysis (5 U.S.C. 603-604) are not applicable to this proceeding because the amendments do not impose any new obligations on entities regulated under the Energy Labeling Rule. These technical amendments merely provide a routine change to the range information required on EnergyGuide labels. Thus, the amendments will not have a “significant economic impact on a substantial number of small entities.” 3 The Commission has concluded, therefore, that a regulatory flexibility analysis is not necessary, and certifies, under Section 605 of the Regulatory Flexibility Act (5 U.S.C. 605(b)), that the amendments announced today will not have a significant economic impact on a substantial number of small entities.

3 5 U.S.C. 605.

V. Paperwork Reduction Act

The current Rule contains recordkeeping, disclosure, testing, and reporting requirements that constitute information collection requirements as defined by 5 CFR 1320.3(c), the definitional provision within the Office of Management and Budget (OMB) regulations that implement the Paperwork Reduction Act (PRA). OMB has approved the Rule's existing information collection requirements through May 31, 2017 (OMB Control No. 3084 0069). The amendments now being adopted do not change the substance or frequency of the recordkeeping, disclosure, or reporting requirements and, therefore, do not require further OMB clearance.

List of Subjects in 16 CFR Part 305

Advertising, Energy conservation, Household appliances, Labeling, Reporting and recordkeeping requirements.

Accordingly, 16 CFR part 305 is amended as follows:

PART 305—[AMENDED] 1. The authority citation for Part 305 continues to read as follows: Authority:

42 U.S.C. 6294.

2. In § 305.7, revise paragraph (g) to read as follows:
§ 305.7 Determinations of capacity.

(g) Clothes washers. The capacity shall be the tub capacity as determined according to Department of Energy test procedures in 10 CFR part 430, subpart B, expressed in terms of “Capacity (tub volume)” in cubic feet, rounded to the nearest one-tenth of a cubic foot, and the capacity class designations “standard” or “compact.”

3. In § 305.10, revise paragraph (b) to read as follows:
§ 305.10 Ranges of comparability on the required labels.

(b) Representative average unit energy cost. The Representative Average Unit Energy Cost figures to be used on labels as required by § 305.11 are listed in appendix K to this part. The Commission shall publish revised Representative Average Unit Energy Cost figures in the Federal Register in 2017. When the cost figures are revised, all information disseminated after 90 days following the publication of the revision shall conform to the new cost figure.

4. In § 305.11, revise paragraphs (f)(5), (f)(6), and (f)(9)(ii), remove paragraph (f)(9)(viii), redesignate paragraphs (f)(9)(ix) and (x) as (f)(9)(viii) and (ix) respectively, and revise redesignated paragraph (f)(9)(viii) to read as follows:
§ 305.11 Labeling for refrigerators, refrigerator-freezers, freezers, dishwashers, clothes washers, water heaters, room air conditioners, and pool heaters.

(f) * * *

(5) Unless otherwise indicated in this paragraph, estimated annual operating costs for refrigerators, refrigerator-freezers, freezers, clothes washers, dishwashers, room air conditioners, and water heaters are as determined in accordance with §§ 305.5 and 305.10. Thermal efficiencies for pool heaters are as determined in accordance with § 305.5. Labels for clothes washers and dishwashers must disclose estimated annual operating cost for both electricity and natural gas as illustrated in the sample labels in appendix L.

(6) Unless otherwise indicated in this paragraph, ranges of comparability for estimated annual operating costs or thermal efficiencies, as applicable, are found in the appropriate appendices accompanying this part. For refrigerators, refrigerator-freezers, and freezers manufactured on or after September 15, 2014, the range information shall match the text and graphics in sample labels 1A of Appendix L.

(9) * * *

(ii) For refrigerators, refrigerator-freezers, and freezers manufactured on or after September 15, 2014 and clothes washers manufactured after March 7, 2015, the label shall contain the text and graphics illustrated in sample labels 1A and 2 of Appendix L, including the statement:

Compare ONLY to other labels with yellow numbers.

Labels with yellow numbers are based on the same test procedures.

(viii) For clothes washers, the label shall contain the text and graphics illustrated in the prototype and sample labels in Appendix L, including the following statements (fill in the blanks with the appropriate capacity type and energy cost):

Your cost will depend on your utility rates and use.

Cost range based only on [compact/standard] capacity models.

Estimated operating cost based on six wash loads a week and a national average electricity cost of __ cents per kWh and natural gas cost of $__ per therm.

5. Appendix F1 to Part 305 is revised to read as follows: Appendix F1 to Part 305—Standard Clothes Washers Range Information

“Standard” includes all household clothes washers with a tub capacity of 1.6 cu. ft. or more.

Capacity Range of estimated
  • annual operating costs
  • (dollars/year)
  • Low High
    Standard $8 $51
    6. Appendix F2 to Part 305 is revised to read as follows: Appendix F2 to Part 305—Compact Clothes Washers Range Information

    “Compact” includes all household clothes washers with a tub capacity of less than 1.6 cu. ft.

    Capacity Range of estimated
  • annual operating costs
  • (dollars/year)
  • Low High
    Compact $10 $24
    7. In Appendix L to Part 305, revise Prototype Label 2 and Sample Label 2 and remove Sample Label 2A to read as follows: Appendix L to Part 305—Sample Labels BILLING CODE 6750-01-P ER11FE16.000 ER11FE16.001 By direction of the Commission. Donald S. Clark, Secretary.
    [FR Doc. 2016-02744 Filed 2-10-16; 8:45 am] BILLING CODE 6750-01-C
    COMMODITY FUTURES TRADING COMMISSION 17 CFR Part 30 Foreign Futures and Options Transactions AGENCY:

    Commodity Futures Trading Commission.

    ACTION:

    Order.

    SUMMARY:

    The Commodity Futures Trading Commission (“Commission” or “CFTC”) is granting an exemption to certain member firms designated by the Korea Exchange (“KRX”) from the application of certain of the Commission's foreign futures and option regulations based upon substituted compliance with certain comparable regulatory and self-regulatory requirements of a foreign regulatory authority consistent with conditions specified by the Commission, as set forth herein. This Order is issued pursuant to Commission Regulation 30.10, which permits persons to file a petition with the Commission for exemption from the application of certain of the Regulations set forth in Part 30 and authorizes the Commission to grant such an exemption if such action would not be otherwise contrary to the public interest or to the purposes of the provision from which exemption is sought. The Commission notes that this Order does not pertain to any transaction in swaps, as defined in Section 1a(47) of the Commodity Exchange Act (“Act”).

    DATES:

    Effective February 11, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Andrew V. Chapin, Associate Director, (202) 418-5465, [email protected], or Scott W. Lee, Special Counsel, (202) 418-5090, [email protected], Division of Swap Dealer and Intermediary Oversight, Commodity Futures Trading Commission, 1155 21st Street NW., Washington, DC 20581.

    SUPPLEMENTARY INFORMATION:

    The Commission has issued the following Order:

    Order Under CFTC Regulation 30.10 Exempting Firms Designated by the Korea Exchange (KRX) From the Application of Certain of the Foreign Futures and Option Regulations as of the Later of the Date of Publication of the Order Herein in the Federal Register or After Filing of Consents by Such Firms and KRX, as Appropriate, to the Terms and Conditions of the Order Herein; and Confirming That Designated Members of KRX May Engage in Limited Marketing Conduct With Qualified Customers Located in the U.S., as Set Forth in Prior Commission Orders

    Commission Regulations governing the offer and sale of commodity futures and option contracts traded on or subject to the regulations of a foreign board of trade to customers located in the U.S. are contained in Part 30 of the Commission's regulations.1 These regulations include requirements for intermediaries with respect to registration, disclosure, capital adequacy, protection of customer funds, recordkeeping and reporting, and sales practice and compliance procedures that are generally comparable to those applicable to transactions on U.S. markets.

    1 Commission regulations referred to herein are found at 17 CFR Chapter I.

    In formulating a regulatory program to govern the offer and sale of foreign futures and option products to customers located in the U.S., the Commission, among other things, considered the desirability of ameliorating the potential impact of such a program. Based upon these considerations, the Commission determined to permit persons located outside the U.S. and subject to a comparable regulatory structure in the jurisdiction in which they were located to seek an exemption from certain of the requirements under Part 30 of the Commission's regulations based upon substituted compliance with the regulatory requirements of the foreign jurisdiction.2

    2 “Foreign Futures and Foreign Options Transactions,” 52 FR 28290 (Aug. 5, 1987).

    Appendix A to Part 30—Interpretative Statement With Respect to the Commission's Exemptive Authority Under § 30.10 of Its Rules (“Appendix A”), generally sets forth the elements the Commission will evaluate in determining whether a particular regulatory program may be found to be comparable for purposes of exemptive relief pursuant to Regulation 30.10.3 These elements include: (1) Registration, authorization or other form of licensing, fitness review or qualification of persons that solicit and accept customer orders; (2) minimum financial requirements for those persons who accept customer funds; (3) protection of customer funds from misapplication; (4) recordkeeping and reporting requirements; (5) sales practice standards; (6) procedures to audit for compliance with, and to take action against those persons who violate, the requirements of the program; and (7) information sharing arrangements between the Commission and the appropriate governmental and/or self-regulatory organization to ensure Commission access on an “as needed” basis to information essential to maintaining standards of customer and market protection within the U.S.

    3 52 FR 28990, 29001.

    Moreover, the Commission specifically stated in adopting Regulation 30.10 that no exemption of a general nature would be granted unless the persons to whom the exemption is to be applied: (1) Submit to jurisdiction in the U.S. by designating an agent for service of process in the U.S. with respect to transactions subject to Part 30 and filing a copy of the agency agreement with the National Futures Association (“NFA”); (2) agree to provide access to their books and records in the U.S. to the Commission and Department of Justice representatives; and (3) notify NFA of the commencement of business in the U.S.4

    4 52 FR 28980, 28981 and 29002.

    On January 23, 2009, KRX petitioned the Commission on behalf of its member firms, located and conducting a financial investment business in the Republic of Korea, for an exemption from the application of the Commission's Part 30 Regulations to those firms. KRX amended its petition on May 3, 2013 with additional information. In support of its petition, KRX stated that granting such an exemption with respect to such firms that it has authorized to conduct foreign futures and option transactions on behalf of customers located in the U.S. would not be contrary to the public interest or to the purposes of the provisions from which the exemption is sought because such firms are subject to a regulatory framework comparable to that imposed by the Act and the regulations thereunder.

    Based upon a review of the petition and supplementary materials filed by KRX, the Commission has concluded that the standards for relief set forth in Regulation 30.10 and, in particular, Appendix A thereof, have been met and that compliance with applicable Korean law and KRX rules may be substituted for compliance with those sections of the Act and regulations thereunder more particularly set forth herein.

    By this Order, the Commission hereby exempts, subject to specified conditions, those firms identified to the Commission by KRX as eligible for the relief granted herein from:

    • Registration with the Commission for firms and for firm representatives;

    • The requirement in Commission Regulation 30.6(a) and (d), 17 CFR 30.6(a) and (d), that firms provide customers located in the U.S. with the risk disclosure statements in Commission Regulation 1.55(b), 17 CFR 1.55(b), and Commission Regulation 33.7, 17 CFR 33.7, or as otherwise approved under Commission Regulation 1.55(c), 17 CFR 1.55(c);

    • The separate account requirement contained in Commission Regulation 30.7, 17 CFR 30.7;

    • Those sections of Part 1 of the Commission's financial regulations that apply to foreign futures and options sold in the U.S. as set forth in Part 30; and

    • Those sections of Part 1 of the Commission's regulations relating to books and records which apply to transactions subject to Part 30,

    based upon substituted compliance by such persons with the applicable statutes and regulations in effect in Korea.

    This determination to permit substituted compliance is based on, among other things, the Commission's finding that the regulatory framework governing persons in Korea who would be exempted hereunder provides:

    (1) A system of qualification or authorization of firms who deal in transactions subject to regulation under Part 30 that includes, for example, criteria and procedures for granting, monitoring, suspending and revoking licenses, and provisions for requiring and obtaining access to information about authorized firms and persons who act on behalf of such firms;

    (2) Financial requirements for firms including, without limitation, a requirement for a minimum level of working capital and daily mark-to-market settlement and/or accounting procedures;

    (3) A system for the protection of customer assets that is designed to preclude the use of customer assets to satisfy house obligations and requires separate accounting for such assets;

    (4) Recordkeeping and reporting requirements pertaining to financial and trade information;

    (5) Sales practice standards for authorized firms and persons acting on their behalf that include, for example, required disclosures to prospective customers and prohibitions on improper trading advice;

    (6) Procedures to audit for compliance with, and to redress violations of, the customer protection and sales practice requirements referred to above, including, without limitation, an affirmative surveillance program designed to detect trading activities that take advantage of customers, and the existence of broad powers of investigation relating to sales practice abuses; and

    (7) Mechanisms for sharing of information between the Commission, KRX and the Korean regulatory authorities on an “as needed” basis including, without limitation, confirmation data, data necessary to trace funds related to trading futures products subject to regulation in Korea, position data, and data on firms' standing to do business and financial condition.

    Commission staff has concluded, upon review of the petition of KRX and accompanying exhibits, that KRX's regulation of financial futures and options intermediaries is comparable to that of the U.S. in the areas specified in Appendix A of Part 30, as described above.

    This Order does not provide an exemption from any provision of the Act or regulations thereunder not specified herein, such as the antifraud provision in Regulation 30.9. Moreover, the relief granted is limited to brokerage activities undertaken on behalf of customers located in the U.S. with respect to transactions entered on or subject to the rules of KRX for products that customers located in the U.S. may trade.5 The relief does not extend to regulations relating to trading, directly or indirectly, on U.S. exchanges, and does not pertain to any transaction in swaps, as defined in Section 1a(47) of the Act. For example, a KRX member trading in U.S. markets for its own account would be subject to the Commission's large trader reporting requirements.6 Similarly, if such a firm were carrying positions on a U.S. exchange on behalf of foreign clients and submitted such transactions for clearing on an omnibus basis through a firm registered as a futures commission merchant under the Act, it would be subject to the reporting requirements applicable to foreign brokers.7 The relief herein is inapplicable where the firm solicits or accepts orders from customers located in the U.S. for transactions on U.S. markets. In that case, the firm must comply with all applicable U.S. laws and regulations, including the requirement to register in the appropriate capacity.

    5See, e.g ., Sections 2(a)(1)(C) and (D) of the Act.

    6See, e.g ., 17 CFR part 18.

    7See, e.g ., 17 CFR parts 17 and 21.

    The eligibility of any firm to seek relief under this exemptive Order is subject to the following conditions:

    (1) The regulatory or self-regulatory organization responsible for monitoring the compliance of such firms with the regulatory requirements described in the Regulation 30.10 petition must represent in writing to the Commission that:

    (a) Each firm for which relief is sought is registered, licensed or authorized, as appropriate, and is otherwise in good standing under the standards in place in Korea; such firm is engaged in business with customers located in Korea as well as in the U.S.; and such firm and its principals and employees who engage in activities subject to Part 30 would not be statutorily disqualified from registration under Section 8a(2) of the Act, 7 U.S.C. 12a(2);

    (b) It will monitor firms to which relief is granted for compliance with the regulatory requirements for which substituted compliance is accepted and will promptly notify the Commission or NFA of any change in status of a firm that would affect its continued eligibility for the exemption granted hereunder, including the termination of its activities in the U.S.;

    (c) All transactions with respect to customers located in the U.S. will be made subject to the regulations of KRX, and the Commission will receive prompt notice of all material changes to the relevant laws in Korea, any rules promulgated thereunder and KRX rules;

    (d) Customers located in the U.S. will be provided no less stringent regulatory protection than Korea customers under all relevant provisions of Korean law; and

    (e) It will cooperate with the Commission with respect to any inquiries concerning any activity subject to regulation under the Part 30 Regulations, including sharing the information specified in Appendix A on an “as needed” basis and will use its best efforts to notify the Commission if it becomes aware of any information that in its judgment affects the financial or operational viability of a member firm doing business in the U.S. under the exemption granted by this Order.

    (2) Each firm seeking relief hereunder must represent in writing that it:

    (a) Is located outside the U.S., its territories and possessions and, where applicable, has subsidiaries or affiliates domiciled in the U.S. with a related business (e.g., banks and broker/dealer affiliates) along with a brief description of each subsidiary's or affiliate's identity and principal business in the U.S.;

    (b) Consents to jurisdiction in the U.S. under the Act by filing a valid and binding appointment of an agent in the U.S. for service of process in accordance with the requirements set forth in Regulation 30.5;

    (c) Agrees to provide access to its books and records related to transactions under Part 30 required to be maintained under the applicable statutes and regulations in effect in Korea upon the request of any representative of the Commission or U.S. Department of Justice at the place in the U.S. designated by such representative, within 72 hours, or such lesser period of time as specified by that representative as may be reasonable under the circumstances after notice of the request;

    (d) Has no principal or employee who solicits or accepts orders from customers located in the U.S. who would be disqualified under Section 8a(2) of the Act, 7 U.S.C. 12a(2), from doing business in the U.S.;

    (e) Consents to participate in any NFA arbitration program that offers a procedure for resolving customer disputes on the papers where such disputes involve representations or activities with respect to transactions under Part 30, and consents to notify customers located in the U.S. of the availability of such a program; provided, however, that the firm may require its customers located in the U.S. to execute a consent concerning the exhaustion of certain mediation or conciliation procedures made available by KRX prior to bringing an NFA arbitration proceeding; and

    (f) Undertakes to comply with the applicable provisions of Korean laws and KRX rules that form the basis upon which this exemption from certain provisions of the Act and regulations thereunder is granted.

    As set forth in the Commission's September 11, 1997 Order delegating to NFA certain responsibilities, the written representations set forth in paragraph (2) shall be filed with NFA.8 Each firm seeking relief hereunder has an ongoing obligation to notify NFA should there be a material change to any of the representations required in the firm's application for relief.

    8 62 FR 47792, 47793 (Sept. 11, 1997). Among other duties, the Commission authorized NFA to receive requests for confirmation of Regulation 30.10 relief on behalf of particular firms, to verify such firms' fitness and compliance with the conditions of the appropriate Regulation 30.10 Order and to grant exemptive relief from registration to qualifying firms.

    The Commission also confirms that KRX members that receive confirmation of relief set forth herein may engage in limited marketing conduct with respect to certain qualified customers located in the U.S. from a non-permanent location in the U.S., subject to the terms and conditions set forth in prior Commission Orders.9 The Commission notes that any firm and their employees or other representatives which engage in marketing conduct pursuant to this relief are deemed to have consented to the Commission's jurisdiction over such marketing activities by their filing of a valid and binding appointment of an agent in the U.S. for service of process.

    9See 57 FR 49644 (Nov. 3, 1992) (permitted limited marketing of foreign futures and foreign options products to certain governmental and institutional customers located in the U.S.); 59 FR 42156 (Aug. 17, 1994) (expanding the relief set forth in the 1992 release to conduct directed towards “accredited investors”, as defined in the Securities and Exchange Commission's Regulation D issued pursuant to the Securities Act of 1933).

    This Order will become effective as to any designated KRX firm the later of the date of publication of the Order in the Federal Register or the filing of the consents set forth in paragraphs (2)(a)-(f). Upon filing of the notice required under paragraph (1)(b) as to any such firm, the relief granted by this Order may be suspended immediately as to that firm. That suspension will remain in effect pending further notice by the Commission, or the Commission's designee, to the firm and KRX.

    This Order is issued pursuant to Regulation 30.10 based on the representations made and supporting material provided to the Commission and the recommendation of the staff, and is made effective as to any firm granted relief hereunder based upon the filings and representations of such firms required hereunder. Any material changes or omissions in the facts and circumstances pursuant to which this Order is granted might require the Commission to reconsider its finding that the standards for relief set forth in Regulation 30.10 and, in particular, Appendix A, have been met. Further, if experience demonstrates that the continued effectiveness of this Order in general, or with respect to a particular firm, would be contrary to public policy or the public interest, or that the systems in place for the exchange of information or other circumstances do not warrant continuation of the exemptive relief granted herein, the Commission may condition, modify, suspend, terminate, withhold as to a specific firm, or otherwise restrict the exemptive relief granted in this Order, as appropriate, on its own motion.

    The Commission will continue to monitor the implementation of its program to exempt firms located in jurisdictions generally deemed to have a comparable regulatory program from the application of certain of the foreign futures and option regulations and will make necessary adjustments if appropriate.

    Issued in Washington, DC, on February 8, 2016, by the Commission. Christopher J. Kirkpatrick, Secretary of the Commission. Appendix to Foreign Futures and Options Transactions—Commission Voting Summary

    On this matter, Chairman Massad and Commissioners Bowen and Giancarlo voted in the affirmative. No Commissioner voted in the negative.

    [FR Doc. 2016-02795 Filed 2-10-16; 8:45 am] BILLING CODE 6351-01-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2016-0018] Drawbridge Operation Regulation; Des Allemands Bayou, Des Allemands, LA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulation.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the Burlington Northern Santa Fe Railroad swing span drawbridge across Des Allemands Bayou, mile 14.0, at Des Allemands, St. Charles and Lafourche Parishes, Louisiana. The deviation is necessary to perform a swing span change out to the bridge. This deviation allows the bridge to remain closed-to-navigation continuously for 42 days.

    DATES:

    This deviation is effective from February 21, 2016 through April 1, 2016.

    ADDRESSES:

    The docket for this deviation, [USCG-2016-0018] is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH”. Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email Donna Gagliano, Bridge Specialist, Coast Guard; telephone 504-671-2128, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The Burlington Northern Santa Fe Railroad company requested a temporary deviation from the operating schedule for the swing span drawbridge across Des Allemands Bayou, mile 14.0, at Des Allemands, St. Charles and Lafourche Parishes, Louisiana. The deviation was requested to accommodate a necessary swing span replacement. The draw currently operates under 33 CFR 117.440(b).

    For purposes of this deviation, the bridge will remain closed to navigation from 6 a.m. February 21, 2016 through 11:59 p.m. April 1, 2016. During this 42-day deviation, vessels will not be allowed to pass through the bridge. The bridge has a vertical clearance of three feet above mean high water in the closed-to-navigation position and unlimited in the open-to-navigation position. Navigation on the waterway consists of tugs with tows, fishing vessels and recreational craft.

    The Coast Guard will also inform the users of the waterway through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge. The bridge will not be able to open for emergencies and there is no immediate alternate route for vessels to pass.

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

    Dated: February 5, 2016. David M. Frank, Bridge Administrator, Eighth Coast Guard District.
    [FR Doc. 2016-02778 Filed 2-10-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2016-0088] Drawbridge Operation Regulation; Gulf Intracoastal Waterway, Galveston, TX AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulations.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the Galveston Causeway Railroad Vertical Lift Bridge across the Gulf Intracoastal Waterway, mile 357.2 west of Harvey Locks, at Galveston, Galveston County, Texas. The deviation is necessary to conduct maintenance on the bridge. This deviation allows the bridge to remain temporarily closed to navigation for two four-hour periods, on five consecutive days during day-light hours.

    DATES:

    This deviation is effective from March 7 through March 11, 2016.

    ADDRESSES:

    The docket for this deviation, [USCG-2016-0088] is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH”. Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email Jim Wetherington, Bridge Administration Branch, Coast Guard; telephone 504-671-2128, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The Burlington Northern Santa Fe Railway Company requested a temporary deviation from the operating schedule of the Galveston Causeway Railroad Vertical Lift Bridge across the Gulf Intracoastal Waterway, mile 357.2 west of Harvey Locks, at Galveston, Galveston County, Texas. This deviation was requested to allow the bridge owner to complete cable lubing and scheduled semi-annual maintenance. This bridge is governed by 33 CFR 117.5.

    This deviation allows the vertical lift bridge to remain closed to navigation from 7 a.m. to 11 a.m. and then again from 1 p.m. to 5 p.m., daily, beginning March 7 through March 11, 2016. The bridge has a vertical clearance of 8.0 feet above mean high water, elevation 3.0 feet (NAVD88), in the closed-to-navigation position and 73 feet above mean high water in the open-to-navigation position. Navigation at the site of the bridge consists mainly of tows with barges and some recreational pleasure craft.

    Vessels able to pass through the bridge in the closed position may do so at any time and should pass at the slowest safe speed. The bridge can open in case of emergency. No alternate routes are available.

    The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge.

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

    Dated: February 5, 2016. David M. Frank, Bridge Administrator, Eighth Coast Guard District.
    [FR Doc. 2016-02777 Filed 2-10-16; 8:45 am] BILLING CODE 9110-04-P
    POSTAL SERVICE 39 CFR PART 955 Rules of Practice Before the Postal Service Board of Contract Appeals AGENCY:

    Postal Service.

    ACTION:

    Final rule.

    SUMMARY:

    This document revises a portion of the rules of practice before the Postal Service Board of Contract Appeals to clarify that the Associate Judicial Officer is not required to serve as the Board's Vice Chairman.

    DATES:

    Effective: February 11, 2016.

    ADDRESSES:

    Correspondence regarding this document may be addressed to: Postal Service Judicial Officer Department, 2101 Wilson Boulevard, Suite 600, Arlington, VA 22201-3078.

    FOR FURTHER INFORMATION CONTACT:

    Judicial Officer Gary E. Shapiro, (703) 812-1910.

    SUPPLEMENTARY INFORMATION: A. Background

    The Contract Disputes Act of 1978, as amended, established the Postal Service Board of Contract Appeals (PSBCA), and prescribed that its members consist of judges appointed by the Postmaster General, who shall meet the qualifications of and serve in the same manner as the members of the Civilian Board of Contract Appeals. (See 41 U.S.C. 7105(d)). The Board's current rules of practice state at 39 CFR 955.1(b)(2) that the Board consists of the Judicial Officer as Chairman, the Associate Judicial Officer as Vice Chairman, and the Judges of the Board, as appointed by the Postmaster General in accordance with the Contract Disputes Act of 1978, 41 U.S.C. 7101-7109, which reflected the Board's structure at the time the rules were implemented. While the Judicial Officer is appointed in accordance with the provisions of 39 U.S.C. 204, and serves as Chairman of the PSBCA, there is no statutory or other legal requirement that the Associate Judicial Officer serve as Vice Chairman.

    B. Explanation of Changes

    Accordingly, to enhance the efficiency and operational flexibility of the PSBCA, this document amends § 955.1(b)(2) by removing the statement reflecting the PSBCA's previously existing structure where the Associate Judicial Officer served as Vice Chairman of the Board, thus allowing any Judge of the Board to serve in that capacity. No other changes to the rules have been made.

    List of Subjects in 39 CFR Part 955

    Administrative practice and procedure, Government contracts.

    Accordingly, for the reasons stated, the Postal Service hereby amends 39 CFR part 955 as follows:

    PART 955—RULES OF PRACTICE BEFORE THE POSTAL SERVICE BOARD OF CONTRACT APPEALS 1. The authority citation for 39 CFR part 955 continues to read as follows: Authority:

    39 U.S.C. 204, 401; 41 U.S.C. 7101-7109.

    2. In § 955.1, revise the first sentence of paragraph (b)(2) to read as follows:
    § 955.1 Jurisdiction, procedure, service of documents.

    (b) * * *

    (2) The Board consists of the Judicial Officer as Chairman, and the Judges of the Board, as appointed by the Postmaster General in accordance with the Contract Disputes Act of 1978, 41 U.S.C. 7101-7109. * * *

    Stanley F. Mires, Attorney, Federal Compliance.
    [FR Doc. 2016-02741 Filed 2-10-16; 8:45 am] BILLING CODE 7710-12-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2016-0028; FRL-9942-03-Region-09] Approval of Air Plan Revisions; Arizona; Rescissions and Corrections AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking direct final action to approve revisions to the Arizona State Implementation Plan (SIP) under the Clean Air Act. These revisions include rescissions of certain statutory provisions, administrative and prohibitory rules, and test methods. The EPA is also taking direct final action to correct certain errors in previous actions on prior revisions to the Arizona SIP and to make certain other corrections. The intended effect is to rescind unnecessary provisions from the applicable SIP and to correct certain errors in previous SIP actions.

    DATES:

    This rule is effective on April 11, 2016 without further notice, unless the EPA receives adverse comments by March 14, 2016. If we receive such comments, we will publish a timely withdrawal in the Federal Register to notify the public that this direct final rule will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R09-OAR-2016-0028 at http://www.regulations.gov, or via email to Andrew Steckel, Rules Office Chief, at [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Kevin Gong, EPA Region IX, (415) 972-3073, [email protected]

    SUPPLEMENTARY INFORMATION:

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

    Table of Contents I. The State's Rescissions A. Which SIP provisions has the state rescinded? B. How is the EPA evaluating the rescissions? 1. Declarations of Policy and Legal Authority 2. Jurisdiction Over Indian Lands 3. Prohibitory Rules 4. Test Methods and Performance Specifications C. Do the rescissions meet all applicable requirements? II. Error Corrections III. Public Comment and Final Action IV. Statutory and Executive Order Reviews I. The State's Rescissions A. Which SIP provisions has the state rescinded?

    On March 10, 2015 and January 13, 2016, the Arizona Department of Environmental Quality (ADEQ) submitted rescissions of certain statutory and regulatory provisions from the applicable Arizona State Implementation Plan (SIP). The rescissions relate to certain statutory provisions, administrative and prohibitory rules, and test methods. In the January 13, 2016 submittal, ADEQ included evidence of public notification of the rescissions (including the rescissions submitted on March 10, 2015), provision of a 30-day comment period, and opportunity for public hearing. See appendix A to the January 13, 2016 SIP revision submittal for documentation of ADEQ's public process prior to adoption and submittal of the revision to the EPA.

    Table 1 lists the statutory and regulatory provisions that ADEQ has rescinded,1 the dates on which the EPA approved the provisions as part of the SIP, and the dates on which ADEQ submitted the rescissions to the EPA. Under section 110(k)(3) of the Clean Air Act (CAA or “Act”), the EPA is obligated to approve, disapprove, or conditionally approve SIPs and SIP revisions, including rescissions.

    1 In addition to the provisions listed in table 1, ADEQ also submitted the rescission of R9-3-310, approved by the EPA at 49 FR 41026 (October 19, 1984). However, the EPA has already acted to approve the rescission of that particular provision from the Arizona SIP (see 80 FR 67319 (November 2, 2015)), and thus we will be taking no further action on that provision.

    Table 1—Arizona SIP Statutory and Regulatory Provisions That ADEQ Has Rescinded Statutory or regulatory provision Title EPA Approval Rescission submittal date ARS 36-1700 Declaration of Policy 37 FR 10842 (May 31, 1972); 37 FR 15080 (July 27, 1972); 47 FR 26382 (June 18, 1982) January 13, 2016. ARS 36-1801 Jurisdiction over Indian Lands 37 FR 15080 (July 27, 1972) January 13, 2016. Chapter 2, section 2.9 of “The State of Arizona Air Pollution Control Implementation Plan” Legal Authority—Jurisdiction over Indian Lands 37 FR 15080 (July 27, 1972) January 13, 2016. Rule 7-1-9.1 Policy and legal authority 37 FR 15080 (July 27, 1972) January 13, 2016. Rule R9-3-1001 Policy and legal authority 43 FR 34470 (August 4, 1978) January 13, 2016. Rule 7-1-4.3 Sulfite Pulp Mills 37 FR 15080 (July 27, 1972) January 13, 2016. Rule 7-1-4.3 (R9-3-403) Sulfur Emissions: Sulfite Pulp Mills 43 FR 33245 (July 31, 1978) January 13, 2016. AAC R9-3-511 Standards of Performance for Existing Secondary Lead Smelters 47 FR 42572 (September 28, 1982); 47 FR 17483 (April 23, 1982) March 10, 2015. AAC R9-3-512 Standards of Performance for Existing Secondary Brass and Bronze Ingot Production Plants 47 FR 17483 (April 23, 1982) March 10, 2015. AAC R9-3-513 Standards of Performance for Existing Iron and Steel Plants 47 FR 42572 (September 28, 1982); 47 FR 17483 (April 23, 1982) March 10, 2015. AAC R9-3-517 Standards of Performance for Steel Plants; Existing Electric Arc Furnaces (EAF) 47 FR 42572 (September 28, 1982); 47 FR 17483 (April 23, 1982) March 10, 2015. Arizona Testing Manual for Air Pollutant Emissions, Section 3.01 Method 1 Sample and Velocity Traverses for Stationary Sources 47 FR 17483 (April 23, 1982) January 13, 2016. Arizona Testing Manual for Air Pollutant Emissions, Section 3.02 Method 2 Determination of Stack Gas Velocity and Volumetric Flow Rate (Type S Pitot Tube) 47 FR 17483 (April 23, 1982) January 13, 2016. Arizona Testing Manual for Air Pollutant Emissions, Section 3.02 Method 2A Direct Measurement of Gas Volume Through Pipes and Small Ducts 47 FR 17483 (April 23, 1982) January 13, 2016. Arizona Testing Manual for Air Pollutant Emissions, Section 3.02 Method 2B Determination of Exhaust Gas Volume Flow Rate from Gasoline Vapor Incinerators 47 FR 17483 (April 23, 1982) January 13, 2016. Arizona Testing Manual for Air Pollutant Emissions, Section 3.03 Method 3 Gas Analysis for Carbon Dioxide, Excess Air, Dry Molecular Weight 47 FR 17483 (April 23, 1982) January 13, 2016. Arizona Testing Manual for Air Pollutant Emissions, Section 3.03 Method 3A Determination of Oxygen and Carbon Dioxide Concentrations in Emissions from Stationary Sources (Instrumental Analyzer Procedure) 47 FR 17483 (April 23, 1982) January 13, 2016. Arizona Testing Manual for Air Pollutant Emissions, Section 3.04 Method 4 Determination of Moisture in Stack Gases 47 FR 17483 (April 23, 1982) January 13, 2016. Arizona Testing Manual for Air Pollutant Emissions, Section 3.05 Method 5 Determination of Particulate Emissions from Stationary Sources 47 FR 17483 (April 23, 1982) January 13, 2016. Arizona Testing Manual for Air Pollutant Emissions, Section 3.06 Method 6 Determination of Sulfur Dioxide Emissions from Stationary Sources 47 FR 17483 (April 23, 1982) January 13, 2016. Arizona Testing Manual for Air Pollutant Emissions, Section 3.07 Method 7 Determination of Nitrogen Oxide Emissions from Stationary Sources 47 FR 17483 (April 23, 1982) January 13, 2016. Arizona Testing Manual for Air Pollutant Emissions, Section 3.08 Method 8 Determination of Sulfuric Acid Mist and Sulfur Dioxide Emissions from Stationary Sources 47 FR 17483 (April 23, 1982) January 13, 2016. Arizona Testing Manual for Air Pollutant Emissions, Section 3.09 Method 9 Visual Determination of the Opacity of Emissions from Stationary Sources 47 FR 17483 (April 23, 1982) January 13, 2016. Arizona Testing Manual for Air Pollutant Emissions, Section 3.10 Method 10 Determination of Carbon Monoxide Emissions from Stationary Sources 47 FR 17483 (April 23, 1982) January 13, 2016. Arizona Testing Manual for Air Pollutant Emissions, Section 3.11 Method 11 Determination of Hydrogen Sulfide Emissions from Stationary Sources 47 FR 17483 (April 23, 1982) January 13, 2016. Arizona Testing Manual for Air Pollutant Emissions, Section 3.13 Method 13B Determination of Total Fluoride Emissions from Stationary Sources—Specific Ion Electrode Method 47 FR 17483 (April 23, 1982) January 13, 2016. Arizona Testing Manual for Air Pollutant Emissions, Section 3.13 Method 13 Determination of Total Fluoride Emissions from Stationary Sources—SOADNS Zirconium Lake Method 47 FR 17483 (April 23, 1982) January 13, 2016. Arizona Testing Manual for Air Pollutant Emissions, Section 3.14 Method 14 Determination of Total Fluoride Emissions from Potroom Roof Monitors for Primary Aluminum Plants 47 FR 17483 (April 23, 1982) January 13, 2016. Arizona Testing Manual for Air Pollutant Emissions, Section 3.15 Method 15 Determination of Hydrogen Sulfide, Carbonyl Sulfide, and Carbon Disulfide Emissions from Stationary Sources 47 FR 17483 (April 23, 1982) January 13, 2016. Arizona Testing Manual for Air Pollutant Emissions, Section 3.16 Method 16 Semicontinuous Determination of Sulfur Emissions from Stationary Sources 47 FR 17483 (April 23, 1982) January 13, 2016. Arizona Testing Manual for Air Pollutant Emissions, Section 3.17 Method 17 Determination of Particulate Emissions from Stationary Sources (In-Stack Filtration Method) 47 FR 17483 (April 23, 1982) January 13, 2016. Arizona Testing Manual for Air Pollutant Emissions, Section 3.19 Method 19 Determination of Sulfur Dioxide, Removal Efficiency and Particulate, Sulfur Dioxide and Nitrogen Oxides Emission Rates from Electric Utility Steam Generators 47 FR 17483 (April 23, 1982) January 13, 2016. Arizona Testing Manual for Air Pollutant Emissions, Section 3.20 Method 20 Determination of Nitrogen Oxides, Sulfur Dioxide, and Diluent Emissions from Stationary Gas Turbines 47 FR 17483 (April 23, 1982) January 13, 2016. Arizona Testing Manual for Air Pollutant Emissions, Section 4.01 Performance Specification 1: Performance specifications and specification test procedures for transmissometer systems for continuous measurement of the opacity of stack emissions 47 FR 17483 (April 23, 1982) January 13, 2016. Arizona Testing Manual for Air Pollutant Emissions, Section 4.02 Performance Specification 2: Performance specifications and specification test procedures for monitors of SO2 and NOX from stationary sources 47 FR 17483 (April 23, 1982) January 13, 2016. Arizona Testing Manual for Air Pollutant Emissions, Section 4.03 Performance Specification 3: Performance specifications and specification test procedures for monitors of CO2 and O2 from stationary sources 47 FR 17483 (April 23, 1982) January 13, 2016. B. How is the EPA evaluating the rescissions?

    Generally, SIP requirements must be enforceable (see section 110(a) of the Act), and SIP revisions must not modify the SIP inconsistent with sections 110(l) and 193. Section 110(l) prohibits the EPA from approving a revision to a SIP if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable requirement of the CAA. Section 193 states that no control requirement in effect, or required to be adopted by an order, settlement agreement, or plan in effect before November 15, 1990, in any area which is a nonattainment area for any pollutant may be modified after November 15, 1990 in any manner unless the modification insures equivalent or greater emissions reductions of such air pollutant.

    In today's action, we review, evaluate, and approve ADEQ's submittals dated March 10, 2015 and January 13, 2016 of revisions to the Arizona SIP involving rescissions of certain statutory and regulatory provisions that fall into four categories: (1) Declarations of policy and legal authority, (2) jurisdiction over Indian lands, (3) prohibitory rules, and (4) test methods and performance test specifications.

    1. Declarations of Policy and Legal Authority

    The EPA approved ARS section 36-1700 (“Declaration of Policy”) in May 1972 as part of the original Arizona SIP, and then approved it again in July 1972, and then again, as amended, in June 1982. See table 1 above. ARS section 36-1700 is a general statement of policy by the Arizona Legislature and sets forth the intent of the Legislature in establishing an air pollution control program in the state. As such, ARS section 36-1700 does not provide specific authority to any administrative agency to fulfill any particular regulatory function, nor does it establish any type of emissions standard or address any particular requirement for SIPs under the CAA. As such, we find that ARS section 36-1700 need not be retained in the Arizona SIP and thus find the state's corresponding rescission to be acceptable.

    As shown in table 1, the EPA approved Arizona air pollution control rule 7-1-9.1 (“Policy and legal authority”) in July 1972 and then again as amended and renumbered (as R9-3-1001) in August 1978. Arizona rule 7-1-9.1 (R9-3-1001) cites the legal authority under which the rules relating to motor vehicle inspection and maintenance are adopted and also includes a general statement of policy. The specific statutory provisions cited by rule 7-1-9.1 (R9-3-1001) have been approved into the applicable SIP and, as discussed above, general statements of policy are not required for SIPs. As such, we find no need to retain rule 7-1-9.1 or its renumbered version R9-3-1001 in the applicable Arizona SIP. Therefore, we find the state's rescission of the two rules from the Arizona SIP to be acceptable.

    2. Jurisdiction Over Indian Lands

    The EPA approved chapter 2, section 2.9 (“Legal authority—Jurisdiction over Indian Lands”) and ARS section 36-1801 (“Jurisdiction over Indian Lands”) in July 1972. As described in chapter 2, section 2.9 of the Arizona SIP, under ARS section 36-1801, the State of Arizona assumed jurisdiction relating to air pollution control on all lands within the state including Indian tribal lands, reservations, and allotments.

    ARS section 36-1801 was recodified as ARS section 49-561 in 1986, but is no longer found in Arizona law. More importantly, the state's assumption of jurisdiction relating to air pollution control on Indian reservations conflicts with federal law. See generally CAA section 301(d) and the EPA's tribal authority rule at 40 CFR part 49 (“Indian country: air quality planning and management”). More specifically, within the boundaries of an Indian reservation and any other area for which the EPA or a tribe has demonstrated that a tribe has jurisdiction, the EPA or authorized tribe has regulatory jurisdiction under the Clean Air Act. See Oklahoma Department of Environmental Quality v. EPA, 740 F.3d 185 (D.C. Cir. 2014). As such, ARS section 36-1801 should not be retained, and the EPA finds the state's corresponding rescissions of chapter 2, section 2.9 and ARS section 36-1801 from the Arizona SIP to be appropriate.

    3. Prohibitory Rules

    On March 10, 2015, the ADEQ submitted rescissions of the following rules from the Arizona SIP because there are no secondary lead smelters, secondary brass and bronze ingot productions plants, iron and steel plants, or electric arc furnaces (EAF) under the ADEQ's jurisdiction:

    • R9-3-511, Standards of Performance for Existing Secondary Lead Smelters,

    • R9-3-512, Standards of Performance for Existing Secondary Brass and Bronze Ingot Production Plants,

    • R9-3-513, Standards of Performance for Existing Iron and Steel Plants, and

    • R9-3-517, Standards of Performance for Steel Plants; Existing Electric Arc Furnaces (EAF).

    To determine that there are no operating facilities in the state that fall under one of the specified source categories, ADEQ reviewed its permit and emissions inventory systems and consulted with knowledgeable staff. As a result of these searches, ADEQ determined that there are no operating facilities within ADEQ's jurisdiction that fall under these source categories.

    On January 13, 2016, ADEQ also submitted a rescission of another rule, Arizona air pollution control rule 7-1-4.3 (“Sulfur Pulp Mills”), which was approved by the EPA in July 1972 and again in July 1978 as rule 7-1-4.3 (R9-3-403) (”Sulfur Emissions: Sulfite Pulp Mills”). Like the four prohibitory rules discussed above, no facilities remain in operation in Arizona that are subject to the requirements of rule 7-1-4.3. Therefore, we find the ADEQ's rescissions of the prohibitory rules discussed above from the Arizona SIP to be acceptable.

    4. Test Methods and Performance Specifications

    In April 1982, the EPA approved sections 3 and 4 of the Arizona Testing Manual for Air Pollutant Emissions (“Arizona Testing Manual”) as a revision to the Arizona SIP. Section 3 of the Arizona Testing Manual includes certain test methods from 40 CFR part 60, appendix A, and section 4 of the Arizona Testing Manual includes certain performance test specifications from 40 CFR part 60, appendix B. Both the test methods and performance test methods approved into the Arizona SIP date from the 1970s.

    Over the years, the EPA's test methods and performance specifications in 40 CFR part 60 have been revised, and thus, the versions of the test methods and performance test specifications approved as part of the Arizona SIP are outdated. Also, in recent years, the EPA has approved two state rules that in effect incorporate more recent versions of the EPA's test methods and performance specifications into the Arizona SIP. See Arizona Administrative Code (AAC) R18-2-311 (“Test Methods and Procedures”) and appendix 2 (“Test Methods and Protocols”) for AAC, title 18, chapter 2.2 See 80 FR 67319 (November 2, 2015) and 79 FR 56655 (September 23, 2014). As such, the outdated test methods and performance test specifications approved as part of the Arizona Testing Manual need not be retained in the Arizona SIP. Thus, we find ADEQ's rescission of them to be acceptable.

    2 R18-2-311 provides that applicable procedures and testing methods contained in, among other references, 40 CFR part 60, appendices A through F, shall be used to determine compliance with state requirements for stationary sources. Appendix 2 for AAC, title 18, chapter 2 incorporates by reference 40 CFR part 60 appendices revised as of July 1, 2006.

    C. Do the rescissions meet all applicable requirements?

    The EPA has evaluated all the submittal documentation and has determined that the rescission of the statutory and regulatory provisions listed in table 1 is approvable because (1) the statements of policy and legal authority are not necessary to fulfill any CAA SIP purpose; (2) the provisions asserting jurisdiction over Indian reservations conflict with federal law; (3) ADEQ has adequately demonstrated that there are no existing sources subject to the listed prohibitory rules; and (4) the test methods and performance test specifications are outdated and other SIP provisions provide for use of more up-to-date procedures. Furthermore, with respect to the subject prohibitory rules, the emissions from any new facilities of the type that would have been subject to these rules will be subject to applicable New Source Review rules and New Source Performance Standards, which can reasonably be assumed to result in more stringent emission limits than would apply under these rules.

    Therefore, rescission of the statutory provisions and rules listed in table 1 would not interfere with attainment or maintenance of any of the national ambient air quality standards or any other requirements of the Clean Air Act and would not affect emissions of nonattainment pollutants. As such, the rescission would comply with sections 110(l) and 193 of the Clean Air Act. For these reasons, we approve ADEQ's rescissions of the statutory and regulatory provisions listed in table 1 from the Arizona SIP.

    II. Error Corrections

    Section 110(k)(6) of the CAA provides in relevant part that, whenever the EPA determines that the EPA's action approving, disapproving, or promulgating any SIP or SIP revision was in error, the EPA may in the same manner as the approval, disapproval, or promulgation revise such action as appropriate without requiring any further submission from the state. In today's action, we are correcting four errors made in previous rulemakings approving revisions to the Arizona SIP.

    First, on July 31, 1978 (43 FR 33245), we approved certain state prohibitory rules as a revision to the Arizona SIP. Among the rules listed as approved was R9-3-301 (“Visible emissions—General”). However, the preamble of our July 31, 1978 final rule clearly indicates that the EPA did not intend to take action on this rule (see 43 FR 33245, at 33246) but mistakenly listed R9-3-301 as approved in the regulatory portion of the final rule. In this action, we are correcting the error in our July 31, 1978 final rule by removing the entry for R9-3-301 from the relevant paragraph in 40 CFR 52.120 (“Identification of plan”).

    Second, on October 10, 1980 (45 FR 67345), we approved the state's January 26, 1979 request to redesignate the Air Quality Control Regions (AQCRs) in Arizona as a revision to the Arizona SIP. However, the state's request for redesignation of the Arizona AQCRs was made under section 107, not section 110, of the CAA, and while the EPA appropriately made certain administrative changes to 40 CFR part 52 (“Approval and promulgation of implementation plans”), subpart D (“Arizona”) and 40 CFR part 81 (“Designation of areas for air quality planning purposes”), subpart B (“Designation of air quality control regions”), the redesignation request itself was not a SIP revision. As such, we erred in listing the state's January 26, 1979 redesignation request as an approved revision to the Arizona SIP in 40 CFR part 52 (“Approval and promulgation of implementation plans”), subpart D (“Arizona”), section 52.120 (“Identification of plan”), paragraph 52.120(c)(30). In today's action, we are removing the entry of the state's January 26, 1979 redesignation request from 40 CFR 52.120.

    Third, on June 18, 1982 (47 FR 26382), we approved certain statutory provisions as a revision to the Arizona SIP. In so doing, we approved Arizona Revised Statutes (ARS) section 36-1720.02 (“Defenses”). However, the correct citation for this particular statutory provision was ARS section 36-1720.01, not ARS section 36-1720.02. In today's action, we are correcting the citation to this statutory provision in the relevant paragraph in 40 CFR 52.120 (“Identification of plan”).

    Fourth, on March 10, 2005 (70 FR 11882), we approved a request submitted on September 13, 2004 by the ADEQ to clarify the description of the air quality planning area for the Phoenix PM10 nonattainment area. In our March 10, 2005 final rule, we revised the PM10 table in 40 CFR part 81 (“Designation of areas for air quality planning purposes”), subpart C (“Section 107 attainment status designations”), section 81.303 (“Arizona”) accordingly, but we also listed the state's September 13, 2004 boundary clarification request as an approval of a revision to the Arizona SIP. However, the state's September 13, 2005 request was submitted under CAA section 107, not as a revision to the SIP under section 110, and thus our listing of it as part of the SIP in 40 CFR 52.120 (“Identification of plan”) was in error. In today's action, we are removing the entry of the ADEQ's September 13, 2004 boundary clarification request from 40 CFR 52.120.

    Lastly, in a final rule published by the Federal Communications Commission at 63 FR 16441 (April 3, 1998), 40 CFR 52.111 (“Toll free number assignment”) was inadvertently added to subpart D (“Arizona”) of part 52 (“Approval and promulgation of implementation plans”). The provisions now found at 40 CFR 52.111 were intended to be promulgated in title 47, not title 40, and have nothing to do with SIPs. In today's action, we are correcting this error by removing 40 CFR 52.111 from the CFR.

    III. Public Comment and Final Action

    As authorized in section 110(k)(3) of the Act, the EPA is approving the state's rescission of the statutory and regulatory provisions listed in table 1 from the Arizona SIP because we believe they are no longer necessary to retain. Under section 110(k)(6), we are also correcting errors in certain previous actions by the EPA on prior Arizona SIP revisions. The error corrections relate to an inadvertent listing of a rule on which the EPA did not take action in the Arizona SIP, a typographical error, and erroneous approvals of non-SIP submittals as part of the SIP.

    We do not think anyone will object to these actions, so we are finalizing them without proposing them in advance. However, in the Proposed Rules section of this Federal Register, we are simultaneously proposing rescission of the same provisions and correction of the same errors. If we receive adverse comments by March 14, 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 April 11, 2016.

    IV. Statutory and Executive Order Reviews

    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 rescinds state statutes, rules, and test methods as unnecessary to retain in the applicable SIP 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 Order 12866 (58 FR 51735, October 4, 1993);

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

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

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

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

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

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

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

    • does not provide the EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, 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, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. 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 April 11, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the Proposed Rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that 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)).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.

    Dated: January 25, 2016. Jared Blumenfeld, Regional Administrator, Region IX.

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

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart D—Arizona
    § 52.111 [Removed]
    2. Remove § 52.111.
    3. Section 52.120 is amended by: a. Adding paragraphs (b)(1)(i), (c)(3)(ii) introductory text and (c)(3)(ii)(A), and (c)(6)(i) introductory text and (c)(6)(i)(A); b. Revising paragraph (c)(19); c. Adding paragraphs (c)(20)(i) introductory text and (c)(20)(i)(A), (c)(27)(i)(D), and (c)(29)(i)(B); d. Removing and reserving paragraph (c)(30); e. Adding paragraphs (c)(43)(i)(D) and (c)(45)(i)(E); f. Revising paragraph (c)(50)(ii)(B); g. Adding paragraphs (c)(50)(ii)(D) and (c)(54)(i)(I); and h. Removing and reserving paragraph (c)(120).

    The additions and revisions read as follows:

    § 52.120 Identification of plan.

    (b) * * *

    (1) Arizona State Department of Health.

    (i) Previously approved on May 31, 1972 in paragraph (b) of this section and now deleted without replacement: Arizona Revised Statutes section 36-1700 (“Declaration of Policy”)

    (c) * * *

    (3) * * *

    (ii) Arizona State Department of Health.

    (A) Previously approved on July 27, 1972 in paragraph (c)(3) of this section and now deleted without replacement: Chapter 2 (“Legal Authority”), Section 2.9 (“Jurisdiction over Indian lands”); Arizona Revised Statutes sections 36-1700 (“Declaration of Policy”) and 36-1801 (“Jurisdiction over Indian Lands”); and Arizona State Department of Health, Rules and Regulations for Air Pollution Control 7-1-4.3 (“Sulfite Pulp Mills”) and 7-1-9.1 (“Policy and Legal Authority”).

    (6) * * *

    (i) Arizona State Department of Health.

    (A) Previously approved on July 31, 1978 in paragraph (c)(6) of this section and now deleted without replacement: Arizona Air Pollution Control Regulation 7-1-4.3 (R9-3-403) (“Sulfur Emissions: Sulfite Pulp Mills”).

    (19) Arizona Air Pollution Control Regulations, submitted on September 16, 1975: R9-3-102 (Definitions), R9-3-108 (Test Methods and Procedures), R9-3-302 (Particulate Emissions: Fugitive Dust), R9-3-303 (Particulate Emissions: Incineration), R9-3-304 (Particulate Emissions: Wood Waste Burners), R9-3-305 (Particulate Emissions: Fuel Burning Equipment), R9-3-307 (Particulate Emissions: Portland Cement Plants); and R9-3-308 (Particulate Emissions: Heater-Planers), submitted on September 16, 1975.

    (20) * * *

    (i) Arizona State Department of Health.

    (A) Previously approved on August 4, 1978 in paragraph (c)(20) of this section and now deleted without replacement: Arizona Air Pollution Control Regulation R9-3-1001 (“Policy and Legal Authority”).

    (27) * * *

    (i) * * *

    (D) Previously approved on April 23, 1982, in paragraph (c)(27)(i)(B) of this section and now deleted without replacement: R9-3-511 (Paragraph B), R9-3-512 (Paragraph B), R9-3-513 (Paragraphs B and C), and R9-3-517 (Paragraphs B and C).

    (29) * * *

    (i) * * *

    (B) Previously approved on April 23, 1982, in paragraph (c)(29)(i)(A) of this section and now deleted without replacement: Arizona Testing Manual for Air Pollutant Emissions, Sections 3.0 and 4.0.

    (43) * * *

    (i) * * *

    (D) Previously approved on April 23, 1982, in paragraph (c)(43)(i)(B) of this section and now deleted without replacement: R9-3-511 (Paragraph A.1 to A.5), R9-3-512 (Paragraph A.1 to A.5), R9-3-513 (Paragraph A.1 to A.5), and R9-3-517 (Paragraph A.1 to A.5).

    (45) * * *

    (i) * * *

    (E) Previously approved on April 23, 1982, in paragraph (c)(45)(i)(B) of this section and now deleted without replacement: R9-3-511 (Paragraph A); R9-3-512 (Paragraph A); R9-3-513 (Paragraph A); R9-3-517 (Paragraph A); Section 3, Method 11; Section 3.16, Method 16; Section 3.19, Method 19; and Section 3.20, Method 20.

    (50) * * *

    (ii) * * *

    (B) Arizona State: Chapter 14, Air Pollution, Article 1. State Air Pollution Control, Sections 36-1700 to 36-1702, 36-1704 to 36-1706, 36-1707 to 36-1707.06, 36-1708, 36-1720.01, and 36-1751 to 36-1753.

    (D) Previously approved on June 18, 1982, in paragraph (c)(50)(ii)(B) of this section and now deleted without replacement: Arizona Revised Statutes section 36-1700.

    (54) * * *

    (i) * * *

    (I) Previously approved on September 28, 1982, in paragraph (c)(54)(i)(C) of this section and now deleted without replacement: R9-3-511 (Paragraph A to A.1 and A.2), R9-3-513 (Paragraph A to A.1 and A.2), and R9-3-517 (Paragraph A to A.1).

    [FR Doc. 2016-02714 Filed 2-10-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 402 [Docket No. FWS-R9-ES-2011-0072; Docket No. 120106026-4999-03] RIN 1018-AX88; 0648-BB80 Interagency Cooperation—Endangered Species Act of 1973, as Amended; Definition of Destruction or Adverse Modification of Critical Habitat AGENCIES:

    U.S. Fish and Wildlife Service, Interior; National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Commerce.

    ACTION:

    Final rule.

    SUMMARY:

    The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), collectively referred to as the “Services” or “we,” revise a regulatory definition that is integral to our implementation of the Endangered Species Act of 1973, as amended (Act or ESA). The Act requires Federal agencies, in consultation with and with the assistance of the Services, to insure that their actions are not likely to jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of critical habitat of such species. On May 12, 2014, we proposed to revise the definition for “destruction or adverse modification” in our regulations as this definition had been found to be invalid by two circuit courts. In response to public comments received on our proposed rule, we have made minor revisions to the definition. This rule responds to section 6 of Executive Order 13563 (January 18, 2011), which directs agencies to analyze their existing regulations and, among other things, modify or streamline them in accordance with what has been learned.

    DATES:

    Effective March 14, 2016.

    ADDRESSES:

    Supplementary information used in the development of this rule, including the public comments received and the environmental assessment may be viewed online at http://www.regulations.gov at Docket No. FWS-R9-ES-2011-0072 or at Docket No. NOAA-NMFS-2014-0093.

    FOR FURTHER INFORMATION CONTACT:

    Jennifer Schultz, National Marine Fisheries Service, Office of Protected Resources, 1315 East-West Highway, Silver Spring, MD 20910; telephone 301/427-8443; facsimile 301/713-0376; or Craig Aubrey, U.S. Fish and Wildlife Service, Division of Environmental Review, 5275 Leesburg Pike, Falls Church, VA 22041; telephone 703/358-2171; facsimile 703/358-1735. Persons who use a Telecommunications Device for the Deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339, 24 hours a day, and 7 days a week.

    SUPPLEMENTARY INFORMATION:

    Background

    Section 7(a)(2) of the Act requires Federal agencies, in consultation with and with the assistance of the Secretaries of the Interior and Commerce, to insure that their actions are not likely to jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of critical habitat of such species (16 U.S.C. 1536(a)(2)). The Act defines critical habitat as the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of the Act, on which are found those physical or biological features (1) essential to the conservation of the species and (2) which may require special management considerations or protection, as well as specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of the Act, upon a determination by the Secretary that such areas are essential for the conservation of the species (16 U.S.C. 1532(5)(A)). Conservation means to use and the use of all methods and procedures that are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary (16 U.S.C. 1532(3)). The Act does not define “destruction or adverse modification.” The Services carry out the Act via regulations in title 50 of the Code of Federal Regulations (CFR).

    In 1978, the Services promulgated regulations governing interagency cooperation under section 7(a)(2) of the Act that defined “destruction or adverse modification” in part as a “direct or indirect alteration of critical habitat which appreciably diminishes the value of that habitat for survival and recovery of a listed species. Such alterations include but are not limited to those diminishing the requirements for survival and recovery . . . ” (43 FR 870, January 4, 1978). In 1986, the Services amended the definition to read “a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. Such alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical” (51 FR 19926, June 3, 1986; codified at 50 CFR 402.02). In 1998, the Services provided a clarification of usage of the term “appreciably diminish the value” in the Endangered Species Consultation Handbook: Procedures for Conducting Consultation and Conference Activities Under Section 7 of the Act (i.e., the Handbook; http://http://www.fws.gov/endangered/esa-library/pdf/esa_section7_handbook.pdf) as follows: “to considerably reduce the capability of designated or proposed critical habitat to satisfy requirements essential to both the survival and recovery of a listed species.”

    In 2001, the Fifth Circuit Court of Appeals reviewed the 1986 definition and found it exceeded the Service's discretion by requiring an action to appreciably diminish a species' survival and recovery to trigger a finding of “destruction or adverse modification.” Sierra Club v. U.S. Fish and Wildlife Service, 245 F.3d 434 (5th Cir. 2001). As stated in the decision (Sierra Club, at 441-42 (citations omitted) (emphasis in original)):

    The ESA defines `critical habitat' as areas which are `essential to the conservation' of listed species. `Conservation' is a much broader concept than mere survival. The ESA's definition of `conservation' speaks to the recovery of a threatened or endangered species. Indeed, in a different section of the ESA, the statute distinguishes between `conservation' and `survival.' Requiring consultation only where an action affects the value of critical habitat to both the recovery and survival of a species imposes a higher threshold than the statutory language permits.

    In 2004, the Ninth Circuit Court of Appeals also reviewed the 1986 definition and found portions of the definition to be facially invalid. Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004). The Ninth Circuit, following similar reasoning set out in the Sierra Club decision, determined that Congress viewed conservation and survival as “distinct, though complementary, goals, and the requirement to preserve critical habitat is designed to promote both conservation and survival.” Gifford Pinchot Task Force, at 1070. Specifically, the court found that “the purpose of establishing `critical habitat' is for the government to designate habitat that is not only necessary for the species' survival but also essential for the species' recovery.” Id. “Congress said that `destruction or adverse modification' could occur when sufficient critical habitat is lost so as to threaten a species' recovery even if there remains sufficient critical habitat for the species' survival.” Id.

    After the Ninth Circuit's decision, the Services each issued guidance to discontinue the use of the 1986 definition (FWS Acting Director Marshall Jones Memo to Regional Directors, “Application of the `Destruction or Adverse Modification' Standard under Section 7(a)(2) of the Act, 2004;” NMFS Assistant Administrator William T. Hogarth Memo to Regional Administrators, “Application of the `Destruction or Adverse Modification' Standard under Section 7(a)(2) of the Act, 2005”). Specifically, in evaluating an action's effects on critical habitat as part of interagency consultation, the Services began directly applying the definition of “conservation” as set out in the Act. The guidance instructs the Services' biologists, after examining the baseline and the effects of the action, to determine whether critical habitat would remain functional (or retain the current ability for the primary constituent elements to be functionally established) to serve the intended conservation role for the species, upon implementation of the Federal action under consultation. “Primary constituent elements” was a term introduced in the critical habitat designation regulations (50 CFR 424.12) to describe aspects of “physical or biological features,” which are referenced in the statutory definition of “critical habitat”; the Services have proposed to remove the term “primary constituent elements” and return to the statutory term “physical or biological features.” See 79 FR 27066, May 12, 2014.

    On May 12, 2014, the Services proposed the following regulatory definition to address the relevant case law and to formalize the Services' guidance: “Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the conservation value of critical habitat for listed species. Such alterations may include, but are not limited to, effects that preclude or significantly delay the development of the physical or biological features that support the life-history needs of the species for recovery.” See 79 FR 27060, May 12, 2014. In the preamble to the proposed rule, we explained that the proposed definition was intended to align with the conservation purposes of the Act. The first sentence captured the role that critical habitat should play for the recovery of listed species. The second sentence acknowledged that some physical or biological features may not be present or may be present in suboptimal quantity or quality at the time of designation.

    We solicited comments on the proposed rule for a total of 150 days. We received 176 comments.

    Summary of Changes From the Proposed Definition

    This final rule aligns the regulatory definition of “destruction or adverse modification” with the conservation purposes of the Act and the Act's definition of “critical habitat.” It continues to focus on the role that critical habitat plays for the conservation of listed species and acknowledges that the development of physical and biological features may be necessary to enable the critical habitat to support the species' recovery. Though we made minor changes to clarify our intent, these changes do not alter the overall meaning of the proposed definition. We do not expect this final rule to alter the section 7(a)(2) consultation process from our current practice, and previously completed biological opinions do not need to be reevaluated in light of this rule.

    In our final definition, to avoid unnecessary confusion and more closely track the statutory definition of critical habitat, we replaced two “terms of art” introduced in the proposed definition with language that explained the intended meanings. In addition, we modified the second sentence of the definition to avoid unintentionally giving the impression that the proposed definition had a narrower focus than the 1986 definition.

    First, as described in detail under the Summary of Comments section below, many commenters suggested that we replace two terms, “conservation value” and “life-history needs,” in the proposed definition with simpler language more clearly conveying their intended meanings. After reviewing the comments, we agreed that use of these terms was unnecessary and led to unintended confusion. We modified the proposed definition accordingly. Specifically, we replaced “conservation value of critical habitat for listed species” with “the value of critical habitat for the conservation of a listed species.” We also replaced “physical or biological features that support life-history needs of the species for recovery” in the second sentence with “physical or biological features essential to the conservation of a listed species.” These revisions avoid introducing previously undefined terms without changing the meaning of the proposed definition. Furthermore, these revisions better align with the conservation purposes of the Act, by using language from the statutory definition of “critical habitat” (i.e., “physical or biological features essential to the conservation of the species”).

    Second, commenters also expressed concern that, in their perception, the Services proposed a significant change in practice by appearing to focus the definition on the preclusion or delay of the development of physical or biological features, to the exclusion of the alteration of existing features. We did not intend the proposed definition to signal such a shift in focus. Rather, we believed the first sentence of the proposed definition captured both types of alteration: those of existing features as well as those that would preclude or delay future development of such features. We intended the second sentence of the proposed definition to merely emphasize this latter type of alteration because of its less obvious nature. Because the second sentence of the 1986 definition expressly refers to alterations adversely modifying physical or biological features and to avoid any perceived shift in focus, we revised the proposed definition to explicitly reference alterations affecting the physical or biological features essential to the conservation of a species, as well as those that preclude or significantly delay development of such features.

    Final Definition

    After considering public comments, Congressional intent, relevant case law, and the Services' collective experience in applying the “destruction or adverse modification” standard over the last three decades, we finalize the following regulatory definition: Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of a listed species. Such alterations may include, but are not limited to, those that alter the physical or biological features essential to the conservation of a species or that preclude or significantly delay development of such features.

    As described in the preamble to the proposed rule, the “destruction or adverse modification” definition focuses on how Federal actions affect the quantity and quality of the physical or biological features in the designated critical habitat for a listed species and, especially in the case of unoccupied habitat, on any impacts to the critical habitat itself. Specifically, the Services will generally conclude that a Federal action is likely to “destroy or adversely modify” designated critical habitat if the action results in an alteration of the quantity or quality of the essential physical or biological features of designated critical habitat, or that precludes or significantly delays the capacity of that habitat to develop those features over time, and if the effect of the alteration is to appreciably diminish the value of critical habitat for the conservation of the species. If the Services make a destruction or adverse modification determination, they will develop reasonable and prudent alternatives on a case by case basis and based on the best scientific and commercial data available.

    As also described in the preamble to the proposed rule, the Services may consider other kinds of impacts to designated critical habitat. For example, some areas that are currently in a degraded condition may have been designated as critical habitat for their potential to develop or improve and eventually provide the needed ecological functions to support species' recovery. Under these circumstances, the Services generally conclude that an action is likely to “destroy or adversely modify” the designated critical habitat if the action alters it to prevent it from improving over time relative to its pre-action condition. It is important to note that the “destruction or adverse modification” definition applies to all physical or biological features; as described in the proposed revision to the current definition of “physical or biological features” (50 CFR 424.12), “[f]eatures may include habitat characteristics that support ephemeral or dynamic habitat conditions” (79 FR 27066, May 12, 2014).

    Summary of Comments

    In our proposed rule (79 FR 27060, May 12, 2014), we requested written comments from the public for 60 days, ending July 11, 2014. We received several requests to extend the public comment period, and we subsequently published a notice (79 FR 36284, June 26, 2014) extending the comment period by an additional 90 days, through October 9, 2014.

    During the public comment period, we received approximately 176 comments. We received comments from Tribes, State and local governments, industry, conservation organizations, private citizens, and others.

    We considered all substantive information provided during the comment period and, as appropriate, incorporated suggested revisions into this final rule. Here, we summarize the comments, grouped by issue, and provide our responses.

    Comment on “conservation” versus “recovery”: A few commenters suggested that conservation is not recovery. One commenter suggested that Congress intended critical habitat to mean areas that are essential to the continued existence of the species, i.e., its survival.

    Our Response: We disagree with the commenter that “conservation” means “survival.” Instead, we agree with the courts that Congress intended critical habitat to focus on conservation, which addresses more than mere survival. While we recognize the distinction between “conservation” and “recovery,” we also acknowledge that the courts and the Services often use the terms synonymously.

    The statutory definition of critical habitat includes the phrase “essential to [or for] the conservation of the species” twice; it does not include the word “survival” or the phrase, “the continued existence of the species” (16 U.S.C. 1532(5)(A)). Conservation means to use and the use of all methods and procedures that are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary (16 U.S.C. 1532(3)). The statutory definition does not include the word “survival” or the phrase, “the continued existence of the species.” This does not appear to be an oversight. Congress used the word “survival” in other places in the Act; they also used the phrase “continued existence of a species” elsewhere and specifically in reference to the jeopardy standard under section 7(a)(2) of the Act.

    In 2001, the Fifth Circuit concluded that “ `conservation' is a much broader concept than mere survival” and “speaks to the recovery” of species: “Indeed, in a different section of the ESA, the statute distinguishes between `conservation' and `survival.' ” Sierra Club, at 441-42. In 2004, the Ninth Circuit added, “Congress said that `destruction or adverse modification' could occur when sufficient critical habitat is lost so as to threaten a species' recovery even if there remains sufficient critical habitat for the species' survival.” Further, the Ninth Circuit indicated that the 1986 definition “fails to provide protection of habitat when necessary only for species' recovery.” Gifford Pinchot Task Force, at 1070. Throughout these decisions, the courts used the words “recovery” and “conservation” interchangeably.

    The Services view “conservation” as the process used to achieve “recovery,” that is, the improvement in the status of listed species to the point at which listing is no longer appropriate under the criteria set out in section 4(a)(1) of the Act (50 CFR 402.02). In the proposed regulatory definition of “conserve, conserving, and conservation,” the Services included the phrase “i.e., the species is recovered” to clarify the link between conservation and recovery of the species. See 79 FR 27066, May 12, 2014 (proposing revisions to 50 CFR 424.02). Despite the distinction between the two terms, we often use the terms interchangeably in practice. We believe that this is consistent with Congress's intent for “conservation” to encompass the procedures necessary to achieve “recovery.”

    Comments on “appreciably diminish”: We received 63 comments regarding our use and explanation of the term “appreciably diminish.” Many commenters considered the explanation of the term vague, confusing, and giving too much discretion to the Services. Some suggested that “appreciably diminish” should apply only to the reduction in quality, significance, magnitude, or worth of the physical or biological features that were the basis for determining the habitat to be critical. Others suggested alternatives to “appreciably,” including significantly, measurably, and considerably. Several commenters suggested simply removing the words “both the survival and” from the clarification of usage in the Services' Handbook. Some commenters believed the Services were “lowering the bar,” while others felt that the Services were “raising the bar” with the definition. Commenters disagreed on whether the Services should consider every perceptible diminishment to critical habitat to be destruction or adverse modification.

    Our Response: In the proposed rule, the Services requested comments on whether the phrase “appreciably diminish” is clear and can be applied consistently across consultations. Though this phrase has been part of the definition of “destruction or adverse modification” since 1978, we invited the public to suggest any alternative phrases that might improve clarity and consistency. Though several commenters responded that phrase is unclear or unable to be consistently applied, they did not present clearer alternatives or examples of inconsistent application.

    The courts have not identified problems with the clarity or consistent application of the “appreciably diminish” standard. Though the Fifth (2001) and Ninth Circuits (2004) invalidated the existing regulatory definition because it included the phrase “both the survival and recovery,” they did not comment unfavorably on the word “appreciably” or the term “appreciably diminish.” In 2010, the Ninth Circuit expressly noted that its decision in Gifford Pinchot “did not alter the rule that an `adverse modification' occurs only when there is `a direct or indirect alteration that appreciably diminishes the value of critical habitat.' ” Butte Environmental Council v. U.S. Army Corps of Engineers, 620 F.3d 936, 948 (9th Cir. 2010) (emphasis in original).

    Commenters generally agreed that “diminish” means to reduce; however, several commenters disagreed with our use of the word “appreciably” and suggested we use alternative qualifiers (i.e., significantly, measurably, or considerably). In the preamble of the proposed rule, we discussed the word “appreciably,” as well as the suggested alternatives, which are similar in meaning to the word “appreciably” but also have multiple possible meanings. In light of all the comments received, our review of case law, and our previous experience with the term, we have concluded that no alternative has a sufficiently clear meaning to warrant changing this longstanding term in the regulation. Without a clearly superior alternative, the Services retain the phrase “appreciably diminish” in the definition of “destruction or adverse modification.”

    In the preamble to the proposed rule, we further clarified the meaning of “appreciably diminish” by explaining that the relevant question is whether the reduction has some relevance because we can recognize or grasp its quality, significance, magnitude, or worth in a way that negatively affects the value of the critical habitat as a whole for the conservation of a listed species. Some commenters objected to this clarification and advocated for the retention of the Handbook language, with edits to remove the phrase “both the survival and.”

    Courts have looked to the Handbook as guidance for interpreting the “appreciably diminish” standard. In 2008, the U.S. District Court for the Eastern District of California held that the Handbook's definition of “appreciably diminish” is reasonable and therefore would be applied by the court as guidance. See Pacific Coast Federation of Fishermen's Associations v. Gutierrez, 606 F. Supp. 2d 1195, 1208-09 (E.D. Cal. 2008) (according deference to the agencies' interpretation under the principles of Skidmore v. Swift & Co., 323 U.S. 134, 139-40 (1944)). The court thus applied “appreciably diminish” as meaning “considerably reduce.” Other district courts have similarly applied the “considerably reduce” language contained in the Handbook's definition of “appreciably diminish the value.” See Wild Equity Institute v. City and County of San Francisco, No. C 11-00958 SI, 2011 WL 5975029, *7 (N.D. Cal. Nov. 29, 2011) (unreported) (noting that, in Gutierrez, “The court accepted the FWS' definition of `appreciably diminish' to mean `considerably reduce'”); Forest Guardians v. Veneman, 392 F.Supp.2d 1082, 1092 (D. Ariz. 2005) (applying the handbook's definition of “appreciably diminish” as guidance for interpreting “reduce appreciably” as used in section 7(a)(2)'s jeopardy standard).

    In the preamble to the proposed rule, we acknowledged that the Handbook's language referring to “both the survival and recovery” as part of its definition of “appreciably diminish the value” is no longer valid. We also indicated that the term “considerably,” taken alone, may lead to disparate outcomes because it can mean “large in amount or extent,” “worthy of consideration,” or “significant.” In light of the comments urging the Services to retain the Handbook clarification, the Services take this opportunity to clarify that the term “considerably,” in this context, means “worthy of consideration” and is another way of stating that we can recognize or grasp the quality, significance, magnitude, or worth of the reduction in the value of critical habitat. We believe that this clarification will allow the Services to reach consistent outcomes, and we reiterate that the Handbook reference to “both the survival and” is no longer in effect.

    We disagree with commenters who suggest that every diminishment, however small, should constitute destruction or adverse modification. We find it necessary to qualify the word “diminish” to exclude those adverse effects on critical habitat that are so minor in nature that they do not impact the conservation of a listed species. It is appropriate for the Services to consider the biological significance of a reduction when conducting a section 7(a)(2) consultation. The U.S. District Court for the Eastern District of California rejected as “overly expansive” the plaintiff's suggestion that “appreciably” means “perceptible”. Gutierrez, 606 F.Supp.2d at 1208-09. The guidance issued by the Services in 2004 and 2005 directed the Services to discuss the “significance of anticipated effects to critical habitat,” which the U.S. District Court for the Northern District of California found appropriate and “sufficient to implement an `appreciably diminish' standard.” In re Consolidated Salmonid Cases, 791 F. Supp.2d 802, 872 (E.D. Cal. 2011) (applying NMFS' 2005 guidance), affirmed in part, reversed in part on other grounds, San Luis & Delta-Mendota Water Authority v. Locke, 776 F.3d 971 (9th Cir. 2014). Similarly, in the context of applying the jeopardy standard from section 7(a)(2) of the Act, which also includes the term “appreciably” (in the phrase “appreciably reduce”), the U.S. District Court for the District of Columbia rejected the argument that the Services are required to recognize every reduction in the likelihood of survival or recovery that is capable of being perceived or measured; the court instead held that the Services have discretion to evaluate a reduction to determine if it is “meaningful from a biological perspective.” Oceana, Inc. v. Pritzker, F.Supp.3d, No. 08-1881, 2014 WL 7174875, *8-9 (D.D.C. December 17, 2014).

    Thus, our explanation in this final rule of the meaning of “appreciably diminish” is consistent with previous usage; “the bar” for determining whether a proposed action is likely to result in destruction or adverse modification of critical habitat is neither raised nor lowered by this rule. A Federal action may adversely affect critical habitat in an action area without appreciably diminishing the value of the critical habitat for the conservation of the species. In such cases, a conclusion of destruction or adverse modification would not be appropriate. Conversely, we would conclude that a Federal action would result in destruction or adverse modification if it appreciably diminishes the value of critical habitat for the conservation of the species, even if the size of the area affected by the Federal action is small.

    In summary, the Services have applied the term “appreciably diminish” from the definition of “destruction or adverse modification” for decades (43 FR 870, January 4, 1978). With the clarifications of usage in this rule, we find no basis in either the comments received or in court decisions to abandon this well-established language.

    Comments on “conservation value”: We received 68 comments on the term “conservation value,” suggesting that the term was vague, unnecessary, and confusing.

    Our Response: In the proposed rule, the Services requested comments on whether the phrase “conservation value” is clear and can be applied consistently across consultations. We invited the public to suggest alternatives that might improve clarity and consistency in implementing the “destruction or adverse modification” standard.

    Upon reviewing the comments, we agreed that inclusion of a new, undefined term, “conservation value,” was unnecessary. We wish to clarify that by introducing the term “conservation value” in the proposed definition, we did not intend to introduce a new concept but rather to reiterate that critical habitat is designated because it has been found to contribute to the conservation of the species, in keeping with the statutory definition of critical habitat. However, to avoid any confusion, we revised the first sentence of the final definition to replace the term “conservation value” with a phrase that conveys its intended meaning, i.e., “the value of critical habitat for the conservation of a listed species.” This minor revision retains the meaning of “conservation value” without introducing a new term. Like the statutory definition of critical habitat, it emphasizes the role of critical habitat in the conservation of a species.

    Comments on “survival or recovery”: Several commenters suggested that the Services should simply substitute “or” for “and” in the phrase “survival and recovery” from the 1986 definition.

    Our Response: The Services find that simply changing “and” to “or” in the existing regulatory definition would not go far enough to incorporate the refined understanding we now have regarding the role of critical habitat. The Services' regulations introduced the term “survival” into the 1978 definition; the statutory definition of critical habitat focuses on conservation, which the courts have explained emphasizes recovery. (See Sierra Club, at 441: “The ESA's definition of `conservation' speaks to the recovery of a threatened or endangered species.”) The Ninth Circuit further indicates that “Congress said that `destruction or adverse modification' could occur when sufficient critical habitat is lost so as to threaten a species' recovery even if there remains sufficient critical habitat for the species' survival” (Gifford Pinchot Task Force, at 1070).

    In Gifford Pinchot, the Ninth Circuit supported the use of “or” in place of “and”; however, this in no way limits our discretion to revise the definition to more clearly implement Congressional intent. In its definition of critical habitat, Congress uses the word “conservation” and not “survival”; therefore, it is appropriate for the Services to revise the definition to unambiguously emphasize the value of critical habitat for conservation. By doing so, we have produced a regulatory definition that is less confusing, less susceptible to misinterpretation, and more consistent with the intent of Congress than by merely substituting “or” for “and.”

    Comments on linking the definition to existing physical and biological features: We received a few comments requesting that the definition explicitly include alterations of existing physical and biological features.

    Our Response: In the proposed definition, we did not intend to disregard the alteration of existing physical or biological features; rather, our goal was to highlight certain types of alterations that may not be as evident as direct alterations, specifically those that preclude or significantly delay development of features. We reiterate and reaffirm that the first sentence of our final definition (Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of a listed species.) is meant to encompass all potential types of alterations if they reduce the value of the habitat for conservation, including alterations of existing features.

    In response to comments and to avoid further confusion, we revise the second sentence to specifically reference alterations of existing physical and biological features (as does the 1986 definition), in addition to those that preclude or significantly delay development of essential physical or biological features, as examples of effects that may constitute destruction or adverse modification of critical habitat. We believe that the revised sentence provides clarity and transparency to the definition and its implementation while retaining the core idea of the proposed definition.

    Comments on “may include, but are not limited to”: We received three comments on the use of the phrase “may include, but are not limited to.” Commenters found this language “overbroad” and thought the definition should be less vague or narrowed or both. One commenter thought it allowed a “catch-all provision” too favorable to the Federal Government, against prospective good-faith challengers.

    Our Response: The phrase, “may include, but are not limited to” emphasizes that the types of direct or indirect alterations that appreciably diminish the value of critical habitat for listed species include not only those that affect physical or biological features, but also those that may affect the value of critical habitat itself. The concept of non-exhaustive inclusion is not new to the regulatory definition of “destruction or adverse modification.” Both 1978 and 1986 definitions included the phrase. This language has not proven problematic in application. Indeed, this phrase is commonly used by the Services to account for the variation that occurs in biological entities and ecological systems, and to preserve the role of the inherent discretion and professional judgment the Services must use to evaluate all relevant factors when making determinations regarding such entities and systems.

    We retain the phrase in our final definition, as we believe its meaning is clear and that it serves an important function in the definition. It allows that there may be impacts to an area of critical habitat itself that are not impacts to features. This is particularly important for unoccupied habitat, for which no physical or biological features may have been identified (because physical or biological features are not required to be present in order to designate such an area as critical habitat under the second part of the statutory definition of “critical habitat”). For occupied habitat, the Services must retain the flexibility to address impacts to the area itself, such as those that would impede access to or use of the habitat. As noted in the proposed rule, a destruction or adverse modification analysis begins with impacts to the features but does not end there (79 FR 27060, May 12, 2014). For these reasons, we retain this phase in the final definition.

    Comments on “life-history needs”: We received 12 comments regarding the phrase “physical or biological features that support the life-history needs.” The commenters considered the phrase to be vague and poorly defined. Some commenters felt that the phrase misinterpreted or “lowered the bar” from that intended by the statutory language “physical or biological features essential to the conservation of a species.” Commenters recommended describing the physical and biological features as “essential” or “necessary.”

    Our Response: We did not intend the phrase, “physical or biological features that support the life-history needs” to “lower the bar” for identifying physical and biological features, as established in the statutory definition of critical habitat. Rather, our intent was to explain that physical or biological features provide for the life-history needs, which are essential to the conservation of the species.

    However, based on review of the public comments on this issue, we recognized the confusion caused by introducing a new “term of art” in the proposed definition. To avoid confusion, we revised the second sentence of the definition to replace the phrase, “support the life-history needs,” with its intended meaning, “essential to the conservation of a species.” In accordance with the statutory definition of critical habitat, the revision emphasizes our focus on those physical or biological features that are essential to the conservation of the species. We believe that the revised sentence, which aligns more closely to the statutory language, provides clarity and transparency to the definition and its implementation.

    Comments on “preclude or significantly delay:” We received many comments regarding the terms “preclude or significantly delay” in the proposed definition. Commenters believed these concepts are vague, undefined, and allow for arbitrary determinations. One commenter asserted that focusing on effects that preclude or significantly delay development of features was an expansion of authority that conflicted with E.O. 13604 (Improving Performance of Federal Permitting and Review of Infrastructure Projects).

    Our Response: Our proposed definition of “destruction or adverse modification” expressly included effects that preclude or significantly delay the development of physical or biological features that support the life-history needs of the species for recovery. Although we have revised the definition in minor respects from the proposed rule (see Summary of Changes from the Proposed Definition, above), we retain its forward-looking aspect.

    Our determination of “destruction or adverse modification” is based not only on the current status of the critical habitat but also, in cases where it is degraded or depends on ongoing ecological processes, on the potential for the habitat to provide further support for the conservation of the species. While occupied critical habitat would always contain at least one or more of the physical or biological features essential to the conservation of the listed species, an area of critical habitat may be in a degraded condition or less than optimal successional stage and not contain all physical or biological features at the time it is designated or those features may be present but in a degraded or less than optimal condition. The area may have been designated as critical habitat, however, because of the potential for some of the features not already present or not yet fully functional to be developed, restored, or improved and contribute to the species' recovery. The condition of the critical habitat would be enhanced as the physical or biological features essential to the conservation of the species are developed, restored, or improved, and the area is able to provide the recovery support for the species on which the designation is based. The value of critical habitat also includes consideration of the likely capability of the critical habitat to support the species' recovery given the backdrop of past and present actions that may impede formation of the optimal successional stage or otherwise degrade the critical habitat. Therefore, a proposed action that alters habitat conditions to preclude or significantly delay the development or restoration of the physical or biological features needed to achieve that capability (relative to that which would occur without the proposed action undergoing consultation), where the change appreciably diminishes the value of critical habitat for the conservation of the species, would likely result in destruction or adverse modification.

    This is not a new concept or expansion of authority. The Services have previously recognized and articulated the need for this forward-looking aspect in the analysis of destruction or adverse modification of critical habitat. As discussed in the Background section, each Service issued substantially identical guidance following the decisions of the Fifth and Ninth Circuits invalidating the current regulatory definition (FWS 2004; NMFS 2005). For the past 10 years, the Services have evaluated whether, with implementation of the proposed Federal action, critical habitat would remain functional (or retain the current ability for the primary constituent elements to be functionally established) to serve the intended conservation role for the species. As noted above, “primary constituent elements” was a term introduced in the critical habitat designation regulations (50 CFR 424.12) to describe aspects of “physical or biological features.” On May 12, 2014, the Services proposed to revise these regulations to remove the use of the term “primary constituent elements” and replace it with the statutory term “physical or biological features” (79 FR 27066). However, the shift in terminology does not change the approach used in conducting a “destruction or adverse modification” analysis, which is the same regardless of whether the original designation identified primary constituent elements, physical or biological features, or both.

    Several commenters asserted that assessing the projected condition of the habitat and projected development of physical and biological features would be inconsistent with the Act. The Services disagree. The Act defines critical habitat to include both areas occupied at the time of listing that contain features “essential to the conservation” of the species, as well as unoccupied areas that are “essential for the conservation” of listed species. Unoccupied habitat by definition is not required to contain essential physical or biological features to qualify for designation, and even occupied habitat is not required to contain all features throughout the area designated. Yet, the obligation to preserve the value of critical habitat for the conservation of listed species applies to all designated critical habitat. At some point in the recovery process, habitat must supply features that are essential to the conservation of the species. It is thus important to recognize not only the features that are already present in the habitat, but the potential of the habitat to naturally develop the features over time. Therefore, the Services believe it is necessary (and consistent with the Act) to examine a project's effects on the natural development of physical and biological features essential to the conservation of a species.

    “Preclusion” prevents the features from becoming established. The phrase “significantly delay” requires more explanation. We intend this phrase to encompass a delay that interrupts the likely natural trajectory of the development of physical and biological features in the designated critical habitat to support the species' recovery. That trajectory is viewed in the context of the current status of the designated critical habitat and with respect to the conservation needs of the listed species.

    If the Services make a destruction or adverse modification determination, they will develop reasonable and prudent alternatives on a case by case basis and based on the best scientific and commercial data available.

    Comments on “foreseeable future:” We received many comments regarding the term “foreseeable future,” as used in the preamble to the proposed rule. Commenters believed this concept is vague and undefined, and requires speculation on the part of the Services.

    Our Response: In the preamble to the proposed rule (79 FR 27060, May 12, 2014), we used the term “foreseeable future” to explain and provide context for the forward-looking aspect of the destruction or adverse modification analysis; we explained that the conservation value of critical habitat also includes consideration of the likely capability, in the foreseeable future, of the critical habitat to support the species' recovery given the backdrop of past and present actions that may impede formation of the optimal successional stage or otherwise degrade the critical habitat. Therefore, an action that would preclude or significantly delay the development or restoration of the physical or biological features needed to achieve that capability, to an extent that it appreciably diminishes the value of critical habitat for the conservation of the species relative to that which would occur without the action undergoing consultation, is likely to result in destruction or adverse modification.

    In the proposed rule, we used the language “foreseeable future” not as specifically used in the definition of the term “threatened species” but as a generally understood concept; that is, in regards to critical habitat, we consider its future capabilities only so far as we are able to make reliable projections with reasonable confidence. The Services do not speculate when evaluating whether a Federal action would preclude or significantly delay the development of features. As required by the Act, we rely on the best scientific and commercial data available to determine whether the action is likely to destroy or adversely modify critical habitat (16 U.S.C. 1536(a)(2)). This rule formalizes in regulation the forward-looking aspect of the destruction or adverse modification analysis adopted in the 2004 and 2005 guidance.

    Additional comments relating to forward-looking aspect of definition: Several commenters felt that considerations regarding “precluding” or “significant delay” and “foreseeable future” would result in more consultations and longer review times.

    Our Response: As noted above and in the proposed rule, the Services have applied these concepts since the 2004 and 2005 guidance documents, and no significant increase in the number of consultations or review times has occurred as a result. The Services do not believe that adopting this approach in our regulations will result in more or lengthier consultations.

    Comments on defining “destruction or adverse modification” instead of defining “destruction” and “adverse modification” separately: We received three comments requesting that we define “destruction” and “adverse modification” independently.

    Our Response: “Destruction or adverse modification of critical habitat” was not defined in the statute. The Services defined the term in the 1978 regulations and amended the definition in 1986. The Services have thus applied the term as a singular concept for many years without difficulty.

    Independently defining “destruction” and “adverse modification” is unnecessary and would not alter the outcome of section 7(a)(2) consultations. If, through consultation, the Services determine that a proposed Federal action likely would result in the destruction or adverse modification of critical habitat, we would, if possible, provide a reasonable and prudent alternative to the action. Such alternative must not violate section 7(a)(2) of the Act, must be economically and technologically feasible, must be capable of being implemented in a manner consistent with the intended purpose of the action, and must be capable of being implemented consistent with the scope of the Federal agency's legal authority and jurisdiction (16 U.S.C. 1536(b)(3)(A); 50 CFR 402.14(h); 50 CFR 402.02 (defining “reasonable and prudent alternatives”)).

    Independently defining “destruction” and “adverse modification” would unnecessarily complicate the process without improving it or changing the outcome. The key distinction is whether the action appreciably diminishes the value of critical habitat for the conservation of the species, not whether the action destroys critical habitat or adversely modifies it. The time and effort applied to determine whether the action destroyed or adversely modified critical habitat would be better spent on the identification of reasonable and prudent alternatives to the proposed action. Therefore, we do not independently define “destruction” and “adverse modification.”

    Comments on the need for a quantitative definition: Eight commenters suggested the need for a quantitative definition that minimizes the Services' discretion.

    Our Response: We did not receive any examples of a quantitative definition. We are not able to provide such a definition because Federal actions, species, and critical habitat designations are complex and differ considerably. Our analyses of the actions and their effects on critical habitat require case-by-case consideration that does not fit neatly into a mathematical formula. Congress anticipated the need for the Services to use their professional judgment by requiring us to provide our opinion, detailing how the action affects species and critical habitat. This opinion must be based on the best available scientific and commercial information available for a particular action and species. The level of specificity and precision in available data will vary across actions and across species, and therefore a one-size-fits-all standard would not be workable.

    Further, the U.S. Court of Appeals for the Ninth Circuit has specifically held that nothing in the Act or current regulations requires that the analysis of destruction or adverse modification be quantitative in nature. Butte Environmental Council, 620 F.3d at 948 (agency not required to calculate rate of loss of habitat). See also San Luis & Delta-Mendota Water Authority v. Salazar, 760 F.Supp.2d 855, 945 (E.D. Cal. 2010) (Services not required to set threshold for determining destruction or adverse modification), affirmed in part, reversed in part on other grounds sub nom. San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581 (9th Cir. 2014).

    Therefore, we find that attempting to specify a quantitative threshold is neither feasible nor required.

    Comments on the scale of analysis: Many commenters expressed confusion or concern regarding the scale at which the determination of destruction or adverse modification of critical habitat is made. Some commenters agreed with the Services' interpretation of the statute and the existing implementing regulations at 50 CFR 402.14, as described in the preamble to the proposed rule, that determinations on destruction or adverse modification are based on critical habitat as a whole, not just on the areas where the action takes place or has direct impacts. These commenters requested clarification of the process used to make such determinations or thought that the language, “critical habitat, as a whole,” should be included in the rule and not just the preamble. Other commenters disagreed with the Services' interpretation that the destruction or adverse modification determination should be based on critical habitat as a whole and recommended that the Services evaluate destruction or adverse modification at the smallest scale relevant to determining whether the species has met its recovery criteria.

    Our Response: As explained in the preambles to this rule and the proposed rule, the determination of “destruction or adverse modification” will be based on the effect to the value of critical habitat for the conservation of a listed species. In other words, the question is whether the action will appreciably diminish the value of the critical habitat as a whole, not just in the action area (i.e., all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action; 50 CFR 402.02).

    The section 7 process involves multiple determinations, made by the action agency or the Services or both, regarding critical habitat. Where critical habitat has already been designated, section 7(a)(2) of the Act applies. Under the implementing regulations, the Federal agency first determines if its proposed action may affect critical habitat. If such a determination is made, formal consultation is required unless the Federal agency determines, with the written concurrence of the Services, that the action is not likely to adversely affect critical habitat. In accordance with the Act, our implementing regulations at 50 CFR 402.14(g)(1) through (g)(4), and the 2004 and 2005 guidance documents issued by FWS and NMFS (see the Background section), the formal consultation process generally involves four components: (1) The status of critical habitat, which evaluates the condition of critical habitat that has been designated for the species in terms of physical or biological features, the factors responsible for that condition, and the intended conservation role of the critical habitat overall; (2) the environmental baseline, which evaluates the current condition of the critical habitat in the action area, the factors responsible for that condition, and the relationship of the affected critical habitat in the action area to the entire critical habitat with respect to the conservation of the listed species; (3) the effects of the action, which includes the direct and indirect effects of the action (and the effects of any interrelated or interdependent activities) and describes how those effects alter the value of critical habitat within the action area; and (4) cumulative effects (as defined at 50 CFR 402.02), which evaluates the effects of future, non-Federal activities in the action area and describes how those effects are expected to alter the value of critical habitat within the action area. After synthesizing and integrating these four components, the Services make their final determination regarding the impact of the action on the overall value of the critical habitat designation. The Services conclude whether critical habitat would remain functional (or retain the current ability for the features to be functionally established in areas of currently unoccupied but capable habitat) to fulfill its value for the conservation of the species, or whether the action appreciably reduces the value of critical habitat for the conservation of the species.

    Where critical habitat has only been proposed for designation, a distinct but related process applies under section 7(a)(4) of the Act. The action agency must initiate a conference with the Services on the effects of its proposed action when the action is likely to result in destruction or adverse modification of the proposed critical habitat (50 CFR 402.10(b)). Although a conference generally will consist of informal discussions leading to advisory recommendations, action agencies have the option of conducting the conference under the same procedures that apply to formal consultations so that a conference opinion is produced (and later adopted as a biological opinion upon finalization of the critical habitat designation, provided certain conditions are met; 50 CFR 402.10(c) and (d)). While there are important differences between the consultation and conference processes, the same analytical steps as described in the paragraph above apply in the Services' evaluation of impacts to critical habitat.

    Adverse effects to critical habitat within the action area may not necessarily rise to the level of destruction or adverse modification to the designated critical habitat. The Handbook expressly provides that adverse effects to single elements or segments of critical habitat generally do not result in destruction or adverse modification unless that loss, when added to the environmental baseline, is likely to appreciably diminish the capability of the critical habitat to satisfy essential requirements of the species. Courts have concurred that a proposed action may result in destruction of some areas of critical habitat and still not necessarily result in a finding of “destruction or adverse modification.” See Conservation Congress v. U.S. Forest Service, 720 F.3d 1048, 1057 (9th Cir. 2013) (“Even completely destroying 22 acres of critical habitat does not necessarily appreciably diminish the value of the larger critical habitat area.”); Butte Environmental Council, 620 F.3d at 948 (applying the Handbook provision to support the conclusion that “[a]n area of a species' critical habitat can be destroyed without appreciably diminishing the value of critical habitat for the species' survival or recovery.”).

    The analysis thus places an emphasis on the value of the designated critical habitat as a whole for the conservation of a species, in light of the role the action area serves with regard to the function of the overall designation. Just as the determination of jeopardy under section 7(a)(2) of the Act is made at the scale of the entire listed entity, a determination of destruction or adverse modification is made at the scale of the entire critical habitat designation. Even if a particular project would cause adverse effects to a portion of critical habitat, the Services must place those impacts in context of the designation to determine if the overall value of the critical habitat is likely to be reduced. This could occur where, for example, a small affected area of habitat is particularly important in its ability to support the conservation of a species (e.g., a primary breeding site). Thus, the size or proportion of the affected area is not determinative; impacts to a small area may in some cases result in a determination of destruction or adverse modification, while impacts to a large geographic area will not always result in such a finding.

    Because the existing consultation process already ensures that destruction or adverse modification of critical habitat is analyzed at the appropriate scale, the Services decline to include language referring to determinations based on critical habitat “as a whole” in the definition of “destruction or adverse modification.”

    Comments on aggregate effects: Several commenters expressed concern that aggregate adverse impacts to critical habitat are not adequately addressed in the Services' analyses and that the proposed rule should be revised to expressly require the evaluation of aggregate effects to critical habitat that multiple actions will have on a species' recovery. One commenter urged the Services to develop a system to track the aggregate effects that destroy or degrade critical habitat.

    Our Response: The Services' biological opinion provides an assessment of the status of the critical habitat (including threats and trends), the environmental baseline of the action area (describing all past and present impacts), and cumulative effects. Under the implementing regulations of the Act, cumulative effects are defined as those effects of future State or private activities, not involving Federal activities, that are reasonably certain to occur within the action area of the Federal action subject to consultation (50 CFR 402.02). Following the definition, we only consider cumulative effects within the action area. The effects of any particular action are evaluated in the context of this assessment, which incorporates the effects of all current and previous actions. This avoids situations where each individual action is viewed as causing only insignificant adverse effects but, over time, the aggregate effects of these actions would erode the conservation value of the critical habitat.

    Comments on the role of mitigation in “destruction or adverse modification” findings: Four commenters thought the “net effects” of an action, including consideration of “mitigation and offsetting beneficial” measures, should be considered in the revised regulatory definition. One commenter suggested that the Services should develop an explicit framework for allowing project proponents to avoid a destruction or adverse modification finding by restoring the same biological or physical feature of critical habitat that they degrade, provided there is evidence the restoration is likely to succeed.

    Our Response: As stated in the Services' 2004 and 2005 guidance, conservation activities (e.g., management, mitigation, etc.) outside of designated critical habitat should not be considered when evaluating effects to critical habitat. However, conservation activities within critical habitat, included as part of a proposed action to mitigate the adverse effects of the action on critical habitat, are considered by the Services' in formulating our biological opinion as to whether an action is likely to result in the destruction or adverse modification of critical habitat. This consideration of beneficial actions is consistent with the implementing regulations at 50 CFR 402.14(g)(8), which set forth that in formulating its biological opinion, any reasonable and prudent alternatives, and any reasonable and prudent measures, the Service will use the best scientific and commercial data available and will give appropriate consideration to any beneficial actions taken by the Federal agency or applicant, including any actions taken prior to the initiation of consultation. The Services welcome the inclusion of beneficial conservation activities as part of proposed actions. However, because the question of whether beneficial actions can compensate for impacts to critical habitat is complicated and must be evaluated on a case-by-case basis, it would be advisable for Federal agencies and applicants to coordinate closely with the Services on such activities.

    Comments on continuation of current uses: Two commenters discussed current land practices and other uses on areas that may be designated as critical habitat. One commenter specifically requested that the final rule indicate that continuation of current uses does not constitute destruction or adverse modification.

    Our Response: There is nothing in the Act to suggest that previously ongoing activities are or may be exempted from analysis during section 7(a)(2) consultations. Accordingly, our longstanding regulatory framework does not distinguish between ongoing and other actions. “Action” is defined broadly at 50 CFR 402.02 to include all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States or upon the high seas. The applicability provision of the regulations further explains that section 7(a)(2) obligations arise so long as there is discretionary Federal involvement or control (50 CFR 402.03). It would be unsupported and beyond the scope of the definition of “destruction or adverse modification” to change these well-established principles.

    Comments regarding the use of recovery documents as a basis for a destruction or adverse modification determination: We received three comments requesting that the Services clarify that criteria, goals, or programs established in recovery plans are not enforceable and may not be used as a basis for a destruction or adverse modification decision.

    Our Response: The Services agree that recovery plans convey guidance and are not regulatory documents that compel any action to occur. In addition, section 7(a)(2) of the Act describes a standard of prohibition rather than a mandate to further recovery. However, criteria, goals, and programs for recovery that are established in these plans may be used in our evaluation of whether, with implementation of the proposed action, critical habitat would retain its value for the conservation of the species. Recovery plans, in addition to critical habitat rules, may provide the best scientific and commercial information available on the value of critical habitat to the conservation of the species, thus assisting the Services with evaluating the effects of a proposed action on critical habitat.

    Comments on undue burden: We received 14 comments regarding the perceived potential for undue burden on Tribes, State and local governments, and various industries. The commenters suggested that the proposed definition would prevent the issuance of permits or impose unwarranted restrictions and requirements on permit applicants, resulting in additional costs for project redesign, reductions in productivity, and increases in the time and effort required to submit permit applications. Some commenters predicted an increase in the number of section 7(a)(2) consultations, especially formal consultations. Others predicted that the Services would conclude destruction or adverse modification of critical habitat more frequently.

    Our Response: Because the final regulatory definition largely formalizes existing guidance that FWS and NMFS have implemented since 2004 and 2005, respectively, we conclude that the section 7(a)(2) consultation process will not significantly change. The final definition does not “raise the bar” in any way. We will not reinitiate consultations as a result of this rule. We will consult on ongoing actions in a similar manner as we have since the issuance of the guidance. Therefore, we do not anticipate changes in the costs related to section 7(a)(2) consultations or the frequency at which the Services conclude destruction or adverse modification of critical habitat. The decision to consult is made prior to and independent of our analysis of destruction or adverse modification of critical habitat (i.e., by a Federal agency applying the “may affect” standard of 50 CFR 402.14(a) to determine whether their action may affect designated critical habitat). If a Federal agency determines, with the written concurrence of the Services, that the proposed action is not likely to adversely affect critical habitat, formal consultation is not required (50 CFR 402.14(b)), and the Services would not perform an analysis of destruction or adverse modification of critical habitat. Therefore, the number of section 7(a)(2) consultations, and formal consultations in particular, is not likely to be affected by this rule.

    Comments on Tribe, State, and local coordination: We received five comments from Tribes, State and local governments, and industry groups indicating that we should consult or coordinate with Tribes, States, and local governments to finalize the proposed rule.

    Our Response: The Services have undertaken numerous efforts to ensure that our State, Tribal, and other partners had full notice and opportunity to provide input into the development of this rule. We reached out to industry groups, environmental organizations, intergovernmental organizations, and Federal agencies. We worked with the Association of Fish and Wildlife Agencies and the Native American Fish and Wildlife Society to distribute information to Tribes, States, and local governments about the proposed rule. The Services notified their respective Tribal liaisons, who sent letters to Tribes regarding this rule. We also hosted a webinar for the States on May 23, 2014. We considered all submitted comments, which included comments from Tribes, States, and local governments, and, as warranted, applied suggestions to the final rule.

    Comments on NEPA: We received 11 comments suggesting that a categorical exclusion from the NEPA was not appropriate for the proposed rule and that the Services should analyze the environmental impacts of this action.

    Our Response: The Services believe this rule likely would qualify for one or more categorical exclusions adopted by the Department of the Interior and the National Oceanic and Atmospheric Administration, respectively. Nevertheless, in an abundance of caution, the Services have completed an environmental assessment, which is available at the Federal e-rulemaking portal: http://www.regulations.gov (see ADDRESSES).

    Comments on Energy Supply, Distribution, and Use (E.O. 13211), Takings (E.O. 12630), and Economic Analyses (E.O. 12866, the Regulatory Flexibility Act, and the Unfunded Mandates Reform Act): We received comments that the Services should prepare a Statement of Energy Effects (E.O. 13211, 1 comment), a regulatory flexibility analysis (2 comments), and an economic analysis (2 comments).

    Our Response: This rule clarifies existing requirements for Federal agencies under the Act. Based on procedures applied through existing agency guidance, the rule is substantially unlikely to lead to different conclusions in section 7(a)(2) consultations. The rule clarifies the standard by which we will evaluate the effect of agency actions on critical habitat pursuant to section 7(a)(2) of the Act. For further information, please see the relevant sections under Required Determinations, below.

    Comments on extension of the comment period: Many commenters requested an extension of the public comment period announced in the draft policy. Additionally, we received requests to reopen the comment period that ended on October 9, 2014.

    Our Response: On June 26, 2014 (79 FR 36284), we extended the public comment period on the draft policy for an additional 90 days to accommodate this request and to allow for additional review and public comment. The comment period for the draft policy was therefore open for 150 days, which provided adequate time for all interested parties to submit comments and information.

    Comments on the proposed rule being “beyond the scope of the Act”: We received 25 comments stating that the proposed definition exceeded the authority of the Act. Some commenters wrote that it was beyond the scope of the Act. Some expressed concern that the proposed definition implied an affirmative conservation requirement or mandate for recovery.

    Our Response: As the agencies charged with administering the Act, it is within our authority to promulgate and amend regulations to ensure transparent and consistent implementation. Under general principles of administrative law, an agency may resolve ambiguities and define or clarify statutory language as long as the agency's interpretation is a permissible interpretation of the statute. The term “destruction or adverse modification” was not defined by Congress. Consequently, the Services first promulgated a regulatory definition in 1978, and then later in 1986. As previously mentioned, the “survival and recovery” standard of our earlier definitions was invalidated by courts. We believe that this revised definition comports with the language and purposes of the Act.

    As explained in the preamble to the proposed rule, section 7(a)(2) only applies to discretionary agency actions and does not create an affirmative duty for action agencies to recover listed species (79 FR 27060, May 12, 2014). Similarly, the definition of “destruction or adverse modification” is a prohibitory standard only. The definition does not, and is not intended to, create an affirmative conservation requirement or a mandate for recovery. Consistent with the Ninth Circuit's opinion, in the context of describing an action that “jeopardizes” a species, in National Wildlife Federation v. NMFS, 524 F.3d 917 (9th Cir. 2008), the Services believe that an action that “destroys” or “adversely modifies” critical habitat must cause a deterioration in the value of critical habitat, which includes its ability to provide recovery support to the species based on ongoing ecological processes. Section 7(a)(2) of the Act requires Federal agencies to insure that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. Under this section of the Act, Federal agencies are not required to recover species; however, they must insure that their actions are not likely to prevent or impede the recovery of the species through the destruction or adverse modification of critical habitat. To be clear, Federal actions are not required to improve critical habitat, but they must not reduce its existing capacity to conserve the species over time. Section 7(a)(2) and the definition of “destruction or adverse modification” are implemented independent of section 7(a)(1), which directs Federal agencies to utilize their authorities to carry out affirmative conservation programs for listed species.

    Comments suggesting revision or withdrawal of the rule: We received 15 comments requesting that we revise or withdraw the proposed rule.

    Our Response: In order to administer the Act, the Services need a regulatory definition of “destruction or adverse modification.” The Fifth and Ninth Circuits found the current regulatory definition to be invalid over a decade ago because it required that both the survival and the recovery of listed species be impacted. As discussed previously, in 2004 and 2005, the Services issued internal guidance instructing their biologists to discontinue use of the regulatory definition and to instead consider whether critical habitat would continue to contribute (or have the potential to contribute) to the conservation of the species. After several years of implementation, the Services herein formalize this guidance by modifying the regulatory definition. In response to public comments, we have made minor revisions to the proposed definition; however, the meaning and implementation of the standard remains unchanged. The final definition is clear, implementable, and consistent with the Act.

    Required Determinations Regulatory Planning and Review (E.O. 12866)

    The Office of Management and Budget (OMB) has determined that this final rule is a significant regulatory action and has reviewed this rule under E.O. 12866 because it may raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive order.

    Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 601 et seq.), whenever a Federal agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare, and make available for public comment, a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. SBREFA requires Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities. We certify that this rule will not have a significant economic effect on a substantial number of small entities. The following discussion explains our rationale.

    This rule clarifies existing requirements for Federal agencies under the Act. Federal agencies are the only entities that are directly affected by this rule, and they are not considered to be small entities under SBREFA's size standards. No other entities are directly affected by this rule.

    This rule will be applied in determining whether a Federal agency has ensured, in consultation with the Services, that any action it would authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. Based on procedures applied through existing agency guidance, this rule is unlikely to affect our determinations. The rule provides clarity to the standard with which we will evaluate agency actions pursuant to section 7(a)(2) of the Act.

    Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.):

    (a) This rule will not “significantly or uniquely” affect small governments. We have determined and certify under the Unfunded Mandates Reform Act (2 U.S.C. 1502 et seq.) that this rule will not impose a cost of $100 million or more in any given year on local or State governments or private entities. A Small Government Agency Plan is not required. As explained above, small governments would not be affected because the regulation will not place additional requirements on any city, county, or other local municipalities.

    (b) This rule will not produce a Federal mandate of $100 million or greater in any year (i.e., it is not a “significant regulatory action” under the Unfunded Mandates Reform Act). This regulation would not impose any additional management or protection requirements on the States or other entities.

    Takings (E.O. 12630)

    In accordance with E.O. 12630, we have determined the rule does not have significant takings implications.

    A takings implication assessment is not required because this rule (1) will not effectively compel a property owner to suffer a physical invasion of property and (2) will not deny all economically beneficial or productive use of the land or aquatic resources. Indeed, this regulation provides broad program direction for the Services' application of section 7(a)(2) in consultations on future proposed Federal actions and does not itself result in any particular action concerning a specific property. Further, this rule substantially advances a legitimate government interest (conservation and recovery of listed species) and does not present a barrier to all reasonable and expected beneficial use of private property.

    Federalism (E.O. 13132)

    In accordance with E.O. 13132, we have considered whether this rule will have significant Federalism effects and have determined that a federalism summary impact statement is not required. This rule pertains only to determinations of Federal agency compliance with section 7(a)(2) of the Act, and will not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government.

    Civil Justice Reform (E.O. 12988)

    This rule will not unduly burden the judicial system and meets the applicable standards provided in sections 3(a) and 3(b)(2) of E.O. 12988. This rule clarifies how the Services will make determinations on whether a Federal agency has ensured that any action it authorizes, funds, or carries out is not likely to result in the destruction or adverse modification of critical habitat.

    Government-to-Government Relationship With Tribes

    In accordance with Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”, November 6, 2000), the Department of the Interior Manual at 512 DM 2, the Department of Commerce (DOC) Tribal Consultation and Coordination Policy (May 21, 2013), DOC Departmental Administrative Order (DAO) 218-8, and NOAA Administrative Order (NAO) 218-8 (April 2012), we have considered possible effects of this final rule on Federally recognized Indian Tribes. Following an exchange of information with tribal representatives, we have determined that this rule, which modifies the general framework for conducting consultations on Federal agency actions under section 7(a)(2) of the Act, does not have tribal implications as defined in Executive Order 13175. We will continue to collaborate and coordinate with Tribes on issues related to Federally listed species and their habitats and work with them as appropriate as we engage in individual section 7(a)(2) consultations. See Joint Secretarial Order 3206 (“American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act”, June 5, 1997).

    Paperwork Reduction Act of 1994

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

    National Environmental Policy Act (NEPA)

    In the proposed rule, we invited the public to comment on whether and how the regulation may have a significant effect upon the human environment, including any effects identified as extraordinary circumstances at 43 CFR 46.215. After considering the comments received and further evaluating whether there is any arguable basis to require preparation of an environmental assessment, we analyzed this rule in accordance with the criteria of the National Environmental Policy Act, the Department of the Interior regulations on Implementation of the NEPA (43 CFR 46.10-46.450), the Department of the Interior Manual (516 DM 1-6 and 8), and National Oceanographic and Atmospheric Administration Administrative Order 216-6. This analysis was undertaken in an abundance of caution only, as we believe the rule would qualify for one or more categorical exclusions. Based on a review and evaluation of the information contained in the Environmental Assessment, we made a determination that the Final Definition for the phrase “destruction or adverse modification” of critical habitat will not have a significant effect on the quality of the human environment under the meaning of section 102(2)(c) of the National Environmental Policy Act of 1969 (as amended).

    Energy Supply, Distribution or Use (E.O. 13211)

    Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule is not expected to affect energy supplies, distribution, or use. Therefore, this action is a not a significant energy action, and no Statement of Energy Effects is required.

    References Cited

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

    List of Subjects in 50 CFR Part 402

    Endangered and threatened species.

    Regulation Promulgation

    Accordingly, we amend part 402, subchapter A of chapter IV, title 50 of the Code of Federal Regulations, as set forth below:

    PART 402—INTERAGENCY COOPERATION—ENDANGERED SPECIES ACT OF 1973, AS AMENDED 1. The authority citation for part 402 continues to read as follows: Authority:

    16 U.S.C. 1531 et seq.

    2. In § 402.02, revise the definition for “Destruction or adverse modification” to read as follows:
    § 402.02 Definitions.

    Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of a listed species. Such alterations may include, but are not limited to, those that alter the physical or biological features essential to the conservation of a species or that preclude or significantly delay development of such features.

    Dated: January 29, 2016. Michael J. Bean, Principal Deputy Assistant Secretary for Fish and Wildlife and Parks, U.S. Department of the Interior. Dated: January 29, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
    [FR Doc. 2016-02675 Filed 2-10-16; 8:45 am] BILLING CODE 4333-15-P; 3510-22-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 424 [Dockets FWS-R9-ES-2011-0104 and 120206102-5603-03; 4500030114] RIN 1018-AX87; 0648-BB82 Policy Regarding Implementation of Section 4(b)(2) of the Endangered Species Act AGENCY:

    U.S. Fish and Wildlife Service (FWS), Interior; National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration, Commerce.

    ACTION:

    Notice of final policy.

    SUMMARY:

    We, the U.S Fish and Wildlife Service and the National Marine Fisheries Service, (jointly, the “Services”) announce our final policy on exclusions from critical habitat under the Endangered Species Act. This non-binding policy provides the Services' position on how we consider partnerships and conservation plans, conservation plans permitted under section 10 of the Act, Tribal lands, national-security and homeland-security impacts and military lands, Federal lands, and economic impacts in the exclusion process. This policy complements our implementing regulations regarding impact analyses of critical habitat designations and is intended to clarify expectations regarding critical habitat and provide for a more predictable and transparent critical-habitat-exclusion process.

    DATES:

    This policy is effective March 14, 2016.

    ADDRESSES:

    You may review the reference materials and public input used in the creation of this policy at http://www.regulations.gov at Docket No. FWS-R9-ES-2011-0104. Some of these materials are also available for public inspection at U.S. Fish and Wildlife Service, Division of Conservation and Classification, MS: ES, 5275 Leesburg Pike, Falls Church, VA 22041-3803 during normal business hours.

    FOR FURTHER INFORMATION CONTACT:

    Douglas Krofta, U.S. Fish and Wildlife Service, Division of Conservation and Classification, MS: ES, 5275 Leesburg Pike, Falls Church, VA 22041-3803; telephone 703/358-2171; facsimile 703/358-1735; or Marta Nammack, National Marine Fisheries Service, Office of Protected Resources, 1315 East-West Highway, Silver Spring, MD 20910; telephone 301/427-8469; facsimile 301/713-0376. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

    SUPPLEMENTARY INFORMATION:

    Today, we publish in the Federal Register three related documents that are final agency actions. This document is one of the three, of which two are final rules and one is a final policy:

    • A final rule that amends the regulations governing section 7 consultation under the Endangered Species Act to revise the definition of “destruction or adverse modification” of critical habitat. That regulatory definition had been invalidated by several courts for being inconsistent with the Act. This final rule amends title 50 of the Code of Federal Regulations (CFR) at part 402. The Regulation Identifier Numbers (RIN) are 1018-AX88 and 0648-BB82, and the final rule may be found on http://www.regulations.gov at Docket No. FWS-R9-ES-2011-0072.

    • A final rule that amends the regulations governing the designation of critical habitat under section 4 of the Act. A number of factors, including litigation and the Services' experience over the years in interpreting and applying the statutory definition of “critical habitat,” highlighted the need to clarify or revise the regulations. This final rule amends 50 CFR part 424. It is published under RINs 1018-AX86 and 0648-BB79 and may be found on http://www.regulations.gov at Docket No. FWS-HQ-ES-2012-0096.

    • A final policy pertaining to exclusions from critical habitat and how we may consider partnerships and conservation plans, conservation plans permitted under section 10 of the Act, Tribal lands, national-security and homeland-security impacts and military lands, Federal lands, and economic impacts in the exclusion process. This final policy complements the final rule amending 50 CFR 424.19 and provides for a predictable and transparent exclusion process. The policy is published under RINs 1018-AX87 and 0648-BB82 and is set forth below in this document. The policy may be found on http://www.regulations.gov at Docket No. FWS-R9-ES-2011-0104.

    Background

    The National Marine Fisheries Service (NMFS) and U.S. Fish and Wildlife Service (FWS) are charged with implementing the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.) (Act), the goal of which is to provide a means to conserve the ecosystems upon which listed species depend and to provide a program for listed species conservation. Critical habitat is one tool in the Act that Congress established to achieve species conservation. In section 3(5)(A) of the Act Congress defined “critical habitat” as:

    (i) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of this Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and

    (ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of this Act, upon a determination by the Secretary that such areas are essential for the conservation of the species.

    Specifying the geographic location of critical habitat helps facilitate implementation of section 7(a)(1) by identifying areas where Federal agencies can focus their conservation programs and use their authorities to further the purposes of the Act. In addition to serving as an educational tool, the designation of critical habitat also provides a significant regulatory protection—the requirement that Federal agencies consult with the Services under section 7(a)(2) to insure their actions are not likely to destroy or adversely modify critical habitat.

    Section 4 of the Act requires the Services to designate critical habitat, and sets out standards and processes for determining critical habitat. Congress authorized the Secretaries to “exclude any area from critical habitat if [s]he determines that the benefits of exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless [s]he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned” (section 4(b)(2)).

    Over the years, legal challenges have been brought to the Services' process for considering exclusions. Several court decisions have addressed the Services' implementation of section 4(b)(2). In 2008, the Solicitor of the Department of the Interior issued a legal opinion on implementation of section 4(b)(2) (http://www.doi.gov/solicitor/opinions.html). That opinion is based on the text of the Act and principles of statutory interpretation and relevant case law. The opinion explained the legal considerations that guide the Secretary's exclusion authority, and discussed and elaborated on the application of these considerations to the circumstances commonly faced by the Services (e.g., habitat conservation plans, Tribal lands).

    To provide greater predictability and transparency regarding how the Services generally consider exclusions under section 4(b)(2), the Services announce this final policy regarding several issues that frequently arise in the context of exclusions. This policy on implementation of specific aspects of section 4(b)(2) does not cover the entire range of factors that may be considered as the basis for an exclusion in any given designation, nor does it serve as a comprehensive interpretation of all the provisions of section 4(b)(2).

    This final policy sets forth the Services' position regarding how we consider partnerships and conservation plans, conservation plans permitted under section 10 of the Act, Tribal lands, national-security and homeland-security impacts and military lands, Federal lands, and economic impacts in the exclusion process. The Services intend to apply this policy when considering exclusions from critical habitat. That being said, under the terms of the policy, the Services retain a great deal of discretion in making decisions with respect to exclusions from critical habitat. This policy does not mandate particular outcomes in future decisions on critical habitat designations.

    Changes to the Proposed Policy Elements

    Below are a summary of changes to the proposed policy elements as a result of public comment and review. The final policy elements can be found at the end of this policy.

    1. Added language to policy element 2 to make clear that the list presented in this policy is not a list of requirements for non-permitted plans, but rather factors the Services will use to evaluate non-permitted plans and partnerships. This list is not exclusive; all items may not apply to every plan.

    2. In policy element 2(c), added text to the criterion in the non-permitted plans policy element to clarify that required determinations may be a factor considered in a discretionary 4(b)(2) exclusion analysis where such determinations are “necessary and appropriate.”

    3. Removed the phrase, “not just providing guidelines,” from paragraph 3(c).

    4. Made several other minor edits to increase clarity and readability of the policy elements.

    Implementation of Section 4(b)(2) of the Act

    On August 28, 2013 (78 FR 53058), the Services published a final rule revising 50 CFR 424.19. In that rule the Services elaborated on the process and standards for implementing section 4(b)(2) of the Act. This final policy is meant to complement those revisions to 50 CFR 424.19, and provides further clarification as to how the Services will implement section 4(b)(2) when designating critical habitat.

    Section 4(b)(2) of the Act provides that:

    The Secretary shall designate critical habitat, and make revisions thereto, under subsection (a)(3) on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if [s]he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless [s]he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned.

    In 1982, Congress added this provision to the Act, both to require the Services to consider the relevant impacts of designating critical habitat and to provide a means for the Services to reduce potentially negative impacts of designation by excluding, in appropriate circumstances, particular areas from a designation. The first sentence of section 4(b)(2) sets out a mandatory requirement that the Services consider the economic impact, impact on national security, and any other relevant impacts prior to designating an area as part of a critical habitat designation. The Services always consider such impacts, as required under this sentence, for each and every designation of critical habitat. (Although the term “homeland security” was not in common usage in 1982, the Services conclude that Congress intended that “national security” includes what we now refer to as “homeland security.”)

    The second sentence of section 4(b)(2) outlines a separate, discretionary process by which the Secretaries may elect to determine whether to exclude an area from the designation, by performing an exclusion analysis. The Services use their consideration of impacts under the first sentence of section 4(b)(2), their consideration of whether to engage in the discretionary exclusion analysis under the second sentence of section 4(b)(2), and any exclusion analysis that the Services undertake, as the primary basis for satisfying the provisions of Executive Orders 12866 and 13563. E.O. 12866 (incorporated by E.O. 13563) requires agencies to assess the costs and benefits of a rule, and, to the extent permitted by law, to propose or adopt the rule only upon a reasoned determination that the benefits of the intended regulation justify the costs.

    Conducting an exclusion analysis under section 4(b)(2) involves balancing or weighing the benefits of excluding a particular area from a designation of critical habitat against the benefits of including that area in the designation. If the benefits of exclusion outweigh the benefits of inclusion, the Secretaries may exclude the particular area, unless they determine that the exclusion will result in the extinction of the species concerned. The discretionary 4(b)(2) exclusion analysis is fully consistent with the E.O. requirements in that the analysis permits excluding an area where the benefits of exclusion outweigh the benefits of inclusion, and would not lead to exclusion of an area when the benefits of exclusion do not outweigh the benefits of inclusion.

    This policy sets forth specific categories of information that we often consider when we enter into the discretionary 4(b)(2) exclusion analysis and exercise the Secretaries' discretion to exclude areas from critical habitat. We do not intend to cover in these examples all the categories of information that may be relevant, or to limit the Secretaries' discretion to consider and assign weight to any relevant benefits as appropriate.

    Moreover, our implementing regulations at 50 CFR 424.19 further clarify the exclusion process for critical habitat and address statutory changes and case law. The regulations at 50 CFR 424.19, as well as the statute itself, state that the Secretaries have the discretion to exclude any particular area from the critical habitat upon a determination that the benefits of such exclusion outweigh the benefits of specifying the particular area as part of the critical habitat. Furthermore, the Secretaries may consider any relevant benefits. The weight and consideration given to those benefits is within the discretion of the Secretaries. The regulations at 50 CFR 424.19 provide the framework for how the Services intend to implement section 4(b)(2) of the Act. This policy further details the discretion available to the Services (acting for the Secretaries), and provides detailed examples of how the Services may consider partnerships and conservation plans, conservation plans permitted under section 10 of the Act, Tribal lands, national-security and homeland-security impacts and military lands, Federal lands, and economic impacts in the exclusion process when we undertake a discretionary 4(b)(2) exclusion analysis.

    General Framework for Considering an Exclusion and Conducting a Discretionary 4(b)(2) Exclusion Analysis

    When the Services determine that critical habitat is prudent and determinable for species listed as endangered or threatened species under the Act, they must follow the statutory and regulatory provisions of the Act to designate critical habitat. The Act's language makes clear that biological considerations drive the initial step of identifying critical habitat. First, the Act's definition of “critical habitat” requires the Secretaries to identify areas based on the conservation needs of the species. Second, section 4(b)(2) expressly requires designations to be made based on the best scientific data available. (It is important to note that, once the Secretaries identify specific areas that meet the definition of “critical habitat,” the Secretaries do not have the discretion to decline to recognize those areas as potential critical habitat. Only areas subject to an integrated natural resources management plan (INRMP) that meets the requirements of section 4(a)(3)(B)(i) are categorically ineligible for designation.)

    Having followed the biologically driven first step of identifying “critical habitat” for a species, the Secretaries turn to the remaining procedures set forth in section 4(b)(2), which allow for consideration of whether those areas ultimately should be designated as critical habitat. Thus, pursuant to the first sentence of section 4(b)(2), the Secretaries then undertake the mandatory consideration of impacts on the economy and national security, as well as any other impact that the Secretaries determine is relevant.

    The Act provides a mechanism that allows the Secretaries to exclude particular areas only upon a determination that the benefits of exclusion outweigh those of inclusion, so long as the exclusion will not result in the extinction of the species concerned. The Services call this the discretionary 4(b)(2) exclusion analysis. Neither the Act nor the implementing regulations at 50 CFR 424.19 require the Secretaries to conduct a discretionary 4(b)(2) exclusion analysis (see, e.g., Cape Hatteras Access Preservation Alliance v. DOI, 731 F. Supp. 2d 15, 29-30 (D.D.C. 2010)). Rather, the Secretaries have discretion as to whether to conduct that analysis. If a Secretary decides not to consider exclusion of any particular area, no additional analysis is required. However, if the Secretary contemplates exclusion of a particular area, an initial screening may be conducted to evaluate potential exclusions. The Secretary may undertake a preliminary evaluation of any plans, partnerships, economic considerations, national-security considerations, or other relevant impacts identified after considering the impacts required by the first sentence of section 4(b)(2). Following the preliminary evaluation, the Secretary may choose to enter into the discretionary 4(b)(2) exclusion analysis for any particular area. If the Secretary does so, the Secretary has broad discretion as to what factors to consider as benefits of inclusion and benefits of exclusion, and what weight to assign to each factor—nothing in the Act, its implementing regulations, or this policy limits this discretion.

    When conducting a discretionary 4(b)(2) exclusion analysis, one of the factors that the Secretaries may consider is the effect of existing conservation plans or programs. Those plans and programs can reduce the benefits of including particular areas in a designation of critical habitat. To state this another way, because there are already conservation actions occurring on the ground as a result of the plan or program, the regulatory benefit of overlaying a designation of critical habitat may be reduced, because the designation may be redundant, or may provide little more conservation benefit compared to what is already being provided through the conservation plan or program. As a result, the existence of these conservation plans or programs reduces the benefits of including an area in critical habitat. As a matter of logic, however, the conservation benefits of an existing conservation plan or program generally cannot be considered benefits of excluding the area it covers from designation as critical habitat. This is because the conservation plan or program neither results from the exclusion being contemplated, nor is its continuation dependent on the exclusion being contemplated. The conservation plan or program is materially unaffected regardless of inclusion or exclusion from critical habitat.

    In addition, the Services wish to encourage and foster conservation partnerships, which can lead to future conservation plans that benefit listed species. This is particularly important because partnerships can lead to conservation actions that provide benefits, with respect to private lands, that often cannot be achieved through designation of critical habitat and section 7 consultations. Because conservation partnerships are voluntary, the Services have concluded that excluding areas covered by existing plans and programs can encourage land managers to partner with the Services in the future, by removing any real or perceived disincentives for engaging in conservation activities. Those future partnerships do not necessarily reduce the benefits of including an area in critical habitat now; they may, however, provide a benefit by encouraging future conservation action. That benefit is a benefit of excluding an area from the designation. Thus, an existing plan or program can reduce the benefits of inclusion of an area covered by the plan or program, and at the same time the Secretaries' choice to exclude the area may encourage future conservation partnerships. Moreover, because the fostering and maintenance of partnerships can greatly further the conservation goals of the Act, we generally give great weight to the benefits of excluding areas where we have demonstrated partnerships.

    In a discretionary 4(b)(2) exclusion analysis, the Services compare benefits of inclusion with benefits of exclusion. Some examples of benefits of including a particular area in critical habitat include, but are not limited to: (1) The educational benefits of identifying an area as critical habitat (e.g., general increase of awareness of listed species and their designated critical habitat); and (2) the regulatory benefit of designating an area as critical habitat as realized through an adverse modification analysis in a section 7 consultation. As discussed above, these benefits of inclusion may be reduced by the conservation provisions of a plan or program, in that the educational benefit may have already been realized through development of the plan, and the on-the-ground conservation actions may already provide some or all of the benefit that could be reasonably expected as the outcome of a section 7 consultation. The weights assigned to the benefits of inclusion in any particular case are determined by the Secretaries. Some examples of benefits of excluding a particular area from critical habitat include: (1) Where there is an existing conservation plan or program, the encouragement of additional conservation partnerships in the future; and (2) the avoidance of probable negative incremental impacts from designating a particular area as critical habitat, including economic impacts and impacts to national security and public safety.

    The next step in the discretionary 4(b)(2) exclusion analysis is for the Secretaries to determine if the benefits of exclusion outweigh the benefits of inclusion for a particular area. If so, they may exclude that area, unless they determine that the exclusion will result in the extinction of the species concerned. We note that exclusions primarily based on conservation plans will likely maintain the overall level of protection for the species in question, because the plans will have reduced or eliminated the benefit of designating that area, as discussed above. In contrast, exclusions primarily based on economic or national security considerations may result in less overall protection for the species (i.e., forgoing significant benefits of inclusion). However, regardless of conservation outcome as outlined above, the Secretaries may still exclude such areas as long as they conclude that the benefits of exclusion outweigh the benefits of inclusion (and the exclusion itself would not result in extinction of the species).

    Policy Elements a. The Services' Discretion

    The Act affords a great degree of discretion to the Services in implementing section 4(b)(2). This discretion is applicable to a number of aspects of section 4(b)(2) including whether to enter into the discretionary 4(b)(2) exclusion analysis and the weights assigned to any particular factor used in the analysis. Most significant is that the decision to exclude is always discretionary, as the Act states that the Secretaries “may” exclude any areas. Under no circumstances is exclusion required under the second sentence of section 4(b)(2).

    This policy explains how the Services generally exercise their discretion to exclude an area when the benefits of exclusion outweigh the benefits of inclusion. In articulating this general practice, the Services do not intend to limit in any manner the discretion afforded to the Secretaries by the statute.

    b. Private or Other Non-Federal Conservation Plans or Agreements and Partnerships, in General

    We sometimes exclude specific areas from critical habitat designations based in part on the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships. A conservation plan or agreement describes actions that are designed to provide for the conservation needs of a species and its habitat, and may include actions to reduce or mitigate negative effects on the species caused by activities on or adjacent to the area covered by the plan. Conservation plans or agreements can be developed by private entities with no Service involvement, or in partnership with the Services. In the case of a habitat conservation plan (HCP), safe harbor agreement (SHA), or a candidate conservation agreement with assurances (CCAA), a plan or agreement is developed in partnership with the Services for the purposes of attaining a permit under section 10 of the Act. See paragraph c, below, for a discussion of HCPs, SHAs, and CCAAs.

    We evaluate a variety of factors to determine how the benefits of any exclusion and the benefits of inclusion are affected by the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships when we undertake a discretionary 4(b)(2) exclusion analysis. A non-exhaustive list of factors that we will consider for non-permitted plans or agreements is shown below. These factors are not required elements of plans or agreements, and all items may not apply to every plan or agreement.

    (i) The degree to which the record of the plan supports a conclusion that a critical habitat designation would impair the realization of benefits expected from the plan, agreement, or partnership;

    (ii) The extent of public participation in the development of the conservation plan;

    (iii) The degree to which there has been agency review and required determinations (e.g., State regulatory requirements), as necessary and appropriate;

    (iv) Whether National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) compliance was required;

    (v) The demonstrated implementation and success of the chosen mechanism;

    (vi) The degree to which the plan or agreement provides for the conservation of the essential physical or biological features for the species;

    (vii) Whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan or agreement will be implemented; and

    (viii) Whether the plan or agreement contains a monitoring program and adaptive management to ensure that the conservation measures are effective and can be modified in the future in response to new information.

    The Services will consider whether a plan or agreement has previously been subjected to public comment, agency review, and NEPA compliance processes because that may indicate the degree of critical analysis the plan or agreement has already received. For example, if a particular plan was developed by a county-level government that had been required to comply with a State-based environmental-quality regulation, the Services would take that into consideration when evaluating the plan. The factors outlined above influence the Services' determination of the appropriate weight that should be given to a particular conservation plan or agreement. c. Private or Other Non-Federal Conservation Plans Related to Permits Under Section 10 of the Act

    HCPs for incidental take permits under section 10(a)(1)(B) of the Act provide for partnerships with non-Federal entities to minimize and mitigate impacts to listed species and their habitat. In some cases, HCP permittees agree to do more for the conservation of the species and their habitats on private lands than designation of critical habitat would provide alone. We place great value on the partnerships that are developed during the preparation and implementation of HCPs.

    CCAAs and SHAs are voluntary agreements designed to conserve candidate and listed species, respectively, on non-Federal lands. In exchange for actions that contribute to the conservation of species on non-Federal lands, participating property owners are covered by an “enhancement of survival” permit under section 10(a)(1)(A) of the Act, which authorizes incidental take of the covered species that may result from implementation of conservation actions, specific land uses, and, in the case of SHAs, the option to return to a baseline condition under the agreements. The Services also provide enrollees assurances that we will not impose further land-, water-, or resource-use restrictions, or require additional commitments of land, water, or finances, beyond those agreed to in the agreements.

    When we undertake a discretionary 4(b)(2) exclusion analysis, we will always consider areas covered by a permitted CCAA/SHA/HCP, and we anticipate consistently excluding such areas from a designation of critical habitat if incidental take caused by the activities in those areas is covered by the permit under section 10 of the Act and the CCAA/SHA/HCP meets all of the following conditions:

    1. The permittee is properly implementing the CCAA/SHA/HCP, and is expected to continue to do so for the term of the agreement. A CCAA/SHA/HCP is properly implemented if the permittee is, and has been, fully implementing the commitments and provisions in the CCAA/SHA/HCP, Implementing Agreement, and permit.

    2. The species for which critical habitat is being designated is a covered species in the CCAA/SHA/HCP, or very similar in its habitat requirements to a covered species. The recognition that the Services extend to such an agreement depends on the degree to which the conservation measures undertaken in the CCAA/SHA/HCP would also protect the habitat features of the similar species.

    3. The CCAA/SHA/HCP specifically addresses the habitat of the species for which critical habitat is being designated and meets the conservation needs of the species in the planning area.

    We will undertake a case-by-case analysis to determine whether these conditions are met and, as with other conservation plans, whether the benefits of exclusion outweigh the benefits of inclusion.

    The benefits of excluding lands with CCAAs, SHAs, or properly implemented HCPs that have been permitted under section 10 of the Act include relieving landowners, communities, and counties of any additional regulatory burdens that might be imposed as a result of the critical habitat designation. A related benefit of exclusion is the unhindered, continued ability to maintain existing partnerships, and the opportunity to seek new partnerships with potential plan participants, including States, counties, local jurisdictions, conservation organizations, and private landowners. Together, these entities can implement conservation actions that the Services would be unable to accomplish without private landowners. These partnerships can lead to additional CCAAs, SHAs, and HCPs. This is particularly important because HCPs often cover a wide range of species, including listed plant species (for which there is no general take prohibition under section 9 of the Act), and species that are not State or federally listed (which do not receive the Act's protections). Neither of these categories of species are likely to be protected from development or other impacts in the absence of HCPs.

    As is the case with conservation plans generally, the protections that a CCAA, SHA, or HCP provide to habitat can reduce the benefits of including the covered area in the critical habitat designation. However, those protections may not eliminate the benefits of critical habitat designation. For example, because the Services generally approve HCPs on the basis of their efficacy at minimizing and mitigating negative impacts to listed species and their habitat, these plans generally offset those benefits of inclusion. Nonetheless, HCPs often allow for development of some of the covered area, and the associated permit provides authorization of incidental take caused by that development (although a properly designed HCP should steer development toward the least biologically important habitat). Thus, designation of the areas specified for development that meet the definition of “critical habitat” may still provide a conservation benefit to the species. In addition, if activities not covered by the HCP are affecting or may affect an area that is identified as critical habitat, then the benefits of inclusion of that specific area may be relatively high, because additional conservation benefits may be realized by the designation of critical habitat in that area. In any case, the Services will weigh the benefits of inclusion against the benefits of exclusion (usually the fostering of partnerships that may result in future conservation actions).

    We generally will not exclude from a designation of critical habitat any areas likely to be covered by CCAAs, SHAs, and HCPs that are still under development when we undertake a discretionary 4(b)(2) exclusion analysis. If a CCAA, SHA, or HCP is close to being approved, we will evaluate these draft plans under the framework of general plans and partnerships (subsection b, above). In other words, we will consider factors, such as partnerships that have been developed during the preparation of draft CCAAs, SHAs, and HCPs, and broad public benefits, such as encouraging the continuation of current and development of future conservation efforts with non-Federal partners, as possible benefits of exclusion. However, we will generally give little weight to promises of future conservation actions in draft CCAAs, SHAs, and HCPs; therefore, we will generally find that such promises will do little to reduce the benefits of inclusion in the discretionary 4(b)(2) exclusion analysis, even if they may directly benefit the species for which a critical habitat designation is proposed.

    d. Tribal Lands

    There are several Executive Orders, Secretarial Orders, and policies that relate to working with Tribes. These guidance documents generally confirm our trust responsibilities to Tribes, recognize that Tribes have sovereign authority to control Tribal lands, emphasize the importance of developing partnerships with Tribal governments, and direct the Services to consult with Tribes on a government-to-government basis.

    A joint Secretarial Order that applies to both FWS and NMFS, Secretarial Order 3206, American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act (June 5, 1997) (S.O. 3206), is the most comprehensive of the various guidance documents related to Tribal relationships and Act implementation, and it provides the most detail directly relevant to the designation of critical habitat. In addition to the general direction discussed above, S.O. 3206 explicitly recognizes the right of Tribes to participate fully in the listing process, including designation of critical habitat. The Order also states: “Critical habitat shall not be designated in such areas unless it is determined essential to conserve a listed species. In designating critical habitat, the Services shall evaluate and document the extent to which the conservation needs of the listed species can be achieved by limiting the designation to other lands.” In light of this instruction, when we undertake a discretionary 4(b)(2) exclusion analysis, we will always consider exclusions of Tribal lands under section 4(b)(2) of the Act prior to finalizing a designation of critical habitat, and will give great weight to Tribal concerns in analyzing the benefits of exclusion.

    However, S.O. 3206 does not preclude us from designating Tribal lands or waters as critical habitat, nor does it state that Tribal lands or waters cannot meet the Act's definition of “critical habitat.” We are directed by the Act to identify areas that meet the definition of “critical habitat” (i.e., areas occupied at the time of listing that contain the essential physical or biological features that may require special management or protection and unoccupied areas that are essential to the conservation of a species), without regard to landownership. While S.O. 3206 provides important direction, it expressly states that it does not modify the Secretaries' statutory authority.

    e. Impacts on National Security and Homeland Security

    Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)), as revised in 2003, provides: “The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense (DoD), or designated for its use, that are subject to an integrated natural resources management plan [INRMP] prepared under section 101 of the Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.” In other words, as articulated in the final revised regulations at 50 CFR 424.12(h), if the Services conclude that an INRMP “provides a benefit” to the species, the area covered is ineligible for designation and thus cannot be designated as critical habitat.

    Section 4(a)(3)(B)(i) of the Act, however, may not cover all DoD lands or areas that pose potential national-security concerns (e.g., a DoD installation that is in the process of revising its INRMP for a newly listed species or a species previously not covered). If a particular area is not covered under section 4(a)(3)(B)(i), national-security or homeland-security concerns are not a factor in the process of determining what areas meet the definition of “critical habitat.” Nevertheless, when designating critical habitat under section 4(b)(2), the Secretaries must consider impacts on national security, including homeland security, on lands or areas not covered by section 4(a)(3)(B)(i). Accordingly, we will always consider for exclusion from the designation areas for which DoD, Department of Homeland Security (DHS), or another Federal agency has requested exclusion based on an assertion of national-security or homeland-security concerns.

    We cannot, however, automatically exclude requested areas. When DoD, DHS, or another Federal agency requests exclusion from critical habitat on the basis of national-security or homeland-security impacts, it must provide a reasonably specific justification of an incremental impact on national security that would result from the designation of that specific area as critical habitat. That justification could include demonstration of probable impacts, such as impacts to ongoing border-security patrols and surveillance activities, or a delay in training or facility construction, as a result of compliance with section 7(a)(2) of the Act. If the agency requesting the exclusion does not provide us with a reasonably specific justification, we will contact the agency to recommend that it provide a specific justification or clarification of its concerns relative to the probable incremental impact that could result from the designation. If the agency provides a reasonably specific justification, we will defer to the expert judgment of DoD, DHS, another Federal agency as to: (1) Whether activities on its lands or waters, or its activities on other lands or waters, have national-security or homeland-security implications; (2) the importance of those implications; and (3) the degree to which the cited implications would be adversely affected in the absence of an exclusion. In that circumstance, in conducting a discretionary 4(b)(2) exclusion analysis, we will give great weight to national-security and homeland-security concerns in analyzing the benefits of exclusion.

    f. Federal Lands

    We recognize that we have obligations to consider the impacts of designation of critical habitat on Federal lands under the first sentence of section 4(b)(2) and under E.O. 12866. However, as mentioned above, the Services have broad discretion under the second sentence of 4(b)(2) on how to weigh those impacts. In particular, “[t]he consideration and weight given to any particular impact is completely within the Secretary's discretion.” (H.R. Rep. No. 95-1625, at 17 (1978)). In considering how to exercise this broad discretion, we are mindful that Federal land managers have unique obligations under the Act. First, Congress declared its policy that “all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this Act.” (section 2(c)(1)). Second, all Federal agencies have responsibilities under section 7 of the Act to carry out programs for the conservation of listed species and to ensure their actions are not likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat.

    We also note that, while the benefits of excluding non-Federal lands include development of new conservation partnerships, those benefits do not generally arise with respect to Federal lands, because of the independent obligations of Federal agencies under section 7 of the Act. Conversely, the benefits of including Federal lands in a designation are greater than non-Federal lands because there is a Federal nexus for projects on Federal lands. Thus, if a project for which there is discretionary Federal involvement or control is likely to adversely affect the critical habitat, a formal section 7 consultation would occur and the Services would consider whether the project would result in the destruction or adverse modification of the critical habitat.

    Under the Act, the only direct consequence of critical habitat designation is to require Federal agencies to ensure, through section 7 consultation, that any action they fund, authorize, or carry out does not destroy or adversely modify designated critical habitat. The costs that this requirement may impose on Federal agencies can be divided into two types: (1) The additional administrative or transactional costs associated with the consultation process with a Federal agency, and (2) the costs to Federal agencies and other affected parties, including applicants for Federal authorizations (e.g., permits, licenses, leases), of any project modifications necessary to avoid destruction or adverse modification of critical habitat. Consistent with the unique obligations that Congress imposed for Federal agencies in conserving endangered and threatened species, we generally will not consider avoidance of the administrative or transactional costs associated with the section 7 consultation process to be a “benefit” of excluding a particular area from a critical habitat designation in any discretionary 4(b)(2) exclusion analysis. We will, however, consider the extent to which such consultation would produce an outcome that has economic or other impacts, such as by requiring project modifications and additional conservation measures by the Federal agency or other affected parties.

    Federal lands should be prioritized as sources of support in the recovery of listed species. To the extent possible, we will focus designation of critical habitat on Federal lands in an effort to avoid the real or perceived regulatory burdens on non-Federal lands. We do greatly value the partnership of other Federal agencies in the conservation of listed and non-listed species. However, for the reasons listed above, we will focus our exclusions on non-Federal lands. We are most likely to determine that the benefits of excluding Federal lands outweigh the benefits of including those lands when national-security or homeland-security concerns are present.

    g. Economic Impacts

    The first sentence of section 4(b)(2) of the Act requires the Services to consider the economic impacts (as well as the impacts on national security and any other relevant impacts) of designating critical habitat. In addition, economic impacts may, for some particular areas, play an important role in the discretionary 4(b)(2) exclusion analysis under the second sentence of section 4(b)(2). In both contexts, the Services will consider the probable incremental economic impacts of the designation. When the Services undertake a discretionary 4(b)(2) exclusion analysis with respect to a particular area, they will weigh the economic benefits of exclusion (and any other benefits of exclusion) against any benefits of inclusion (primarily the conservation value of designating the area). The conservation value may be influenced by the level of effort needed to manage degraded habitat to the point where it could support the listed species. The Services will use their discretion in determining how to weigh probable incremental economic impacts against conservation value. The nature of the probable incremental economic impacts and not necessarily a particular threshold level triggers considerations of exclusions based on probable incremental economic impacts. For example, if an economic analysis indicates high probable incremental impacts of designating a particular critical habitat unit of low conservation value (relative to the remainder of the designation), the Services may consider exclusion of that particular unit.

    Summary of Comments and Recommendations

    On May 12, 2014, we published a document in the Federal Register (79 FR 27052) that requested written comments and information from the public on the draft policy regarding implementing section 4(b)(2) of the Act. In that document, we announced that the comment period would be open for 60 days, ending July 11, 2014. We received numerous requests to extend the comment period, and we subsequently published a document on June 26, 2014 (79 FR 36330), extending the comment period to October 9, 2014. Comments we received are grouped into general categories specifically relating to the draft policy.

    Comment (1): Many commenters, including federally elected officials, requested an extension of the public comment period announced in the draft policy. Additionally, we received requests to reopen the comment period that ended on October 9, 2014.

    Our Response: On June 26, 2014 (79 FR 36330), we extended the public comment period on the draft policy for an additional 90 days to accommodate this request and to allow for additional review and public comment. The comment period for the draft policy was, therefore, open for 150 days, which provided adequate time for all interested parties to submit comments and information. Additionally, the Services held numerous outreach initiatives that included briefings and webinars for elected officials, States, potentially affected Federal agencies, and interest groups, both environmental- and industry-focused.

    Secretarial Discretion

    Comment (2): We received many comments regarding the Services' delegated discretion from the Secretaries. Commenters expressed concern that the Services' delegated discretion is too broad, the assigning of weight to benefits is subjective, and the proposed policy would greatly extend the Services' discretionary authority and allow for subjective disregard of voluntary State and private conservation efforts.

    Our Response: This policy does not expand or reduce Secretarial authority. The policy reflects only the discretion expressly provided for in the Act. The word “shall” is used to denote mandatory actions or outcomes, and “may” is used to indicate where there is discretion in particular matters. In the Act, the word “may,” as it prefaces the phrase “exclude a particular area,” thus clearly provides the Secretaries a choice, the ability to decide whether areas should be excluded based on weighing benefits of inclusion against the benefits of exclusion. The Secretaries may choose to exclude particular areas if those benefits of exclusion outweigh benefits of inclusion, unless the exclusion will result in the extinction of the species concerned. Commenters appear to be questioning the Secretary's ability to choose whether to enter into the discretionary weighing of benefits. Congress expressly provided the Secretaries discretion to decide whether to enter into the exclusion analysis described in the second sentence of section 4(b)(2). By contrast, the Secretaries do not have discretion when it comes to the requirement to consider the economic impact, impacts to national security, and any other relevant impact of specifying an area as critical habitat, as described in the first sentence of section 4(b)(2).

    Finally, this policy generally reflects the practices followed by the Services regarding their implementation of section 4(b)(2), and provides greater transparency by explaining to the public how the Services generally exercise the discretion granted by the Act.

    Comment (3): Some commenters suggested that the Services need to clarify that the Secretaries have discretion in whether to conduct an exclusion analysis. They stated that, while the draft policy does identify the discretionary nature of exclusions under 4(b)(2), language in other areas of the policy, such as “we will always consider” and “generally exclude,” may cause confusion, and appear contradictory. Furthermore, some commenters stated that discussion of the discretionary 4(b)(2) exclusion analysis should clearly state that such analysis occurs only after the Secretary has identified an area she “may” consider for exclusion, based on consideration of the economic impact, the impact on national security, and any other relevant impact (see M-Opinion at 2. Step 2, p. 17).

    Our Response: We agree with the commenter, and have made edits in the final policy to reflect and clarify what are requirements under the Act and where discretion is provided, in particular with the discretionary 4(b)(2) exclusion analysis.

    Comment (4): Commenters noted that the Services are required to consider all reasonable requests for exclusion, which is in contrast to the Services' position that they cannot be required to grant an exclusion request, and state that “in no circumstances is exclusion required.” The commenters stated that the Services' narrow view of section 4(b)(2) cannot be reconciled with the Act, or the history surrounding the 1978 amendments, and there is nothing in the statute that confers broad discretion. The two sentences of 4(b)(2) require the Services to “consider” economic impacts, and then to consider excluding a particular area from the designation of critical habitat. The commenters suggested that these are not separate obligations, and that it is illogical for the Services to suggest that Congress intended to require the Services to identify the economic impacts without intending for the Services to apply any consideration of those impacts.

    Our Response: We disagree with the commenter. Section 4(b)(2) of the Act sets forth a mandatory consideration of impacts and a discretionary consideration of possible exclusions. The commenter is mistaken that the Act requires any particular “action” that must be taken following the consideration of impacts. The text of the Act is clear in the second sentence of section 4(b)(2):

    The Secretary may exclude any area from critical habitat if [s]he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless [s]he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned.

    Recent court decisions have resoundingly upheld the discretionary nature of the Secretaries' consideration of whether to exclude areas from critical habitat. See Bldg. Indus. Ass'n v. U.S. Dept. of Commerce, 792 F.3d.1027 (9th Cir. 2015), aff'g 2012 WL 6002511 (N.D. Cal. Nov. 30, 2012) (unreported); Bear Valley Mut. Water Co. v. Jewell, 790 F.3d. 977 (9th Cir. 2015); Cape Hatteras Access Pres. Alliance v. DOI, 731 F. Supp. 2d 15, 28-30 (D.D.C. 2010). The operative word is “may.” There is no requirement to exclude, or even to enter into a discretionary 4(b)(2) exclusion analysis for, any particular area identified as critical habitat. The Services do consider economic impacts, and apply the consideration of those probable incremental economic impacts in considering whether to enter into the discretionary 4(b)(2) exclusion analysis. Based on the results of the economic analysis, the Services may elect not to enter into the discretionary 4(b)(2) exclusion analysis based on economic impact alone. If they engage in a discretionary exclusion analysis, the Services may consider information from different sources (e.g., the economic analysis and conservation plan) in one section 4(b)(2) exclusion analysis.

    Comment (5): Numerous commenters interpreted the draft policy as a significant change in how the Services will consider exclusions under 4(b)(2).

    Our Response: The Services are not changing our practice of considering or conducting discretionary 4(b)(2) exclusion analyses. The 2008 Department of the Interior Solicitor's Section 4(b)(2) memorandum (M-37016, “The Secretary's Authority to Exclude Areas from a Critical Habitat Designation under Section 4(b)(2) of the Endangered Species Act” (Oct. 3, 2008)) (DOI 2008) and the regulations at 50 CFR 424.19 provide general guidance on how to implement section 4(b)(2) of the Act, and form the basis for this policy. This policy generally reflects the practices followed by the Services, and provides greater transparency by explaining to the public how the Services generally exercise the discretion granted by the Act.

    Framework for Discretionary 4(b)(2) Exclusion Analysis

    Comment (6): A commenter noted that, rather than considering partnership opportunities as a benefit of exclusion, the Services expect that benefits of an existing conservation plan will continue regardless of critical habitat designation and, therefore, do not consider an existing plan when weighing the benefits of exclusion. Furthermore, the Services will consider these benefits to reduce the benefits of inclusion. The commenter expressed concern that this position could serve as a disincentive for voluntary conservation. Furthermore, the commenter suggested that under the new policy, the Services will have to review for potential exclusion each plan on a case-by-case basis, giving the Services broader discretion than previously held.

    Our Response: Because we received many similar comments, we have added a section, General Framework for Considering an Exclusion and Conducting a Discretionary 4(b)(2) Exclusion Analysis, to the preamble of this document to clarify the way we consider and conduct exclusions. Furthermore, this section explains the way in which we consider conservation plans and partnerships when conducting a discretionary 4(b)(2) exclusion analysis. In brief, the commenters appear to misunderstand how we account for the benefits of conservation plans. The accounting that we use (what counts as a benefit of exclusion, and what serves to reduce benefits of inclusion) is the only logical way of parsing the effects of conservation plans consistent with the statute. But in no way does this accounting discount the benefits of conservation plans—it just puts those benefits in the proper context. Therefore, we disagree with the commenters that our accounting will in any way act as a disincentive for voluntary conservation. In fact, one of the primary purposes of this policy is to explain the important role that conservation plans play in our implementation of section 4(b)(2), and thus, in effect, to explain the existing incentive for land managers to create those plans.

    The Services have reviewed and will continue to review each plan for potential exclusion on a case-by-case basis; we are continuing our existing practice, and not broadening our discretion. Adopting a policy that would exclude areas without an analysis and weighing of the benefits of inclusion and exclusion on a case-by-case basis, as the commenters appear to suggest, would not be consistent with the requirements of the Act or our implementing regulations at 50 CFR 424.19.

    Comment (7): One commenter suggested that the policy should be revised to give greater detail on the processes the Services will use to review and exclude areas covered by existing conservation plans. When determining whether the benefits of exclusion outweigh the benefits of inclusion, the commenter noted that the Services will evaluate a variety of factors; however, no metrics were provided. For example, it is uncertain if each factor must be considered or if only three or four are sufficient. The commenter posed questions such as: will the Services give all factors equal weight or will some be deemed more important, and what evidence must be provided to demonstrate that the thresholds have been met? While the factors provide general direction, the commenter stated the Services provide no indication of how the evaluations will be conducted or what the thresholds might be. Finally, the commenter suggested it is unclear how the Services plan on evaluating whether the agreements are being properly implemented and how the Services will evaluate whether the permittee is expected to continue to properly implement the agreement.

    Our Response: The Services cannot prescribe which factors should be used when developing a conservation plan that does not have Federal involvement. The list provided in the draft policy and in this final policy is not exhaustive; rather, it is intended to illustrate the types of factors that the Services will use when evaluating such plans.

    Conservation plans that lead to the issuance of a permit under section 10 of the Act (including HCPs) go through a rigorous analysis under the Act to qualify for that permit. As discussed above, we will often exclude areas covered by such conservation plans. On the other hand, non-permitted conservation plans may not go through such analysis, and therefore must be more thoroughly analyzed before we will consider excluding areas covered by these plans.

    The list of factors for non-permitted plans is not exclusive, not all factors may apply to every instance of evaluating a plan or partnership, and the listed factors are not requirements of plans or partnerships to be considered for exclusion. Criteria for non-permitted plans differ from criteria for permitted plans because the latter have already undergone rigorous analysis for the issuance of the associated permit and may have been measured or evaluated by additional criteria. For example, NEPA analysis has already been conducted before a permitted plan is finalized and a permit issued.

    Comment (8): Several commenters suggested that the methodology for exclusion should be defined, and the draft policy grants the agencies much more leeway to include or exclude lands from critical habitat designation, by requiring that each area considered for exclusion be reviewed on a case-by-case basis. Commenters also stated that, although the policy states that the benefits of designation of critical habitat will be weighed against the costs of such designation in a cost/benefit analysis, there is no clearly defined methodology included in the draft policy. Commenters stated that, when exercising their discretion, the Services should explain fully the basis, including the weighing of benefits, for any determination that exclusion is not warranted for any of the areas covered by the policy.

    Our Response: As discussed in our response to comment (2) above, this policy does not increase the discretion granted to the Secretaries by the Act. Moreover, each area considered for exclusion is unique, and evaluations are highly fact-specific; thus it is not possible to give a simple, formulaic methodology that will be used in all landscapes and situations. Further, it is important that the Secretaries retain discretion in assigning appropriate weight to benefits of inclusion and exclusion. Whenever the Services exclude areas under section 4(b)(2), they will explain the factors considered and the weighing of benefits. If the Services do not exclude an area that has been requested to be excluded through public comment, the Services will respond to this request. However, although the Services will explain their rationale for not excluding a particular area, that decision is committed to agency discretion. (Cape Hatteras Access Preservation Alliance v. DOI, 731 F. Supp. 2d 15, 29-30 (D.D.C. 2010)).

    Blanket or Presumptive Exclusions

    Comment (9): Many commenters suggested there is a lack of certainty that areas covered by permitted conservation plans will be excluded. Commenters stated that permitted conservation plans, including HCPs, SHAs, and CCAAs, provide a much greater conservation benefit to private land areas than other programs implemented under the Act. Many commenters asked that the final policy be modified to categorically exclude from critical habitat lands covered by permitted plans, provided that the plan is being properly implemented and the species is a covered species under the plan. Commenters noted that the conservation benefits from such agreements and the investment of effort and collaboration between the private sector and the Services should be acknowledged, and areas covered by conservation agreements developed and approved by the Services should expressly be excluded from designation of critical habitat. Commenters expressed concern that the need for a factual balancing test each time critical habitat is designated for a covered species poses major uncertainties for permittees.

    Our Response: The Services agree with the goal of providing greater certainty through this policy. However, each plan is different, covers different areas with different objectives, and will likely have differences in implementation and effectiveness, differences in duration, and so forth. Therefore, the Services must consider each plan on a case-by-case basis.

    As stated above, the Services do greatly value the commitments of private landowners and conservation partners to conserve species and their habitats. Even so, the Services cannot presumptively exclude particular areas from a designation of critical habitat. Should the Services enter into a discretionary 4(b)(2) exclusion analysis, the Act requires the Services to compare the benefits of including a particular area in critical habitat with the benefits of excluding the particular area. The Secretary may exclude an area if the benefits of exclusion outweigh those of inclusion, as long as the exclusion will not result in extinction of the species. Where they have decided to exclude an area, the Services must provide a reasonable consideration of factors on each side of the balance. The Services' draft policy and this final policy articulate clearly that the Services will give great weight and consideration to partnerships resulting from the development of HCPs, SHAs, and CCAAs. Additionally, the Services will give great weight to the conservation measures delivered on the ground by the plans mentioned above. The weight of the conservation measures will be applied to reduce the benefits of inclusion of that particular area in critical habitat, and in many cases the benefits of exclusion will outweigh the benefits of inclusion.

    However, a permitted plan and a critical habitat designation may further different conservation goals. A permitted plan for a covered species addresses certain specific activities in a discrete area. It is designed to mitigate or minimize impacts from specific projects. By contrast, we designate critical habitat to conserve a species throughout its range (and sometimes beyond) in light of the varying threats facing the species. Thus, in a discretionary 4(b)(2) exclusion analysis, the Services must undertake a thorough balancing analysis for those areas that may be excluded, and cannot presume that the fact pattern is the same for each specific instance of a general category of plans.

    Comment (10): Despite acknowledging the utility of non-permitted private and non-Federal conservation plans and partnerships, several commenters expressed the concern that the exclusion of these areas is not automatically guaranteed. Instead, the commenters noted that the Services will “sometimes exclude specific areas” from a critical habitat designation based on the existence of these plans or partnerships. In order to be successful, commenters stated private/non-Federal plans must be supported by the Services and automatically excluded from critical habitat designations. If not, future conservation plans may be at risk because applicants will feel uncertainty regarding the utility of their efforts. Commenters requested the Services to codify this change and ensure that land protected through voluntary conservation efforts will not be subjected to critical habitat overlays.

    Our Response: Please see our response to the previous comment. Just as the Services cannot automatically guarantee exclusion of permitted conservation plans, we cannot presumptively exclude, or automatically exclude, private and non-Federal plans. When undertaking the discretionary 4(b)(2) exclusion analysis, the Services are obligated by section 4(b)(2) to weigh the benefits of inclusion and exclusion. The Services conduct this evaluation on a case-by-case, fact-specific basis. In this context, automatically excluding certain classes of lands or certain classes of agreements would be arbitrary.

    However, as noted above, the Services do highly value private and non-Federal conservation plans and partnerships, and our objective is to encourage participation in voluntary conservation planning and collaborative partnerships. When entering into the discretionary 4(b)(2) exclusion analysis, the Services will consider fully the value and benefits of such plans and partnerships. The Services acknowledge that such programs and partnerships can implement conservation actions that the Services would be unable to accomplish without private and non-Federal landowners and partners.

    Comment (11): Certain States requested the addition of a policy element to categorically or presumptively exclude all lands managed by State wildlife agencies. They stated that the Services should consider partnerships with State wildlife agencies similarly to the way they consider partnerships with Native American Tribes, and exclude lands managed by the State as they do Tribal lands. Whether a State conservation plan has been vetted through the public process should not have any relevance to the exclusion of such lands from critical habitat.

    Our Response: As noted above, the Services must follow the direction of the Act and identify those lands meeting the definition of “critical habitat,” regardless of landownership. It is only after the identification of lands that meet the definition of “critical habitat” that we can consider other relevant factors. It appears that the commenter is requesting presumptive exclusion of specific State lands without a case-by-case analysis. As discussed above, the Act does not give the Secretaries the authority to exclude areas from critical habitat without first undertaking a discretionary 4(b)(2) exclusion analysis. As we consider areas for potential exclusion, as discussed throughout this policy, we give great weight and consideration to conservation partnerships, including those partnerships with States and Tribes. The Services note that S.O. 3206 has no applicability to State governments or State lands. Even in the context in which it applies, S.O. 3206 does not provide a blanket exclusion or automatic exemption of Tribal lands.

    Comment (12): To further provide incentives for landowners or local and State governments to enter into conservation plans, agreements, or partnerships, a commenter stated the Services should, if they conduct a discretionary exclusion analysis, always exclude such areas from critical habitat designation if the benefits of exclusion outweigh the benefits of inclusion. The commenter stated that exclusion may incentivize parties to participate in future conservation plans or partnerships, especially the prelisting conservation measures encouraged by the Fish and Wildlife Service's recent draft policy regarding voluntary prelisting conservation actions.

    Our Response: The Services agree that recognition of partnerships through exclusion from critical habitat may serve to remove any real or perceived disincentive that a designation of critical habitat may produce, and encourage parties to further engage in future conservation planning efforts. Should the Services elect to conduct a discretionary 4(b)(2) exclusion analysis, and if the benefits of exclusion outweigh the benefits of inclusion, in almost all situations we expect to exclude that particular area. Although the Services find it necessary to retain some discretion for the Secretaries because we cannot anticipate all fact patterns that may occur in all situations when considering exclusions from critical habitat, it is the general practice of the Services, consistent with E.O. 12866, to exercise this discretion to exclude an area when the benefits of exclusion outweigh the benefits of inclusion. However, the Secretaries may not exclude a particular area if the exclusion will result in the extinction of the species concerned. Please see the section General Framework for Considering an Exclusion and Conducting a Discretionary 4(b)(2) Exclusion Analysis, above, for more information regarding the exclusion process.

    Plans Permitted Under Section 10 of the Act

    Comment (13): One commenter suggested that the draft policy should not contain a categorical rejection of an agreement with “guidelines” for habitat management. Even if the agreement provides guidelines relating to the species' habitat, rather than specifically addressing habitat, the commenter noted that if those guidelines were followed they may provide a greater benefit to the species than would a critical habitat designation. Finally the commenter noted that each plan should be analyzed individually for its benefit to the species; this would support the Services' stated policy of encouraging the development of section 10 agreements.

    Our Response: We agree with the commenter regarding plans with guidelines that, if followed, may provide a greater benefit to a species than would a designation of critical habitat. However, should the Services choose to enter into the discretionary 4(b)(2) exclusion analysis for a plan that only has guidelines, the Services will evaluate the benefits of inclusion and exclusion based on the specific facts of the plan in question. We have removed the language regarding guidelines from the final policy.

    Comment (14): One commenter stated that the Services should not designate or exclude mere portions of HCPs. An HCP, taken as a whole, is designed to meet the conservation needs of the species and is specifically developed to meet those needs while still allowing certain development impacts to occur. The commenter suggested the policy would allow the Services to exclude just beneficial parts of an approved HCP, and designate those areas that are less desirable but still an integral component of the HCP.

    Our Response: If the HCP has been approved and permitted, and if the Services undertake a discretionary 4(b)(2) exclusion analysis and find that the benefits of exclusion outweigh the benefits of inclusion, we intend to exclude the entire area covered by the HCP from the final designation of critical habitat for the species.

    Comment (15): One commenter stated that the Services should consider excluding areas covered by HCPs and SHAs that are under development, but not yet completed or fully implemented. The draft policy proposes to give very little weight to section 10 agreements that are in process but not formalized. The commenter expressed a concern that not giving weight to developing voluntary conservation plans could greatly reduce incentives for private landowners and other entities to continue these efforts. The Services should analyze in-progress agreements individually. The agreements will vary greatly in scope, coverage, and the level of protections granted to the species and the extent of progress towards a formal agreement. If a comprehensive agreement is close to being formalized at the time of critical habitat designation, the commenter suggested there is no reason for the Services to designate that land as critical habitat and ignore the effort of the parties involved to benefit the species and its habitat. To ignore those efforts would discourage other landowners from pursuing similar plans or partnerships in the future, undermining future cooperation for the benefit of the species. Finally, the commenter suggested that the policy should be revised to give greater detail on the processes the Services will use to efficiently review and exclude areas covered by conservation plans being developed.

    Our Response: Should the Services elect to undergo a discretionary 4(b)(2) exclusion analysis of an area in which a voluntary conservation plan is being developed, we will consider the facts specific to the situation. If a draft HCP has undergone NEPA and section 7 analysis, the Services could evaluate that plan under the provisions of this policy that are applicable to conservation plans and partnerships for which no section 10 permit has been issued. The track record of the partnership and the time taken to develop the draft HCP would be considerations in any discretionary 4(b)(2) exclusion analysis. The Services would not ignore ongoing efforts to develop plans. Some of the factors we consider are the degree of certainty that the plan will be implemented, that it will continue into the future, and that it may provide equal or greater protection of habitat than would a critical habitat designation. Therefore, the Services would expect to evaluate draft permitted plans on a case-by-case basis, and may evaluate them under the non-permitted-plans-and-partnerships sections of this policy.

    Comment (16): A commenter asked the Services to clarify that not every conservation plan will undergo a weighing and balancing process. Paragraph 3 of the draft policy states: “When we undertake a discretionary exclusion analysis, we will always consider areas covered by an approved CCAA/SHA/HCP, and generally exclude such areas from a designation of critical habitat if three conditions are met. . . .” The commenter questioned whether the discretionary analysis is triggered by potential “severe” impacts (as described in step 2 of the M Opinion at p. 17: “if [she] deems the impacts of the designation severe enough, [she] will proceed with an exclusion analysis under section 4(b)(2)”) on a particular area covered by a CCAA/SHA/HCP, or whether the presence of such conservation plan(s) triggers the discretionary analysis regardless of impacts. If the former, the Services should clarify that only the potentially affected conservation plan(s) will be subjected to the discretionary exclusion analysis. If the latter, the commenter expressed a concern that the result of such a policy is to significantly limit Secretarial discretion.

    Our Response: The Services are not limiting Secretarial discretion through this policy. The presence of a conservation plan or partnership does not mandate a discretionary 4(b)(2) exclusion analysis. If the Secretary decides to enter into the discretionary 4(b)(2) exclusion analysis, the Services may consider, among other things, whether a plan is permitted, or whether we receive information during a public comment period that we should consider a certain plan for exclusion. However, it is possible that the Secretaries will not conduct a discretionary 4(b)(2) exclusion analysis for each and every conservation plan. As noted in the final rule revising 50 CFR 424.19, the Secretaries are particularly likely to conduct this discretionary analysis if the consideration of impacts mandated under the first sentence suggests that the designation will have significant incremental impacts.

    Tribal Comments

    Comment (17): Numerous Tribes have asked to have their lands presumptively or categorically excluded from critical habitat designation. The commenters stated that, absent evidence that exclusion would lead to the extinction of the species, Tribal lands should always be excluded. While the Tribes appreciate the Services giving great weight and consideration to excluding Tribal lands, Tribes would prefer their lands to be categorically excluded.

    Our Response: While the Services recognize their responsibilities and commitments under Secretarial Order 3206 and in light of Tribal sovereignty, the statute is clear on the process of designating critical habitat, and does not allow for presumptive exclusion of any areas, regardless of ownership, from critical habitat without conducting a discretionary 4(b)(2) exclusion analysis. If we determine that Tribal lands meet the definition of “critical habitat,” the statute requires we identify those lands as meeting that definition. However, as discussed in the draft and this final policy, great weight and consideration will be given to Tribal partnerships and conservation plans if the Services enter into the discretionary 4(b)(2) exclusion analysis.

    Comment (18): Many commenters expressed that the designation of critical habitat on Tribal lands would have an unfortunate and substantial negative impact on the working relationships the Services and Tribes have established. The Services should state that, when they undertake a discretionary exclusion analysis, they will always consider exclusions of Tribal lands and not designate such areas, unless it is determined such areas are essential to conserve a listed species.

    Our Response: The Services recognize our trust responsibilities with Tribes, and value our collaborative conservation partnerships. Secretarial Order 3206, which provides guidance to the Departments in exercising their statutory authorities—but does not modify those authorities—states:

    Critical habitat shall not be designated in such areas unless it is determined essential to conserve a listed species. In designating critical habitat, the Services shall evaluate and document the extent to which the conservation needs of the listed species can be achieved by limiting the designation to other lands. Therefore, the Services generally will not designate critical habitat on Tribal lands if the conservation needs of the listed species can be achieved on other lands. However, if it is determined such areas are essential to conserve the listed species, then, as discussed in the previous comment response, the Services will give great weight and consideration to Tribal partnerships and conservation plans if the Services enter into the discretionary 4(b)(2) exclusion analysis.

    Comment (19): Several Tribes expressed a concern that the new policy will result in greater economic and social burdens on Tribes. Tribes bear a disproportionate burden through the consultation process under section 7 of the Act, as compared to State and local governments and private citizens, because so many basic Tribal functions are contingent on actions authorized, funded, or carried out by Federal agencies. Therefore, the commenters stated that, where Tribal lands are designated as critical habitat, the proposed regulations and policies will require an onerous, time-consuming, bureaucratic process that infringes on Tribal sovereignty and treaty rights and frustrates the ability of the Tribe to provide basic government services and achieve wildlife-conservation and economic-development goals.

    Our Response: While the Services recognize that a critical habitat designation may have real or perceived direct and indirect impacts, the Services are committed to assisting Tribes in conserving listed species and their habitats on Tribal lands, where appropriate. Where collaborative conservation partnerships and programs have been developed with Tribes, many of these real or perceived impacts have been ameliorated or relieved. The revised regulations and new policy are intended to provide clarity, transparency, and certainty regarding the development and designation of critical habitat, and provide for a more predictable and transparent critical-habitat-exclusion process. All three initiatives work together to provide greater clarity to the public and Tribes as to how the Services develop and implement critical habitat designations.

    Comment (20): One commenter stated that, as written, the policy fails to acknowledge the sovereignty of Tribes and Tribal self-governance by noting only that “Tribal concerns” will be considered in the discretionary exclusion analysis. These proposed regulations and policies represent a missed opportunity to effectuate the letter and spirit of Secretarial Orders 3206 and 3335, and to ameliorate the potentially harsh consequences on Tribes of the proposed regulatory revisions for designating critical habitat. Of even more concern, the Service completely ignores the fundamental disagreement concerning the applicability of the Endangered Species Act to Tribes.

    Our Response: Secretarial Order 3206 explicitly recognizes the right of Tribes to participate fully in the listing process, including designation of critical habitat. The Order states:

    Critical habitat shall not be designated in such areas unless it is determined essential to conserve a listed species. In designating critical habitat, the Services shall evaluate and document the extent to which the conservation needs of the listed species can be achieved by limiting the designation to other lands.

    However, S.O. 3206 does not limit the Services' authorities under the ESA or preclude the Services from designating Tribal lands or waters as critical habitat, nor does it suggest that Tribal lands or waters cannot meet the Act's definition of “critical habitat.” We are directed by the Act to identify areas that meet the definition of “critical habitat” (i.e., occupied lands that contain the essential physical or biological features that may require special management considerations or protection and unoccupied areas that are essential to the conservation of a species) without regard to landownership. While S.O. 3206 provides important guidance, it does not relieve or supersede the Secretaries' statutory obligation to identify as critical habitat those specific areas meeting the definition of “critical habitat” and to designate such areas unless otherwise exempted by statute or excluded following the discretionary 4(b)(2) exclusion analysis.

    Further, following the language and intent of S.O. 3206, when we undertake a discretionary 4(b)(2) exclusion analysis we will always consider exclusions of Tribal lands prior to finalizing a designation of critical habitat, and will give great weight to the collaborative conservation partnerships the Services have with the Tribes, as well as Tribal conservation programs and plans that address listed species and their habitats. The effects of critical habitat designation on Tribal sovereignty and the Services' working relationship with Tribes are relevant impacts that the Services will generally consider in the context of any exclusion analysis under Section 4(b)(2). See, e.g., Center for Biological Diversity v. Norton, 240 F. Supp. 2d 1090, 1105 (D. Ariz. 2003).

    State Comments

    Comment (21): One commenter asked the Services to use the same standards for evaluating State conservation plans as those used for evaluating federally permitted plans for possible exclusions. The commenter noted that in the draft policy the Services have outlined different conditions for exclusion for HCPs, SHAs, and CCAAs versus all other conservation plans (including State plans). The former must only meet three conditions, while the latter are evaluated based on eight factors. Justification is not provided for why two different sets of criteria are being used. For example, HCP/SHA/CCAA plans need only be “properly implemented” while other conservation plans must show not only implementation but also “success of the chosen mechanism.” No explanation for this difference is provided. Furthermore, the commenter noted that all plans should be held to the same threshold for exclusion consideration. States spend enormous amounts of time to craft species-conservation plans. Finally, the commenter stated that plans are developed and implemented based on extensive scientific expertise housed in State wildlife agencies and they are crafted to meet State and Federal laws, rules, and regulations applicable to the protection of wildlife.

    Our Response: The Services recognize that considerable time and expertise go into creating State management plans. Any requests for exclusions by States will be considered, whether based on a State management plan or for a State wildlife area. The Services need to evaluate any exclusion request on a case-by-case, fact-specific basis. The Services recognize that not all State plans are the same, and not all plans are designed to meet applicable Federal laws, rules, and regulations. The eight factors presented in this final policy regarding non-permitted plans are factors the Services will consider when conducting a discretionary 4(b)(2) exclusion analysis evaluating a State conservation plan or wildlife management area for exclusion. We will not hold State or other non-Federal conservation plans to higher standards than permitted plans; the list of eight factors simply indicates the types of factors we will evaluate in any conservation plan. It should be noted that HCPs and SHAs have already been subjected to rigorous analyses of numerous criteria through the permitting process that are not expressly listed in the policy.

    Comment (22): A commenter suggested that the Services add the following language to the policy regarding State lands:

    We recognize Congress placed high value in working with State partners in the conservation of threatened and endangered species and we will give great weight to the recommendations from our State partners when evaluating critical habitat on State lands. Many States have land holdings that cross a broad spectrum of uses that can range from lands primarily managed for conservation purposes while other lands are owned to provide maximum economic return as in the case of some State school lands. The Service, in weighing the benefits of inclusion versus exclusion of State lands, will conduct a discretionary analysis if the State indicates a wish to be excluded from a critical habitat designation and provides a detailed assessment on the merits of their requested exclusion. The Service is not under obligation to exclude those State lands but will use the State's assessment as we weigh the expected gain in conservation value for inclusion of a tract of State land in a final critical habitat designation.

    Our Response: As stated above, the Services decline to add a specific policy element suggesting that we would give great weight to recommendations of our State partners when evaluating critical habitat on State lands. The Services agree with the commenter's premise that conservation of endangered and threatened species cannot be done without cooperation of State partners. We also agree that we generally will consider exclusions of State lands if requested by States; however, we are under no obligation to exclude such lands, even where requested.

    Comments Regarding Federal Lands

    Comment (23): One commenter stated that the Services should not “focus” designation of critical habitat on Federal lands, nor assume that the benefits of critical habitat designations on Federal lands “are typically greater” than the benefits of excluding these areas.

    Our Response: When designating critical habitat, the Services follow the Act and implementing regulations to develop a designation based solely on the best scientific data available, and that identifies physical or biological features essential to the conservation of a species or areas that are essential for the conservation of a species. This initial identification of eligible areas that meet the definition of “critical habitat” is conducted without regard to landownership or the identity of land managers. Before finalizing a designation of critical habitat, the Services must consider economic impacts, the impact on national security, and any other relevant impact of designating critical habitat. It is following this consideration of potential impacts that the Secretary may then exclude particular areas from critical habitat, but only if the exclusion will not result in the extinction of the species.

    The Services look to the Congressional intent of the Act—in particular, section 2(c) states that all Federal agencies shall seek to conserve listed species and their habitats. Additionally, section 7(a)(2) of the Act requires Federal agencies that fund, authorize, or carry out projects to ensure their actions are not likely to destroy or adversely modify critical habitat. The commenter does not explain why the Services should not focus, to the extent practicable and allowed by the Act, on designation of critical habitat on Federal lands. Also, the commenter does not provide an explanation to support its view that the benefits of including Federal lands in a designation of critical habitat are not typically greater than including other areas. In fact, because Federal agencies are required to ensure that their actions are not likely to destroy or adversely modify critical habitat, the benefits of including Federal lands are typically greater than the benefits of including other areas.

    Comment (24): Another commenter asked the Services to consider excluding Federal lands that are subject to special management by land-management agencies. Congress has mandated that Federal lands, such as lands managed by the Bureau of Land Management (BLM) and the U.S. Forest Service, be available for multiple uses. The commenter stated the Services' designation of critical habitat primarily on Federal lands upsets the balance struck in land-management decisions made by the agencies charged with administering Federal lands and, moreover, interferes with the directives established by Congress.

    Our Response: Complying with the Act does not interfere with other Federal agency mandates. The Act is one of many Federal mandates with which all Federal agencies must comply, and Federal agencies must use available discretion to take into account the needs of listed species when implementing their other duties. The Services are also required to comply with the Act as they manage their lands, monuments, trust resources, and sanctuaries for multiple purposes. It has been the experience of the Services that listing or designating critical habitat for species does not drastically alter existing management schemes of other Federal agencies. In those instances where conflicts arise, the Services have successfully worked with the affected Federal agency to reduce conflicts with its mission. The Services are committed to continuing the collaborative relationships with other Federal agencies to further conservation of species and their habitats.

    Comment (25): One commenter stated that a reasonable exclusion policy should allow the Services to recognize and consider exclusions for all types of conservation projects, whether they occur on Federal or non‐Federal lands. The commenter understands the Services' intent to reduce regulatory burdens on private lands. However, the commenter opposes a policy that would disqualify exclusions on Federal lands, while prioritizing them for recovery. The commenter strongly stated that exclusions should be based on the criteria outlined in section 4(b)(2) of the Act, whether the land is Federal or non‐Federal. Section 4(b)(2) of the Act provides the Secretary the discretion to “exclude any area from critical habitat if [s]he determines that the benefits of exclusion outweigh the benefits of specifying such area as part of the critical habitat,” but does not delineate whether landownership should play a factor in the decision to exclude lands from designation.

    Our Response: To the extent that the commenter is suggesting that discretionary 4(b)(2) exclusion analyses are done on a case-by-case basis and are highly fact-specific, we agree. This policy does not preclude exclusions of Federal lands; in fact, the Services have excluded particular Federal lands in the recent past. However, the Services maintain their policy position that Federal lands will typically have greater benefits of inclusion compared to the benefits of exclusion. This position is consistent with the purposes of the Act as outlined in section 2. Section 2(c)(1) states:

    It is further declared to be the policy of Congress that all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this Act.

    Additionally, section 7(a)(1) restates this responsibility and specifically requires all Federal agencies to consult with the Services to carry out programs for conservation of endangered and threatened species. Because the section 7 consultation requirements apply to projects carried out on Federal lands where there is discretionary Federal involvement or control, designation of critical habitat on Federal lands is more likely to benefit species than designation of critical habitat on private lands without a Federal nexus.

    Comment (26): A commenter suggested that the Services should create an incentive for Federal land managers. The Services could consider a similar approach to Federal land exclusions that are provided for Department of Defense installations. Applying this same standard to all Federal lands, the commenter stated, would create a stronger incentive for more agencies to live up to the requirements of section 7(a)(1) of the Act.

    Our Response: Congress intended for Federal agencies to participate in the conservation of endangered and threatened species. As discussed above, section 2(c)(1) of the Act clearly states this responsibility. Additionally, section 7(a)(1) restates this responsibility and specifically requires all Federal agencies to consult with the Services to carry out programs for conservation of endangered and threatened species. Section 7(a)(2) of the Act requires Federal agencies to consult with the Services to “insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat of such species.”

    Exemption of Department of Defense lands from critical habitat is mandated under section 4(a)(3)(B)(i) of the Act, and is thus entirely different from discretionary exclusions of particular lands from a designation of critical habitat under section 4(b)(2). Exemption of an area covered under an INRMP under the Sikes Act is based on the statutory condition that the Secretary has determined the plan provides a benefit to a species, whereas an exclusion of a particular area is based on the discretionary 4(b)(2) weighing of the benefits of inclusion and exclusion.

    Comments on Economics

    Comment (27): A commenter asked the Services to provide details of how costs and benefits are evaluated. The draft policy does not clearly define how benefits and costs will be determined, giving the Services a great deal of discretion. The commenter noted that the draft policy does not adequately explain how the consideration of economic impacts will be applied during the exclusion process. The phrase “nature of those impacts” in the draft policy fails to provide a description that will give adequate notice of what will actually be considered.

    Our Response: The policy is not intended to present a detailed treatment of economic impact analysis methodology. The Summary of Comments and Recommendations section of the Service's final rule regarding revisions to the regulations for impact analyses of critical habitat, which was published on August 28, 2013 (78 FR 53058), contains a discussion of cost and benefit analysis of critical habitat designations.

    To aid in the consideration of probable incremental economic impacts under section 4(b)(2) of the Act, the Services conduct an economic analysis of the designation of critical habitat, which satisfies the mandatory consideration of economic impacts. Should the Secretaries consider excluding a particular area from critical habitat, the economic analysis is one tool the Secretaries may use to inform their decision whether to exclude the particular area.

    The commenter points out that the phrase “nature of those impacts” is not defined. The Services intentionally did not define this phrase, because it has been the experience of the Services that economic impacts of critical habitat designations vary widely, making it infeasible to quantify the level of impacts that would trigger further consideration in all cases.

    Comment (28): Because the Services use an incremental approach to estimating economic impacts, one commenter suggested that the economic impacts of critical habitat are vastly underestimated. The commenter suggested the Services should conduct an economic analysis that evaluates the cumulative and co-extensive costs of critical habitat. Focusing on incremental economic impacts does not provide an accurate picture, as it discounts the full financial implications of a listing for landowners, businesses, and communities. The commenter expressed the opinion that the incremental approach effectively shifts the economic costs of critical habitat designations to the listing process under the Act where the Service is prohibited from considering costs. Ultimately, because this approach will result in fewer costs being attributed to critical habitat designation, it will greatly reduce the usefulness of the 4(b)(2) process.

    Our Response: We disagree. Our final rule amending 50 CFR 424.19, published August 28, 2013 (78 FR 53058), codified the use of the incremental method for conducting impact analyses, including economic analyses, for critical habitat designations. That final rule contains responses to public comments that clearly lay out the Services' rationale for using the incremental method. Please refer to that rule for more information. Evaluating incremental impacts that result from a regulation being promulgated, rather than considering coextensive impacts that may be ascribed to various previous regulations, is further supported by Executive Order 12866, as applied by OMB Circular A-4.

    Comment (29): Congress expressly required the Secretaries to consider economic impacts when they designate critical habitat (16 U.S.C. 1533(b)(2)). A commenter stated the Services have interpreted this requirement to limit their use of the economic analysis to the exclusion process. The commenter further noted that the draft policy restricts discussions of the economic impacts from critical habitat designation to determinations of whether an area will be excluded from a critical habitat designation. Economic concerns are arguably the most important consideration for those being regulated. The commenter expressed the opinion that the designation of critical habitat has economic impacts on States, counties, local governments, and landowners. These impacts include increased regulatory burdens that delay projects. The commenter stated it is important that the Services recognize the economic impacts of critical habitat designation and consider those impacts throughout the designation process, as required by Congress under the Endangered Species Act. The commenter asked that the draft policy be amended to emphasize use of economic impacts analyses in each stage of the designation process, not just exclusion of an area from a critical habitat designation.

    Our Response: We agree that the mandatory consideration of economics is an important step in the designation of critical habitat. However, we disagree that economic impact analyses should be used at each step of the designation process. The process of developing a designation is based on the best available scientific information, and consists of a determination of what is needed for species conservation. Congress expressly prohibited the Secretaries from using anything other than the best available scientific information in identifying areas that meet the definition of “critical habitat.” However, Congress expressly required the Secretaries to consider economic impacts, national-security impacts, and other relevant impacts before finalizing the critical habitat designation.

    The Services prepare an economic analysis of each proposed designation of critical habitat and may use that information in discretionary 4(b)(2) exclusion analyses. Our final rule that amended our implementing regulations at 50 CFR 424.19, which was published on August 28, 2013 (78 FR 53058), contains more information regarding impact analyses, including economics. This final policy is focused on the discretionary process of excluding areas under section 4(b)(2).

    Comment (30): A commenter stated that the economic impact of critical habitat designations on the exercise of rights to Federal lands is significant and should not be discounted. In the preamble to the draft policy, the Services state that they “generally will not consider avoiding the administrative or transactional costs associated with the section 7 consultation process to be a `benefit' of excluding a particular area from a critical habitat designation in any discretionary exclusion analysis.” The commenter suggested this statement ignores that administrative and transactional costs of critical habitat designations can be significant, particularly when critical habitat will cover a large area. The commenter stated that Federal agencies are not the only entities that must absorb the costs of section 7 consultation. Administrative and transactional costs are also borne by non-Federal parties, such as applicants for permits or licenses. The commenter further noted that, if the exclusion analysis is limited to non-Federal lands, where section 7 consultation is often not triggered, the economic benefits of exclusion will rarely be considered. For proponents of large projects on Federal lands, these economic benefits of exclusion can be significant.

    Our Response: We agree with the commenter that the Services should consider the indirect effects resulting from a designation of critical habitat. In fact, the Services are required to evaluate the direct and indirect costs of the designation of critical habitat under the provisions of Executive Order 12866, and we do so through the economic analyses of the designation of critical habitat. However, as noted previously, we do not consider avoidance of transactional costs associated with section 7 consultation to be a benefit of exclusion. Rather, those costs represent the inherent consequence of Congress' decision to require Federal agencies to avoid destruction or adverse modification. Please refer to the Summary of Comments and Recommendations section of the final rule amending 50 CFR 424.19 (78 FR 53058, August 28, 2013), particularly our response to Comment 44, for more information regarding direct and indirect costs.

    Comment (31): One commenter suggested that the Services should also consider potential economic benefits of inclusion. Economic benefits of designating critical habitat include a potentially faster rate of recovery for the species, which could result in less long-term costs for the agency and partners.

    Our Response: The Act requires a mandatory consideration of the economic impact of designating a specific area as critical habitat. The Services interpret this statement to be inclusive of benefits and costs that result from the designation of critical habitat. This interpretation is further supported by Executive Order 12866 as clarified in OMB Circular A-4. The Services do consider non-consumptive use benefits, such as hiking, increased tourism, or appreciation of protected open or green areas, in a qualitative manner where credible data are available. Further, in rare circumstances, when independent and credible research can be conducted on the benefits for a particular species, that information is used. However, for most species, credible studies and data related to potential economic benefits of designating their habitat as critical habitat are not available or quantifiable.

    Comment (32): One commenter expressed the opinion that listing decisions under the Act have real economic impacts for State and local governments, through restriction on rangeland grazing, hunting, tourism, and development of resources on public and private lands. It may well be that, in some circumstances, the economic benefits of exclusion outweigh the conservation benefits of inclusion. The commenter suggested that such situations should be recognized by the Services and granted exclusion in order to provide maximum flexibility for a balanced mix of conservation and economic activities.

    Our Response: The Services recognize that the listing of species may result in an economic impact; however, the Act does not allow the consideration of potential economic impacts when listing a species. The Act expressly limits the basis of our determination of the status of a species to the best scientific and commercial information available. The Services also cannot consider the potential economic impact of listing a species in an exclusion analysis under section 4(b)(2) of the Act. This consideration of economics in the discretionary 4(b)(2) exclusion analysis is to be based on the incremental impacts that result solely from the designation of critical habitat, and not those impacts that may result from the listing of the species. 50 CFR 424.19.

    We assume the commenter is referring to considerations of economics prior to finalizing a designation of critical habitat. The Services always consider potential economic impacts that may result from the designation of critical habitat. The purpose of the second sentence of section 4(b)(2) is to authorize the Secretaries to exclude particular areas from a designation if the benefits of exclusion outweigh the benefits of inclusion. The Services recognize that there may be circumstances when the economic benefits of exclusion (together with any other benefits of exclusion) do in fact outweigh the conservation benefits of inclusion (together with any other benefits of inclusion). In that case, the Services may decide to exclude the particular area at issue (unless exclusion will result in extinction of the species). The Services will evaluate the best available scientific information when undertaking a discretionary 4(b)(2) exclusion analysis.

    Comment (33): A commenter noted that the Services should consider financial commitments made in HCPs, SHAs, and CCAAs. Proponents could commit serious finances only to have the area later designated as critical habitat.

    Our Response: The Services do not consider the financial commitments made in HCPs, SHAs, or CCAAs, as a standalone factor when evaluating areas for exclusion. The Services, however, do consider the conservation benefits associated with financial commitments of a plan to reduce the benefits of including a particular area in critical habitat. The fostering and maintenance of conservation partnerships can be a benefit of exclusion, and can serve as an incentive to future financial commitments to further conservation. The Services greatly value the on-the-ground conservation delivered by these partnerships and their associated permitted plans.

    Comments on National Security

    Comment (34): A commenter asked the Services to clarify how national-security concerns will be considered. The commenter stated that the Services say they will give “great weight” to these concerns, but this phrase is a subjective term and could use additional clarity. The use of the phrase implies national-security concerns will always outweigh the benefits of inclusion. The commenter recommends expanding or altering this phrase to better clarify how national-security concerns will be considered.

    Our Response: The Services do not consider the phrase “great weight” to imply a predetermined exclusion based on national-security concerns, as the commenter is suggesting. The Services always consider for exclusion from the designation areas for which DoD, DHS, or another Federal agency has requested exclusion based on an assertion of national-security or homeland-security concerns. The agency requesting such exclusion must provide a reasonably specific rationale for such exclusion. The Service will weigh heavily those concerns regarding the probable incremental impact to national security as a result of designating critical habitat. This does not mean the Services will then in turn give little weight to any benefits of inclusion. It is not the Services' intent to predetermine the outcome of a discretionary 4(b)(2) exclusion analysis.

    General Comments

    Comment (35): One commenter asked for an explanation of how the two proposed critical habitat rules and draft policy will work together, discussing the challenges and benefits they provide together. E.O. 13563 states that regulations “must promote predictability and reduce uncertainty.”

    Our Response: The regulations and policy are intended to provide clarity, transparency, and certainty regarding the development and implementation of critical habitat, and provide for a more predictable and transparent process for designating critical habitat. All three initiatives work together to provide greater clarity to the public as to how the Services develop and implement critical habitat designations. The rule amending 50 CFR part 424 provides new definitions and clarifications that will inform the process of designating critical habitat. The rule revising the definition of “destruction or adverse modification” (at 50 CFR 402.02) redefines that term and clarifies its role in section 7 consultations. This policy focuses on how the Services implement section 4(b)(2) of the Act, with regard to excluding areas from critical habitat designations.

    Comment (36): The draft policy states that it will be prospective only and will not apply to any “previously completed” critical habitat designations. One commenter stated the policy should more clearly state that the revised language will not be used in reassessing or reassigning critical habitat; only future designations of critical habitat will fall under the new policy.

    Our Response: The commenter is correct that this final policy does not apply to designations of critical habitat finalized prior to the effective date of this policy (see DATES, above). This policy applies to future designations of critical habitat that are completed after the effective date of this policy. If the Services choose to revise previous designations, the Services will use the operative regulations and policies in place at the time of such revision. Of course, as we have indicated elsewhere, this policy does not establish binding standards that mandate particular outcomes.

    Comment (37): We received many comments that the policy proposed changes that were arbitrary and without merit, because they will deprive private property owners and States of incentives and tools to conserve species and their habitat.

    Our Response: The Services have developed, and continue to develop, considerable tools to assist landowners in the conservation of species and their habitats. Nothing in this policy takes away from those tools and reliance on, and recognition of, collaborative conservation partnerships. Rather, the Services believe the elements of this policy provide greater clarity and certainty on how those conservation tools are regarded and evaluated when considering designations of critical habitat. Additionally, the Services' goal is to remove any real or perceived disincentive for voluntary conservation plans and collaborative partnerships, whether permitted under section 10 of the Act or developed outside of those provisions.

    Comment (38): A commenter stated that monitoring and adaptive management of conservation plans should not be used as standards for determining exclusions. The commenter noted that critical habitat designations do not have this standard, which elevates the exclusionary determination above that which the Services use in their critical habitat designations.

    Our Response: In order to exclude an area from critical habitat, the benefits of exclusion must outweigh those of inclusion, and the exclusion must not result in the extinction of the species. As the commenter correctly notes, adaptive management and monitoring are not a prescribed part of critical habitat designations and implementation. However, monitoring the implementation of conservation actions is essential to determine effectiveness of such actions, and using adaptive management is critical to the long-term success of conservation plans. Therefore, these factors are important considerations in evaluating the degree to which the existence of the conservation plan reduces the benefits of inclusion of an area in critical habitat.

    Comment (39): A commenter stated that in the list of eight factors the Services say they will consider when evaluating lands for exclusion based on non-permitted conservation plans, the Services should clarify what they mean by, “The degree to which there has been agency review and required determinations.” The commenter asked which agencies would review the conservation plan, agreement, or partnership—the Services, other Federal agencies, or State or local agencies? What determinations are “required determinations?”

    Our Response: Should the Services choose to enter into the discretionary 4(b)(2) exclusion analysis, we would evaluate any information supplied by the requester for exclusion, including whether the plan has complied with applicable local, State, and Federal requirements, and any determinations required therein. For example, a county-level ordinance requiring habitat set-asides for development may require State environmental review and public scoping. This type of required review or determination would be taken into consideration when evaluating particular areas for exclusion. The Services are not prescribing any suite of required determinations. The burden is on the requester to provide relevant information pertaining to review of the plan by any agency. This is important information that will be used in our evaluation of the effectiveness of a conservation plan in the discretionary 4(b)(2) exclusion analysis.

    Comment (40): One commenter disagreed with the Services' proposal to consider whether a permittee “is expected to continue to [properly implement the conservation agreement] for the term of the agreement.” The commenter stated the Services should rely on their authority to revoke permits and revise critical habitat rather than speculating about future implementation of conservation agreements. Accordingly, the commenter requests that the Services remove the phrase “and is expected to continue to do so for the term of the agreement” from the first condition related to the exclusion of conservation plans related to section 10 permits.

    Our Response: The Services need to evaluate whether there is reasonable certainty of implementation and completion of conservation plans. Permittees are expected to fulfill the provisions of their permits for the agreed-upon time period. However, given the voluntary nature of agreements, it is possible, even in permitted plans, that permittees may not implement the plan as conditioned or may cancel an agreement at any time. Therefore, certainty of the continuance of any conservation plan is an important consideration.

    Comment (41): One commenter stated that the Services should emphasize the benefits of critical habitat and expressed disappointment that the Services' draft policy attempts to minimize the actual benefits that derive from critical habitat with an extremely cursory description of critical habitat's benefits at the beginning of the preamble to the draft policy.

    Our Response: The Services in no way intend to understate the important functions of critical habitat. We recognize that the primary threat faced by most endangered and threatened species has been, and continues to be, loss and fragmentation of suitable habitat. Critical habitat designation is one conservation tool in the Act that attempts to address this situation, by identifying habitat features and areas essential to the conservation of the species. It provides educational benefits by bringing these important areas to the public's and landowners' attention, and requires consultation with the Services for proposed activities by Federal agencies, on Federal lands, or involving a Federal nexus, to ensure that such activities are not likely to cause the destruction or adverse modification of the critical habitat. These benefits are considered by the Services on a case-by-case basis in the context of the discretionary consideration of exclusions under Section 4(b)(2).

    Comment (42): A commenter stated that the Services should clarify that this policy provides broad program guidance, not specific prescriptions of exclusion analysis and designation. It does not concern a specific action concerning a specific property. Also, the commenter stated the Services should point out that the 4(b)(2) policy could be used to avoid a Fifth Amendment taking if extensive property restrictions would occur due to critical habitat designation.

    Our Response: We agree that the purpose of this policy is to provide guidance and clarity as to how the Services consider exclusions under section 4(b)(2) of the Act, rather than formulaic prescriptions as to how exclusion analyses are performed. As noted above, each area considered for exclusion from a particular critical habitat designation is unique, and the factors considered in such evaluation are fact-specific. Thus, there is no simple, one-size-fits-all approach; rather, the Services take a case-by-case approach in considering the factors in a weighing and balancing analysis, and the relative importance (or weight) of each of those factors.

    The Services do not consider the designation of critical habitat to impose property restrictions such that a Fifth Amendment taking issue would arise.

    Comment (43): One commenter noted that the Services should clarify that exclusion of private lands from critical habitat designation is not a “reward.” The commenter stated the draft policy may be perceived as contradictory to key messaging being promoted through outreach efforts to landowners and that the Services' outreach messaging has been that critical habitat designation does not affect private landowners, unless their activity is authorized, funded, or carried out by a Federal agency. The commenter's opinion is that the draft policy, however, appears to “reward” landowners by excluding their land from critical habitat if their land is covered by a conservation plan.

    Our Response: We agree in part with the commenter. It is true that critical habitat does not create a regulatory impact on private lands where there is no Federal nexus, and that even when there is a Federal nexus, the potential impact of a designation of critical habitat sometimes is minimal. Nevertheless, the Services are keenly aware of the significant concerns that some landowners have about critical habitat. We also recognize that landowners invest time and money for proactive conservation plans on their lands. The Services do not exclude particular areas from a designation of critical habitat as a reward to landowners for conservation actions they undertake. Rather, the existence of a conservation plan; effective, implemented conservation actions; and a demonstrated partnership are relevant factors that should be considered in any discretionary 4(b)(2) analysis. If the Services find the benefits of exclusion outweigh inclusion based on the specific facts, the particular area covered by the conservation plan may be excluded, provided the exclusion will not result in the extinction of the species.

    Comment (44): A commenter asked the Services to define “partnerships” and how they will be evaluated.

    Our Response: Partnerships come in many forms. Some partnerships have a long-standing track record of the partners working together for the conservation of species and their habitat, some partnerships are newly formed, and others are generally anticipated to occur in the future. We greatly appreciate and value these conservation partnerships, and will consider the specifics of what each partnership contributes to the conservation of the species when conducting discretionary 4(b)(2) exclusion analyses. We will also consider the general benefits that excluding areas will have on encouraging future partnerships. Because the specifics and context of partnerships vary so much, we conclude that it would not be useful to attempt to expressly define “partnerships,” or to set out uniform guidance as to how they will be evaluated.

    Comment (45): One commenter stated that the length of a conservation plan and the certainty it will continue to be implemented should be added to the criteria used to evaluate HCPs, SHAs, and CCAAs. None of the conditions account for the temporary nature of these agreements, nor is this aspect discussed elsewhere in the draft policy or preamble. A commenter recommended adding a fourth condition to address the expected longevity of the CCAA/SHA/HCP.

    Our Response: We have already captured this in the first condition we evaluate, which states: “The permittee is properly implementing the CCAA/SHA/HCP and is expected to continue to do so for the term of the agreement. A CCAA/SHA/HCP is properly implemented if the permittee is and has been fully implementing the commitments and provisions in the CCAA/SHA/HCP, Implementing Agreement, and permit.” We have determined not to be more prescriptive than this, because we need to retain flexibility in our evaluations. We may use the track record of partnership in our discretionary 4(b)(2) exclusion analysis, which may include the length of the permitted plan. For example, some plans have long-term implementation schedules in which additional conservation measures are developed or phased in over time, so it would not be appropriate to expect all measures will be put into place immediately. The Services expect that plans will be fully implemented regardless of their term of agreement or operation. When issuing permits, the Services considera whether the term of any such plan is sufficient to produce meaningful conservation benefits to the species. Therefore, it is not necessary in all cases to evaluate the term of a permit as a condition for exclusion from critical habitat. However, the Services have retained their flexibility to evaluate plans on a case-by-case basis, and may consider the term of the plan if appropriate.

    Comments Regarding Transportation Infrastructure

    Comment (46): A commenter requested that the Services exclude transportation infrastructure from critical habitat designations. The commenter suggested that a new paragraph or policy element be added. The paragraph would state the Services will always consider in their discretionary exclusion analysis that dedicated transportation infrastructure and rights-of-way (ROWs) be excluded from critical habitat, given that transportation lands are managed primarily for the use and safety of the travelling public and usually have very little conservation value for listed species.

    Our Response: The Services recognize the importance of maintaining transportation infrastructure and ROWs for the safe conveyance of people and goods. However, the Services do not agree that creating a dedicated policy element giving great weight and consideration to exclusion of transportation infrastructure and ROWs is necessary. Some areas seemingly included within the overall boundaries of critical habitat designations consist of manmade structures and impervious surfaces that do not contain the features essential to the conservation of a species. This occurs because of the scale and resolution of the maps used to depict critical habitat. To remedy this, all regulations designating critical habitat contain language stating that manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located are not included in critical habitat. Therefore, a Federal action involving these lands will not trigger section 7 consultation with respect to the requirement that the Federal agency insure that the action is not likely to adversely modify critical habitat, unless the specific action would affect the physical or biological features in the adjacent critical habitat.

    Portions of ROWs may not contain manmade structures, and may be included in areas that otherwise meet the definition of “critical habitat.” In some cases, the footprint of ROWs themselves may not have the features essential to the conservation of the species at issue. In this case, should the Services engage in a discretionary 4(b)(2) exclusion analysis, the Services may determine that that there is little or no benefit of inclusion, and that the benefits of exclusion outweigh the benefits of inclusion, and, therefore, decide to exclude the ROWs from the designation.

    Comment (47): The designation of critical habitat on an airport may serve to attract wildlife to the airport environment. The Federal Aviation Administration (FAA) requests that an element be added to the policy that would convey great weight and consideration to excluding aircraft-movement areas, runway and taxi areas, object-free areas, and runway-protection zones from designations of critical habitat. Designation of critical habitat could also impair the airport owner's ability to expand facilities, and thus have economic costs. FAA requests that safety be a specific consideration in any exclusion analysis.

    Our Response: The Services disagree that a dedicated policy element is needed in this particular instance. When identifying areas that meet the definition of “critical habitat,” the Act does not authorize the Services to consider landownership. It is a process that relies on the best scientific data available to determine the specific occupied areas containing features essential to the conservation of a species that may require special management considerations or protection and unoccupied areas that may be essential for the conservation of the species. Active airport areas that do not meet the definition of “critical habitat” (i.e., occupied areas that do not contain the features essential to the conservation of a particular species that may require special management considerations or protection or unoccupied areas that are not essential for the conservation of the species) will not be designated critical habitat. As mentioned above, manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located are generally not included in critical habitat. Therefore, a Federal action involving these lands will not trigger section 7 consultation with respect to the requirement that the Federal agency insure that the action is not likely to destroy or adversely modify critical habitat, unless the specific action would affect the physical or biological features in the adjacent critical habitat.

    In some particular instances, the Services may identify areas within airport boundaries that meet the definition of “critical habitat” as applied to a particular species. In these instances, the Services generally would consider any request for exclusion from the designation received from airport managers or FAA under the general authority of section 4(b)(2) or applicable elements of this policy, e.g., the non-permitted plans and partnerships provision of this policy. In addition, the Services encourage airport managers to consider developing HCPs that would address incidental take of listed species and conservation of their habitat.

    Comments on NEPA Requirements

    Comment (48): The Services have determined that a categorical exclusion (CE) from the NEPA requirements applies to the draft policy. CEs address categories of actions that do not individually or cumulatively have a significant effect on the human environment. The commenter stated that a CE is not appropriate for NEPA compliance on issuance of this draft policy, given the potential expansion in future critical habitat designations and the significant effect on environmental and economic resources in areas to be designated as a result of these initiatives.

    The commenter asserted that the Services' proposed actions constitute a “major federal action significantly affecting the quality of the human environment” (42 U.S.C. part 4321, et seq.). Furthermore, the commenter noted, the Services are required to prepare a full Environmental Impact Statement (EIS), in draft and final, as part of this process and prior to any final Federal decisionmaking on the proposed rules and guidance. An EIS is justified by the sweeping geographic scope of the proposals and their potentially significant effects on environmental resources, land-use patterns, growth and development, and regulated communities.

    Our Response: Following our review of the statutory language of section 4(b)(2) and our requirements for compliance under the National Environmental Policy Act of 1969 (NEPA), we find that the categorical exclusion found at 43 CFR 46.210(i) and NOAA Administrative Order 216-6 applies to this policy. As reflected in the DOI regulatory provision, the Department of the Interior has found that the following category of actions would not individually or cumulatively have a significant effect on the human environment and is, therefore, categorically excluded from the requirement for completion of an environmental assessment or environmental impact statement: “Policies, directives, regulations, and guidelines: that are of an administrative, financial, legal, technical, or procedural nature . . . .” NOAA Administrative Order 216-6 contains a substantively identical exclusion for “policy directives, regulations and guidelines of an administrative, financial, legal, technical or procedural nature.” Section 6.03c.3(i). The NOAA provision also excludes “preparation of regulations, Orders, manuals or other guidance that implement, but do not substantially change these documents, or other guidance.” Id.

    At the time the DOI categorical exclusion was promulgated, there was no preamble language that would assist in interpreting what kinds of actions fall within the categorical exclusion. However, in 2008, the preamble for a language correction to the categorical exclusion provisions gave as an example of an action that would fall within the exclusion the issuance of guidance to applicants for transferring funds electronically to the Federal Government.

    This final policy is an action that is fundamentally administrative or procedural in nature. Although the policy addresses more than the timing of procedural requirements, it is nevertheless administrative and procedural in nature, because it goes no further than to clarify, in expressly non-binding terms, the existing 4(b)(2) exclusion process by describing how the Services undertake discretionary exclusion analyses as a result of statutory language, legislative history, case law, or other authority. This final policy is meant to complement the revisions to 50 CFR 424.19 regarding impact analyses of critical habitat designations and provide for a more predictable and transparent critical-habitat-exclusion process. This final policy is nonbinding and does not limit Secretarial discretion because it does not mandate particular outcomes in future decisions regarding exclusions from critical habitat. As elaborated elsewhere in this final policy, the exclusion of a particular area from a particular critical habitat designation is, and remains, discretionary.

    Specifically, this final policy explains how the Services consider partnerships and conservation plans, conservation plans permitted under section 10 of the Act, Tribal lands, national-security and homeland-security impacts and military lands, Federal lands, and economic impacts in the exclusion process. The policy does not constrain the Services' discretion in making decisions with respect to exclusions from critical habitat. The considerations in this policy are consistent with the Act, its legislative history, and relevant circuit court opinions. Therefore, the policy statements are of an administrative (e.g., describing the current practices of the Service that have come about as a result of legislative history, case law, or other authority), technical (e.g., edits for plain language), and/or procedural (e.g., clarifying an existing process for a Service or NMFS activity) nature.

    FWS reviewed the regulations at 43 CFR 46.215: Categorical Exclusions: Extraordinary Circumstances, and we have determined that none of the circumstances apply to this situation. Although the final policy will provide for a credible, predictable, and transparent critical-habitat-exclusion process, the effects of these changes would not “have significant impacts on species listed, or proposed to be listed, on the List of Endangered or Threatened Species or have significant impacts on designated Critical Habitat for these species,” as nothing in the policy is intended to determine or change the outcome of any critical habitat determination. Moreover, the policy would not require that any previous critical habitat designations be reevaluated on this basis. Furthermore, the 4(b)(2) policy does not “[e]stablish a precedent for future action or represent a decision in principle about future actions with potentially significant environmental effects” (43 CFR 46.215(e)). None of the extraordinary circumstances in 43 CFR 46.215(a) through (l) apply to the policy on implementing section 4(b)(2) of the Act.

    NMFS also reviewed its exceptions and has found that this policy does not trigger any of the exceptions that would preclude reliance on the categorical exclusion provisions. It does not involve a geographic area with unique characteristics, is not the subject of public controversy based on potential environmental consequences, will not result in uncertain environmental impacts or unique or unknown risks, does not establish a precedent or decision in principle about future proposals, will not have significant cumulative impacts, and will not have any adverse effects upon endangered or threatened species or their habitats. NOAA Administrative Order 216-6, § 5.05c.

    Comment (49): A commenter stated that NEPA review should not be a standard when evaluating conservation plans and that the Services should not evaluate whether a conservation plan, agreement, or partnership was subject to NEPA review when determining whether to exclude areas from critical habitat designations. See 79 FR 27057 (May 12, 2014) (section 2.d. of the draft policy). Consideration of this factor discounts the many worthwhile conservation plans developed by private entities and State and local governments. The commenter stated that because NEPA only requires analysis of Federal actions (see 42 U.S.C. 4332(2)(C)), conservation plans that are not approved by a Federal agency—such as those developed by citizens and State and local governments—would not undergo NEPA review. States, which are principal managers of wildlife within their borders, frequently develop conservation plans to benefit listed and non-listed species. Also, landowners can establish conservation banks or conservation easements without NEPA review or public input. Thus, the commenter stated that the application of this factor to plans and agreements for which they are often inapplicable would seem to automatically weigh against exclusion in most instances. Instead, the commenter suggests that the Services should focus on the effectiveness of the plan and its conservation value, regardless of the procedural processes used to establish the plan.

    Our Response: The list of factors the Services will consider in connection with exclusion analysis of non-permitted plans seems to have been misunderstood as absolute requirements for excluding areas covered by such plans. For some plans that the Services may evaluate (those that are Federal and may have a significant impact on the environment), it would be appropriate to consider whether NEPA reviews have been completed; for other plans, it may not be. The Services are not suggesting that every plan needs to have undergone NEPA review. Not all of the items listed under paragraph 2 (described above under the heading, Private or Other Non-Federal Conservation Plans and Partnerships, in General) are needed to ensure the Services consider a plan. To this end, the Services have modified the language preceding the list of factors for evaluating non-permitted conservation plans, to clarify that some of the factors may not be relevant to all plans.

    Specific Language Suggested by Commenters

    Comment (50): Several commenters suggested specific line edits or word usage.

    Our Response: We have addressed these comments as appropriate in this document.

    Comment (51): A commenter suggested changing the phrase “and meets the conservation needs of the species” to “and maintains the physical or biological features essential for the conservation of the species” in draft policy element 3(c), which relates to permitted plans under section 10 of the Act. This change is suggested to maintain consistency in the use of terms related to critical habitat designations and exclusions.

    Our Response: The Services have elected not to make the suggested change. The language in question refers to permitted HCPs, SHAs, and CCAAs, and more specifically their underlying conservation plans. Plans developed to support these conservation vehicles are not necessarily designed using the terminology applicable to critical habitat designation. Therefore, we conclude that it is more appropriate to retain the more general language used in our proposal.

    Comment (52): One commenter stated it will be very difficult for the Services to determine if excluding one piece of habitat “will result in the extinction of a species,” as stated in the draft policy element 8. Therefore, the commenter recommends the language be changed to express a likelihood the action will result in the extinction of the species and stated this determination should be made according to the best available science. The commenter suggests the following as replacement language: “We must not exclude an area if the best available science indicates that failure to designate it will likely result in the extinction of the species.”

    Our Response: Part 8 of the policy is a restatement of the statutory provision of the Act that states the Secretary shall not exclude an area if the exclusion will result in the extinction of the species concerned. To the extent that the statutory language is ambiguous, we decline to interpret it at this time.

    Comment (53): One commenter remarked there remains a fair amount of vague language in the factors that are considered during a discretionary 4(b)(2) exclusion analysis. Specifically, the commenter stated it is unclear if factors that begin with “Whether” will rank higher if the answer is affirmative. Also, factors that begin with “The degree to which,” “The extent or,” and “The demonstrated implementation” must be clarified and quantified before they can be appropriately and fairly assigned weight in a designation of critical habitat.

    Our Response: The examples of language noted above from the draft policy were carefully chosen. As this is a policy and not a regulation, the Services chose language such as “the degree to which” to accommodate the gradations and variations in certain fact patterns relating to conservation partnerships and plans. Not all plans and partnerships are developed in the same manner, and no one set of evaluation criteria would apply. Rather, the Services' intent in drafting the language was to provide latitude in evaluating different types of plans and partnerships. Further, the commenter does not provide any examples of how to quantify measures, nor does the commenter provide alternate language or suggested revisions to this section of the policy.

    Comment (54): One commenter suggested adding an additional factor under non-permitted plans and partnerships, “Plans must be reasonably expected to achieve verifiable, beneficial results to qualify for exclusion from critical habitat designation.”

    Our Response: We appreciate the suggestions, but we believe these factors are already captured in the factors in the policy under paragraphs 2.f. (“The degree to which the plan or agreement provides for the conservation of the essential physical or biological features for the species.”) and 2.h. (“Whether the plan or agreement contains a monitoring program and adaptive management to ensure that the conservation measures are effective and can be modified in the future in response to new information.”) The existence of a monitoring program and adaptive management (paragraph 2.h.) speaks to verifiable results, and the statements regarding providing for the conservation of the essential features and effective conservation measures (paragraph 2.f.) relate to beneficial results. Therefore, we did not adopt the suggested additions.

    Comment (55): One commenter suggested adding a fourth condition under the permitted plans section of the policy: “If plans cannot be implemented or do not achieve the intended results, a re-evaluation of critical habitat designation may be required.”

    Our Response: As discussed in this final policy in the framework section, we base the exclusion not only on the plan, but on the conservation partnership. Therefore, our first step would be to work with that partner to implement the plan, bring the plan into compliance, or adjust the conservation management or objectives of the plan to be effective for the conservation of the covered species. We of course retain the authority under the Act to revise the designation, if necessary, through the rulemaking process to include these areas in critical habitat, if appropriate. For the above reasons, while we considered the suggestion to add a policy element, we have determined that it is not necessary.

    Comment (56): One commenter suggested adding the following language to the draft policy element paragraph 5: “If the agency requesting the exclusion does not provide us with a specific justification, we will contact the agency to require that it provide a specific justification. When the agency provides a specific justification, we will defer to the expert judgment of the DoD, DHS, or another Federal agency.”

    Our Response: The suggested text is paraphrased from the policy preamble. Therefore, the Services do not agree that this language adds substantively to the clarity of the policy, and we did not adopt this suggestion.

    Comment (57): A commenter suggested we add the following language to the policy regarding private lands: “The Service recognizes that many listed species are found primarily or partially on private lands. For some endemic species, their entire range may be wholly on private lands, making partnerships with those landowners far more valuable than any expected gain that might be achieved through the incremental gains expected through a critical habitat designation and subsequent section 7 consultations. We acknowledge the potential incremental gain in conservation value from designating critical habitat on private land can be undermined if the landowner is not a partner in that designation or is opposed to that designation. Private land tracts that are proposed as critical habitat are likely to maximize their recovery value for listed species if the landowner is amenable to conservation and recovery activities on their lands. Therefore, landowners whose property has been proposed as critical habitat and wish to be excluded from that designation will be given serious consideration for exclusion if they provide information concerning how the lands will be managed for the conservation of the species.”

    Our Response: The Services generally will consider exclusion of private lands from a designation of critical habitat if specifically requested. Private lands are needed for the conservation of endangered and threatened species. If a private landowner requests exclusion, and provides a reasoned rationale for such exclusion, including measures undertaken to conserve species and habitat on the land at issue (such that the benefit of inclusion is reduced), the Services would consider exclusion of those lands. However, the Services decline to include a policy element in this policy covering this particular suggestion.

    Comment (58): A commenter suggested that we give great weight and consideration to exclusion of lands whose landowners allow access to their lands for purposes of surveys, monitoring, and other conservation and research activities.

    Our Response: The Services would consider and give appropriate weight, on a case-by-case basis, to the benefits of the information gathered, should the Secretaries choose to enter into the discretionary 4(b)(2) exclusion analysis. If not yet established, we hope that arrangements of this sort with landowners could lead to conservation partnerships in the future. Development of those partnerships could result in furthering the conservation of the species.

    Comment (59): A commenter suggested that the Services should include specific text in the policy regarding the importance of private landowner partnership and cooperation in species recovery efforts. Furthermore, the commenter suggests the Services give great weight to excluding private lands whose owners have expressed interest in participation in voluntary recovery efforts.

    Our Response: The Services agree that recovery of listed species relies on the cooperation of private landowners and managers. The commenter brings to light an inherent tension with listing and recovery under the Act. One might think that the process of listing, designating critical habitat, developing a recovery plan, carrying out recovery plan objectives, and ultimately delisting a species should be a linear process. It is not. Adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants and identifying areas that meet the definition of “critical habitat” are science-based processes. Areas meeting the definition of “critical habitat” for a given species must be identified as eligible for designation as critical habitat, regardless of landownership or potential future conflict with recovery opportunities, such as mentioned by the commenter. The Secretary may, however, exclude areas based on non-biological factors. The subject of this policy is to make transparent how the Services plan to address certain fact patterns under which the Secretaries will consider excluding particular areas from a designation. The presumption of cooperation for purposes of recovery of a species is not a particular fact pattern the Services have chosen to include, but is inherently captured under the partnership element of this policy. As stated in the permitted plans section of this policy, the Services would not weigh heavily a prospective partnership in which a landowner merely may choose to cooperate with the Services. If habitat-based threats are the main driver for a species' listing, the designation of critical habitat could be an important tool for species conservation.

    Comment (60): We received numerous specific comments in several categories that were not directly relevant to this final policy on exclusions from critical habitat, and, therefore, they are not addressed in this section. While not directly relevant to this policy, we may address some of these issues in future rulemaking or policy development by the Services. These include:

    • Issues regarding earlier coordination with States in the designation of critical habitat;

    • Development and designation processes for critical habitat;

    • Development of conservation plans;

    • Relocation of existing critical habitat designations from airport lands; and

    • Nonessential experimental populations.

    Required Determinations

    We intend to look to this policy as general non-binding guidance when we consider exclusions from critical habitat designations. The policy does not limit the Secretaries' discretion in particular designations. In each designation, we are required to comply with various Executive Orders and statutes for those individual rulemakings. Below we discuss compliance with several Executive Orders and statutes as they pertain to this final policy.

    Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this final policy is a significant action because it may create a serious inconsistency with other agency actions.

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

    Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.):

    (a) We find this final policy will not “significantly or uniquely” affect small governments. We have determined and certify pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502, that this policy will not impose a cost of $100 million or more in any given year on local or State governments or private entities. Small governments will not be affected because the final policy will not place additional requirements on any city, county, or other local municipalities.

    (b) This final policy will not produce a Federal mandate on State, local, or Tribal governments or the private sector of $100 million or greater in any year; that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. This policy will impose no obligations on State, local, or Tribal governments because this final policy is meant to complement the amendments to 50 CFR 424.19, and is intended to clarify expectations regarding critical habitat and provide for a more predictable and transparent critical-habitat-exclusion process. The only entities directly affected by this final policy are the FWS and NMFS. Therefore, a Small Government Agency Plan is not required.

    Takings—Executive Order 12630

    In accordance with Executive Order 12630, this final policy will not have significant takings implications. This final policy will not pertain to “taking” of private property interests, nor will it directly affect private property. A takings implication assessment is not required because this final policy (1) will not effectively compel a property owner to suffer a physical invasion of property and (2) will not deny all economically beneficial or productive use of the land or aquatic resources. This final policy will substantially advance a legitimate government interest (clarify expectations regarding critical habitat and provide for a more predictable and transparent critical-habitat-exclusion process) and will not present a barrier to all reasonable and expected beneficial use of private property.

    Federalism—Executive Order 13132

    In accordance with Executive Order 13132 (Federalism), this final policy does not have Federalism implications and a Federalism summary impact statement is not required. This final policy pertains only to exclusions from designations of critical habitat under section 4 of the Act, and will not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government.

    Civil Justice Reform—Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), this final policy will not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. The clarification of expectations regarding critical habitat and providing a more predictable and transparent critical-habitat-exclusion process will make it easier for the public to understand our critical-habitat-designation process, and thus should not significantly affect or burden the judicial system.

    Paperwork Reduction Act of 1995

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

    National Environmental Policy Act (NEPA)

    We have analyzed this policy in accordance with the criteria of the National Environmental Policy Act (NEPA) (42 U.S.C. 4332(c)), the Council on Environmental Quality's Regulations for Implementing the Procedural Provisions of NEPA (40 CFR parts 1500-1508), the Department of the Interior's NEPA procedures (516 DM 2 and 8; 43 CFR part 46), and NOAA's Administrative Order regarding NEPA compliance (NAO 216-6 (May 20, 1999)).

    We have determined that this policy is categorically excluded from NEPA documentation requirements consistent with 40 CFR 1508.4 and 43 CFR 46.210(i). This categorical exclusion applies to policies, directives, regulations, and guidelines that are “of an administrative, financial, legal, technical, or procedural nature.” This action does not trigger an extraordinary circumstance, as outlined in 43 CFR 46.215, applicable to the categorical exclusion. Therefore, this policy does not constitute a major Federal action significantly affecting the quality of the human environment.

    We have also determined that this action satisfies the standards for reliance upon a categorical exclusion under NOAA Administrative Order (NAO) 216-6. Specifically, the policy fits within two categorical exclusion provisions in § 6.03c.3(i)—for “preparation of regulations, Orders, manuals, or other guidance that implement, but do not substantially change these documents, or other guidance” and for “policy directives, regulations and guidelines of an administrative, financial, legal, technical or procedural nature.” NAO 216-6, § 6.03c.3(i). The policy would not trigger an exception precluding reliance on the categorical exclusions because it does not involve a geographic area with unique characteristics, is not the subject of public controversy based on potential environmental consequences, will not result in uncertain environmental impacts or unique or unknown risks, does not establish a precedent or decision in principle about future proposals, will not have significant cumulative impacts, and will not have any adverse effects upon endangered or threatened species or their habitats. Id. § 5.05c. As such, it is categorically excluded from the need to prepare an Environmental Assessment. Issuance of this rule does not alter the legal and regulatory status quo in such a way as to create any environmental effects.

    Government-to-Government Relationship With Tribes

    In accordance with Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”, November 6, 2000), the Department of the Interior Manual at 512 DM 2, the Department of Commerce (DOC) Tribal Consultation and Coordination Policy (May 21, 2013), DOC Departmental Administrative Order (DAO) 218-8, and NOAA Administrative Order (NAO) 218-8 (April 2012), we have considered possible effects of this final policy on federally recognized Indian Tribes. Following an exchange of information with tribal representatives, we have determined that this policy, which is general in nature, does not have tribal implications as defined in Executive Order 13175. Our intent with this policy is to provide non-binding guidance on our approach to considering exclusion of areas from critical habitat, including tribal lands. This policy does not establish a new direction. We will continue to collaborate and coordinate with Tribes on issues related to federally listed species and their habitats and work with them as we promulgate individual critical habitat designations, including consideration of potential exclusions on the basis of tribal interests. See Joint Secretarial Order 3206 (“American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act”, June 5, 1997).

    Energy Supply, Distribution, or Use

    Executive Order 13211 “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This final policy is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.

    Policy on Implementation of Section 4(b)(2) of the Act

    1. The decision to exclude any particular area from a designation of critical habitat is always discretionary, as the Act states that the Secretaries “may” exclude any area. In no circumstances is an exclusion of any particular area required by the Act.

    2. When we undertake a discretionary 4(b)(2) exclusion analysis, we will evaluate the effect of non-permitted conservation plans or agreements and their attendant partnerships on the benefits of inclusion and the benefits of exclusion of any particular area from critical habitat by considering a number of factors. The list of factors that we will consider for non-permitted conservation plans or agreements is shown below. This list is not exclusive; all items may not apply to every non-permitted conservation plan or agreement and are not requirements of plans or agreements.

    a. The degree to which the record of the plan supports a conclusion that a critical habitat designation would impair the realization of benefits expected from the plan, agreement, or partnership.

    b. The extent of public participation in the development of the conservation plan.

    c. The degree to which there has been agency review and required determinations (e.g., State regulatory requirements), as necessary and appropriate.

    d. Whether National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) compliance was required.

    e. The demonstrated implementation and success of the chosen mechanism.

    f. The degree to which the plan or agreement provides for the conservation of the essential physical or biological features for the species.

    g. Whether there is a reasonable expectation that the conservation management strategies and actions contained in the conservation plan or agreement will be implemented.

    h. Whether the plan or agreement contains a monitoring program and adaptive management to ensure that the conservation measures are effective and can be modified in the future in response to new information.

    3. When we undertake a discretionary 4(b)(2) exclusion analysis, we will always consider areas covered by a permitted candidate conservation agreement with assurances (CCAA), safe harbor agreement (SHA), or habitat conservation plan (HCP), and we anticipate consistently excluding such areas from a designation of critical habitat if incidental take caused by the activities in those areas is covered by the permit under section 10 of the Act and the CCAA/SHA/HCP meets all of the following conditions:

    a. The permittee is properly implementing the CCAA/SHA/HCP and is expected to continue to do so for the term of the agreement. A CCAA/SHA/HCP is properly implemented if the permittee is and has been fully implementing the commitments and provisions in the CCAA/SHA/HCP, Implementing Agreement, and permit.

    b. The species for which critical habitat is being designated is a covered species in the CCAA/SHA/HCP, or very similar in its habitat requirements to a covered species. The recognition that the Services extend to such an agreement depends on the degree to which the conservation measures undertaken in the CCAA/SHA/HCP would also protect the habitat features of the similar species.

    c. The CCAA/SHA/HCP specifically addresses that species' habitat and meets the conservation needs of the species in the planning area.

    We generally will not rely on CCAAs/SHAs/HCPs that are still under development as the basis of exclusion of a particular area from a designation of critical habitat.

    4. When we undertake a discretionary 4(b)(2) exclusion analysis, we will always consider exclusion of Tribal lands, and give great weight to Tribal concerns in analyzing the benefits of exclusion. However, Tribal concerns are not a factor in determining what areas, in the first instance, meet the definition of “critical habitat.”

    5. When we undertake a discretionary 4(b)(2) exclusion analysis, we will always consider exclusion of areas for which a Federal agency has requested exclusion based on an assertion of national-security or homeland-security concerns, and will give great weight to national-security or homeland-security concerns in analyzing the benefits of exclusion. National-security and/or homeland-security concerns are not a factor, however, in the process of determining what areas, in the first instance, meet the definition of “critical habitat.”

    6. Except in the circumstances described in 5 above, we will focus our exclusions on non-Federal lands. Because the section 7(a)(2) consultation requirements apply to projects carried out on Federal lands where there is discretionary Federal involvement or control, the benefits of designating Federal lands as critical habitat are typically greater than the benefits of excluding Federal lands or of designating non-Federal lands.

    7. When the Services are determining whether to undertake a discretionary 4(b)(2) exclusion analysis as a result of the probable incremental economic impacts of designating a particular area, it is the nature of those impacts, not necessarily a particular threshold level, that is relevant to the Services' determination.

    8. For any area to be excluded, we must find that the benefits of excluding that area outweigh the benefits of including that area in the designation. Although we retain discretion because we cannot anticipate all fact patterns that may occur, it is the general practice of the Services to exclude an area when the benefits of exclusion outweigh the benefits of inclusion. We must not exclude an area if the failure to designate it will result in the extinction of the species.

    Authors

    The primary authors of this policy are the staff members of the Endangered Species Program, U.S. Fish and Wildlife Service, 5275 Leesburg Pike, Falls Church, VA 22041-3803, and the National Marine Fisheries Service's Endangered Species Division, 1335 East-West Highway, Silver Spring, MD 20910.

    Authority

    The authority for this action is section 4(h) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: January 29, 2016. Michael J. Bean, Principal Deputy Assistant Secretary for Fish and Wildlife and Parks. Dated: January 29, 2016. Samuel D. Rauch, III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
    [FR Doc. 2016-02677 Filed 2-10-16; 8:45 am] BILLING CODE 4333-15-P; 3510-22-P
    81 28 Thursday, February 11, 2016 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2015-5758; Notice No. 25-16-02-SC] Special Conditions: The Boeing Company, Boeing Model 737-8 Airplane; Non-Rechargeable Lithium Battery Installations AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed special conditions.

    SUMMARY:

    This action proposes special conditions for the Boeing Model 737-8 airplane. This airplane will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport-category airplanes. This design feature is non-rechargeable lithium battery systems. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

    DATES:

    Send your comments on or before March 28, 2016.

    ADDRESSES:

    Send comments identified by docket number FAA-2015-5758 using any of the following methods:

    Federal eRegulations Portal: Go to http://www.regulations.gov/ and follow the online instructions for sending your comments electronically.

    Mail: Send comments to Docket Operations, M-30, U.S. Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room W12-140, West Building Ground Floor, Washington, DC, 20590-0001.

    Hand Delivery or Courier: Take comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    Fax: Fax comments to Docket Operations at 202-493-2251.

    Privacy: The FAA will post all comments it receives, without change, to http://www.regulations.gov/, including any personal information the commenter provides. Using the search function of the docket Web site, anyone can find and read the electronic form of all comments received into any FAA docket, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). DOT's complete Privacy Act Statement can be found in the Federal Register published on April 11, 2000 (65 FR 19477-19478), as well as at http://DocketsInfo.dot.gov/.

    Docket: Background documents or comments received may be read at http://www.regulations.gov/ at any time. Follow the online instructions for accessing the docket or go to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Nazih Khaouly, Airplane and Flight Crew Interface Branch, ANM-111, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington, 98057-3356; telephone 425-227-2432; facsimile 425-227-1149.

    SUPPLEMENTARY INFORMATION: Future Requests for Installation of Non-Rechargeable Lithium Batteries

    The FAA anticipates that non-rechargeable lithium batteries will be installed in other makes and models of airplanes. We have made the determination to require special conditions for all applications requesting the installation of non-rechargeable lithium batteries until the airworthiness requirements can be revised to address this issue. Having the same standards across the range of all transport-airplane makes and models will ensure regulatory consistency for the aviation industry.

    Comments Invited

    We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

    We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

    Background

    On January 27, 2012, The Boeing Company applied for an amendment to Type Certificate No. A16WE to include a new Model 737-8 airplane. The Model 737-8 airplane is a narrow-body, transport-category airplane that is a derivative of the Model 737-800 airplane with two CFM LEAP-1B wing-mounted engines.

    The Model 737-8 airplane will include non-rechargeable lithium batteries. The current battery requirements in Title 14, Code of Federal Regulations (14 CFR) part 25 are inadequate for addressing an airplane with lithium batteries.

    Type Certification Basis

    Under the provisions of 14 CFR 21.101, The Boeing Company must show that the Model 737-8 airplane meets the applicable provisions of the regulations listed in Type Certificate A16WE or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. The regulations listed in the type certificate are commonly referred to as the “original type certification basis.” The regulations listed in Type Certificate No. A16WE are 14 CFR part 25 effective February 1, 1965 including Amendments 25-1 through 25-77 with exceptions listed in the type certificate. In addition, the certification basis includes other regulations, special conditions, and exemptions that are not relevant to these proposed special conditions. Type Certificate No. A16WE will be updated to include a complete description of the certification basis for this airplane model.

    In addition to the applicable airworthiness regulations and special conditions, the Model 737-8 airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

    If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Model 737-8 airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

    Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

    The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under § 21.101.

    Novel or Unusual Design Features

    A battery system consists of the battery and any protective, monitoring and alerting circuitry or hardware inside or outside of the battery and venting capability where necessary. For the purpose of these special conditions, we refer to a battery and battery system as a battery. The Model 737-8 airplane will incorporate non-rechargeable lithium batteries, which are novel or unusual design features.

    Discussion

    We derived the current regulations governing installation of batteries in transport-category airplanes from Civil Air Regulations (CAR) 4b.625(d) as part of the re-codification of CAR 4b that established 14 CFR part 25 in February 1965. We basically reworded the battery requirements, which are currently in § 25.1353(b)(1) through (b)(4), from the CAR requirements. Non-rechargeable lithium batteries are novel and unusual with respect to the state of technology considered when these requirements were codified. These batteries introduce higher energy levels into airplane systems through new chemical compositions in various battery-cell sizes and construction. Interconnection of these cells in battery packs introduces failure modes that require unique design considerations, such as provisions for thermal management.

    Recent events involving rechargeable and non-rechargeable lithium batteries prompted the FAA to initiate a broad evaluation of these energy-storage technologies. In January 2013, two independent events involving rechargeable lithium-ion batteries demonstrated unanticipated failure modes. A National Transportation Safety Board (NTSB) letter to the FAA, dated May 22, 2014, which is available at http://www.ntsb.gov, filename A-14-032-036.pdf, describes these events.

    On July 12, 2013, an event involving a non-rechargeable lithium battery, in an emergency locator transmitter installation, demonstrated unanticipated failure modes. Air Accident Investigations Branch Bulletin S5/2013 describes this event.

    Some other known uses of rechargeable and non-rechargeable lithium batteries on airplanes include:

    • Flight deck and avionics systems such as displays, global positioning systems, cockpit voice recorders, flight data recorders, underwater locator beacons, navigation computers, integrated avionics computers, satellite network and communication systems, communication-management units, and remote-monitor electronic line-replaceable units (LRU);

    • Cabin safety, entertainment, and communications equipment, including life rafts, escape slides, seatbelt air bags, cabin management systems, Ethernet switches, routers and media servers, wireless systems, internet and in-flight entertainment systems, satellite televisions, remotes, and handsets;

    • Systems in cargo areas including door controls, sensors, video surveillance equipment, and security systems.

    Some known potential hazards and failure modes associated with non-rechargeable lithium batteries are:

    • Internal failures

    In general, these batteries are significantly more susceptible to internal failures that can result in self-sustaining increases in temperature and pressure (i.e., thermal runaway) than their nickel-cadmium or lead-acid counterparts. The metallic lithium can ignite, resulting in a self-sustaining fire or explosion.

    • Fast or imbalanced discharging

    Fast discharging or an imbalanced discharge of one cell of a multi-cell battery may create an overheating condition that results in an uncontrollable venting condition, which in turn leads to a thermal event or an explosion.

    • Flammability

    Unlike nickel-cadmium and lead-acid batteries, these batteries use higher energy and current in an electrochemical system that can be configured to maximize energy storage of lithium. They also use liquid electrolytes that can be extremely flammable. The electrolyte, as well as the electrodes, can serve as a source of fuel for an external fire if the battery casing is breached.

    Proposed Special Condition 1 requires that each individual cell within a battery be designed to maintain safe temperatures and pressures. Proposed Special Condition 2 addresses these same issues but for the entire battery. Proposed Special Condition 2 requires the battery be designed to prevent propagation of a thermal event, such as self-sustained, uncontrolled increases in temperature or pressure from one cell to adjacent cells.

    Proposed Special Conditions 1 and 2 are intended to ensure that the battery and its cells are designed to eliminate the potential for uncontrolled failures. However, a certain number of failures will occur due to various factors beyond the control of the designer. Therefore, other special conditions are intended to protect the airplane and its occupants if failure occurs.

    Proposed Special Conditions 3, 9 and 10 are self-explanatory, and the FAA does not provide further explanation for them at this time.

    The FAA proposes Special Condition 4 to make it clear that the flammable-fluid fire-protection requirements of § 25.863 apply to non-rechargeable lithium battery installations. Section 25.863 is applicable to areas of the airplane that could be exposed to flammable fluid leakage from airplane systems. Non-rechargeable lithium batteries contain electrolyte that is a flammable fluid.

    Proposed Special Condition 5 requires each non-rechargeable lithium battery installation to not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape. Proposed Special Condition 6 requires each non-rechargeable lithium battery installation to have provisions to prevent any hazardous effect on airplane structure or systems caused by the maximum amount of heat it can generate due to any failure of it or its individual cells. The means of meeting these proposed special conditions may be the same, but they are independent requirements addressing different hazards. Proposed Special Condition 5 addresses corrosive fluids and gases, whereas Proposed Special Condition 6 addresses heat.

    Proposed Special Conditions 7 and 8 require non-rechargeable lithium batteries to have automatic means for battery disconnection and control of battery discharge rate due to the fast-acting nature of lithium-battery chemical reactions. Manual intervention would not be timely or effective in mitigating the hazards associated with these batteries.

    These special conditions will apply to all non-rechargeable lithium battery installations in lieu of § 25.1353(b)(1) through (b)(4) at Amendment 25-123. Sections 25.1353(b)(1) through (b)(4) at Amendment 25-123 will remain in effect for other battery installations.

    These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

    Applicability

    As discussed above, these special conditions are applicable to the Boeing Model 737-8 airplane. Should the applicant apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well.

    Conclusion

    This action affects only certain novel or unusual design features on one model of airplane. It is not a rule of general applicability.

    List of Subjects in 14 CFR Part 25

    Aircraft, Aviation safety, Reporting and record keeping requirements.

    The authority citation for these special conditions continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701, 44702, 44704.

    The Proposed Special Conditions Accordingly, the FAA proposes the following special conditions as part of the type certification basis for Boeing Model 737-8 airplane. Non-Rechargeable Lithium Battery Installations

    In lieu of § 25.1353(b)(1) through (b)(4) at Amendment 25-123, each non-rechargeable lithium battery installation must:

    1. Maintain safe cell temperatures and pressures under all foreseeable operating conditions to prevent fire and explosion.

    2. Prevent the occurrence of self-sustaining, uncontrolled increases in temperature or pressure.

    3. Not emit explosive or toxic gases, either in normal operation or as a result of its failure, that may accumulate in hazardous quantities within the airplane.

    4. Meet the requirements of § 25.863.

    5. Not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape.

    6. Have provisions to prevent any hazardous effect on airplane structure or systems caused by the maximum amount of heat it can generate due to any failure of it or its individual cells.

    7. Be capable of automatically controlling the discharge rate of each cell to prevent cell imbalance, back-charging, overheating, and uncontrollable temperature and pressure.

    8. Have a means to automatically disconnect from its discharging circuit in the event of an over-temperature condition, cell failure or battery failure.

    9. Have a failure sensing and warning system to alert the flightcrew if its failure affects safe operation of the airplane.

    10. Have a means for the flightcrew or maintenance personnel to determine the battery charge state if the battery's function is required for safe operation of the airplane.

    Note 1:

    A battery system consists of the battery and any protective, monitoring and alerting circuitry or hardware inside or outside of the battery. It also includes vents (where necessary) and packaging. For the purpose of these special conditions, a battery and battery system are referred to as a battery.

    Issued in Renton, Washington, on February 4, 2016. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-02761 Filed 2-10-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2015-5194; Airspace Docket No. 15-ACE-6] Proposed Establishment of Class E Airspace; Coldwater, KS AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to establish Class E airspace at Coldwater, KS. Controlled airspace is necessary to accommodate new Standard Instrument Approach Procedures developed at Commanche County Airport, for the safety and management of Instrument Flight Rules (IFR) operations at the airport.

    DATES:

    Comments must be received on or before March 28, 2016.

    ADDRESSES:

    Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001, telephone (202) 366-9826. You must identify the docket number FAA-2015-5194; Airspace Docket No. 15-ACE-6, at the beginning of your comments. You may also submit comments through the Internet at http://www.regulations.gov. You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone 1-800-647-5527), is on the ground floor of the building at the above address.

    FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC, 20591; telephone: 202-267-8783. The order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of FAA Order 7400.9Z at NARA, call 202-741-6030, or go to http://www.archives.gov/federal_register/code_offederal-regulations/ibr_locations.html.

    FAA order 7400.9, Airspace Designations and Reporting Points is published yearly and effective on September 15.

    FOR FURTHER INFORMATION CONTACT:

    Rebecca Shelby, Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone: 817-222-5857.

    SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

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

    Comments Invited

    Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2015-5194/Airspace Docket No. 15-ACE-6.” The postcard will be date/time stamped and returned to the commenter.

    Availability of NPRMs

    An electronic copy of this document may be downloaded through the Internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_amendments/.

    You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177.

    Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking (202) 267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

    Availability and Summary of Documents Proposed for Incorporation by Reference

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

    The Proposal

    This action proposes to amend Title 14, Code of Federal Regulations (14 CFR), Part 71 by establishing Class E airspace extending upward from 700 feet above the surface within a 7.5-mile radius of Commanche County Airport, Coldwater, KS, to accommodate new standard instrument approach procedures. Controlled airspace is needed for the safety and management of IFR operations at the airport.

    Class E airspace areas are published in Paragraph 6005 of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

    Regulatory Notices and Analyses

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

    Environmental Review

    This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

    List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

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

    PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for 14 CFR part 71 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015, is amended as follows: Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. ACE KS E5 Coldwater, KS [New] Commanche County Airport, KS (Lat. 37°13′22″ N., long. 099°19′55″ W.)

    That airspace extending upward From 700 feet above the surface within a 7.5-mile radius of Commanche County Airport.

    Issued in Fort Worth, TX, on February 3, 2016. Vonnie Royal, Acting Manager, Operations Support Group, ATO Central Service Center.
    [FR Doc. 2016-02674 Filed 2-10-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-101701-16] RIN 1545-BN24 Additional Limitation on Suspension of Benefits Applicable to Certain Pension Plans Under the Multiemployer Pension Reform Act of 2014 AGENCY:

    Internal Revenue Service (IRS), Treasury.

    ACTION:

    Notice of proposed rulemaking and notice of public hearing.

    SUMMARY:

    The Multiemployer Pension Reform Act of 2014 (“MPRA”), which was enacted by Congress as part of the Consolidated and Further Continuing Appropriations Act of 2015, relates to multiemployer defined benefit pension plans that are projected to have insufficient funds, within a specified timeframe, to pay the full plan benefits to which individuals will be entitled (referred to as plans in “critical and declining status”). Under MPRA, the sponsor of such a plan is permitted to reduce the pension benefits payable to plan participants and beneficiaries if certain conditions and limitations are satisfied (referred to in MPRA as a “suspension of benefits”). One specific limitation governs the application of a suspension of benefits under any plan that includes benefits directly attributable to a participant's service with any employer that has withdrawn from the plan in a complete withdrawal, paid its full withdrawal liability, and, pursuant to a collective bargaining agreement, assumed liability for providing benefits to participants and beneficiaries equal to any benefits for such participants and beneficiaries reduced as a result of the financial status of the plan. This document contains proposed regulations that would provide guidance relating to this specific limitation. These regulations affect active, retired, and deferred vested participants and beneficiaries under any such multiemployer plan in critical and declining status as well as employers contributing to, and sponsors and administrators of, those plans.

    DATES:

    Comments must be received by March 15, 2016. Outlines of topics to be discussed at the public hearing scheduled for March 22, 2016 must be received by March 15, 2016.

    ADDRESSES:

    Send submissions to: CC:PA:LPD:PR (REG-101701-16), room 5205, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to: CC:PA:LPD:PR (REG-101701-16), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC, or sent electronically via the Federal eRulemaking Portal at http://www.regulations.gov (IRS REG-101701-16). The public hearing will be held in the IRS Auditorium, Internal Revenue Building, 1111 Constitution Avenue NW., Washington, DC.

    FOR FURTHER INFORMATION CONTACT:

    Concerning the regulations, the Department of the Treasury MPRA guidance information line at (202) 622-1559; concerning submissions of comments, the hearing, and/or being placed on the building access list to attend the hearing, Regina Johnson at (202) 317-6901 (not toll-free numbers).

    SUPPLEMENTARY INFORMATION: Background

    This document contains proposed amendments to the Income Tax Regulations (26 CFR part 1) under section 432(e)(9) of the Internal Revenue Code (Code), as amended by section 201 of the Multiemployer Pension Reform Act of 2014, Division O of the Consolidated and Further Continuing Appropriations Act, 2015, Public Law 113-235 (128 Stat. 2130 (2014)) (MPRA).1 As amended, section 432(e)(9) permits plan sponsors of certain multiemployer plans to reduce the plan benefits payable to participants and beneficiaries by plan amendment (referred to in the statute as a “suspension of benefits”) if specified conditions are satisfied. A plan sponsor that seeks to implement a suspension of benefits must submit an application that the Secretary of the Treasury, in consultation with the Pension Benefit Guaranty Corporation and the Secretary of Labor (generally referred to in this preamble as the Treasury Department, PBGC, and Labor Department, respectively), is required by the statute to approve upon finding that certain specified conditions are satisfied. One condition is that the plan is in critical and declining status, meaning that the plan is projected to have insufficient funds, within a specified timeframe, to pay the full benefits to which individuals will be entitled under the plan.

    1 Section 201 of MPRA makes parallel amendments to section 305 of the Employee Retirement Income Security Act of 1974, Public Law 93-406 (88 Stat. 829 (1974)), as amended (ERISA). The Treasury Department has interpretive jurisdiction over the subject matter of these provisions under ERISA as well as the Code. See also section 101 of Reorganization Plan No. 4 of 1978 (43 FR 47713). Thus, these proposed Treasury regulations issued under section 432 of the Code apply as well for purposes of section 305 of ERISA.

    Another condition, set forth in section 432(e)(9)(D)(vii), is a specific limitation on how a suspension of benefits must be applied under a plan that, as described in section 432(e)(9)(D)(vii)(III), includes benefits that are directly attributable to a participant's service with any employer that has, prior to the date MPRA was enacted, withdrawn from the plan in a complete withdrawal under section 4203 of ERISA, paid the full amount of the employer's withdrawal liability under section 4201(b)(1) of ERISA or an agreement with the plan, and, pursuant to a collective bargaining agreement, assumed liability for providing benefits to participants and beneficiaries of the plan under a separate, single-employer plan sponsored by the employer, in an amount equal to any amount of benefits for these participants and beneficiaries reduced as a result of the financial status of the plan. Such an employer is referred to in this preamble as a “subclause III employer,” and the agreement to assume liability for those benefits is referred to as a “make-whole agreement.”

    If the specific limitation of section 432(e)(9)(D)(vii) applies to a plan, then section 432(e)(9)(D)(vii)(I) requires that the suspension of benefits first be applied to the maximum extent permissible to benefits attributable to a participant's service with an employer that withdrew from the plan and failed to pay (or is delinquent with respect to paying) the full amount of its withdrawal liability under section 4201(b)(1) of ERISA or an agreement with the plan. Such an employer is referred to in this preamble as a “subclause I employer.” Second, under section 432(e)(9)(D)(vii)(II), except as provided in section 432(e)(9)(D)(vii)(III), a suspension of benefits must be applied to all other benefits. Third, under section 432(e)(9)(D)(vii)(III), a suspension must be applied to benefits under a plan that are directly attributable to a participant's service with a subclause III employer.

    On June 19, 2015, the Treasury Department and the IRS published temporary regulations (TD 9723) under section 432(e)(9) in the Federal Register (80 FR 35207) providing general guidance regarding section 432(e)(9) as well as outlining the requirements for a plan sponsor of a plan that is in critical and declining status to apply for approval of a suspension of benefits and for the Treasury Department to begin processing such an application. A notice of proposed rulemaking cross-referencing the temporary regulations (REG-102648-15) and providing additional guidance was published in the same issue of the Federal Register (80 FR 35262). Neither the temporary nor the proposed regulations include guidance regarding the limitation under section 432(e)(9)(D)(vii).

    On October 23, 2015, the Treasury Department published a notice in the Federal Register (80 FR 64508) regarding an application for a proposed suspension of benefits, which represented that the plan is of the type to which section 432(e)(9)(D)(vii) applies. The notice requested public comments on all aspects of the application, including with respect to the interpretation of section 432(e)(9)(D)(vii) that is reflected in the application. The Treasury Department and the IRS have considered the comments received in response to that notice in developing these proposed regulations.

    Explanation of Provisions

    These proposed regulations would amend the Income Tax Regulations (26 CFR part 1) to provide guidance regarding section 432(e)(9)(D)(vii). The Treasury Department consulted with PBGC and the Labor Department in developing these proposed regulations. These proposed regulations would add a new paragraph (d)(8) to proposed § 1.432(e)(9)-1 and do not otherwise affect the provisions of the proposed regulations published in the Federal Register (80 FR 35262) on June 19, 2015.

    Section 432(e)(9)(D)(vii) sets forth a rule that limits how a suspension may be applied under a plan that includes benefits that are directly attributable to a participant's service with any employer that, as defined in section 432(e)(9)(D)(vii)(III), has withdrawn, paid the full amount of its withdrawal liability, and, pursuant to a collective bargaining agreement, assumed liability for providing benefits to participants and beneficiaries of the plan under a separate, single-employer plan sponsored by the employer, in an amount equal to any amount of benefits for such participants and beneficiaries reduced as a result of the financial status of the multiemployer plan. In determining how a suspension should be allocated consistent with the statutory framework, the Treasury Department and the IRS analyzed the statute and applied principles of statutory construction.

    Subclause (I) of section 432(e)(9)(D)(vii) provides that the suspension of benefits should first be applied “to the maximum extent permissible.” Accordingly, the Treasury Department and the IRS conclude that reductions with respect to benefits attributable to service with a subclause I employer must be applied first to the maximum extent permissible before reductions are permitted to be applied to any other benefits. Consequently, these proposed regulations require that a suspension of benefits under a plan that is subject to section 432(e)(9)(D)(vii) be applied to the maximum extent permissible to benefits attributable to service with a subclause I employer. Only if such a suspension is not reasonably estimated to achieve the level that is necessary to enable the plan to avoid insolvency may a suspension then be applied to other benefits that are permitted to be suspended and that are attributable to a participant's service with other employers.

    In contrast, subclause (II) does not include the phrase “to the maximum extent permissible,” and therefore the Treasury Department and the IRS have concluded that the best interpretation of section 432(e)(9)(D)(vii) is that a suspension need not be applied to the maximum extent permissible to benefits described in subclause (II) before any suspension is applied to benefits described in subclause (III).2 This interpretation is also consistent with the language in subclause (II) providing for application of a suspension “except as provided in subclause (III),” contemplating a coordinated application of those subclauses, which are to be applied “second” and “third,” respectively.3 Because of the order of application of subclauses (II) and (III) and the coordinated application described in the preceding sentence, the Treasury Department and the IRS conclude that the best interpretation of section 432(e)(9)(D)(vii) is that the application of a suspension to benefits described in subclause (II) must be greater than or equal to the application of the suspension to benefits described in subclause (III).

    2See Loughrin v. United States, 134 S. Ct. 2384, 2390 (2014) (“We have often noted that when `Congress includes particular language in one section of a statute but omits it in another'—let alone in the very next provision—this Court `presume[s]' that Congress intended a difference in meaning.” (quoting Russello v. United States, 464 U.S. 16, 23 (1983)). To read subclause (II) to require that benefits be suspended “to the maximum extent permissible” without that language would either render that language superfluous in subclause (I), see Marx v. General Revenue Corp., 133 S. Ct. 1166, 1178 (2013) (“[T]he canon against surplusage is strongest when an interpretation would render superfluous another part of the same statutory scheme.”), or effectively rewrite subclause (II) to include that requirement, see Hall v. United States, 132 S. Ct. 1882, 1893 (2012) (“[I]t is not for us to rewrite the statute.”).

    3See Corley v. United States, 556 U.S. 303, 314 (2009) (rejecting constructions “at odds with the basic interpretive canon that ` “[a] statute should be construed [to give effect] to all its provisions, so that no part will be inoperative or superfluous, void or insignificant” ' ” (quoting Hibbs v. Winn, 542 U.S. 88, 101 (2004)).

    Under these proposed regulations, a suspension would not be permitted to reduce benefits directly attributable to service with a subclause III employer, unless other benefits are first reduced and are reduced to at least the same extent (thus protecting a subclause III employer from the possibility that the suspension would be expressly designed to take advantage of the employer's agreement to make participants and beneficiaries whole for the reductions). Under these proposed regulations, a suspension would not violate this restriction if no participant's benefits that are directly attributable to service with a subclause III employer are reduced more than that individual's benefits would have been reduced if, holding constant the benefit formula, work history, and all other relevant factors used to determine the individual's benefits, those benefits were attributable to that participant's service with any other employer.

    These proposed regulations would also provide that the benefits described in section 432(e)(9)(D)(vii)(III) are any benefits for a participant under a plan that are directly attributable to service with a subclause III employer, without regard to whether the employer has assumed liability for providing benefits to the participant that were reduced as a result of the financial status of the plan. For example, if a participant commenced receiving retirement benefits under a plan, which are directly attributable to service with such an employer, before the date the employer entered into a make-whole agreement, then the participant's benefits would be described in section 432(e)(9)(D)(vii)(III) even if those benefits were not covered by the make-whole agreement. This interpretation is based on the statutory language in section 432(e)(9)(D)(vii)(III), which defines the benefits to which that subclause applies as those benefits that are directly attributable to service with an employer that has met the conditions set forth in section 432(e)(9)(D)(vii)(III)(aa) and (bb). In other words, the statutory provision refers to benefits directly attributable to service with an employer described in subclause III, and not only to benefits covered by the make-whole agreement.

    The Treasury Department and the IRS are also considering an alternative to the ordering rule set forth in these proposed regulations. Under the alternative, as under the proposed regulations, the rule would require that a suspension of benefits under a plan that is subject to section 432(e)(9)(D)(vii) be applied to the maximum extent permissible to benefits attributable to service with a subclause I employer before any suspension is applied to benefits attributable to service with other employers. However, in contrast to the approach described in these proposed regulations, the alternative would require that any such suspension of benefits be applied to provide for a lesser reduction in benefits that are directly attributable to service with a subclause III employer than to benefits that are attributable to any other service. The alternative approach could be satisfied if, for example, benefits that are directly attributable to service with a subclause III employer are reduced less, on a percentage basis, than benefits would have been reduced if, holding constant the benefit formula, work history, and all other relevant factors used to determine benefits, those benefits were attributable to service with any other employer.

    The Treasury Department and the IRS recognize that the language of section 432(e)(9)(D)(vii) has similarities to other statutory provisions that establish priority categories requiring claims to be fully satisfied under each earlier category before any claims are permitted to be satisfied under any subsequent category. For example, section 4044 of ERISA provides for the allocation of pension plan assets in the event of a distress termination and for categories of payments to be made “in the following order:” “First,” “Second,” “Third,” “Fourth,” “Fifth” and “Sixth.” 4

    4 The regulations interpreting this provision provide: “If the plan has sufficient assets to pay for all benefits in a priority category, the remaining assets shall then be allocated to the next lower priority category. This process shall be repeated until all benefits in priority categories 1 through 6 have been provided or until all available plan assets have been allocated.” See 29 CFR 4044.10(d).

    If such an approach were applied under section 432(e)(9)(D)(vii), then the maximum permitted suspension would be required to be imposed with respect to benefits described in each subclause before any suspension could apply to benefits described in a successive subclause. Under that approach, any suspension of benefits would first have to be applied to the maximum extent permissible to benefits attributable to a participant's service with a subclause I employer. Only if such a suspension were not reasonably estimated to achieve the level that is necessary to enable the plan to avoid insolvency would the suspension then be applied to other benefits that are permitted to be suspended and that are attributable to a participant's service with any other employers (except for benefits that are directly attributable to service with a subclause III employer). Under this approach, only if the additional suspension were not reasonably estimated to achieve the level that is necessary to enable the plan to avoid insolvency would the suspension then be applied also to benefits directly attributable to a participant's service with a subclause III employer.

    Based on the language of the statute as well as principles of statutory construction described in this preamble, the proposed regulations and alternative rule do not reflect the approach described in the preceding paragraph.5 In addition, in contrast to section 4044 of ERISA, which includes the language “in the following order,” there is no similar generally applicable ordering language in section 432(e)(9)(D)(vii) and section 305(e)(9)(D)(vii) of ERISA. As under section 4044 of ERISA, in enacting section 432(e)(9)(D)(vii) and its counterpart under ERISA, Congress could readily have used consistent language in describing the scope of permissible benefit suspensions with respect to the benefits described in each of the three statutory subclauses. Instead of doing so, Congress created a distinction in describing the treatment of benefits described in the three subclauses in section 432(e)(9)(D)(vii).6 For these reasons, the Treasury Department and the IRS have concluded that the best reading of Congressional intent is that a suspension of benefits described in section 432(e)(9)(D)(vii)(II) does not need to be applied “to the maximum extent permissible” before any suspension is permitted to be applied to benefits described in section 432(e)(9)(D)(vii)(III). However, the Treasury Department and the IRS request comments on whether “to the maximum extent permissible” should be applied to benefits described in subclause II in the final regulations.

    5 See footnotes 2 and 3 and accompanying text.

    6 That is, the phrase “to the maximum extent permissible” appears in subclause (I) but not in subclause (II).

    Effective/Applicability Dates

    These regulations are proposed to be effective on and apply with respect to suspensions for which the approval or denial is issued on or after the date of publication of the Treasury decision adopting these rules as final regulations in the Federal Register.

    Special Analyses

    Certain IRS regulations, including this one, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory impact assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations.

    The Regulatory Flexibility Act (RFA) (5 U.S.C. chapter 6) requires an agency to consider whether the rules it proposes will have a significant economic impact on a substantial number of small entities. In this case, the IRS and the Treasury Department believe that the regulations likely would not have a “significant economic impact on a substantial number of small entities.” 5 U.S.C. 605. This certification is based on the fact that the number of small entities affected by this rule is unlikely to be substantial because it is unlikely that a substantial number of small multiemployer plans in critical and declining status are subject to the limitation contained in section 432(e)(9)(D)(vii). Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking has been submitted to the Chief Counsel of Advocacy of the Small Business Administration for comment on its impact on small business.

    Comments and Public Hearing

    Before these proposed regulations are adopted as final regulations, consideration will be given to any comments that are submitted timely to the Treasury Department and the IRS as prescribed in this preamble in the ADDRESSES section. The Treasury Department and the IRS request comments on all aspects of these proposed regulations, including the interaction of the provisions of the proposed regulation with the limitation described in section 432(e)(9)(D)(vi) relating to the requirement that a suspension of benefits be equitably distributed.

    In addition to the comment request included in this preamble under the “Explanation of Provisions” heading, the Treasury Department and the IRS request comments regarding the alternative rule also described under the “Explanation of Provisions” heading or any other alternative. With respect to the alternative rule described in this preamble, comments are specifically requested regarding whether satisfaction of the alternative rule described in this preamble should be required on an individual-by-individual basis or on an aggregate basis (comparing the aggregate suspension of benefits that are directly attributable to service with a subclause III employer to what the aggregate would have been if, holding constant the benefit formula, work history, and all other relevant factors used to determine benefits, those benefits were attributable to service with any other employer).

    All comments will be available for public inspection and copying at www.regulations.gov or upon request. Please Note: All comments will be made available to the public. Do not include any personally identifiable information (such as Social Security number, name, address, or other contact information) or confidential business information that you do not want publicly disclosed. All comments may be posted on the Internet and can be retrieved by most Internet search engines.

    A public hearing on these proposed regulations has been scheduled for March 22, 2016 beginning at 10 a.m. in the Auditorium, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the FOR FURTHER INFORMATION CONTACT section of this preamble.

    The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit written or electronic comments by March 15, 2016, and an outline of topics to be discussed and the amount of time to be devoted to each topic by March 15, 2016. A period of 10 minutes will be allotted to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing.

    Contact Information

    For general questions regarding these regulations, please contact the Department of the Treasury MPRA guidance information line at (202) 622-1559 (not a toll-free number). For information regarding a specific application for a suspension of benefits, please contact the Treasury Department at (202) 622-1534 (not a toll-free number).

    List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

    Proposed Amendments to the Regulations

    Accordingly, 26 CFR part 1 is proposed to be amended as follows:

    PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 continues to read in part as follows: Authority:

    26 U.S.C. 7805 * * *

    Par. 2. Section 1.432(e)(9)-1 is added to read as follows:
    § 1.432(e)(9)-1 Benefit suspensions for multiemployer plans in critical and declining status.

    (a) through (c) [Reserved]

    (d) Limitations on suspension. (1) through (7) [Reserved]

    (8) Additional rules for plans described in section 432(e)(9)(D)(vii)—(i) In general. In the case of a plan that includes the benefits described in paragraph (d)(8)(i)(C) of this section, any suspension of benefits under this section shall—

    (A) First, be applied to the maximum extent permissible to benefits attributable to a participant's service for an employer that withdrew from the plan and failed to pay (or is delinquent with respect to paying) the full amount of its withdrawal liability under section 4201(b)(1) of ERISA or an agreement with the plan;

    (B) Second, except as provided by paragraph (d)(8)(i)(C) of this section, be applied to all other benefits that may be suspended under this section; and

    (C) Third, be applied to benefits under a plan that are directly attributable to a participant's service with any employer that has, prior to December 16, 2014—

    (1) Withdrawn from the plan in a complete withdrawal under section 4203 of ERISA and paid the full amount of the employer's withdrawal liability under section 4201(b)(1) of ERISA or an agreement with the plan, and

    (2) Pursuant to a collective bargaining agreement, assumed liability for providing benefits to participants and beneficiaries of the plan under a separate, single-employer plan sponsored by the employer, in an amount equal to any amount of benefits for such participants and beneficiaries reduced as a result of the financial status of the plan.

    (ii) Application of suspensions to benefits that are directly attributable to a participant's service with certain employers—(A) Greater reduction in certain benefits not permitted. A suspension of benefits under this section must not be applied to provide for a greater reduction in benefits described in paragraph (d)(8)(i)(C) of this section than the reduction that is applied to benefits described in paragraph (d)(8)(i)(B) of this section. This requirement is satisfied if no participant's benefits that are directly attributable to service with an employer described in paragraph (d)(8)(i)(C) of this section are reduced more than that participant's benefits would have been reduced if, holding the benefit formula, work history, and all relevant factors used to compute benefits constant, those benefits were attributable to service with an employer that is not described in paragraph (d)(8)(i)(C) of this section.

    (B) Application of limitation to benefits of participants with respect to which the employer has not assumed liability. Benefits under a plan that are directly attributable to a participant's service with an employer described in paragraph (d)(8)(i)(C) of this section include all such benefits without regard to whether the employer has assumed liability for providing benefits to the participant that were reduced as a result of the financial status of the plan as described in paragraph (d)(8)(i)(C)(2) of this section. Thus, all benefits under a plan that are directly attributable to a participant's service with an employer described in paragraph (d)(8)(i)(C) of this section are subject to the limitation in paragraph (d)(8)(ii)(A) of this section, even if the employer has not, pursuant to a collective bargaining agreement that satisfies the requirements of paragraph (d)(8)(i)(C)(2) of this section, assumed liability for providing those benefits to participants and beneficiaries of the plan.

    John Dalrymple, Deputy Commissioner for Services and Enforcement.
    [FR Doc. 2016-02772 Filed 2-9-16; 4:15 pm] BILLING CODE 4830-01-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [Docket Number USCG-2016-0022] RIN 1625-AA08 Safety Zone; Cooper River Bridge Run, Cooper River, and Town Creek Reaches, Charleston, SC AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Coast Guard proposes to establish a safety zone on the waters of Cooper River and Town Creek Reaches in Charleston, South Carolina during the Cooper River Bridge Run on April 2, 2016 from 7:30 a.m. to 10:30 a.m. The Cooper River Bridge Run is a 10-K run across the Arthur Ravenel Bridge. The safety zone is necessary for the safety of the runners and the general public during this event. This proposed rulemaking would prohibit persons and vessels from entering, transiting through, anchoring in, or remaining within the safety zone unless authorized by the Captain of the Port Charleston or a designated representative.

    DATES:

    Comments and related material must be received by the Coast Guard on or before February 26, 2016.

    ADDRESSES:

    You may submit comments identified by docket number USCG-2016-0022 using the Federal eRulemaking Portal at http://www.regulations.gov. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section for further instructions on submitting comments.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this proposed rulemaking, call or email Lieutenant John Downing, Sector Charleston Office of Waterways Management, Coast Guard; telephone (843) 740-3184, email [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security E.O. Executive order FR Federal Register NPRM Notice of proposed rulemaking Pub. L. Public Law § Section U.S.C. United States Code COTP Captain of the Port II. Background, Purpose, and Legal Basis

    The legal basis for this proposed rule is the Coast Guard's authority to establish regulated safety zones and other limited access areas: 33 U.S.C. 1231; 50 U.S.C. 191, 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; and Department of Homeland Security Delegation No. 0170.

    The purpose of the rule is to ensure the safety of the runners, and the general public during the scheduled event.

    III. Discussion of Proposed Rule

    The Coast Guard proposes to establish a safety zone on the waters of the Cooper River and Town Creek Reaches in Charleston, South Carolina during the Cooper River Bridge Run. The race is scheduled to take place from 7:30 a.m.10:30 a.m. April 2, 2016 Approximately 40,000 runners are anticipated to participate in the race. Persons and vessels desiring to enter, transit through, anchor in, or remain within the proposed safety zone may contact the Captain of the Port Charleston by telephone at (843) 740-7050, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, anchor in, or remain within the proposed safety zone is granted by the Captain of the Port Charleston or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Charleston or a designated representative. The Coast Guard will provide notice of the safety zone by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.

    IV. Regulatory Analyses

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

    A. Regulatory Planning and Review

    E.O.s 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. E.O.13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This NPRM has not been designated a “significant regulatory action,” under E.O. 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget. This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.

    The economic impact of this rule is not significant for the following reasons: (1) The safety zone will only be enforced for a total of three hours; (2) although persons and vessels may not enter, transit through, anchor in, or remain within the safety zone without authorization from the Captain of the Port Charleston or a designated representative, they may operate in the surrounding area during the enforcement period; and (3) the Coast Guard will provide advance notification of the safety zone to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.

    B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, (5 U.S.C. 601-612), as amended requires Federal agencies to consider the potential impact of regulations on “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. We have considered the impact of this proposed rule on small entities. This rule may affect the following entities, some of which may be small entities: the owner or operators of vessels intending to enter, transit through, anchor in, or remain within the regulated area during the enforcement period. For the reasons discussed in Regulatory Planning and Review section above, this rule will not have a significant economic impact on a substantial number of small entities.

    If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

    Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

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

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

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves safety zone prohibiting vessel traffic from a limited area surrounding the Cooper River Bridge on the waters of the Cooper River and Town Creek Reaches for a 3 hour period. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

    G. Protest Activities

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

    V. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

    We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

    We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, you may review a Privacy Act notice regarding the Federal Docket Management System in the March 24, 2005, issue of the Federal Register (70 FR 15086).

    Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that Web site's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

    List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.

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

    PART 165—SAFETY OF LIFE ON NAVIGABLE WATERS 1. The authority citation for part 165 continues to read as follows: Authority:

    33 U.S.C. 1231; 50 U.S.C. 191, 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; and Department of Homeland Security Delegation No. 0170.

    2. Add a temporary § 165.35T07-0022 to read as follows:
    § 165.35T07-0022 Safety Zone; Cooper River Bridge Run, Charleston SC.

    (a) Location. All waters of the Cooper River, and Town Creek Reaches encompassed within the following points:

    (1) 32°48′32″ N./079°56′08″ W., (2) 32°48′20″ N./079°54′20″ W., (3) 32°47′20″ N./079°54′29″ W., (4) 32°47′20″ N./079°55′28″ W.

    (b) Definition. The term “designated representative” means Coast Guard Patrol Commanders, including Coast Guard coxswains, petty officers, and other officers operating Coast Guard vessels, and Federal, state, and local officers designated by or assisting the Captain of the Port Charleston in the enforcement of the regulated areas.

    (c) Regulations. (1) All persons and vessels are prohibited from entering, transiting through, anchoring in, or remaining within the regulated area unless authorized by the Captain of the Port Charleston or a designated representative.

    (2) Persons and vessels desiring to enter, transit through, or remain within the regulated area may contact the Captain of the Port Charleston by telephone at 843-740-7050, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, or remain within the regulated area is granted by the Captain of the Port Charleston or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Charleston or a designated representative.

    (3) The Coast Guard will provide notice of the regulated area by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.

    (d) Enforcement Period. This proposed rule will be enforced from 7:30 a.m. until 10:30 a.m. on April 2, 2016.

    Dated: January 29, 2016. G.L. Tomasulo, Captain, U.S. Coast Guard, Captain of the Port Charleston.
    [FR Doc. 2016-02621 Filed 2-10-16; 8:45 am] BILLING CODE 9110-04-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2016-0028; FRL-9942-02-Region 9] Approval of Air Plan Revisions; Arizona; Rescissions and Corrections AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve revisions to the Arizona State Implementation Plan (SIP) under the Clean Air Act. These revisions include rescissions of certain statutory provisions, administrative and prohibitory rules, and test methods. The EPA is also proposing to correct certain errors in previous actions on prior revisions to the Arizona SIP and to make certain other corrections. The intended effect is to rescind unnecessary provisions from the applicable SIP and to correct certain errors in previous SIP actions.

    DATES:

    Comments must be received by March 14, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R09-OAR-2016-0028 at http://www.regulations.gov, or via email to Andrew Steckel, Rules Office Chief, at [email protected]. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the Web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Andrew Steckel, EPA Region IX, (415) 947-4115, email: [email protected].

    SUPPLEMENTARY INFORMATION:

    In the “Rules and Regulations” section of this Federal Register, the EPA is approving the rescissions from the Arizona SIP, and correcting the errors from previous Arizona SIP rulemakings, in a direct final action without prior proposal because we believe the SIP revision and error corrections are not controversial. The rescissions involve statutory and regulatory provisions related to declarations of policy and legal authority, jurisdiction over Indian lands, prohibitory rules, and test methods and performance test specifications. The error corrections relate to an inadvertent listing of a rule on which the EPA did not take action in the Arizona SIP, a typographical error, and erroneous approvals of non-SIP submittals as part of the SIP.

    A detailed rationale for the approval of the rescissions and the correction of the errors is set forth in the direct final rule. If we receive adverse comments, however, we will publish a timely withdrawal of the direct final rule and address the comments in a subsequent final rule based on this proposed rule. Please note that if the 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, the EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

    We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive adverse comments, no further activity is planned. For further information, see please see the direct final action.

    Dated: January 25, 2016. Jared Blumenfeld, Regional Administrator, Region IX.
    [FR Doc. 2016-02724 Filed 2-10-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2015-0155; FRL-9942-19-Region 4] Approval and Promulgation of Implementation Plans; Mississippi; Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality Standard AGENCY:

    Environmental Protection Agency.

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve, in part, and disapprove in part, portions of the State Implementation Plan (SIP) submission, submitted by the State of Mississippi, through the Mississippi Department of Environmental Quality (MDEQ), on June 20, 2013, to demonstrate that the State meets the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2010 1-hour sulfur dioxide (SO2) national ambient air quality standard (NAAQS). The CAA requires that each state adopt and submit a SIP for the implementation, maintenance and enforcement of each NAAQS promulgated by EPA, which is commonly referred to as an “infrastructure” SIP. MDEQ certified that the Mississippi SIP contains provisions that ensure the 2010 1-hour SO2 NAAQS is implemented, enforced, and maintained in Mississippi. With the exception of the state board majority requirements respecting significant portion of income, for which EPA is proposing to disapprove, EPA is proposing to determine that portions of Mississippi's infrastructure submission, submitted to EPA on June 20, 2013, satisfy certain required infrastructure elements for the 2010 1-hour SO2 NAAQS.

    DATES:

    Written comments must be received on or before March 14, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R04-OAR-2015-0155, by one of the following methods:

    1. www.regulations.gov: Follow the on-line instructions for submitting comments.

    2. Email: [email protected]

    3. Fax: (404) 562-9019.

    4. Mail: “EPA-R04-OAR-2015-0155,” Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960.

    5. Hand Delivery or Courier: Lynorae Benjamin, Chief, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30a.m. to 4:30 p.m., excluding Federal holidays.

    Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-2015-0155. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit through www.regulations.gov or email, information that you consider to be CBI or otherwise protected. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

    Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Michele Notarianni, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Ms. Notarianni can be reached via telephone at (404) 562-9031 or via electronic mail at [email protected]

    Table of Contents I. Background and Overview II. What elements are required under sections 110(a)(1) and (2)? III. What is EPA's approach to the review of infrastructure SIP submissions? IV. What is EPA's analysis of how Mississippi addressed the elements of the Sections 110(a)(1) and (2) “Infrastructure” provisions? V. Proposed Action VI. Statutory and Executive Order Reviews I. Background and Overview

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

    1 In these infrastructure SIP submissions states generally certify evidence of compliance with sections 110(a)(1) and (2) of the CAA through a combination of state regulations and statutes, some of which have been incorporated into the federally-approved SIP. In addition, certain federally-approved, non-SIP regulations may also be appropriate for demonstrating compliance with sections 110(a)(1) and (2). Throughout this rulemaking, unless otherwise indicated, the term “Air Pollution Control (APC)” or “Section APC-S-X” indicates that the cited regulation has been approved into Mississippi's federally-approved SIP. The term “Mississippi Code” indicates cited Mississippi State statutes, which are not a part of the SIP unless otherwise indicated.

    Today's action is proposing to approve Mississippi's infrastructure SIP submission for the applicable requirements of the 2010 1-hour SO2 NAAQS, with the exception of the interstate transport requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4) and the state board majority requirements respecting significant portion of income of section 110(a)(2)(E)(ii). With respect to the interstate transport requirements of section 110(a)(2)(D)(i)(I) and (II), EPA is not proposing any action today regarding these requirements. With respect to Mississippi's infrastructure SIP submission related to the majority requirements respecting significant portion of income of 110(a)(2)(E)(ii), EPA is proposing to disapprove this portion of Mississippi's infrastructure SIP submission because Mississippi does not preclude at least a majority of the members of its boards from receiving a significant portion of their income from persons subject to permits or enforcement orders issued by such boards. For the aspects of Mississippi's submittal proposed for approval today, EPA notes that the Agency is not approving any specific rule, but rather proposing that Mississippi's already approved SIP meets certain CAA requirements.

    II. What elements are required under sections 110(a)(1) and (2)?

    Section 110(a) of the CAA requires states to submit SIPs to provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within three years following the promulgation of such NAAQS, or within such shorter period as EPA may prescribe. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the state's existing SIP already contains.

    More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for the “infrastructure” SIP requirements related to a newly established or revised NAAQS. As mentioned above, these requirements include basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. The requirements that are the subject of this proposed rulemaking are summarized below and in EPA's September 13, 2013, memorandum entitled “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2).” 2

    2 Two elements identified in section 110(a)(2) are not governed by the three year submission deadline of section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are not due within three years after promulgation of a new or revised NAAQS, but rather due at the time the nonattainment area plan requirements are due pursuant to section 172. These requirements are: (1) Submissions required by section 110(a)(2)(C) to the extent that subsection refers to a permit program as required in part D title I of the CAA; and (2) submissions required by section 110(a)(2)(I) which pertain to the nonattainment planning requirements of part D, title I of the CAA. Today's proposed rulemaking does not address infrastructure elements related to section 110(a)(2)(I) or the nonattainment planning requirements of 110(a)(2)(C).

    • 110(a)(2)(A): Emission Limits and Other Control Measures • 110(a)(2)(B): Ambient Air Quality Monitoring/Data System • 110(a)(2)(C): Programs for Enforcement of Control Measures and for Construction or Modification of Stationary Sources 3

    3 This rulemaking only addresses requirements for this element as they relate to attainment areas.

    • 110(a)(2)(D)(i)(I) and (II): Interstate Pollution Transport • 110(a)(2)(D)(ii): Interstate Pollution Abatement and International Air Pollution • 110(a)(2)(E): Adequate Resources and Authority, Conflict of Interest, and Oversight of Local Governments and Regional Agencies • 110(a)(2)(F): Stationary Source Monitoring and Reporting • 110(a)(2)(G): Emergency Powers • 110(a)(2)(H): SIP Revisions • 110(a)(2)(I): Plan Revisions for Nonattainment Areas 4

    4 As mentioned above, this element is not relevant to today's proposed rulemaking.

    • 110(a)(2)(J): Consultation with Government Officials, Public Notification, and Prevention of Significant Deterioration (PSD) and Visibility Protection • 110(a)(2)(K): Air Quality Modeling and Submission of Modeling Data • 110(a)(2)(L): Permitting fees • 110(a)(2)(M): Consultation and Participation by Affected Local Entities III. What is EPA's approach to the review of infrastructure SIP submissions?

    EPA is acting upon the SIP submission from Mississippi that addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2010 1-hour SO2 NAAQS. The requirement for states to make a SIP submission of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address.

    EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA, “regional haze SIP” submissions required by EPA rule to address the visibility protection requirements of CAA section 169A, and nonattainment new source review (NNSR) permit program submissions to address the permit requirements of CAA, title I, part D.

    Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions, and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions.5 EPA therefore believes that while the timing requirement in section 110(a)(1) is unambiguous, some of the other statutory provisions are ambiguous. In particular, EPA believes that the list of required elements for infrastructure SIP submissions provided in section 110(a)(2) contains ambiguities concerning what is required for inclusion in an infrastructure SIP submission.

    5 For example: Section 110(a)(2)(E)(i) provides that states must provide assurances that they have adequate legal authority under state and local law to carry out the SIP; section 110(a)(2)(C) provides that states must have a SIP-approved program to address certain sources as required by part C of title I of the CAA; and section 110(a)(2)(G) provides that states must have legal authority to address emergencies as well as contingency plans that are triggered in the event of such emergencies.

    The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that “each” SIP submission must meet the list of requirements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of title I of the Act, which specifically address nonattainment SIP requirements.6 Section 110(a)(2)(I) pertains to nonattainment SIP requirements and part D addresses when attainment plan SIP submissions to address nonattainment area requirements are due. For example, section 172(b) requires EPA to establish a schedule for submission of such plans for certain pollutants when the Administrator promulgates the designation of an area as nonattainment, and section 107(d)(1)(B) allows up to two years, or in some cases three years, for such designations to be promulgated.7 This ambiguity illustrates that rather than apply all the stated requirements of section 110(a)(2) in a strict literal sense, EPA must determine which provisions of section 110(a)(2) are applicable for a particular infrastructure SIP submission.

    6See, e.g., “Rule To Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to the NOX SIP Call; Final Rule,” 70 FR 25162, at 25163-65 (May 12, 2005) (explaining relationship between timing requirement of section 110(a)(2)(D) versus section 110(a)(2)(I)).

    7 EPA notes that this ambiguity within section 110(a)(2) is heightened by the fact that various subparts of part D set specific dates for submission of certain types of SIP submissions in designated nonattainment areas for various pollutants. Note, e.g., that section 182(a)(1) provides specific dates for submission of emissions inventories for the ozone NAAQS. Some of these specific dates are necessarily later than three years after promulgation of the new or revised NAAQS.

    Another example of ambiguity within sections 110(a)(1) and 110(a)(2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit “a plan” to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action.8 Similarly, EPA interprets the CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure SIP submission for a given NAAQS without concurrent action on the entire submission. For example, EPA has sometimes elected to act at different times on various elements and sub-elements of the same infrastructure SIP submission.9

    8See, e.g., “Approval and Promulgation of Implementation Plans; New Mexico; Revisions to the New Source Review (NSR) State Implementation Plan (SIP); Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) Permitting,” 78 FR 4339 (January 22, 2013) (EPA's final action approving the structural PSD elements of the New Mexico SIP submitted by the State separately to meet the requirements of EPA's 2008 PM2.5 NSR rule), and “Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Infrastructure and Interstate Transport Requirements for the 2006 PM2.5 NAAQS,” (78 FR 4337) (January 22, 2013) (EPA's final action on the infrastructure SIP for the 2006 PM2.5 NAAQS).

    9 On December 14, 2007, the State of Tennessee, through the Tennessee Department of Environment and Conservation, made a SIP revision to EPA demonstrating that the State meets the requirements of sections 110(a)(1) and (2). EPA proposed action for infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 3213) and took final action on March 14, 2012 (77 FR 14976). On April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA took separate proposed and final actions on all other section 110(a)(2) infrastructure SIP elements of Tennessee's December 14, 2007 submittal.

    Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants because the content and scope of a state's infrastructure SIP submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS.10

    10 For example, implementation of the 1997 PM2.5 NAAQS required the deployment of a system of new monitors to measure ambient levels of that new indicator species for the new NAAQS.

    EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to these other types of SIP submissions. For example, section 172(c)(7) requires that attainment plan SIP submissions required by part D have to meet the “applicable requirements” of section 110(a)(2). Thus, for example, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it is clear that attainment plan SIP submissions required by part D would not need to meet the portion of section 110(a)(2)(C) that pertains to the PSD program required in part C of title I of the CAA, because PSD does not apply to a pollutant for which an area is designated nonattainment and thus subject to part D planning requirements. As this example illustrates, each type of SIP submission may implicate some elements of section 110(a)(2) but not others.

    Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portions of section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submission. In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the NAAQS in question or the history of SIP development for the relevant pollutant, would meet each of the requirements, or meet each of them in the same way. Therefore, EPA has adopted an approach under which it reviews infrastructure SIP submissions against the list of elements in section 110(a)(2), but only to the extent each element applies for that particular NAAQS.

    Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements.11 EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance).12 EPA developed this document to provide states with up-to-date guidance for infrastructure SIPs for any new or revised NAAQS. Within this guidance, EPA describes the duty of states to make infrastructure SIP submissions to meet basic structural SIP requirements within three years of promulgation of a new or revised NAAQS. EPA also made recommendations about many specific subsections of section 110(a)(2) that are relevant in the context of infrastructure SIP submissions.13 The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 110(a)(2) such that infrastructure SIP submissions need to address certain issues and need not address others. Accordingly, EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate.

    11 EPA notes, however, that nothing in the CAA requires EPA to provide guidance or to promulgate regulations for infrastructure SIP submissions. The CAA directly applies to states and requires the submission of infrastructure SIP submissions, regardless of whether or not EPA provides guidance or regulations pertaining to such submissions. EPA elects to issue such guidance in order to assist states, as appropriate.

    12 “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),” Memorandum from Stephen D. Page, September 13, 2013.

    13 EPA's September 13, 2013, guidance did not make recommendations with respect to infrastructure SIP submissions to address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly after the U.S. Supreme Court agreed to review the D.C. Circuit decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which had interpreted the requirements of section 110(a)(2)(D)(i)(I). In light of the uncertainty created by ongoing litigation, EPA elected not to provide additional guidance on the requirements of section 110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding nor required by statute, whether EPA elects to provide guidance on a particular section has no impact on a state's CAA obligations.

    As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for infrastructure SIP submissions. Under this element, a state must meet the substantive requirements of section 128, which pertain to state boards that approve permits or enforcement orders and heads of executive agencies with similar powers. Thus, EPA reviews infrastructure SIP submissions to ensure that the state's implementation plan appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's interpretation that there may be a variety of ways by which states can appropriately address these substantive statutory requirements, depending on the structure of an individual state's permitting or enforcement program (e.g., whether permits and enforcement orders are approved by a multi-member board or by a head of an executive agency). However they are addressed by the state, the substantive requirements of section 128 are necessarily included in EPA's evaluation of infrastructure SIP submissions because section 110(a)(2)(E)(ii) explicitly requires that the state satisfy the provisions of section 128.

    As another example, EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and new source review (NSR) pollutants, including greenhouse gases (GHGs). By contrast, structural PSD program requirements do not include provisions that are not required under EPA's regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the 2012 fine particulate matter (PM2.5) NAAQS. Accordingly, the latter optional provisions are types of provisions EPA considers irrelevant in the context of an infrastructure SIP action.

    For other section 110(a)(2) elements, however, EPA's review of a state's infrastructure SIP submission focuses on assuring that the state's implementation plan meets basic structural requirements. For example, section 110(a)(2)(C) includes, among other things, the requirement that states have a program to regulate minor new sources. Thus, EPA evaluates whether the state has an EPA-approved minor NSR program and whether the program addresses the pollutants relevant to that NAAQS. In the context of acting on an infrastructure SIP submission, however, EPA does not think it is necessary to conduct a review of each and every provision of a state's existing minor source program (i.e., already in the existing SIP) for compliance with the requirements of the CAA and EPA's regulations that pertain to such programs.

    With respect to certain other issues, EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) Existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction that may be contrary to the CAA and EPA's policies addressing such excess emissions (“SSM”); (ii) existing provisions related to “director's variance” or “director's discretion” that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by EPA; and (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). Thus, EPA believes it may approve an infrastructure SIP submission without scrutinizing the totality of the existing SIP for such potentially deficient provisions and may approve the submission even if it is aware of such existing provisions.14 It is important to note that EPA's approval of a state's infrastructure SIP submission should not be construed as explicit or implicit re-approval of any existing potentially deficient provisions that relate to the three specific issues just described.

    14 By contrast, EPA notes that if a state were to include a new provision in an infrastructure SIP submission that contained a legal deficiency, such as a new exemption for excess emissions during SSM events, then EPA would need to evaluate that provision for compliance against the rubric of applicable CAA requirements in the context of the action on the infrastructure SIP.

    EPA's approach to review of infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. EPA believes that this approach to the review of a particular infrastructure SIP submission is appropriate, because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in 110(a)(2) as requiring review of each and every provision of a state's existing SIP against all requirements in the CAA and EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP submission. EPA believes that a better approach is for states and EPA to focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors.

    For example, EPA's 2013 Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II). Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a state's implementation plan is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.15 Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions.16 Significantly, EPA's determination that an action on a state's infrastructure SIP submission is not the appropriate time and place to address all potential existing SIP deficiencies does not preclude EPA's subsequent reliance on provisions in section 110(a)(2) as part of the basis for action to correct those deficiencies at a later time. For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director's discretion provisions in the course of acting on an infrastructure SIP submission, EPA believes that section 110(a)(2)(A) may be among the statutory bases that EPA relies upon in the course of addressing such deficiency in a subsequent action.17

    15 For example, EPA issued a SIP call to Utah to address specific existing SIP deficiencies related to the treatment of excess emissions during SSM events. See “Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revisions,” 74 FR 21639 (April 18, 2011).

    16 EPA has used this authority to correct errors in past actions on SIP submissions related to PSD programs. See “Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans; Final Rule,” 75 FR 82536 (December 30, 2010). EPA has previously used its authority under CAA section 110(k)(6) to remove numerous other SIP provisions that the Agency determined it had approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona, California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 2004) (corrections to California SIP); and 74 FR 57051 (November 3, 2009) (corrections to Arizona and Nevada SIPs).

    17See, e.g., EPA's disapproval of a SIP submission from Colorado on the grounds that it would have included a director's discretion provision inconsistent with CAA requirements, including section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 2010) (proposed disapproval of director's discretion provisions); 76 FR 4540 (January 26, 2011) (final disapproval of such provisions).

    IV. What is EPA's analysis of how Mississippi addressed the elements of the sections 110(a)(1) and (2) “Infrastructure” provisions?

    Mississippi's June 20, 2013, infrastructure submission addresses the provisions of sections 110(a)(1) and (2) as described below.

    1. 110(a)(2)(A): Emission Limits and Other Control Measures: Section 110(a)(2)(A) requires that each implementation plan include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements. Mississippi's infrastructure SIP submission provides an overview of the provisions of the Mississippi Air Pollution Control (APC) regulations relevant to air quality control. Mississippi Code Title 49, Section 49-17-17(h) (Appendix A-9),18 authorizes MDEQ to adopt, modify, or repeal ambient air quality standards and emissions standards for the control of air pollution, including those necessary to obtain EPA approval under section 110 of the CAA. Sections APC-S-1, Air Emission Regulations for the Prevention, Abatement, and Control of Air Contaminants, and APC-S-3, Regulations for the Prevention of Air Pollution Emergency Episodes, establish enforceable emissions limitations and other control measures, means or techniques, for activities that contribute to SO2 concentrations in the ambient air and provide authority for MDEQ to establish such limits and measures as well as schedules for compliance through SIP-approved permits to meet the applicable requirements of the CAA. EPA has made the preliminary determination that the provisions contained in these regulations, and Mississippi's statute are adequate for enforceable emission limitations and other control measures, means, or techniques, as well as schedules and timetables for compliance for the 2010 1-hour SO2 NAAQS in the State.

    18Mississippi Code Title 49 is referenced in the State's infrastructure SIP submissions as “Appendix A-9.” As discussed above, unless otherwise indicated herein, portions of the Mississippi Code referenced in this proposal are not incorporated into the SIP.

    In this action, EPA is not proposing to approve or disapprove any existing state provisions with regard to excess emissions during SSM operations at a facility. EPA believes that a number of states have SSM provisions which are contrary to the CAA and existing EPA guidance, “State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown” (September 20, 1999), and the Agency is addressing such state regulations in a separate action.19

    19 On June 12, 2015, EPA published a final action entitled, “State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown, and Malfunction.” See 80 FR 33840.

    Additionally, in this action, EPA is not proposing to approve or disapprove any existing state rules with regard to director's discretion or variance provisions. EPA believes that a number of states have such provisions which are contrary to the CAA and existing EPA guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to take action in the future to address such state regulations. In the meantime, EPA encourages any state having a director's discretion or variance provision which is contrary to the CAA and EPA guidance to take steps to correct the deficiency as soon as possible.

    2. 110(a)(2)(B) Ambient Air Quality Monitoring/Data System: Section 110(a)(2)(B) requires SIPs to provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to (i) monitor, compile, and analyze data on ambient air quality, and (ii) upon request, make such data available to the Administrator. Section APC-S-1, Air Emission Regulations for the Prevention, Abatement, and Control of Air Contaminants, and Mississippi Code Title 49, Section 49-17-17(g), provides MDEQ with the authority to collect and disseminate information relating to air quality and pollution and the prevention, control, supervision, and abatement thereof. Annually, States develop and submit to EPA for approval statewide ambient monitoring network plans consistent with the requirements of 40 CFR parts 50, 53, and 58. The annual network plan involves an evaluation of any proposed changes to the monitoring network, includes the annual ambient monitoring network design plan and a certified evaluation of the agency's ambient monitors and auxiliary support equipment.20 On June 9, 2015, Mississippi submitted its monitoring network plan to EPA, which was approved by EPA on October 6, 2015. Mississippi's approved monitoring network plan can be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-2015-0155. EPA has made the preliminary determination that Mississippi's SIP and practices are adequate for the ambient air quality monitoring and data system requirements related to the 2010 1-hour SO2 NAAQS.

    20 On occasion, proposed changes to the monitoring network are evaluated outside of the network plan approval process in accordance with 40 CFR part 58.

    3. 110(a)(2)(C) Programs for Enforcement of Control Measures and for Construction or Modification of Stationary Sources: This element consists of three sub-elements: Enforcement, state-wide regulation of new and modified minor sources and minor modifications of major sources, and preconstruction permitting of major sources and major modifications in areas designated attainment or unclassifiable for the subject NAAQS as required by CAA title I part C (i.e., the major source PSD program). To meet the requirements for this element, Mississippi cited APC-S-5, Mississippi Regulations for the Prevention of Significant Deterioration of Air Quality and APC-S-2, Permit Regulation for the Construction and/or Operation of Air Emissions Equipment, Section V. These regulations enable MDEQ to regulate sources contributing to the 2010 1-hour SO2 NAAQS through enforceable permits.

    Enforcement: MDEQ's APC-S-2, Permit Regulation for the Construction and/or Operation of Air Emissions Equipment, Section VI provides for the enforcement of SO2 emission limits and control measures through construction permitting for new or modified stationary sources. Also note that under Mississippi Code Title 49, Chapter 17, MDEQ has enforcement authority to seek penalties and injunctive relief for violations of emission limits and other control measures and violations of permits.

    PSD Permitting for Major Sources: EPA interprets the PSD sub-element to require that a state's infrastructure SIP submission for a particular NAAQS demonstrate that the state has a complete PSD permitting program in place covering the structural PSD requirements for all regulated NSR pollutants. A state's PSD permitting program is complete for this sub-element (and prong 3 of D(i) and J related to PSD) if EPA has already approved or is simultaneously approving the state's SIP with respect to all structural PSD requirements that are due under the EPA regulations or the CAA on or before the date of the EPA's proposed action on the infrastructure SIP submission.

    For the 2010 1-hour SO2 NAAQS, Mississippi's authority to regulate new and modified sources to assist in the protection of air quality in nonattainment, attainment or unclassifiable areas in Mississippi is established in Regulations APC-S-5, Mississippi Regulations for the Prevention of Significant Deterioration of Air Quality, and APC-S-2, Permit Regulation for the Construction and/or Operation of Air Emissions Equipment. These SIP-approved regulations pertain to the construction of any new major stationary source or any project at an existing major stationary source in an area designated as nonattainment, attainment or unclassifiable. Mississippi's infrastructure SIP submission demonstrates that new major sources and major modifications in areas of the State designated attainment or unclassifiable for the specified NAAQS are subject to a federally-approved PSD permitting program meeting all the current structural requirements of part C of title I of the CAA to satisfy the infrastructure SIP PSD elements.21 As such, EPA has made the preliminary determination that Mississippi's SIP and practices are adequate and comply with the PSD elements of the 2010 1-hour SO2 NAAQS.

    21 For more information on the structural PSD program requirements that are relevant to EPA's review infrastructure SIP in connection with the current PSD-related infrastructure requirements, see the Technical Support Document in the docket for today's rulemaking.

    Regulation of minor sources and modifications: Section 110(a)(2)(C) also requires the SIP to include provisions that govern the minor source pre-construction program that regulates emissions of the 2010 1-hour SO2 NAAQS. Mississippi has a SIP-approved minor NSR permitting program at APC-S-2, Section I. D—Permitting Requirements, that regulates the preconstruction permitting of modifications and construction of minor stationary sources.

    EPA has made the preliminary determination that Mississippi's SIP is adequate for enforcement of control measures, PSD permitting for major sources and regulation of minor sources and modifications related to the 2010 1-hour SO2 NAAQS.

    4. 110(a)(2)(D)(i)(I) and (II): Interstate Pollution Transport: Section 110(a)(2)(D)(i) has two components: 110(a)(2)(D)(i)(I) and 110(a)(2)(D)(i)(II). Each of these components has two subparts resulting in four distinct components, commonly referred to as “prongs,” that must be addressed in infrastructure SIP submissions. The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS in another state (“prong 1”), and interfering with maintenance of the NAAQS in another state (“prong 2”). The third and fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality in another state (“prong 3”), or to protect visibility in another state (“prong 4”).

    110(a)(2)(D)(i)(I)—prongs 1 and 2: EPA is not proposing any action in this rulemaking related to the interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states of section 110(a)(2)(D)(i)(I) (prongs 1 and 2) because Mississippi's 2010 1-hour SO2 NAAQS infrastructure submission did not address prongs 1 and 2.

    110(a)(2)(D)(i)(II)—prong 3: With regard to section 110(a)(2)(D)(i)(II), the PSD element, referred to as prong 3, this requirement may be met by a state's confirmation in an infrastructure SIP submission that new major sources and major modifications in the state are subject to: A PSD program meeting all the current structural requirements of part C of title I of the CAA, or (if the state contains a nonattainment area for the relevant pollutant) a NNSR program that implements the NAAQS for a relevant pollutant. As discussed in more detail above under section 110(a)(2)(C), Mississippi's SIP contains provisions for the State's PSD program that reflects the required structural PSD requirements to satisfy the requirement of prong 3. EPA has made the preliminary determination that Mississippi's SIP is adequate for interstate transport for PSD permitting of major sources and major modifications related to the 2010 1-hour SO2 NAAQS for section 110(a)(2)(D)(i)(II) (prong 3).

    110(a)(2)(D)(i)(II)—prong 4: EPA is not proposing any action in this rulemaking related to the interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states of section 110(a)(2)(D)(i)(II) (prong 4) and will consider these requirements in relation to Mississippi's 2010 1-hour SO2 NAAQS infrastructure submission in a separate rulemaking.

    5. 110(a)(2)(D)(ii): Interstate Pollution Abatement and International Air Pollution: Section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with sections 115 and 126 of the Act, relating to interstate and international pollution abatement. Section APC-S-5, Mississippi Regulations for the Prevention of Significant Deterioration of Air Quality, provides how MDEQ will notify neighboring state and local agencies of potential impacts from new or modified sources consistent with the requirements of 40 CFR 51.166, which is adopted by reference into the Mississippi SIP. Additionally, Mississippi does not have any pending obligation under section 115 and 126 of the CAA. EPA has made the preliminary determination that Mississippi's SIP and practices are adequate for ensuring compliance with the applicable requirements relating to interstate and international pollution abatement for the 2010 1-hour SO2 NAAQS.

    6. 110(a)(2)(E) Adequate Resources and Authority, Conflict of Interest, and Oversight of Local Governments and Regional Agencies: Section 110(a)(2)(E) requires that each implementation plan provide (i) necessary assurances that the state will have adequate personnel, funding, and authority under state law to carry out its implementation plan, (ii) that the state comply with the requirements respecting state boards pursuant to section 128 of the Act, and (iii) necessary assurances that, where the state has relied on a local or regional government, agency, or instrumentality for the implementation of any plan provision, the state has responsibility for ensuring adequate implementation of such plan provisions. EPA is proposing to approve Mississippi's SIP as meeting the requirements of sections 110(a)(2)(E)(i) and (iii). EPA is proposing to approve, in part, and disapprove, in part, Mississippi's SIP respecting section 110(a)(2)(E)(ii). EPA's rationale for today's proposals respecting each section of 110(a)(2)(E) is described in turn below.

    To satisfy the requirements of sections 110(a)(2)(E)(i) and (iii), Mississippi provides that MDEQ is responsible for promulgating rules and regulations for the NAAQS, emissions standards, general policies, a system of permits, fee schedules for the review of plans, and other planning needs as found in Mississippi Code Title 49, Section 49-17-17(d) and Section 49-17-17(h) (Appendix A-9). As evidence of the adequacy of MDEQ's resources with respect to sub-elements (i) and (iii), EPA submitted a letter to Mississippi on March 12, 2015, outlining 105 grant commitments and the current status of these commitments for fiscal year 2014. The letter EPA submitted to Mississippi can be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-2015-0155. Annually, states update these grant commitments based on current SIP requirements, air quality planning, and applicable requirements related to the NAAQS. There were no outstanding issues in relation to the SIP for fiscal year 2014, therefore, MDEQ's grants were finalized and closed out. In addition, the requirements of 110(a)(2)(E)(i) and (iii) are met when EPA performs a completeness determination for each SIP submittal. This determination ensures that each submittal provides evidence that adequate personnel, funding, and legal authority under State law has been used to carry out the State's implementation plan and related issues. Mississippi's authority to implement provisions of the State's SIP is included in all prehearings and final SIP submittal packages for approval by EPA. EPA has made the preliminary determination that Mississippi has adequate resources for implementation of the 2010 1-hour SO2 NAAQS.

    To meet the requirements of section 110(a)(2)(E)(ii), states must comply with the requirements respecting state boards pursuant to section 128 of the Act. Section 128 of the CAA requires that states include provisions in their SIP to address conflicts of interest for state boards or bodies that oversee CAA permits and enforcement orders and disclosure of conflict of interest requirements. Specifically, CAA section 128(a)(1) necessitates that each SIP shall require that at least a majority of any board or body which approves permits or enforcement orders shall be subject to the described public interest service and income restrictions therein. Subsection 128(a)(2) requires that the members of any board or body, or the head of an executive agency with similar power to approve permits or enforcement orders under the CAA, shall also be subject to conflict of interest disclosure requirements.

    To meet its section 110(a)(2)(E)(ii) obligations for the 2010 1-hour SO2 NAAQS, Mississippi's infrastructure SIP submission cites Article 4, Section 109 of the Mississippi Constitution and portions of Mississippi Code sections 25-4-25, -27, -29, -103, -105, and -109. These provisions were incorporated into the Mississippi SIP to meet CAA section 128 requirements in EPA's final action for the 1997 and 2006 PM2.5 NAAQS infrastructure SIP. See 78 FR 20793.22 In this same final action for the 1997 and 2006 PM2.5 NAAQS infrastructure SIP (78 FR 20793), EPA disapproved Mississippi's October 11, 2012, submission as not satisfying the significant portion of income requirement of section 128(a)(1).

    22 This final action pertained to Mississippi's October 11, 2012, infrastructure SIP submission and only addressed compliance with 110(a)(2)(E)(ii) respecting CAA section 128 requirements.

    Based upon the review of the above cited laws and provisions, EPA is proposing to approve the section 110(a)(2)(E)(ii) portions of the infrastructure SIP submission as it relates to the public interest requirements of section 128(a)(1) and the conflict of interest disclosure provisions of section 128(a)(2) for the 2010 1-hour SO2 NAAQS. EPA is proposing to disapprove the section 110(a)(2)(E)(ii) portion of the infrastructure SIP submission as it pertains to compliance with the significant portion of income requirement of section 128(a)(1) for the 2010 1-hour SO2 NAAQS.23

    23 EPA took similar action with respect to Mississippi's section 110(a)(2)(E)(ii) submission for the 1997 and 2006 PM2.5, 2008 Lead, and 2008 8-hour Ozone NAAQS.

    With respect to the significant portion of income requirement of section 128(a)(1), the provisions included in the infrastructure SIP submission do not preclude at least a majority of the members of the Mississippi Boards 24 from receiving a significant portion of their income from persons subject to permits or enforcement orders issued by such Boards. While the submitted laws and provisions preclude members of the Mississippi Boards from certain types of income (e.g., contracts with State or political subdivisions thereof, or income obtained through the use of his or her public office or obtained to influence a decision of the Mississippi Boards), they do not preclude a majority of members of the Mississippi Boards from deriving any significant portion of their income from persons subject to permits or enforcement orders so long as that income is not derived from one of the proscribed methods described in the laws and provisions submitted by the State. To date, because a majority of board members may still derive a significant portion of income from persons subject to permits or enforcement orders issued by the Mississippi Boards, the Mississippi SIP does not meet the section 128(a)(1) majority requirements respecting significant portion of income, and as such, EPA is today proposing to disapprove the State's 110(a)(2)(E)(ii) submission as it relates only to this portion of section 128(a)(1).

    24 The Mississippi Commission on Environmental Quality issues and supervises enforcement orders, and the Mississippi Department of Environmental Quality Permit Board has the authority to issue, modify, revoke or deny permits.

    Accordingly, EPA is proposing to approve the section 110(a)(2)(E)(ii) submission as it relates to the public interest requirements of section 128(a)(1) and the conflict of interest disclosure provisions of section 128(a)(2) and proposing to disapprove Mississippi's section 110(a)(2)(E)(ii) submission as it pertains to compliance with the significant portion of income requirement of section 128(a)(1) for the 2010 1-hour SO2 NAAQS.

    7. 110(a)(2)(F) Stationary Source Monitoring and Reporting: Section 110(a)(2)(F) requires SIPs to meet applicable requirements addressing: (i) the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources, (ii) periodic reports on the nature and amounts of emissions and emissions related data from such sources, and (iii) correlation of such reports by the state agency with any emission limitations or standards established pursuant to this section, which reports shall be available at reasonable times for public inspection. Section APC-S-2, Permit Regulations for the Construction and/or Operation of Air Emissions Equipment, establishes requirements for emissions compliance testing utilizing emissions sampling and analysis. It further describes how the State ensures the quality of its data through observing emissions and monitoring operations. MDEQ uses these data to track progress towards maintaining the NAAQS, develop control and maintenance strategies, identify sources and general emission levels, and determine compliance with emission regulations and additional EPA requirements. Mississippi Code 49, Section 49-17-21 (Appendix A-9) provides MDEQ with the authority to require the maintenance of records related to the operation of air contaminant sources and any authorized representative of the Commission may examine and copy any such records or memoranda pertaining to the operation of such contaminant source. Section APC-S-2 lists requirements for compliance testing and reporting that is required to be included in any MDEQ air pollution permit and requires that copies of records relating to the operation of air contamination sources be submitted to the Permit Board as required by the permit or upon request. Section APC-S-1, Air Emission Regulations For The Prevention, Abatement, and Control of Air Contaminants, authorizes source owners or operators to use any credible evidence or information relevant to whether a source would have been in compliance with applicable requirements if the appropriate performance or compliance test had been performed, for the purpose of submitting compliance certifications. EPA is unaware of any provision preventing the use of credible evidence in the Mississippi SIP.

    Additionally, Mississippi is required to submit emissions data to EPA for purposes of the National Emissions Inventory (NEI). The NEI is EPA's central repository for air emissions data. EPA published the Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified the requirements for collecting and reporting air emissions data (73 FR 76539). The AERR shortened the time states had to report emissions data from 17 to 12 months, giving states one calendar year to submit emissions data. All states are required to submit a comprehensive emissions inventory every three years and report emissions for certain larger sources annually through EPA's online Emissions Inventory System. States report emissions data for the six criteria pollutants and the precursors that form them—NOX, SO2, ammonia, lead, carbon monoxide, particulate matter, and volatile organic compounds. Many states also voluntarily report emissions of hazardous air pollutants. Mississippi made its latest update to the 2012 NEI on January 9, 2014. EPA compiles the emissions data, supplementing it where necessary, and releases it to the general public through the Web site http://www.epa.gov/ttn/chief/eiinformation.html. EPA has made the preliminary determination that Mississippi's SIP and practices are adequate for the stationary source monitoring systems related to the 2010 1-hour SO2 NAAQS.

    8. 110(a)(2)(G) Emergency powers: This section of the CAA requires that states demonstrate authority comparable with section 303 of the CAA and adequate contingency plans to implement such authority. Mississippi Code Title 49 (Appendix A-9) and Section APC-S-3, Mississippi Regulations for the Prevention of Air Pollution Emergency Episodes, identify air pollution emergency episodes and preplanned abatement strategies. Specifically, Section APC-S-3 authorizes the MDEQ Director, once it has been determined that an Air Pollution Emergency Episode condition exists at one or more monitoring sites solely because of emissions from a limited number of sources, to order source(s) to put into effect the emission control programs which are applicable for each episode stage. Section APC-S-3 also lists regulations to prevent the excessive buildup of air pollutants during air pollution episodes. Also, Mississippi Code Title 49, Section 49-17-27 (Appendix A-9), states that in the event an emergency is found to exist by the Mississippi Commission on Environmental Quality, it may issue an emergency order as circumstances may require. Emergency situations include those which create an imminent and substantial endangerment threatening the public health and safety or the lives and property of the people in Mississippi. EPA has made the preliminary determination that Mississippi's SIP is adequate for emergency powers related to the 2010 1-hour SO2 NAAQS. Accordingly, EPA is proposing to approve Mississippi's infrastructure SIP submission with respect to section 110(a)(2)(G).

    9. 110(a)(2)(H) SIP Revisions: Section 110(a)(2)(H), in summary, requires each SIP to provide for revisions of such plan (i) as may be necessary to take account of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of attaining such standard, and (ii) whenever the Administrator finds that the plan is substantially inadequate to attain the NAAQS or to otherwise comply with any additional applicable requirements. MDEQ is responsible for adopting air quality rules and revising SIPs as needed to attain or maintain the NAAQS in Mississippi. The State has the ability and authority to respond to calls for SIP revisions, and has provided a number of SIP revisions over the years for implementation of the NAAQS. Mississippi Code Title 49, Section 49-17-17(h) (Appendix A-9), provides MDEQ with the statutory authority to adopt, modify or repeal and promulgate ambient air and water quality standards and emissions standards for the State. As such, the State has the authority to revise the SIP to accommodate changes to NAAQS and revise the SIP if the EPA Administrator finds the plan to be substantially inadequate to attain the NAAQS. EPA has made the preliminary determination that Mississippi's SIP and practices adequately demonstrate a commitment to provide future SIP revisions related to the 2010 1-hour SO2 NAAQS when necessary.

    10. 110(a)(2)(J) Consultation with Government Officials, Public Notification, and PSD and Visibility Protection: EPA is proposing to approve Mississippi's infrastructure SIP submission for the 2010 1-hour SO2 NAAQS with respect to the general requirement in section 110(a)(2)(J) to include a program in the SIP that provides for meeting the applicable consultation requirements of section 121, the public notification requirements of section 127, PSD, and visibility protection. EPA's rationale for each sub-element is described below.

    Consultation with government officials (121 consultation): Section 110(a)(2)(J) of the CAA requires states to provide a process for consultation with local governments, designated organizations and Federal Land Managers carrying out NAAQS implementation requirements pursuant to section 121 relative to consultation. Section APC-S-5, Mississippi Regulations for the Prevention of Significant Deterioration of Air Quality, and Mississippi Code Title 49, Section 49-17-17(c) (Appendix A-9), along with the State's various implementations plans, such as the State's Regional Haze Implementation Plan, provide for consultation between appropriate state, local, and tribal air pollution control agencies as well as the corresponding Federal Land Managers whose jurisdictions might be affected by SIP development activities. Mississippi adopted state-wide consultation procedures for the implementation of transportation conformity. These consultation procedures were developed in coordination with the transportation partners in the State and are consistent with the approaches used for development of mobile inventories for SIPs. Implementation of transportation conformity as outlined in the consultation procedures requires MDEQ to consult with Federal, state and local transportation and air quality agency officials on the development of motor vehicle emissions budgets. EPA has made the preliminary determination that Mississippi's SIP and practices adequately demonstrate that the State meets applicable requirements related to consultation with government officials for the 2010 1-hour SO2 NAAQS when necessary. Accordingly, EPA is proposing to approve Mississippi's infrastructure SIP submission with respect to section 110(a)(2)(J) consultation with government officials.

    Public notification (127 public notification): These requirements are met through regulation APC-S-3, Mississippi Regulations for the Prevention of Air Pollution Emergency Episodes, which requires that MDEQ notify the public of any air pollution alert, warning, or emergency. The MDEQ Web site also provides air quality summary data, air quality index reports and links to more information regarding public awareness of measures that can prevent such exceedances and of ways in which the public can participate in regulatory and other efforts to improve air quality. EPA has made the preliminary determination that Mississippi's SIP and practices adequately demonstrate the State's ability to provide public notification related to the 2010 1-hour SO2 NAAQS when necessary. Accordingly, EPA is proposing to approve Mississippi's infrastructure SIP submission with respect to section 110(a)(2)(J) public notification.

    PSD: With regard to the PSD element of section 110(a)(2)(J), this requirement may be met by a state's confirmation in an infrastructure SIP submission that new major sources and major modifications in the state are subject to a PSD program meeting all the current structural requirements of part C of title I of the CAA. As discussed in more detail above under the section discussing 110(a)(2)(C), Mississippi's SIP contains provisions for the State's PSD program that reflect the relevant SIP revisions pertaining to the required structural PSD requirements to satisfy the requirement of the PSD element of section 110(a)(2)(J). EPA has made the preliminary determination that Mississippi's SIP and practices are adequate for the PSD element of section 110(a)(2)(J).

    Visibility protection: EPA's 2013 Guidance notes that it does not treat the visibility protection aspects of section 110(a)(2)(J) as applicable for purposes of the infrastructure SIP approval process. MDEQ referenced its regional haze program as germane to the visibility component of section 110(a)(2)(J). EPA recognizes that states are subject to visibility protection and regional haze program requirements under part C of the Act (which includes sections 169A and 169B). However, there are no newly applicable visibility protection obligations after the promulgation of a new or revised NAAQS. Thus, EPA has determined that states do not need to address the visibility component of 110(a)(2)(J) in infrastructure SIP submittals so MDEQ does not need to rely on its regional haze program to fulfill its obligations under section 110(a)(2)(J). As such, EPA has made the preliminary determination that Mississippi's infrastructure SIP submission related to the 2010 1-hour SO2 NAAQS is approvable for the visibility protection element of section 110(a)(2)(J) and that Mississippi does not need to rely on its regional haze program to address this element.

    11. 110(a)(2)(K) Air Quality Modeling and Submission of Modeling Data: Section 110(a)(2)(K) of the CAA requires that SIPs provide for performing air quality modeling so that effects on air quality of emissions from NAAQS pollutants can be predicted and submission of such data to the EPA can be made. Sections APC-S-2, V. B.—Permit Regulation for the Construction and/or Operation of Air Emissions Equipment, and APC-S-5, Mississippi Regulations for the Prevention of Significant Deterioration of Air Quality, specify that required air modeling be conducted in accordance with 40 CFR part 51, Appendix W, Guideline on Air Quality Models, as incorporated into the Mississippi SIP. These standards demonstrate that Mississippi has the authority to perform air quality monitoring and provide relevant data for the purpose of predicting the effect on ambient air quality of the 2010 1-hour SO2 NAAQS. Additionally, Mississippi supports a regional effort to coordinate the development of emissions inventories and conduct regional modeling for several NAAQS, including the 2010 1-hour SO2 NAAQS, for the southeastern states. Taken as a whole, Mississippi's air quality regulations and practices demonstrate that MDEQ has the authority to provide relevant data for the purpose of predicting the effect on ambient air quality of the 2010 1-hour SO2 NAAQS. EPA has made the preliminary determination that Mississippi's SIP and practices adequately demonstrate the State's ability to provide for air quality and modeling, along with analysis of the associated data, related to the 2010 1-hour SO2 NAAQS when necessary. Accordingly, EPA is proposing to approve Mississippi's infrastructure SIP submission with respect to section 110(a)(2)(K).

    12. 110(a)(2)(L) Permitting fees: Section 110(a)(2)(L) requires the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit required under the CAA, a fee sufficient to cover (i) the reasonable costs of reviewing and acting upon any application for such a permit, and (ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enforcing the terms and conditions of any such permit (not including any court costs or other costs associated with any enforcement action), until such fee requirement is superseded with respect to such sources by the Administrator's approval of a fee program under title V.

    Mississippi's Mississippi Code Title 49, Section 49-2-9(c) (Appendix A-9), authorizes MDEQ to apply for, receive, and expend Federal or State funds in order to operate its air programs. Mississippi SIP Mississippi Code Title 49, Section 49-17-30 (Appendix A-9), provides for the assessment of title V permit fees to cover the reasonable cost of reviewing and acting upon air permitting activities in the State including title V, PSD and NNSR permits. Mississippi Code Title 49, Section 49-17-14 (Appendix A-9), allows MDEQ to expend or utilize monies in the Mississippi Air Operating Permit Program Fee Trust Fund to pay all reasonable direct and indirect costs associated with the development and administration of the title V program and the PSD and NNSR permitting programs. The Mississippi Air Operating Permit Program Fee Trust Fund consists of State legislative appropriations, Federal grant funds and title V fees. Additionally, Mississippi has a federally-approved title V operating permit program at Section APC-S-6 25 that covers the implementation and enforcement of PSD and NNSR permits after they have been issued. EPA has made the preliminary determination that Mississippi adequately provide for permitting fees related to the 2010 1-hour SO2 NAAQS when necessary.

    25 Title V program regulations are federally-approved but not incorporated into the federally-approved SIP.

    13. 110(a)(2)(M) Consultation and Participation by Affected Local Entities: Section 110(a)(2)(M) of the Act requires states to provide for consultation and participation in SIP development by local political subdivisions affected by the SIP. Mississippi Code Title 49, Sections 49-17-17(c) 49-17-19(b) (Appendix A-9) requires that MDEQ notify the public (including local political subdivisions) of an application, preliminary determination, the activity or activities involved in the permit action, any emissions change associated with any permit modification, and the opportunity for comment prior to making a final permitting decision. Additionally, MDEQ works closely with local political subdivisions during the development of its transportation conformity SIP and regional haze SIP. EPA has made the preliminary determination that Mississippi's SIP and practices adequately demonstrate consultation with affected local entities related to the 2010 1-hour SO2 NAAQS.

    V. Proposed Action

    With the exception of interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states and visibility protection requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4), and the state board majority requirements respecting the significant portion of income of section 110(a)(2)(E)(ii), EPA is proposing to approve Mississippi's June 20, 2013, SIP submission for the 2010 1-hour SO2 NAAQS for the above described infrastructure SIP requirements. EPA is proposing to approve these portions of Mississippi's infrastructure SIP submission for the 2010 1-hour SO2 NAAQS because these aspects of the submission are consistent with section 110 of the CAA. With regard to the state board majority requirements respecting significant portion of income, EPA is proposing to disapprove Mississippi's June 20, 2013, infrastructure submission.

    Under section 179(a) of the CAA, final disapproval of a submittal that addresses a requirement of a CAA Part D Plan or is required in response to a finding of substantial inadequacy as described in CAA section 110(k)(5) (SIP call) starts a sanctions clock. The portion of section 110(a)(2)(E)(ii) provisions (the provisions being proposed for disapproval in today's notice) were not submitted to meet requirements for Part D or a SIP call, and therefore, if EPA takes final action to disapprove this submittal, no sanctions will be triggered. However, if this disapproval action is finalized, that final action will trigger the requirement under section 110(c) that EPA promulgate a Federal Implementation Plan (FIP) no later than two years from the date of the disapproval unless the State corrects the deficiency, and EPA approves the plan or plan revision before EPA promulgates such FIP.

    VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed 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 proposed action:

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

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

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

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

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

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

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

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

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

    In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law. List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: January 28, 2016. Heather McTeer Toney, Regional Administrator, Region 4.
    [FR Doc. 2016-02608 Filed 2-10-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R04-OAR-2015-0743; FRL-9942-01-Region 4] Air Plan Approval and Designation of Areas; MS; Redesignation of the DeSoto County, 2008 8-Hour Ozone Nonattainment Area to Attainment AGENCY:

    Environmental Protection Agency.

    ACTION:

    Proposed rule.

    SUMMARY:

    On December 11, 2015, the State of Mississippi, through the Mississippi Department of Environment Quality (MDEQ), submitted a request for the Environmental Protection Agency (EPA) to redesignate the portion of Mississippi that is within the Memphis, Tennessee-Mississippi-Arkansas (Memphis, TN-MS-AR) 2008 8-hour ozone nonattainment area (hereafter referred to as the “Memphis, TN-MS-AR Area” or “Area”) and to approve a State Implementation Plan (SIP) revision containing a maintenance plan for the Area. EPA is proposing to determine that the Memphis, TN-MS-AR Area is attaining the 2008 8-hour ozone national ambient air quality standards (NAAQS); to approve the State's plan for maintaining attainment of the 2008 8-hour ozone NAAQS in the Area, including the motor vehicle emission budgets (MVEBs) for nitrogen oxides (NOX) and volatile organic compounds (VOC) for the year 2027 for the Mississippi portion of the Area, into the SIP; and to redesignate the Mississippi portion of the Area to attainment for the 2008 8-hour ozone NAAQS. EPA is also notifying the public of the status of EPA's adequacy determination for the MVEBs for the Mississippi portion of the Memphis, TN-MS-AR Area.

    DATES:

    Comments must be received on or before March 14, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R04-OAR-2015-0743 at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Sean Lakeman of the Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Mr. Lakeman may be reached by phone at (404) 562-9043 or via electronic mail at [email protected]

    SUPPLEMENTARY INFORMATION:

    Table of Contents I. What are the actions EPA is proposing to take? II. What is the background for EPA's proposed actions? III. What are the criteria for redesignation? IV. Why is EPA proposing these actions? V. What is EPA's analysis of the request? VI. What is EPA's analysis of Mississippi's proposed NOX and VOC MVEBs for the Mississippi portion of the area? VII. What is the status of EPA's adequacy determination for the proposed NOX and VOC MVEBs for the Mississippi portion of the area? VIII. What is the effect of EPA's proposed actions? IX. Proposed Actions X. Statutory and Executive Order Reviews I. What are the actions EPA is proposing to take?

    EPA is proposing to take the following three separate but related actions, one of which involves multiple elements: (1) To determine that the Memphis, TN-MS-AR Area is attaining the 2008 8-hour ozone NAAQS; 1 (2) to approve Mississippi's plan for maintaining the 2008 8-hour ozone NAAQS (maintenance plan), including the associated MVEBs for the Mississippi portion of the Memphis, TN-MS-AR Area, into the SIP; and (3) to redesignate the Mississippi portion of the Memphis, TN-MS-AR Area to attainment for the 2008 8-hour ozone NAAQS. EPA is also notifying the public of the status of EPA's adequacy determination for the MVEBs for the Mississippi portion of the Memphis, TN-MS-AR Area. The Memphis, TN-MS-AR Area consists of a portion of DeSoto County in Mississippi, all of Shelby County in Tennessee, and all of Crittenden County in Arkansas. This proposed actions are summarized below and described in greater detail throughout this notice of proposed rulemaking.

    1 On August 27, 2015, EPA published a notice of proposed rulemaking entitled “Determinations of Attainment by the Attainment Date, Extensions of the Attainment Date, and Reclassification of Several Areas Classified as Marginal for the 2008 Ozone National Ambient Air Quality Standards” proposing to determine that the Memphis, TN-MS-AR Area attained the 2008 8-hour ozone NAAQS by the applicable attainment date of July 20, 2015, based on 2012-2014 monitoring data. See 80 FR 51992. Any final action on the August 27, 2015 proposed rule will occur in a separate rulemaking from this proposed action.

    EPA is making the preliminary determination that the Memphis, TN-MS-AR Area is attaining the 2008 8-hour ozone NAAQS based on recent air quality data and proposing to approve Mississippi's maintenance plan for its portion of the Memphis, TN-MS-AR Area as meeting the requirements of section 175A (such approval being one of the Clean Air Act (CAA or Act) criteria for redesignation to attainment status). The maintenance plan is designed to keep the Memphis, TN-MS-AR Area in attainment of the 2008 8-hour ozone NAAQS through 2027. The maintenance plan includes 2027 MVEBs for NOX and VOC for the Mississippi portion of the Memphis, TN-MS-AR Area for transportation conformity purposes. EPA is proposing to approve these MVEBs and incorporate them into the Mississippi SIP.

    EPA also proposes to determine that the Mississippi portion of the Memphis, TN-MS-AR Area has met the requirements for redesignation under section 107(d)(3)(E) of the CAA. Accordingly, in this action, EPA is proposing to approve a request to change the legal designation of DeSoto County within the Mississippi portion of the Memphis, TN-MS-AR Area, as found at 40 CFR part 81, from nonattainment to attainment for the 2008 8-hour ozone NAAQS.

    EPA is also notifying the public of the status of EPA's adequacy process for the 2027 NOX and VOC MVEBs for the Mississippi portion of the Memphis, TN-MS-AR Area. The Adequacy comment period began on November 2, 2015, with EPA's posting of the availability of Mississippi's submissions on EPA's Adequacy Web site (http://www3.epa.gov/otaq/stateresources/transconf/currsips.htm#desoto-ms).

    The Adequacy comment period for these MVEBs closed on December 2, 2015. No comments, adverse or otherwise, were received during the Adequacy comment period. Please see section VII of this proposed rulemaking for further explanation of this process and for more details on the MVEBs.

    In summary, this notice of proposed rulemaking is in response to Mississippi's December 11, 2015, redesignation request and associated SIP submission that address the specific issues summarized previously and the necessary elements described in section 107(d)(3)(E) of the CAA for redesignation of the Mississippi portion of the Memphis, TN-MS-AR Area to attainment for the 2008 8-hour ozone NAAQS.

    II. What is the background for EPA's proposed actions?

    On March 12, 2008, EPA promulgated a revised 8-hour ozone NAAQS of 0.075 parts per million (ppm). See 73 FR 16436 (March 27, 2008). Under EPA's regulations at 40 CFR part 50, the 2008 8-hour ozone NAAQS is attained when the 3-year average of the annual fourth highest daily maximum 8-hour average ambient air quality ozone concentrations is less than or equal to 0.075 ppm. See 40 CFR 50.15. Ambient air quality monitoring data for the 3-year period must meet a data completeness requirement. The ambient air quality monitoring data completeness requirement is met when the average percent of days with valid ambient monitoring data is greater than 90 percent, and no single year has less than 75 percent data completeness as determined in Appendix I of part 50.

    Upon promulgation of a new or revised NAAQS, the CAA requires EPA to designate as nonattainment any area that is violating the NAAQS, based on the three most recent years of complete, quality assured, and certified ambient air quality data at the conclusion of the designation process. The Memphis, TN-MS-AR Area was designated nonattainment for the 2008 8-hour ozone NAAQS on May 21, 2012 (effective July 20, 2012) using 2008-2010 ambient air quality data. See 77 FR 30088 (May 21, 2012). At the time of designation, the Memphis, TN-MS-AR Area was classified as a marginal nonattainment area for the 2008 8-hour ozone NAAQS. In the final implementation rule for the 2008 8-hour ozone NAAQS (SIP Implementation Rule),2 EPA established ozone nonattainment area attainment dates based on Table 1 of section 181(a) of the CAA. This established an attainment date three years after the July 20, 2012, effective date for areas classified as marginal areas for the 2008 8-hour ozone nonattainment designations. Therefore, the Memphis, TN-MS-AR Area's attainment date is July 20, 2015.

    2 This rule, entitled Implementation of the 2008 National Ambient Air Quality Standards for Ozone: State Implementation Plan Requirements and published at 80 FR 12264 (March 6, 2015), addresses a range of nonattainment area SIP requirements for the 2008 ozone NAAQS, including requirements pertaining to attainment demonstrations, reasonable further progress (RFP), reasonably available control technology (RACT), reasonably available control measures (RACM), major new source review (NSR), emission inventories, and the timing of SIP submissions and of compliance with emission control measures in the SIP. This rule also addresses the revocation of the 1997 ozone NAAQS and the anti-backsliding requirements that apply when the 1997 ozone NAAQS are revoked.

    III. What are the criteria for redesignation?

    The CAA provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) of the CAA allows for redesignation providing that: (1) The Administrator determines that the area has attained the applicable NAAQS; (2) the Administrator has fully approved the applicable implementation plan for the area under section 110(k); (3) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP and applicable Federal air pollutant control regulations and other permanent and enforceable reductions; (4) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A; and, (5) the state containing such area has met all requirements applicable to the area for purposes of redesignation under section 110 and part D of the CAA.

    On April 16, 1992, EPA provided guidance on redesignation in the General Preamble for the Implementation of title I of the CAA Amendments of 1990 (57 FR 13498), and supplemented this guidance on April 28, 1992 (57 FR 18070). EPA has provided further guidance on processing redesignation requests in the following documents:

    1. “Ozone and Carbon Monoxide Design Value Calculations,” Memorandum from Bill Laxton, Director, Technical Support Division, June 18, 1990;

    2. “Maintenance Plans for Redesignation of Ozone and Carbon Monoxide Nonattainment Areas,” Memorandum from G. T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, April 30, 1992;

    3. “Contingency Measures for Ozone and Carbon Monoxide (CO) Redesignations,” Memorandum from G. T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, June 1, 1992;

    4. “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992 (hereafter referred to as the “Calcagni Memorandum”);

    5. “State Implementation Plan (SIP) Actions Submitted in Response to Clean Air Act (CAA) Deadlines,” Memorandum from John Calcagni, Director, Air Quality Management Division, October 28, 1992;

    6. “Technical Support Documents (TSDs) for Redesignation of Ozone and Carbon Monoxide (CO) Nonattainment Areas,” Memorandum from G. T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17, 1993;

    7. “State Implementation Plan (SIP) Requirements for Areas Submitting Requests for Redesignation to Attainment of the Ozone and Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) On or After November 15, 1992,” Memorandum from Michael H. Shapiro, Acting Assistant Administrator for Air and Radiation, September 17, 1993;

    8. “Use of Actual Emissions in Maintenance Demonstrations for Ozone and CO Nonattainment Areas,” Memorandum from D. Kent Berry, Acting Director, Air Quality Management Division, November 30, 1993;

    9. “Part D New Source Review (Part D NSR) Requirements for Areas Requesting Redesignation to Attainment,” Memorandum from Mary D. Nichols, Assistant Administrator for Air and Radiation, October 14, 1994; and

    10. “Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard,” Memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, May 10, 1995.

    IV. Why is EPA proposing these actions?

    On December 11, 2015, the State of Mississippi, through MDEQ, requested that EPA redesignate the Mississippi portion of the Memphis, TN-MS-AR Area to attainment for the 2008 8-hour ozone NAAQS. EPA's evaluation indicates that the entire Memphis, TN-MS-AR Area has attained the 2008 8-hour ozone NAAQS, and that the Mississippi portion of the Memphis, TN-MS-AR Area meets the requirements for redesignation as set forth in section 107(d)(3)(E), including the maintenance plan requirements under section 175A of the CAA. As a result, EPA is proposing to take the three related actions summarized in section I of this notice.

    V. What is EPA's analysis of the request?

    As stated previously, in accordance with the CAA, EPA proposes in this action to: (1) Determine that the Memphis, TN-MS-AR Area is attaining the 2008 8-hour ozone NAAQS; (2) approve the Mississippi portion of the Memphis, TN-MS-AR Area's 2008 8-hour ozone NAAQS maintenance plan, including the associated MVEBs, into the Mississippi SIP; and (3) redesignate the Mississippi portion of the Memphis, TN-MS-AR Area to attainment for the 2008 8-hour ozone NAAQS. The five redesignation criteria provided under CAA section 107(d)(3)(E) are discussed in greater detail for the Area in the following paragraphs of this section.

    Criteria (1)—The Memphis, TN-MS-AR Area has Attained the 2008 8-Hour Ozone NAAQS

    For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the area has attained the applicable NAAQS (CAA section 107(d)(3)(E)(i)). For ozone, an area may be considered to be attaining the 2008 8-hour ozone NAAQS if it meets the 2008 8-hour ozone NAAQS, as determined in accordance with 40 CFR 50.15 and Appendix I of part 50, based on three complete, consecutive calendar years of quality-assured air quality monitoring data. To attain the NAAQS, the 3-year average of the fourth-highest daily maximum 8-hour average ozone concentrations measured at each monitor within an area over each year must not exceed 0.075 ppm. Based on the data handling and reporting convention described in 40 CFR part 50, Appendix I, the NAAQS are attained if the design value is 0.075 ppm or below. The data must be collected and quality-assured in accordance with 40 CFR part 58 and recorded in the EPA Air Quality System (AQS). The monitors generally should have remained at the same location for the duration of the monitoring period required for demonstrating attainment.

    In this action, EPA is proposing to determine that the Memphis, TN-MS-AR Area is attaining the 2008 8-hour ozone NAAQS. EPA reviewed ozone monitoring data from monitoring stations in the Memphis, TN-MS-AR Area for the 2008 8-hour ozone NAAQS for 2012-2014, and the design values for each monitor in the Area are less than 0.075 ppm. These data have been quality-assured, are recorded in Aerometric Information Retrieval System (AIRS-AQS), and indicate that the Area is attaining the 2008 8-hour ozone NAAQS. The fourth-highest 8-hour ozone values at each monitor for 2012, 2013, 2014, and the 3-year averages of these values (i.e., design values), are summarized in Table 1, below.

    Table 1—2012-2014 Design Value Concentrations for the Memphis, TN-MS-AR Area [ppm] Location Site 4th Highest 8-hour ozone value (ppm) 2012 2013 2014 3-Year design values (ppm) 2012-2014 DeSoto, MS Hernando 0.075 0.065 0.067 0.069 Shelby, TN Frayser 0.083 0.069 0.067 0.073 Shelby, TN Orgill Park 0.084 0.063 0.065 0.070 Shelby, TN Shelby Farms 0.086 0.069 0.066 0.073 Crittenden, AR Marion 0.079 0.067 0.067 0.071

    The 3-year design value for 2012-2014 for the Memphis, TN-MS-AR Area is 0.073 ppm,3 which meets the NAAQS. EPA has reviewed 2015 preliminary monitoring data for the Area, and that data indicates that the Area continues to attain.4 In this action, EPA is proposing to determine that Memphis, TN-MS-AR Area is attaining the 2008 8-hour ozone NAAQS. EPA will not take final action to approve the redesignation if the 3-year design value exceeds the NAAQS prior to EPA finalizing the redesignation. As discussed in more detail below, the State of Mississippi has committed to continue monitoring in this Area in accordance with 40 CFR part 58.

    3 The highest 3-year design value at a monitoring station is considered the design value for the Area.

    4 This preliminary data is available at EPA's air data Web site: http://aqsdr1.epa.gov/aqsweb/aqstmp/airdata/download_files.html#Daily.

    Criteria (2)—Mississippi Has a Fully Approved SIP Under Section 110(k) for the Mississippi Portion of the Memphis, TN-MS-AR Area; and Criteria (5)—Mississippi Has Met All Applicable Requirements Under Section 110 and Part D of Title I of the CAA

    For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the state has met all applicable requirements under section 110 and part D of title I of the CAA (CAA section 107(d)(3)(E)(v)) and that the state has a fully approved SIP under section 110(k) for the area (CAA section 107(d)(3)(E)(ii)). EPA proposes to find that Mississippi has met all applicable SIP requirements for the Mississippi portion of the Area under section 110 of the CAA (general SIP requirements) for purposes of redesignation. Additionally, EPA proposes to find that the Mississippi SIP satisfies the criterion that it meets applicable SIP requirements for purposes of redesignation under part D of title I of the CAA in accordance with section 107(d)(3)(E)(v). Further, EPA proposes to determine that the SIP is fully approved with respect to all requirements applicable for purposes of redesignation in accordance with section 107(d)(3)(E)(ii). In making these determinations, EPA ascertained which requirements are applicable to the Area and, if applicable, that they are fully approved under section 110(k). SIPs must be fully approved only with respect to requirements that were applicable prior to submittal of the complete redesignation request.

    a. The Mississippi Portion of the Memphis, TN-MS-AR Area Has Met All Applicable Requirements Under Section 110 and Part D of the CAA

    General SIP requirements. General SIP elements and requirements are delineated in section 110(a)(2) of title I, part A of the CAA. These requirements include, but are not limited to, the following: Submittal of a SIP that has been adopted by the state after reasonable public notice and hearing; provisions for establishment and operation of appropriate procedures needed to monitor ambient air quality; implementation of a source permit program; provisions for the implementation of part C requirements (Prevention of Significant Deterioration (PSD)) and provisions for the implementation of part D requirements (NSR permit programs); provisions for air pollution modeling; and provisions for public and local agency participation in planning and emission control rule development.

    Section 110(a)(2)(D) requires that SIPs contain certain measures to prevent sources in a state from significantly contributing to air quality problems in another state. To implement this provision, EPA has required certain states to establish programs to address the interstate transport of air pollutants. The section 110(a)(2)(D) requirements for a state are not linked with a particular nonattainment area's designation and classification in that state. EPA believes that the requirements linked with a particular nonattainment area's designation and classifications are the relevant measures to evaluate in reviewing a redesignation request. The transport SIP submittal requirements, where applicable, continue to apply to a state regardless of the designation of any one particular area in the state. Thus, EPA does not believe that the CAA's interstate transport requirements should be construed to be applicable requirements for purposes of redesignation.

    In addition, EPA believes that other section 110(a)(2) elements that are neither connected with nonattainment plan submissions nor linked with an area's attainment status are not applicable requirements for purposes of redesignation. The area will still be subject to these requirements after the area is redesignated. The section 110(a)(2) and part D requirements which are linked with a particular area's designation and classification are the relevant measures to evaluate in reviewing a redesignation request. This approach is consistent with EPA's existing policy on applicability (i.e., for redesignations) of conformity and oxygenated fuels requirements, as well as with section 184 ozone transport requirements. See Reading, Pennsylvania, proposed and final rulemakings (61 FR 53174-53176, October 10, 1996), (62 FR 24826, May 7, 2008); Cleveland-Akron-Loraine, Ohio, final rulemaking (61 FR 20458, May 7, 1996); and Tampa, Florida, final rulemaking at (60 FR 62748, December 7, 1995). See also the discussion on this issue in the Cincinnati, Ohio, redesignation (65 FR 37890, June 19, 2000), and in the Pittsburgh, Pennsylvania, redesignation (66 FR 50399, October 19, 2001).

    EPA has reviewed Mississippi's SIP and has concluded that it meets the general SIP requirements under section 110(a)(2) of the CAA to the extent they are applicable for purposes of redesignation. EPA has previously approved provisions of Mississippi's SIP addressing CAA section 110(a)(2) requirements including provisions addressing the 2008 ozone NAAQS. See 80 FR 11131 (March 2, 2015); 80 FR 14019 (March 18, 2015). These requirements are, however, statewide requirements that are not linked to the ozone nonattainment status of the Area. Therefore, EPA believes that these SIP elements are not applicable requirements for purposes of review of Mississippi's ozone redesignation request.

    Title I, Part D, applicable SIP requirements. Section 172(c) of the CAA sets forth the basic requirements of attainment plans for nonattainment areas that are required to submit them pursuant to section 172(b). Subpart 2 of part D, which includes section 182 of the CAA, establishes specific requirements for ozone nonattainment areas depending on the area's nonattainment classification. As provided in Subpart 2, a marginal ozone nonattainment area, such as the Memphis, TN-MS-AR Area, must submit an emissions inventory that complies with section 172(c)(3), but the specific requirements of section 182(a) apply in lieu of the demonstration of attainment (and contingency measures) required by section 172(c). 42 U.S.C. 7511a(a). A thorough discussion of the requirements contained in sections 172(c) and 182 can be found in the General Preamble for Implementation of Title I (57 FR 13498).

    Section 182(a) Requirements. Section 182(a)(1) requires states to submit a comprehensive, accurate, and current inventory of actual emissions from sources of VOC and NOX emitted within the boundaries of the ozone nonattainment area. Mississippi provided an emissions inventory for the Memphis, TN-MS-AR Area to EPA in a January 14, 2015, SIP submission. On July 2, 2015, EPA published a direct final rule approving this emissions inventory into the SIP. See 80 FR 37985.

    Under section 182(a)(2)(A), states with ozone nonattainment areas that were designated prior to the enactment of the 1990 CAA amendments were required to submit, within six months of classification, all rules and corrections to existing VOC RACT rules that were required under section 172(b)(3) of the CAA (and related guidance) prior to the 1990 CAA amendments. The Mississippi portion of the Memphis, TN-MS-AR Area is not subject to the section 182(a)(2) RACT “fix up” because the Area was designated as nonattainment after the enactment of the 1990 CAA amendments.

    Section 182(a)(2)(B) requires each state with a marginal ozone nonattainment area that implemented, or was required to implement, an inspection and maintenance (I/M) program prior to the 1990 CAA amendments to submit a SIP revision providing for an I/M program no less stringent than that required prior to the 1990 amendments or already in the SIP at the time of the amendments, whichever is more stringent. The Mississippi portion of the Memphis, TN-MS-AR Area is not subject to the section 182(a)(2)(B) requirement because it was designated as nonattainment after the enactment of the 1990 CAA amendments and did not have an I/M program in place prior to those amendments.

    Regarding the permitting and offset requirements of section 182(a)(2)(C) and section 182(a)(4), Mississippi does not have an approved part D NSR program in place. However, EPA has determined that areas being redesignated need not comply with the requirement that a NSR program be approved prior to redesignation, provided that the area demonstrates maintenance of the NAAQS without part D NSR, because PSD requirements will apply after redesignation. A more detailed rationale for this view is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled, “Part D New Source Review Requirements for Areas Requesting Redesignation to Attainment.” Mississippi's PSD program will become applicable in the Memphis, TN-MS-AR Area upon redesignation to attainment.

    Section 182(a)(3) requires states to submit periodic inventories and emissions statements. Section 182(a)(3)(A) requires states to submit a periodic inventory every three years. As discussed later on in the section of this notice titled Criteria (4)(e), Verification of Continued Attainment, the State will continue to update its emissions inventory at least once every three years. Under section 182(a)(3)(B), each state with an ozone nonattainment area must submit a SIP revision requiring emissions statements to be submitted to the state by sources within that nonattainment area. Mississippi provided a SIP revision to EPA on August 28, 2015, addressing the section 182(a)(3)(B) emissions statements requirement, and on January 12, 2016, EPA published a final rule approving this SIP revision. See 81 FR 1320.

    Section 176 Conformity Requirements. Section 176(c) of the CAA requires states to establish criteria and procedures to ensure that federally supported or funded projects conform to the air quality planning goals in the applicable SIP. The requirement to determine conformity applies to transportation plans, programs, and projects that are developed, funded, or approved under title 23 of the United States Code (U.S.C.) and the Federal Transit Act (transportation conformity) as well as to all other federally supported or funded projects (general conformity). State transportation conformity SIP revisions must be consistent with Federal conformity regulations relating to consultation, enforcement, and enforceability that EPA promulgated pursuant to its authority under the CAA.

    EPA interprets the conformity SIP requirements 5 as not applying for purposes of evaluating a redesignation request under section 107(d) because state conformity rules are still required after redesignation and Federal conformity rules apply where state rules have not been approved. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001) (upholding this interpretation); see also 60 FR 62748 (December 7, 1995) (redesignation of Tampa, Florida). Nonetheless, Mississippi has an approved conformity SIP for the Mississippi portion of the Memphis, TN-MS-AR Area. See 78 FR 67952 (November 13, 2013). Thus, EPA proposes that the Mississippi portion of the Memphis, TN-MS-AR Area has satisfied all applicable requirements for purposes of redesignation under section 110 and part D of title I of the CAA.

    5 CAA section 176(c)(4)(E) requires states to submit revisions to their SIPs to reflect certain Federal criteria and procedures for determining transportation conformity. Transportation conformity SIPs are different from the MVEBs that are established in control strategy SIPs and maintenance plans.

    b. The Mississippi Portion of the Memphis, TN-MS-AR Area Has a Fully Approved Applicable SIP Under Section 110(k) of the CAA

    As discussed previously, EPA has fully approved the State's SIP for the Mississippi portion of the Memphis, TN-MS-AR Area under section 110(k) of the CAA for all requirements applicable for purposes of redesignation. See, e.g., 80 FR 11131 (March 2, 2015); 80 FR 14019 (March 18, 2015). EPA may rely on prior SIP approvals in approving a redesignation request (see Calcagni Memorandum at p. 3; Southwestern Pennsylvania Growth Alliance v. Browner, 144 F.3d 984, 989-90 (6th Cir. 1998); Wall, 265 F.3d 426) plus any additional measures it may approve in conjunction with a redesignation action (see 68 FR 25426 (May 12, 2003) and citations therein). EPA believes that the section 110 elements that are neither connected with nonattainment plan submissions nor linked to an area's nonattainment status are not applicable requirements for purposes of redesignation, and EPA has approved all part D requirements applicable for purposes of this redesignation. See 80 FR 37985 (July 2, 2015) and 80 FR 1320 (January 12, 2016).

    Criteria (3)—The Air Quality Improvement in the Memphis, TN-MS-AR Area Is Due to Permanent and Enforceable Reductions in Emissions Resulting From Implementation of the SIP and Applicable Federal Air Pollution Control Regulations and Other Permanent and Enforceable Reductions

    For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the air quality improvement in the area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, applicable Federal air pollution control regulations, and other permanent and enforceable reductions (CAA section 107(d)(3)(E)(iii)). EPA has preliminarily determined that Mississippi has demonstrated that the observed air quality improvement in the Memphis, TN-MS-AR Area is due to permanent and enforceable reductions in emissions resulting from Federal measures. EPA proposes to agree with the State's conclusion that meteorology has not had a significant role in the steady decline in ozone concentrations in the Area.6

    6 The State compared temperature and wind data for each of the design value attainment years (2012-2014) with the 30-year averages for the Area. See pp.10-15 of Mississippi's December 11, 2015, submission for the State's meteorological analysis.

    Federal measures enacted in recent years have resulted in permanent emission reductions. The Federal measures that have been implemented include the following:

    Tier 2 vehicle and fuel standards. Implementation began in 2004 and requires all passenger vehicles in any manufacturer's fleet to meet an average standard of 0.07 grams of NOX per mile. Additionally, in January 2006 the sulfur content of gasoline was required to be on average 30 ppm which assists in lowering the NOX emissions. Most gasoline sold in Mississippi prior to January 2006 had a sulfur content of about 300 ppm.7 EPA expects that these standards will reduce NOX emissions from vehicles by approximately 74 percent by 2030, translating to nearly 3 million tons annually by 2030.8

    7 Mississippi also identified Tier 3 Motor Vehicle Emissions and Fuel Standards as a federal measure. EPA issued this rule in April 28, 2014, which applies to light duty passenger cars and trucks. EPA promulgated this rule to reduce air pollution from new passenger cars and trucks beginning in 2017. Tier 3 emission standards will lower sulfur content of gasoline and lower the emissions standards.

    8 EPA, Regulatory Announcement, EPA420-F-99-051 (December 1999), available at: http://www.epa.gov/tier2/documents/f99051.pdf.

    Large non-road diesel engines rule. This rule was promulgated in 2004, and is being phased in between 2008 through 2014. This rule will also reduce the sulfur content in the nonroad diesel fuel. When fully implemented, this rule will reduce NOX, VOC, particulate matter, and carbon monoxide. These emission reductions are federally enforceable. EPA issued this rule in June 2004, which applies to diesel engines used in industries, such as construction, agriculture, and mining. It is estimated that compliance with this rule will cut NOX emissions from non-road diesel engines by up to 90 percent nationwide.

    Heavy-duty gasoline and diesel highway vehicle standards. EPA issued this rule in January 2001 (66 FR 5002). This rule includes standards limiting the sulfur content of diesel fuel, which went into effect in 2004. A second phase took effect in 2007, which further reduced the highway diesel fuel sulfur content to 15 ppm, leading to additional reductions in combustion NOX and VOC emissions. EPA expects that this rule will achieve a 95 percent reduction in NOX emissions from diesel trucks and buses and will reduce NOX emissions by 2.6 million tons by 2030 when the heavy-duty vehicle fleet is completely replaced with newer heavy-duty vehicles that comply with these emission standards.9

    9 66 FR 5002, 5012 (January 18, 2001). Mississippi also identified Federal rules requiring manufacturers to install on-board diagnostic (OBD) systems for heavy-duty vehicles and for engines certified for use in heavy-duty vehicles. EPA promulgated these rules to help ensure that the projected benefits from the relevant federal vehicle emissions standards are realized.

    Nonroad spark-ignition engines and recreational engines standards. The nonroad spark-ignition and recreational engine standards, effective in July 2003, regulate NOX, hydrocarbons, and carbon monoxide from groups of previously unregulated nonroad engines. These engine standards apply to large spark-ignition engines (e.g., forklifts and airport ground service equipment), recreational vehicles (e.g., off-highway motorcycles and all-terrain-vehicles), and recreational marine diesel engines sold in the United States and imported after the effective date of these standards. When all of the nonroad spark-ignition and recreational engine standards are fully implemented, an overall 72 percent reduction in hydrocarbons, 80 percent reduction in NOX, and 56 percent reduction in carbon monoxide emissions are expected by 2020. These controls reduce ambient concentrations of ozone, carbon monoxide, and fine particulate matter.

    National Program for greenhouse gas (GHG) emissions and Fuel Economy Standards. The federal GHG and fuel economy standards apply to light-duty cars and trucks in model years 2012-2016 (phase 1) and 2017-2025 (phase 2). The final standards are projected to result in an average industry fleet-wide level of 163 grams/mile of carbon dioxide which is equivalent to 54.5 miles per gallon if achieved exclusively through fuel economy improvements. The fuel economy standards result in less fuel being consumed, and therefore less NOX emissions released.

    EPA proposes to find that the improvements in air quality in the Memphis, TN-MS-AR Area are due to real, permanent and enforceable reductions in NOX and VOC emissions resulting from Federal measures.

    Criteria (4)—The Mississippi Portion of the Memphis, TN-MS-AR Area Has a Fully Approved Maintenance Plan Pursuant to Section 175A of the CAA

    For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the area has a fully approved maintenance plan pursuant to section 175A of the CAA (CAA section 107(d)(3)(E)(iv)). In conjunction with its request to redesignate the Mississippi portion of the Memphis, TN-MS-AR Area to attainment for the 2008 8-hour ozone NAAQS, MDEQ submitted a SIP revision to provide for the maintenance of the 2008 8-hour ozone NAAQS for at least 10 years after the effective date of redesignation to attainment. EPA believes that this maintenance plan meets the requirements for approval under section 175A of the CAA.

    a. What is required in a maintenance plan?

    Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after the Administrator approves a redesignation to attainment. Eight years after the redesignation, the state must submit a revised maintenance plan demonstrating that attainment will continue to be maintained for the 10 years following the initial 10-year period. To address the possibility of future NAAQS violations, the maintenance plan must contain contingency measures as EPA deems necessary to assure prompt correction of any future 2008 8-hour ozone violations. The Calcagni Memorandum provides further guidance on the content of a maintenance plan, explaining that a maintenance plan should address five requirements: The attainment emissions inventory, maintenance demonstration, monitoring, verification of continued attainment, and a contingency plan. As is discussed more fully below, EPA has preliminarily determined that Mississippi's maintenance plan includes all the necessary components and is thus proposing to approve it as a revision to the Mississippi SIP.

    b. Attainment Emissions Inventory

    EPA is proposing to determine that the Memphis, TN-MS-AR Area has attained the 2008 8-hour ozone NAAQS based on quality-assured monitoring data for the 3-year period from 2012-2014, and is continuing to attain the standard based on preliminary 2015 data. Mississippi selected 2012 as the base year (i.e., attainment emissions inventory year) for developing a comprehensive emissions inventory for NOX and VOC, for which projected emissions could be developed for 2017, 2020, and 2027. The attainment inventory identifies a level of emissions in the Area that is sufficient to attain the 2008 8-hour ozone NAAQS. Mississippi began development of the attainment inventory by first generating a baseline emissions inventory for the State's portion of the Memphis, TN-MS-AR Area. The projected summer day emission inventories have been estimated using projected rates of growth in population, traffic, economic activity, and other parameters. In addition to comparing the final year of the plan (2027) to the base year (2012), Mississippi compared interim years to the baseline to demonstrate that these years are also expected to show continued maintenance of the 2008 8-hour ozone standard.

    The emissions inventory is composed of four major types of sources: Point, area, on-road mobile, and non-road mobile. Complete descriptions of how the inventories were developed are located in Appendix A through Appendix D of the December 11, 2015 submittal, which can be found in the docket for this action. Point source emissions are tabulated from data collected by direct on-site measurements of emissions or from mass balance calculations utilizing approved emission factors. For each projected year's inventory, point sources are adjusted by growth factors based on Standard Industrial Classification codes generated using growth patterns obtained from County Business Patterns. For Title V sources, the actual 2012 emissions were used. Rail yard and airport emissions reported were obtained from the EPA's 2011 National Emission Inventory.

    For area sources, emissions are estimated by multiplying an emission factor by some known indicator of collective activity such as production, number of employees, or population. For each projected year's inventory, area source emissions are changed by population growth, projected production growth, or estimated employment growth.

    The non-road mobile sources emissions are calculated using NONROAD2008 within EPA's Motor Vehicle Emission Simulator (MOVES2014) model, with the exception of the railroad locomotives which were estimated by taking activity and multiplying by an emission factor. For each projected year's inventory, the emissions are estimated using EPA's MOVES2014 model with activity input such as projected landing and takeoff data for aircraft.

    For on-road mobile sources, EPA's MOVES2014 mobile model is run to generate emissions. The MOVES2014 model includes the road class vehicle miles traveled (VMT) as an input file and can directly output the estimated emissions. For each projected year's inventory, the on-road mobile sources emissions are calculated by running the MOVES mobile model for the future year with the projected VMT to generate emissions that take into consideration expected Federal tailpipe standards, fleet turnover, and new fuels.

    The 2012 NOX and VOC emissions for the Mississippi portion of the Memphis, TN-MS-AR Area, as well as the emissions for other years, were developed consistent with EPA guidance and are summarized in Tables 2 through 3 of the following subsection discussing the maintenance demonstration. See Appendix B through Appendix D of the December 11, 2015, submission for more detailed information on the emissions inventory.

    c. Maintenance Demonstration

    The maintenance plan associated with the redesignation request includes a maintenance demonstration that:

    (i) Shows compliance with and maintenance of the 2008 8-hour ozone NAAQS by providing information to support the demonstration that current and future emissions of NOX and VOC remain at or below 2012 emissions levels.

    (ii) Uses 2012 as the attainment year and includes future emissions inventory projections for 2017, 2020, and 2027.

    (iii) Identifies an “out year” at least 10 years after the time necessary for EPA to review and approve the maintenance plan. Per 40 CFR part 93, NOX and VOC MVEBs were established for the last year (2027) of the maintenance plan (see section VII below).

    (iv) Provides actual (2012) and projected emissions inventories, in tons per summer day (tpsd), for the Mississippi portion of the Memphis, TN-MS-AR Area, as shown in Tables 2 and 3, below.

    Table 2—Actual and Projected Average Summer Day NOX Emissions (tpsd) for the Mississippi Portion of the Memphis, TN-MS-AR Area Sector 2012 2017 2020 2027 Point 1.78 1.81 1.83 1.89 Area 1.24 1.25 1.25 1.24 Non-road 2.89 2.29 2.06 1.78 On-road 8.66 5.34 3.53 2.74 Total 14.57 10.68 8.68 7.65 Table 3—Actual and Projected Average Summer Day VOC Emissions (tpsd) for the Mississippi Portion of the Memphis, TN-MS-AR Area Sector 2012 2017 2020 2027 Point 0.84 0.77 0.77 0.79 Area 6.49 6.57 6.59 6.54 Non-road 1.86 1.41 1.33 1.28 On-road 5.75 3.92 2.51 2.54 Total 14.94 12.67 11.19 11.15

    Tables 2 and 3 summarize the 2012 and future projected emissions of NOX and VOC from the Mississippi portion of the Memphis, TN-MS-AR Area. In situations where local emissions are the primary contributor to nonattainment, such as the Memphis, TN-MS-AR Area, if the future projected emissions in the nonattainment area remain at or below the baseline emissions in the nonattainment area, then the ambient air quality standard should not be exceeded in the future. Mississippi has projected emissions as described previously and determined that emissions in the Mississippi portion of the Memphis, TN-MS-AR Area will remain below those in the attainment year inventory for the duration of the maintenance plan.

    As discussed in section VI of this proposed rulemaking, a safety margin is the difference between the attainment level of emissions (from all sources) and the projected level of emissions (from all sources) in the maintenance plan. The attainment level of emissions is the level of emissions during one of the years in which the area met the NAAQS. Mississippi selected 2012 as the attainment emissions inventory year for the Mississippi portion of the Memphis, TN-MS-AR Area. Mississippi calculated safety margins in its submittal for years 2017, 2020, and 2027. The State has allocated a portion of the 2027 safety margin to the 2027 MVEBs for the Memphis, TN-MS-AR Area.

    Table 4—Safety Margins for the Mississippi Portion of the Memphis, TN-MS-AR Area Year VOC (tpd) NOX (tpd) 2017 2.27 3.89 2020 3.75 5.90 2027 3.79 6.92

    The State has decided to allocate a portion of the available safety margin to the 2027 MVEBs to allow for unanticipated growth in VMT, changes and uncertainty in vehicle mix assumptions, etc., that will influence the emission estimations. MDEQ has allocated 5.26 tpd of the NOX safety margin to the 2027 NOX MVEB and 2.46 tpd of the VOC safety margin to the 2027 VOC MVEB. After allocation of the available safety margin, the remaining safety margin is 1.66 tpd for NOX and 1.33 tpd for VOC. This allocation and the resulting available safety margin for the Mississippi portion of the Memphis, TN-MS-AR Area are discussed further in section VI of this proposed rulemaking along with the MVEBs to be used for transportation conformity proposes.

    d. Monitoring Network

    There are five monitors measuring ozone in the Memphis, TN-MS-AR Area, of which one is located in the Mississippi portion of the Memphis, TN-MS-AR Area. In its maintenance plan, Mississippi has committed to continue operation of the monitor in the Mississippi portion of the Memphis, TN-MS-AR Area in compliance with 40 CFR part 58 and has thus addressed the requirement for monitoring. EPA approved Mississippi's monitoring plan on November 7, 2014.

    e. Verification of Continued Attainment

    The State of Mississippi, through MDEQ, has the legal authority to enforce and implement the maintenance plan for the Mississippi portion of the Area. This includes the authority to adopt, implement, and enforce any subsequent emissions control contingency measures determined to be necessary to correct future ozone attainment problems. The State has committed to track the progress of the maintenance plan by updating its emissions inventory at least once every three years and reviewing the updated emissions inventories for the area using the latest emissions factors, models, and methodologies.

    Additionally, under the Consolidated Emissions Reporting Rule (CERR) and Air Emissions Reporting Requirements (AERR), MDEQ is required to develop a comprehensive, annual, statewide emissions inventory every three years that is due twelve to eighteen months after the completion of the inventory year. The AERR inventory years match the base year and final year of the inventory for the maintenance plan, and are within one or two years of the interim inventory years of the maintenance plan. Therefore, MDEQ commits to compare the CERR and AERR inventories as they are developed with the maintenance plan to determine if additional steps are necessary for continued maintenance of the 2008 8-hour ozone NAAQS in this Area.

    f. Contingency Measures in the Maintenance Plan

    Section 175A of the CAA requires that a maintenance plan include such contingency measures as EPA deems necessary to assure that the state will promptly correct a violation of the NAAQS that occurs after redesignation. The maintenance plan should identify the contingency measures to be adopted, a schedule and procedure for adoption and implementation, and a time limit for action by the state. A state should also identify specific indicators to be used to determine when the contingency measures need to be implemented. The maintenance plan must include a requirement that a state will implement all measures with respect to control of the pollutant that were contained in the SIP before redesignation of the area to attainment in accordance with section 175A(d).

    The contingency plan included in the submittal includes a triggering mechanism to determine when contingency measures are needed and a process of developing and implementing appropriate control measures. The primary trigger is a violation of the 2008 8-hour ozone NAAQS (i.e., when the three-year average of the 4th highest values is equal to or greater than 0.076 ppm at a monitor in the Area). If the quality assured/quality controlled (QA/QC) data indicates a violating design value, the trigger date will be the date of the design value violation and not the final QA/QC date. If the initial monitoring data indicates a possible violation but later QA/QC indicates that a violation did not occur, then a triggering event will not have occurred and contingency measures will not be implemented. The secondary trigger is activated when MDEQ forecasts ozone levels above the 2008 8-hour ozone NAAQS although no actual violation of the 2008 8-hour ozone NAAQS has occurred.

    Once the primary or secondary trigger is activated, the MDEQ, shall commence analyses including an emissions inventory assessment to determine those emission control measures that will be required for attaining or maintaining the 2008 8-hour ozone NAAQS. At least one of the following contingency measures will be adopted and implemented within 18 to 24 months upon a primary triggering event:

    • Implementation of diesel retrofit programs, including incentives for performing retrofits for fleet vehicle operations;

    • Voluntary engine idling reduction programs;

    • MDEQ will work with Mississippi Department of Transportation to have air quality alerts posted on the Intelligent Transportation System boards located in DeSoto County encouraging motorists to take actions to reduce emissions when forecasted ozone levels will exceed; and

    • Other measures deemed appropriate at the time as a result of advances in control technologies.10

    10 If the State adopts a voluntary emission reduction measure as a contingency measure necessary to attain or maintain the NAAQS, EPA will evaluate approvability in accordance with relevant Agency guidance regarding the incorporation of voluntary measures into SIPs. See, e.g., Memorandum from Richard D. Wilson, Acting Administrator for Air and Radiation, to EPA Regional Administrators re: Guidance on Incorporating Voluntary Mobile Source Emission Reduction Programs in State Implementation Plans (SIPs) (October 24, 1997); EPA, Office of Air and Radiation, Incorporating Emerging and Voluntary Measures in a State Implementation Plan (SIP) (September 2004).

    If the secondary trigger is activated, MDEQ will suspend all open burning permits within the County until the forecast shows improvement.

    EPA preliminarily concludes that the maintenance plan adequately addresses the five basic components of a maintenance plan: the attainment emissions inventory, maintenance demonstration, monitoring, verification of continued attainment, and a contingency plan. Therefore, EPA proposes that the maintenance plan SIP revision submitted by Mississippi for the State's portion of the Area meets the requirements of section 175A of the CAA and is approvable.

    VI. What is EPA's analysis of Mississippi's proposed NOX and VOC MVEBs for the Mississippi portion of the area?

    Under section 176(c) of the CAA, new transportation plans, programs, and projects, such as the construction of new highways, must “conform” to (i.e., be consistent with) the part of the state's air quality plan that addresses pollution from cars and trucks. Conformity to the SIP means that transportation activities will not cause new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS or any interim milestones. If a transportation plan does not conform, most new projects that would expand the capacity of roadways cannot go forward. Regulations at 40 CFR part 93 set forth EPA policy, criteria, and procedures for demonstrating and assuring conformity of such transportation activities to a SIP. The regional emissions analysis is one, but not the only, requirement for implementing transportation conformity. Transportation conformity is a requirement for nonattainment and maintenance areas. Maintenance areas are areas that were previously nonattainment for a particular NAAQS but have since been redesignated to attainment with an approved maintenance plan for that NAAQS.

    Under the CAA, states are required to submit, at various times, control strategy SIPs and maintenance plans for nonattainment areas. These control strategy SIPs (including RFP and attainment demonstration requirements) and maintenance plans create MVEBs (or in this case sub-area MVEBs) for criteria pollutants and/or their precursors to address pollution from cars and trucks. Per 40 CFR part 93, a MVEB must be established for the last year of the maintenance plan. A state may adopt MVEBs for other years as well. The MVEB is the portion of the total allowable emissions in the maintenance demonstration that is allocated to highway and transit vehicle use and emissions. See 40 CFR 93.101. The MVEB serves as a ceiling on emissions from an area's planned transportation system. The MVEB concept is further explained in the preamble to the November 24, 1993, Transportation Conformity Rule (58 FR 62188). The preamble also describes how to establish the MVEB in the SIP and how to revise the MVEB.

    As part of the interagency consultation process on setting MVEBs, MDEQ held discussions to determine what years to set MVEBs for the Memphis, TN-MS-AR maintenance plan. According to the transportation conformity rule, a maintenance plan must establish MVEBs for the last year of the maintenance plan (in this case, 2027). See 40 CFR 93.118. Table 5, below, provides the NOX and VOC MVEBs for 2027.

    Table 5—MVEBs for the Mississippi Portion of the Memphis, TN-MS-AR Area [tpd] 2027 NOX VOC Base Year On-Road Emissions 2.74 2.54 Safety Margin Allocated to MVEB 5.26 2.46 Conformity MVEB 8.00 5.00

    As mentioned previously, Mississippi has chosen to allocate a portion of the available safety margin to the NOX and VOC MVEBs for 2027. As discussed in section V of this proposed rulemaking notice, a safety margin is the difference between the attainment level of emissions (from all sources) and the projected level of emissions (from all sources) in the maintenance plan. The attainment level of emissions is the level of emissions during one of the years in which the area met the NAAQS. As discussed previously, Mississippi has selected 2012 as the base year.

    Through this rulemaking, EPA is proposing to approve the MVEBs for NOX and VOC for 2027 for the Mississippi portion of the Memphis, TN-MS-AR Area because EPA believes that the Area maintains the 2008 8-hour ozone NAAQS with the emissions at the levels of the budgets. Once the MVEBs for the Mississippi portion of the Memphis, TN-MS-AR Area are approved or found adequate (whichever is completed first), they must be used for future conformity determinations. After thorough review, EPA has preliminary determined that the budgets meet the adequacy criteria, as outlined in 40 CFR 93.118(e)(4), and is proposing to approve the budgets because they are consistent with maintenance of the 2008 8-hour ozone NAAQS through 2027.

    VII. What is the status of EPA's adequacy determination for the proposed NOX and VOC MVEBs for the Mississippi portion of the area?

    When reviewing submitted “control strategy” SIPs or maintenance plans containing MVEBs, EPA may affirmatively find the MVEB contained therein adequate for use in determining transportation conformity. Once EPA affirmatively finds the submitted MVEB is adequate for transportation conformity purposes, that MVEB must be used by state and Federal agencies in determining whether proposed transportation projects conform to the SIP as required by section 176(c) of the CAA.

    EPA's substantive criteria for determining adequacy of a MVEB are set out in 40 CFR 93.118(e)(4). The process for determining adequacy consists of three basic steps: public notification of a SIP submission, a public comment period, and EPA's adequacy determination. This process for determining the adequacy of submitted MVEBs for transportation conformity purposes was initially outlined in EPA's May 14, 1999, guidance, “Conformity Guidance on Implementation of March 2, 1999, Conformity Court Decision.” EPA adopted regulations to codify the adequacy process in the Transportation Conformity Rule Amendments for the “New 8-Hour Ozone and PM2.5 National Ambient Air Quality Standards and Miscellaneous Revisions for Existing Areas; Transportation Conformity Rule Amendments—Response to Court Decision and Additional Rule Change,” on July 1, 2004 (69 FR 40004). Additional information on the adequacy process for transportation conformity purposes is available in the proposed rule entitled, “Transportation Conformity Rule Amendments: Response to Court Decision and Additional Rule Changes,” 68 FR 38974, 38984 (June 30, 2003).

    As discussed earlier, Mississippi's maintenance plan includes NOX and VOC MVEBs for the Mississippi portion of the Memphis, TN-MS-AR Area for 2027, the last year of the maintenance plan. EPA is reviewing the NOX and VOC MVEBs through the adequacy process. The NOX and VOC MVEBs for the Mississippi portion of the Memphis, TN-MS-AR Area, opened for public comment on EPA's adequacy Web site on November 2, 2015, found at: http://www.epa.gov/otaq/stateresources/transconf/currsips.htm. The EPA public comment period on adequacy for the 2027 MVEBs for the Mississippi portion of the Memphis, TN-MS-AR Area closed on December 2, 2015. No comments, adverse or otherwise, were received during EPA's adequacy process for the MVEBs associated with Mississippi's maintenance plan.

    EPA intends to make its determination on the adequacy of the 2027 MVEBs for the Mississippi portion of the Memphis, TN-MS-AR Area for transportation conformity purposes in the near future by completing the adequacy process that was started on November 2, 2015. After EPA finds the 2027 MVEBs adequate or approves them, the new MVEBs for NOX and VOC must be used for future transportation conformity determinations. For required regional emissions analysis years for 2027 and beyond, the applicable budgets will be the new 2027 MVEBs established in the maintenance plan, as defined in section V of this proposed rulemaking.

    VIII. What is the effect of EPA's proposed actions?

    EPA's proposed actions establish the basis upon which EPA may take final action on the issues being proposed for approval. Approval of Mississippi's redesignation request would change the legal designation of the portion of DeSoto County that is within the Memphis, TN-MS-AR Area, as found at 40 CFR part 81, from nonattainment to attainment for the 2008 8-hour ozone NAAQS. Approval of Mississippi's associated SIP revision would also incorporate a plan for maintaining the 2008 8-hour ozone NAAQS in the Memphis, TN-MS-AR Area through 2027 into the SIP. This maintenance plan includes contingency measures to remedy any future violations of the 2008 8-hour ozone NAAQS and procedures for evaluation of potential violations. The maintenance plan also establishes NOX and VOC MVEBs for 2027 for the Mississippi portion of the Memphis, TN-MS-AR Area. The MVEBs are listed in Table 5 of this document. Additionally, EPA is notifying the public of the status of EPA's adequacy determination for the newly-established NOX and VOC MVEBs for 2027 for the Mississippi portion of the Memphis, TN-MS-AR Area.

    IX. Proposed Actions

    EPA is taking three separate but related actions regarding the redesignation and maintenance of the 2008 8-hour ozone NAAQS for the Mississippi portion of the Memphis, TN-MS-AR Area. First, EPA is proposing to determine that the entire Memphis, TN-MS-AR Area is attaining the 2008 8-hour ozone NAAQS. Second, EPA is proposing to approve the maintenance plan for the Mississippi portion of the Area, including the NOX and VOC MVEBs for 2027, into the Mississippi SIP. The maintenance plan demonstrates that the Area will continue to maintain the 2008 8-hour ozone NAAQS and that the budgets meet all of the adequacy criteria contained in 40 CFR 93.118(e)(4) and (5). Third, EPA is proposing to determine that the Mississippi portion of the Memphis, TN-MS-AR Area has met the criteria under CAA section 107(d)(3)(E) for redesignation from nonattainment to attainment for the 2008 8-hour ozone NAAQS. Further, as part of this action, EPA is describing the status of its adequacy determination for the NOX and VOC MVEBs for 2027 in accordance with 40 CFR 93.118(f)(2). Within 24 months from the effective date of EPA's adequacy determination for the MVEBs or the publication date for the final rule for this action, whichever is earlier, the transportation partners will need to demonstrate conformity to the new NOX and VOC MVEBs pursuant to 40 CFR 93.104(e).

    If finalized, approval of the redesignation request would change the official designation of the portion of DeSoto County that is within the Memphis, TN-MS-AR Area, as found at 40 CFR part 81, from nonattainment to attainment for the 2008 8-hour ozone NAAQS.

    X. Statutory and Executive Order Reviews

    Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, these proposed actions merely propose to approve state law as meeting Federal requirements and do not impose additional requirements beyond those imposed by state law. For this reason, these proposed actions:

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

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

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

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

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

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

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

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

    • will not have disproportionate human health or environmental effects under Executive Order 12898 (59 FR 7629, February 16, 1994).

    The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

    List of Subjects 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

    40 CFR Part 81

    Environmental protection, Air pollution control.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: January 28, 2016. Heather McTeer Toney, Regional Administrator, Region 4.
    [FR Doc. 2016-02725 Filed 2-10-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 91 [Docket No. FWS-HQ-MB-2015-0161; FXMB12330900000//167//FF09M13200] RIN 1018-BB23 Revision of Federal Migratory Bird Hunting and Conservation Stamp (Duck Stamp) Contest Regulations AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Proposed rule.

    SUMMARY:

    We, the Fish and Wildlife Service (Service), propose to revise the regulations governing the annual Migratory Bird Hunting and Conservation Stamp Contest (also known as the Federal Duck Stamp Contest (contest)). Our amendments would update our contact information; update common names and spelling of species on our list of contest design subjects; correct minor grammar errors; and specify the requirement to include a second, appropriate, migratory bird species in the artwork design beginning with the 2016 contest.

    DATES:

    We will accept comments that we receive on or before March 14, 2016. Please note that if you are using the Federal eRulemaking Portal (see ADDRESSES section, below), the deadline for submitting an electronic comment is 11:59 p.m. Eastern Time on the closing date.

    ADDRESSES:

    You may submit comments by one of the following methods:

    Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-HQ-MB-2015-0161, which is the docket number for this rulemaking. Then, in the Search panel on the left side of the screen, under the Document Type heading, click on the Proposed Rules link to locate this document. You may submit a comment by clicking on “Comment Now!”

    By hard copy: Submit by U.S. mail or hand delivery to: Public Comments Processing, Attn: FWS-HQ-MB-2015-0161; Division of Policy, Performance, and Management Programs; U.S. Fish and Wildlife Service; 5275 Leesburg Pike, MS: BPHC; Falls Church, VA 22041-3803.

    We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see Public Comment Procedures and Public Availability of Comments under SUPPLEMENTARY INFORMATION for more information).

    FOR FURTHER INFORMATION CONTACT:

    Suzanne Fellows, (703) 358-2145.

    SUPPLEMENTARY INFORMATION: Background History of the Federal Migratory Bird Hunting and Conservation Stamp (Duck Stamp) Program

    On March 16, 1934, Congress passed, and President Franklin D. Roosevelt signed, the Migratory Bird Hunting Stamp Act. Popularly known as the Duck Stamp Act, it required all waterfowl hunters 16 years or older to buy a stamp annually. The revenue generated was originally earmarked for the Department of Agriculture, but 5 years later was transferred to the Department of the Interior and the Service. We are legislatively mandated to use the revenue first to administer the Duck Stamp permit program and contest, and secondly for conservation, to buy or lease waterfowl sanctuaries.

    In the years since its enactment, the Federal Duck Stamp Program has become one of the most popular and successful conservation programs ever initiated. Today, some 1.8 million stamps are sold each year, and as of 2012, Federal Duck Stamps have generated more than $800 million for the preservation of more than 6.5 million acres of waterfowl habitat in the United States. Numerous other birds, mammals, fish, reptiles, and amphibians have similarly prospered because of habitat protection made possible by the program. An estimated one-third of the Nation's endangered and threatened species find food or shelter in refuges preserved by Duck Stamp funds. Moreover, the protected wetlands help dissipate storms, purify water supplies, store flood water, and nourish fish hatchlings important for sport and commercial fishermen.

    History of the Duck Stamp Contest

    The first Federal Duck Stamp was designed at President Roosevelt's request by Jay N. “Ding” Darling, a nationally known political cartoonist for the Des Moines Register and a noted hunter and wildlife conservationist. In subsequent years, noted wildlife artists were asked to submit designs. The first Federal Duck Stamp Contest was opened in 1949 to any U.S. artist who wished to enter, and 65 artists submitted a total of 88 design entries. Since then, the contest has attracted large numbers of entrants, and it remains the only art competition of its kind sponsored by the U.S. Government. The Secretary of the Interior appoints a panel of noted art, waterfowl, and philatelic authorities to select each year's winning design. Winners receive no compensation for the work, except a pane of their stamps, but winners may sell prints of their designs, which are sought by hunters, conservationists, and art collectors.

    Proposed Changes to the Regulations at 50 CFR Part 91

    The regulations governing the contest are at 50 CFR part 91. Our proposed amendments would update our phone number and Web site information; update the common names and spellings of species on our list of potential contest design subjects; update the regulations to require the inclusion of a secondary non-waterfowl migratory bird species on entries beginning with the 2016 contest; and correct minor grammar errors.

    Service Contact Information

    We propose to correct the telephone number at § 91.11 and the Web site address at §§ 91.1(b) and 91.11 of the Duck Stamp Office. These changes would ensure that the public can contact us and locate information about our program and the contest.

    Updating Species' Common Names or Spellings

    Section 91.4 contains our list of eligible waterfowl species. For each year's contest, we choose five or fewer species from the list; one or more of those species (or a combination thereof; see § 91.14) are the only acceptable subjects for entries during that contest year. We announce each year's eligible species in a Federal Register notice, as well as in other publicly available materials. Our list at § 91.4 contains scientific and common names accepted by the American Ornithologists' Union (AOU) (http://www.aou.org/; see also the AOU Checklist at http://checklist.aou.org/taxa/; this checklist is our standard reference on taxonomy, nomenclature, and capitalization). Since we last revised our regulations, the AOU has changed the listing order among species and updated several species names. Our proposed changes reflect changes in the order species are listed, revises the entry of “American Green-winged Teal (Anas crecca carolinensis)” to read “Green-winged Teal (Anas crecca),” and corrects the scientific name of Black Scoter from Melanitta nigra to Melanitta americana. We propose to make these changes to our list at § 91.4 to reflect the most current scientific and common names.

    Including a Secondary Migratory Bird Species in 2016 Artwork Entries

    Current § 91.14 explains that a live portrayal of any bird(s) of the five or fewer identified eligible waterfowl species must be the dominant feature of the design, but that the design may depict other appropriate elements such as hunting dogs, as long as an eligible waterfowl species is in the foreground and clearly the focus of attention. We propose to add to this section the requirement that an appropriate non-waterfowl migratory bird species must also appear in any entry submitted to beginning with the 2016 contest. We propose this change beginning with the 2016 contest in recognition of the 2016 Centennial anniversary of the Migratory Bird Treaty between the United States and Great Britain (on behalf of Canada) and to emphasize that habitat conservation benefits all wetland-dependent species.

    Public Comments Procedures

    To ensure that any final action resulting from this proposed rule will be as accurate and as effective as possible, we request that you send relevant information for our consideration. We will accept public comments we receive on or before the date listed in the DATES section. We are striving to ensure that any amendments to the regulations resulting from this proposed rule would be in effect in plenty of time for the June opening of the 2016 contest. The comments that will be most useful and likely to influence our decisions are those that you support by quantitative information or studies and those that include citations to, and analyses of, the applicable laws and regulations. Please make your comments as specific as possible and explain the basis for them. In addition, please include sufficient information with your comments to allow us to authenticate any scientific or commercial data you include.

    You must submit your comments and materials concerning this proposed rule by one of the methods listed above in the ADDRESSES section. We will not accept comments sent by email or fax or to an address not listed in ADDRESSES. If you submit a comment via http://www.regulations.gov, your entire comment—including any personal identifying information, such as your address, telephone number, or email address—will be posted on the Web site. Please note that comments submitted to this Web site are not immediately viewable. When you submit a comment, the system receives it immediately. However, the comment will not be publically viewable until we post it, which might not occur until several days after submission.

    If you mail or hand-carry a hardcopy comment directly to us that includes personal information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. To ensure that the electronic docket for this rulemaking is complete and all comments we receive are publicly available, we will post all hardcopy comments on http://www.regulations.gov.

    In addition, comments and materials we receive, as well as supporting documentation used in preparing this proposed rule, will be available for public inspection in two ways:

    (1) You can view them on http://www.regulations.gov. In the Search box, enter FWS-HQ-MB-2015-0161, which is the docket number for this rulemaking. Then, in the Search panel on the left side of the screen, select the type of documents you want to view under the Document Type heading.

    (2) You can make an appointment, during normal business hours, to view the comments and materials in person by contacting the person listed in the FOR FURTHER INFORMATION CONTACT section.

    Public Availability of Comments

    As stated above in more detail, before including your address, phone number, email address or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publically available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

    Required Determinations Regulatory Planning and Review (Executive Orders 12866 and 13563)

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

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

    Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever a Federal agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions) (5 U.S.C. 601 et seq.). However, no regulatory flexibility analysis is required if the head of an agency certifies that the rule would not have a significant economic impact on a substantial number of small entities. Thus, for a regulatory flexibility analysis to be required, impacts must exceed a threshold for “significant impact” and a threshold for a “substantial number of small entities.” See 5 U.S.C. 605(b). SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule would not have a significant economic impact on a substantial number of small entities.

    The changes we propose are intended primarily to clarify the requirements for the contest. These changes would affect individuals, not businesses or other small entities as defined in the Regulatory Flexibility Act. The requirement to include an appropriate secondary non-waterfowl migratory bird species in artwork for the 2016 contest may increase the appeal of the stamp to other conservation supporters. Currently stamp sales average approximately 1.8 million each year; with over 46 million self-identified bird watchers, 25 million wildlife photographers, and 45 million visitors to National Wildlife Refuges, it is hoped that an increase in Duck Stamp sales would occur from this change, but we are unable to quantify that possible increase. In recent years, we have received an average of 200 entries per year to our annual contest. It is assumed that, with the proposed regulatory changes, the quality and numbers of entries would reflect a broader artistic interest.

    We therefore certify that, if adopted, this proposed rule would not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act. A Regulatory Flexibility Analysis is not required. Accordingly, a Small Entity Compliance Guide is not required.

    Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rulemaking is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This proposed rule:

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

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

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

    Federalism

    These proposed revisions to part 91 do not contain significant Federalism implications. A federalism summary impact statement under Executive Order 13132 is not required.

    Unfunded Mandates Reform Act

    This proposed rule would not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rulemaking does not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

    Takings

    In accordance with E.O. 12630, this proposed rule does not have significant takings implications. A takings implication assessment is not required.

    Civil Justice Reform

    In accordance with E.O. 12988, the Office of the Solicitor has determined that this proposed rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order.

    Paperwork Reduction Act of 1995 (PRA)

    This proposed rule does not contain any information collection requirements for which Office of Management and Budget approval is required under the PRA (44 U.S.C. 3501 et seq.). We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.

    National Environmental Policy Act

    This proposed rule is categorically excluded. It reflects an administrative modification of procedures and the impacts are limited to administrative effects (516 DM 8.5(a)(3)). A detailed statement under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) is therefore not required.

    Government-to-Government Relationship With Tribes

    Under the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), and 512 DM 2, we have evaluated possible effects on federally recognized Indian Tribes and have determined that there are no effects. Individual tribal members must meet the same regulatory requirements as other individuals who enter the duck stamp contest.

    Energy Supply, Distribution, or Use

    On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. This proposed rule would revise the current regulations at 50 CFR part 91 that govern the Federal duck stamp contest. This rule would not significantly affect energy supplies, distribution, or use. Therefore, this action is a not a significant energy action and no Statement of Energy Effects is required.

    Clarity of This Rule

    We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

    (a) Be logically organized;

    (b) Use the active voice to address readers directly;

    (c) Use clear language rather than jargon;

    (d) Be divided into short sections and sentences; and

    (e) Use lists and tables wherever possible.

    If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rulemaking, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

    List of Subjects in 50 CFR Part 91

    Hunting, Wildlife.

    Proposed Regulation Promulgation

    Accordingly, we propose to amend part 91, subchapter G of chapter I, title 50 of the Code of Federal Regulations, as follows:

    PART 91—MIGRATORY BIRD HUNTING AND CONSERVATION STAMP CONTEST 1. The authority citation for part 91 continues to read as follows: Authority:

    5 U.S.C. 301; 16 U.S.C. 718j; 31 U.S.C. 9701.

    2. Amend § 91.1(b) by revising the third sentence to read as follows:
    § 91.1 Purpose of regulations.

    (b) * * * These documents can also be downloaded from our Web site at: http://www.fws.gov/birds/get-involved/duck-stamp.php.

    3. Revise § 91.4 to read as follows:
    § 91.4 Eligible species.

    Five or fewer of the species listed below will be identified as eligible each year; those eligible species will be provided to each contestant with the information provided in § 91.1.

    (a) Whistling-Ducks. (1) Black-bellied Whistling-Duck (Dendrocygna autumnalis) (2) Fulvous Whistling-Duck (Dendrocygna bicolor) (b) Geese. (1) Greater White-fronted Goose (Anser albifrons) (2) Emperor Goose (Chen canagica) (3) Snow Goose (including “white” and “blue” morphs) (Chen caerulescens) (4) Ross's Goose (Chen rossii) (5) Brant (Branta bernicla) (6) Canada Goose (Branta canadensis) (7) Cackling Goose (Branta hutchinsii) (c) Swans. (1) Trumpeter Swan (Cygnus buccinator) (2) Tundra Swan (Cygnus columbianus) (d) Dabbling Ducks. (1) Wood Duck (Aix sponsa) (2) Gadwall (Anas strepera) (3) American Wigeon (Anas americana) (4) American Black Duck (Anas rubripes) (5) Mallard (Anas platyrhynchos) (6) Mottled Duck (Anas fulvigula) (7) Blue-winged Teal (Anas discors) (8) Cinnamon Teal (Anas cyanoptera) (9) Northern Shoveler (Anas clypeata) (10) Northern Pintail (Anas acuta) (11) Green-winged Teal (Anas crecca) (e) Diving Ducks. (1) Canvasback (Aythya valisineria) (2) Redhead (Aythya americana) (3) Ring-necked Duck (Aythya collaris) (4) Greater Scaup (Aythya marila) (5) Lesser Scaup (Aythya affinis) (f) Sea-Ducks. (1) Steller's Eider (Polysticta stelleri) (2) Spectacled Eider (Somateria fischeri) (3) King Eider (Somateria spectabilis) (4) Common Eider (Somateria mollissima) (5) Harlequin Duck (Histrionicus histrionicus) (6) Surf Scoter (Melanitta perspicillata) (7) White-winged Scoter (Melanitta fusca) (8) Black Scoter (Melanitta americana) (9) Long-tailed Duck (Clangula hyemalis) (10) Bufflehead (Bucephala albeola) (11) Common Goldeneye (Bucephala clangula) (12) Barrow's Goldeneye (Bucephala islandica) (g) Mergansers. (1) Hooded Merganser (Lophodytes cucullatus) (2) Common Merganser (Mergus merganser) (3) Red-breasted Merganser (Mergus serrator) (h) Stiff Tails. (1) Ruddy Duck (Oxyura jamaicensis) (2) [Reserved]
    4. Revise § 91.11 to read as follows:
    § 91.11 Contest opening date and entry deadline.

    The contest officially opens on June 1 of each year. Entries must be postmarked no later than midnight, August 15. For the latest information on contest time and place as well as all deadlines, please visit our Web site at http://www.fws.gov/birds/get-involved/duck-stamp.php or call (703) 358-2145.

    5. Revise § 91.14 to read as follows:
    § 91.14 Restrictions on subject matter for entry.

    A live portrayal of any bird(s) of the five or fewer identified eligible waterfowl species must be the dominant feature of the design. Additionally, beginning with the 2016 contest, a live portrayal of an appropriate, identifiable non-waterfowl, migratory bird species is also required to be included in the design. An appropriate species includes any non-waterfowl species on the List of Migratory Birds at 50 CFR 10.13 that would naturally occur with the depicted eligible waterfowl species in the same season and habitat setting. Designs may also include, but are not limited to, hunting dogs, hunting scenes, use of waterfowl decoys, National Wildlife Refuges as the background of habitat scenes, noneligible species, or other designs that depict uses of the stamp for sporting, conservation, and collecting purposes. Judges' overall mandate is to select the best design that will make an interesting, useful, and attractive duck stamp that will be accepted and prized by hunters, stamp collectors, conservationists, and others. The design must be the contestant's original hand-drawn creation. The entry design may not be copied or duplicated from previously published art, including photographs, or from images in any format published on the Internet. Photographs, computer-generated art, or art produced from a computer printer or other computer/mechanical output device (airbrush method excepted) are not eligible to be entered into the contest and will be disqualified. An entry submitted in a prior contest that was not selected for a Federal or State stamp design may be submitted in the current contest if the entry meets the above criteria.

    Date: January 28, 2016. Karen Hyun, Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
    [FR Doc. 2016-02665 Filed 2-10-16; 8:45 am] BILLING CODE 4333-15-P
    81 28 Thursday, February 11, 2016 Notices DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2015-0095] Notice of Request for an Extension of Approval of an Information Collection; Specimen Submission AGENCY:

    Animal and Plant Health Inspection Service, USDA.

    ACTION:

    Extension of approval of an information collection; comment request.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request an extension of approval of an information collection associated with livestock disease surveillance programs.

    DATES:

    We will consider all comments that we receive on or before April 11, 2016.

    ADDRESSES:

    You may submit comments by either of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov/#!docketDetail;D=APHIS-2015-0095.

    Postal Mail/Commercial Delivery: Send your comment to Docket No. APHIS-2015-0095, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238.

    Supporting documents and any comments we receive on this docket may be viewed at http://www.regulations.gov/#!docketDetail;D=APHIS-2015-0095 or in our reading room, which is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 799-7039 before coming.

    FOR FURTHER INFORMATION CONTACT:

    For information regarding livestock disease surveillance programs, contact Dr. Thomas Kasari, Veterinary Medical Officer, Surveillance, Preparedness, and Response Services, APHIS, 2150 Centre Avenue, Bldg B, Fort Collins, CO 80526; (970) 494-7351. For copies of more detailed information on the information collection, contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2727.

    SUPPLEMENTARY INFORMATION:

    Title: Specimen Submission.

    OMB Control Number: 0579-0090.

    Type of Request: Extension of approval of an information collection.

    Abstract: The United States Department of Agriculture (USDA) is responsible for, among other things, preventing the interstate spread of livestock diseases and for eradicating such diseases from the United States when feasible.

    In connection with this mission, Veterinary Services (VS) within USDA's Animal and Plant Health Inspection Service (APHIS) conducts numerous disease surveillance programs. A critical operational component of any surveillance program is the ability to systematically track the presence of disease pathogens as well as any vectors germane to the transmission of these pathogens. VS Forms 10-4/10-4A and VS Form 5-38 are a means to facilitate this tracking capability whenever specimens are submitted to APHIS' National Veterinary Services Laboratories for diagnostic testing. The VS Form 10-4 and its supplemental sheet (VS Form 10-4A) are routinely used whenever requests are made to perform laboratory diagnostic tests to identify disease pathogens in specimens, such as blood, milk, urine, or other tissues(s) collected from any animal, including cattle, swine, sheep, goats, horses, cervids, fish, and poultry. The VS Form 5-38, Parasite Submission Form, is used to track submission of ticks for identification as to their genus and species. The ticks are collected under the auspices of the Cattle Fever Tick Eradication Program and the National Tick Surveillance Program.

    We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities for an additional 3 years.

    The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:

    (1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;

    (2) Evaluate the accuracy of our estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;

    (3) Enhance the quality, utility, and clarity of the information to be collected; and

    (4) Minimize the burden of the collection of information on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies; e.g., permitting electronic submission of responses.

    Estimate of burden: The public reporting burden for this collection of information is estimated to average 0.315 hours per response.

    Respondents: State veterinarians and other State personnel whom are qualified and authorized to collect and submit specimens for laboratory analysis, accredited veterinarians, private veterinarians, animal health technicians, herd owners, private laboratories, and research institutions.

    Estimated annual number of respondents: 5,240.

    Estimated annual number of responses per respondent: 5.278.

    Estimated annual number of responses: 27,659.

    Estimated total annual burden on respondents: 8,715 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.)

    All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.

    Done in Washington, DC, this 5th day of February 2016. Kevin Shea, Administrator, Animal and Plant Health Inspection Service.
    [FR Doc. 2016-02751 Filed 2-10-16; 8:45 am] BILLING CODE 3410-34-P
    DEPARTMENT OF AGRICULTURE Food Safety and Inspection Service [Docket No. FSIS-2014-0023] New Performance Standards for Salmonella and Campylobacter in Not-Ready-to-Eat Comminuted Chicken and Turkey Products and Raw Chicken Parts and Changes to Related Agency Verification Procedures: Response to Comments and Announcement of Implementation Schedule AGENCY:

    Food Safety and Inspection Service, USDA.

    ACTION:

    Notice.

    SUMMARY:

    The Food Safety and Inspection Service (FSIS or “the Agency”) is announcing that it will begin assessing whether establishments meet the pathogen reduction performance standards for Salmonella and Campylobacter in raw chicken parts and not-ready-to-eat (NRTE) comminuted chicken and turkey products. It will also begin posting, based on FSIS sampling results and depending on the standard for the particular product, whether an establishment meets the FSIS pathogen reduction performance standards, or what category an establishment is in. This notice also responds to comments received on the January 2015 Federal Register notice that proposed the standards and announced changes to FSIS's verification sampling program.

    DATES:

    FSIS will begin assessing whether establishments meet the new pathogen reduction performance standards for chicken parts and comminuted chicken and turkey products on May 11, 2016. Also beginning no sooner than May 11, 2016, FSIS will begin posting on its Web site the category status of all eligible establishments subject to the existing poultry carcass pathogen reduction performance standards based on sample results from May 2015 (when FSIS stopped set-based, consecutive day testing and began routine sampling throughout the year of broiler and turkey carcasses) to the present. See the SUPPLEMENTARY INFORMATION section for more information about implementation dates.

    FOR FURTHER INFORMATION CONTACT:

    Daniel L. Engeljohn, Ph.D., Assistant Administrator, Office of Policy and Program Development; Telephone: (202) 205-0495, or by Fax: (202) 720-2025.

    SUPPLEMENTARY INFORMATION: Background

    FSIS is responsible for verifying that the nation's commercial supply of meat, poultry, and egg products is safe, wholesome, and properly labeled and packaged.

    As FSIS explained in the January 26, 2015 (80 FR 3940), Federal Register notice (“January 2015 notice”) in which the Agency proposed the new pathogen reduction performance standards, Salmonella and Campylobacter bacteria are among the most frequent causes of human foodborne illness in the United States. Currently, events that cause contamination of raw carcasses cannot be eliminated through the commercial production and slaughter practices employed by the U.S. industry. Contamination can be minimized, however, with the use of proper sanitary dressing procedures and by the application of interventions during slaughter and fabrication of the carcasses into parts and comminuted product.

    Significantly, even though FSIS set standards for ground turkey and chicken in 1996 (61 FR 38806; July 25, 1996), the Agency has not set standards for other comminuted chicken and turkey products. These products have been associated with outbreaks (see 77 FR 72686; December 6, 2012). In addition, the Agency has not set a standard for chicken parts even though about 80 percent of chicken product is in the form of raw chicken parts fabricated from broiler carcasses (80 FR at 3941; January 26, 2015).

    In the absence of standards, the Salmonella and Campylobacter present on raw poultry will survive on that product if it is not subjected to a full lethality treatment such as thorough cooking. In addition, cross contamination occurs when bacteria (such as Salmonella or Campylobacter) are spread from a contaminated source—a contaminated food or an infected food handler—to other foods or objects in the environment (80 FR 3940; January 26, 2015). FSIS will monitor the sampling results and the Centers for Disease Control and Prevention (CDC) illness data to evaluate the industry's progress in reducing product contamination and reducing illnesses.

    A reduction in illness rates should result from the implementation of these performance standards because a smaller proportion of raw chicken parts and NRTE comminuted chicken and turkey products will likely be contaminated with Salmonella and Campylobacter than has been the case without standards (80 FR at 3942; January 26, 2015).

    Recognizing the need for standards, FSIS began sampling and testing NRTE comminuted chicken and turkey products on June 1, 2013.1 The Agency posted the aggregate results of this testing as part of its quarterly Salmonella report.2

    1 This sampling and testing for Salmonella and Campylobacter did not include heat-treated NRTE comminuted chicken or turkey.

    2http://www.fsis.usda.gov/wps/portal/fsis/topics/data-collection-and-reports/microbiology/quarterly-reports-salmonella.

    In addition, FSIS conducted the Nationwide Microbiological Baseline Data Collection Programs: Raw Chicken Parts Baseline Survey, from January 2012 to August 2012, to estimate the percent positive of various raw chicken parts sampled and the levels of Salmonella, Campylobacter, and indicator bacteria on these products. FSIS used this information to estimate the national prevalence of Salmonella and Campylobacter in four pound portions of raw chicken parts. An overview of the Raw Chicken Parts Baseline Survey is available at http://www.fsis.usda.gov/wps/wcm/connect/a9837fc8-0109-4041-bd0c-729924a79201/Baseline_Data_Raw_Chicken_Parts.pdf?MOD=AJPERES.

    In the January 2015 notice, FSIS also announced and requested comment on proposed pathogen reduction performance standards for Salmonella and Campylobacter in raw chicken parts and NRTE comminuted chicken and turkey products (80 FR at 3946; January 26, 2015). FSIS developed these proposed standards using the baseline data for parts and the on-going sampling data for NRTE comminuted chicken and turkey products. It also factored in what reduction in these two pathogens would be necessary to meet the Healthy People 2020 (HP2020) goals. The Agency developed Salmonella performance standards that would achieve at least a 30 percent reduction in illness rates from Salmonella for chicken parts, comminuted chicken, and comminuted turkey. FSIS developed a Campylobacter standard for chicken parts and comminuted chicken that it estimated would achieve a 33 percent reduction in illness rates.

    Because FSIS found the prevalence for Campylobacter in 325 gram samples of comminuted turkey to be especially low, the highest practical reduction in illness rates for this product without establishing a zero-tolerance standard was estimated to be 19 percent. So, the reduction in illness rates estimated for the proposed standard for this one product-pathogen pair was less than the Healthy People goal of a 33-percent reduction (80 FR at 3942; January 26, 2015).

    In the same Federal Register notice, for all FSIS-regulated products subject to Salmonella and Campylobacter verification testing, FSIS announced that it would begin using routine, random sampling throughout the year rather than the set-based consecutive day approach that it had used in the past (80 FR at 3945; January 26, 2015), and that it would assess performance using a moving window of FSIS sampling results (80 FR at 3946). FSIS explained that it intended to collect samples on a weekly basis in high volume establishments and less frequently in lower volume establishments. In addition, FSIS announced that it would begin exploratory sampling of raw chicken parts (80 FR at 3945), raw pork products (80 FR at 3942), and imported raw poultry products (80 FR at 3944).

    Finally, FSIS announced that it intended to post the category status for all eligible establishments because web-posting provides the public with the tools and information it needs to make informed food safety decisions (80 FR at 3948). Because a pathogen reduction performance standard already exists for young chicken (broiler) and turkey carcasses, FSIS announced that it would begin web-posting individual establishment category information for these establishments after it had considered the comments it received. FSIS stated that it would assess what category these establishments are in using combined historical set data and sample results beginning March 2015.

    In response to a coalition of trade associations that requested that FSIS extend the comment period to provide additional time to formulate meaningful comments, FSIS extended the comment period by an additional 60 days to May 26, 2015 (80 FR 12618; March 10, 2015).

    The coalition also requested that FSIS extend all implementation dates announced in the January 2015 notice. The Agency did not delay implementation of all actions announced in the January 2015 notice because FSIS made available much of the information in that notice in other Federal Register notices.3 Therefore, in March 2015, FSIS began sampling raw chicken parts to gain information on the prevalence of Salmonella and Campylobacter (in four pound sample units) of those products and to gain experience in scheduling, collecting, and analyzing raw chicken parts for these pathogens.4 In April 2015, FSIS began sampling raw pork products for pathogens of public health concern, as well as for indicator organisms.5 In May 2015, FSIS began routine sampling, rather than set-based consecutive day sampling, of young chicken (broiler) and turkey carcasses.6 FSIS began sampling imported poultry carcasses, imported raw chicken parts, and imported NRTE comminuted chicken and turkey for Salmonella and Campylobacter in July 2015.7 FSIS has begun posting aggregate results from this testing as part of its quarterly Salmonella report.8

    3 78 FR 53017; Aug. 28, 2013, and 79 FR 32436; Jun. 5, 2014.

    4 FSIS Notice 16-15; http://www.fsis.usda.gov/wps/wcm/connect/5233e84c-f4a6-4959-b861-926a4d912eff/16-15.pdf?MOD=AJPERES.

    5 FSIS Notice 23-15; http://www.fsis.usda.gov/wps/wcm/connect/41f2bd6b-2c06-4384-935d-2ac31e3e77e9/23-15.pdf?MOD=AJPERES.

    6 FSIS Notice 22-15; http://www.fsis.usda.gov/wps/wcm/connect/3379df49-cc8d-47f7-83c3-d4d802668f6c/22-15.pdf?MOD=AJPERES.

    7 FSIS Notice 32-15; http://www.fsis.usda.gov/wps/wcm/connect/41a60d0e-060e-479c-a2c0-4096d8a542f2/32-15.pdf?MOD=AJPERES.

    8http://www.fsis.usda.gov/wps/portal/fsis/topics/data-collection-and-reports/microbiology/quarterly-reports-salmonella.

    Because FSIS needed additional time to fully evaluate the comments submitted on posting information on establishment performance under the standards, FSIS did delay, and has yet to web-post, individual establishment information for establishments subject to poultry carcass sampling. On August 14, 2015, FSIS announced that it was temporarily removing the Category 3 list from its Web site until the new moving window sampling procedure is fully implemented.9

    9http://www.fsis.usda.gov/wps/portal/fsis/newsroom/meetings/newsletters/constituent-updates/archive/2015/ConstUpdate081415.

    Final Performance Standards, Follow-up Sampling, Food Safety Assessments, and Establishment Posting

    FSIS will begin assessing whether establishments meet the new pathogen reduction performance standards on May 11, 2016. The new standards are:

    Product Maximum acceptable percent positive Salmonella Campylobacter Performance
  • standard *
  • Salmonella Campylobacter
    Comminuted Chicken (325 g sample) 25.0 1.9 13 of 52 1 of 52 Comminuted Turkey (325 g sample) 13.5 1.9 7 of 52 1 of 52 Chicken Parts (4 lb. sample) 15.4 7.7 8 of 52 4 of 52 * FSIS intends to interpret results within a moving window comprising fewer than 52 samples (n) by establishing a number of positive samples (s) such that (s-1)/n < p <= s/n, where p is the maximum percent positive that would meet the performance standards.

    These standards are the same as what FSIS proposed in the January 2015 notice.

    Following publication of that notice, FSIS continued sampling and testing comminuted poultry products for Salmonella and Campylobacter. Also, as noted above, FSIS implemented ongoing sampling and testing of chicken parts for Salmonella and Campylobacter. FSIS found no notable difference between the results from this testing and the earlier test results for comminuted product and the chicken parts baseline results. Therefore, FSIS has made no changes to the standards based on these additional test results.

    In addition, consistent with the January 2015 notice, FSIS will collect samples based on the volume of production at an establishment. FSIS will sample eligible product from the largest-volume establishments four or five times per month (once per week), on average, and will decrease incrementally the number of samples it collects from establishments producing less volume. FSIS may sample a small number of establishments up to six times per month. The frequency will be determined on the basis of their production volume and history of sampling results.10 Establishments likely to get six samples are those that produce high volumes of several products. Furthermore, FSIS will attempt to collect at least the minimum number of samples outlined in the chart below per year in order to assess process control in all establishments subject to performance standards.

    10http://www.fsis.usda.gov/wps/wcm/connect/99b43489-0e14-40c0-b13e-53163d68bf1f/Sampling-Program-Plan-FY2016.pdf?MOD=AJPERES.

    Product Minimum number of samples to assess process control in a moving window Salmonella Campylobacter Broiler Carcass 11 10 Turkey Carcass 14 19 Comminuted Chicken 10 52 Comminuted Turkey 10 52 Chicken Parts 10 13

    Because the Salmonella performance standard for broiler carcasses is 9.8 percent positive or less, FSIS has changed the minimum number of Salmonella samples to assess process control in a moving window for broiler carcasses to eleven. The minimum number identified in the January 2015 notice (10) would have effectively allowed zero positives. This would have constituted a zero tolerance standard. FSIS did not want to create a zero tolerance standard but did want to maintain the level of precision that underlay the proposal. FSIS accomplished this by increasing the minimum number of samples collected for Salmonella on broiler carcasses by one.

    Consistent with what FSIS announced in the January 2015 Federal Register notice, the moving window for all products will be 52 weeks. However, the number of samples collected in the window can vary, depending on the volume of the product the establishment produces, and depending on whether FSIS collects follow up samples in response to an establishment not meeting the standard. Therefore, FSIS will assess establishment performance based on the maximum acceptable percent positive.

    Because the comminuted chicken and turkey pathogen reduction performance standards permit only one positive result for Campylobacter in order to pass the standard, essentially eliminating Category 2, FSIS will only categorize eligible establishments producing these products as either passing or failing. FSIS will categorize establishments following the criteria below:

    I. Category 1. Consistent Process Control: Establishments that have achieved 50 percent or less of the Salmonella or Campylobacter maximum allowable percent positive during all completed 52-week moving windows over the last three months.

    II. Category 2. Variable Process Control: Establishments that meet the Salmonella or Campylobacter maximum allowable percent positive for all completed 52-week moving windows but have results greater than 50 percent of the maximum allowable percent positive during any completed 52-week moving window over the last three months.

    III. Category 3. Highly Variable Process Control: Establishments that have exceeded the Salmonella or Campylobacter maximum allowable percent positive during any completed 52-week moving window over the last three months.

    IV. Passing. Establishments that meet the Campylobacter maximum allowable percent positive for NRTE comminuted chicken or turkey during all completed 52-week moving windows over the last three months.

    V. Failing. Establishments that have exceeded the Campylobacter maximum allowable percent positive for NRTE comminuted chicken or turkey during any completed 52-week moving window over the last three months.

    Note that when FSIS collects multiple samples within a week, all those samples will be included in the window for that week.

    In the January 2015 notice, FSIS stated that it intended to determine categories based on moving windows over the last six months. FSIS is changing this timeframe to every three months to provide more timely information on the establishment's status. As FSIS explained in the January 2015 notice, FSIS has determined that a 6-month time component will have minimal impact on the categorization of establishments that are most likely to meet the standard (80 FR at 3947). Similarly, the 3-month time component will have minimal effect on establishments that are most likely to meet the standard.

    As part of its verification sampling program, consistent with its exploratory sampling program for comminuted product, FSIS will collect finished NRTE ground chicken and turkey and other types of NRTE comminuted chicken and turkey products. FSIS will not sample dumplings, wontons, egg rolls, or other comminuted chicken or turkey products wrapped in dough or other similar covering at this time. However, FSIS will sample raw sausage in casing.

    FSIS will continue to sample mechanically separated chicken and turkey that is not intended to be processed into a ready-to-eat (RTE) product in a domestic official establishment, just as it has done during the on-going exploratory testing. At this time, mechanically separated poultry will not be subject to the pathogen reduction performance standard for comminuted poultry. Given that mechanically separated chicken and turkey are not typically added to NRTE comminuted poultry products, results for these products were not used in developing the Salmonella contamination distribution used in the risk assessment (80 FR at 3943; January 26, 2015).

    FSIS may consider implementing a pathogen reduction performance standard for mechanically separated poultry in the future, particularly if there is evidence that this product is being used in domestic NRTE product available to consumers, if the FSIS results for this product exhibit an unchanged or upward trend in positives, or if there is evidence that industry is not taking steps to reduce contamination of source carcass frame materials within the year following the publication of this notice. FSIS is concerned about the ongoing wholesomeness of this product if establishments do not take steps to reduce the high frequency of contamination of mechanically separated poultry,11 even if it is to be used in a finished product that is RTE. FSIS recommends that the industry at least begin implementing quality control procedures for ensuring that extraneous materials, including intestinal tract and other internal organ fragments, do not contaminate the source carcass frames regardless of whether or not the product is destined for RTE processing. These steps, at a minimum, will better ensure the wholesomeness of the product.

    11 From January 1, 2015, through March 31, 2015, the percent positive rate for Salmonella in mechanically separated chicken was 88.52 percent and for mechanically separated turkey was 52.78 percent. (Available at http://www.fsis.usda.gov/wps/portal/fsis/topics/data-collection-and-reports/microbiology/quarterly-reports-salmonella/quarterly-progress-reports.)

    Consistent with the January 2015 notice, FSIS will sample the following chicken parts to assess whether they meet the standards: legs (comprised of the drumstick and thigh portions either separately or combined), wings, and breasts.

    Also, consistent with what it announced in the January 2015 notice, as soon as practical after May 11, 2016, FSIS will begin sampling 3-4 times per year product that has been excluded from Salmonella verification testing: chicken in poultry slaughter establishments operating under a religious exemption; the minor species carcasses under FSIS jurisdiction and inspection (species other than chicken, turkey, pork, and cattle, such as squab, ratites, goose and lamb); and product otherwise eligible for sampling that FSIS has excluded because it is produced in low volume establishments that produce 1,000 pounds or less per day. FSIS expects to eventually implement pathogen reduction performance standards to assess process control for these products. However, before FSIS begins using these sample results to assess whether establishments previously excluded from verification sampling meet performance standards, it will provide notice and request comment on such standards in the Federal Register. Meanwhile, FSIS will treat these sample results as separate populations and report the aggregate results quarterly, including such information as percentage positive at the 25th, 50th, and 75th percentile.

    No sooner than May 11, 2016, FSIS will begin web-posting the category status of all establishments subject to the existing poultry carcass pathogen reduction performance standards. At that time, FSIS will post these establishments' Salmonella and Campylobacter category status based on sample results from May 2015 (when FSIS began routine sampling of broiler and turkey carcasses) to the present.

    After completion of the first year of sampling (i.e., the first 52-week moving window), for chicken parts and comminuted poultry products subject to sampling under the new pathogen reduction performance standards, FSIS will begin web-posting whether, based on FSIS results, the establishment is passing, or what category the establishment is in, depending on the standard for the particular product. However, based on at least the minimum number of samples to assess process control for that product/pathogen pair and other available information about establishments, such as noncompliance rates, if establishment performance overall does not improve or appears to be worsening before the completion of the first moving window, FSIS may begin web-posting individual establishment category information sooner.

    In the January 2015 notice, FSIS announced that it intended to web-post the categories for all establishments subject to the Campylobacter pathogen reduction performance standards. However, because, as comments pointed out, the comminuted chicken and turkey pathogen reduction performance standards permit only one positive result for Campylobacter in order to pass the standard, essentially eliminating Category 2, FSIS will not, at this time, web-post the category status of individual establishments that do not meet the Campylobacter standard for comminuted chicken or turkey products (i.e., those in Category 3). Instead, FSIS will web-post whether the eligible establishment is passing or failing. Consistent with the January 2015 notice, FSIS will update individual establishment postings on a monthly basis.

    Starting August 9, 2016, FSIS will web-post quarterly aggregate information relative to categories for all establishments subject to sampling under the new performance standards for which FSIS has collected the minimum number of samples, using the most recent sample results. This information will be aggregated and will not single out any specific establishment. This information will give industry and other stakeholders timely information about progress being made to reduce contamination in NRTE poultry of all types sampled. FSIS will also web-post calendar year prevalence estimates in its Salmonella and Campylobacter annual report. Results of follow-up sampling will be excluded for the purposes of these prevalence estimates. FSIS will not include follow-up sampling in prevalence estimates because these samples are non-random and targeted.

    FSIS will schedule a Public Health Risk Evaluation (PHRE), and possibly a Food Safety Assessment (FSA), based on FSIS test results, for establishments that do not meet the pathogen reduction performance standards; for establishments that have produced products with repetitive Salmonella or Campylobacter serotypes of public health concern or repetitive antibiotic resistant Salmonella; and for establishments with Salmonella or Campylobacter pulsed-field gel electrophoresis (PFGE) (or whole-genome sequencing, as it becomes available) patterns matching those found in recent outbreaks or epidemiologically linked to illnesses. FSIS intends to do the PHRE because it can reasonably be inferred that establishments in these categories have not adequately addressed Salmonella or Campylobacter in their Hazard Analysis and Critical Control Point (HACCP) systems. Based on PHRE analysis, FSIS will determine whether to schedule a FSA 12 at the establishment.

    12 The purpose of an FSA is to assess and analyze an establishment's food safety system to verify that the establishment is able to produce safe and wholesome meat or poultry products in accordance with FSIS statutory and regulatory requirements.

    FSIS will collect 16 or 8 follow-up samples (depending on the product volume) on a daily or per shift basis, as soon as possible after an establishment has not met a pathogen reduction performance standard. The follow-up samples will count towards the samples collected as part of the moving window procedure for that establishment. In the January 2015 notice, FSIS stated that it did not intend to count the follow up samples in the moving window for assessing whether establishments are meeting the standards. FSIS has decided to change its approach so that it can more quickly assess whether establishments have regained process control, and because, when establishments have regained control, FSIS believes their posted category status should reflect that fact. FSIS is also making this change in response to comments.

    As we currently do for outbreak investigations, for at least 90 days after an establishment has not met a standard, FSIS will monitor CDC PulseNet database for matching food isolates to those obtained by FSIS in its sampling of products produced by the establishment. This monitoring will give FSIS early warning if an outbreak involving the establishment's products is developing. Moreover, as new tools such as whole genome sequencing become available, FSIS will also search for official sequencing databases matches between FSIS-regulated NRTE products and human illness. FSIS will alert its public health partners when an establishment does not meet the standard, so that they can also be on the lookout for an emerging outbreak. In addition, FSIS may collect the consignee list for product produced when an establishment has not met the standard so that the Agency can focus its attention on the area in which the product was distributed.

    Consistent with existing practices,13 after notifying an establishment that it has not met a performance standard, FSIS will conduct an assessment of the establishment's HACCP plan and Sanitation Standard Operating Procedures, through a PHRE, focusing on the establishment's planned corrective actions. In addition, FSIS will develop a plan to verify whether the establishment implemented corrective actions. FSIS may also conduct a FSA, when it deems it appropriate. If, after 90 days, the establishment has not been able to gain process control, as determined from FSIS's follow-up sampling and from the results of the PHRE or FSA, and the establishment has not taken corrective actions, FSIS will likely take enforcement actions, such as by issuing a Notice of Intended Enforcement (NOIE) or by suspending inspection, under the conditions and according to the procedures described in 9 CFR part 500. FSIS will not issue an NOIE or suspend inspection based solely on the fact that an establishment did not meet a performance standard.

    13 FSIS stated in a Federal Register notice published April 16, 2003 (68 FR 18593), that it was using Salmonella sample-set failures as an indication that there is something wrong in the establishment's HACCP system, and that the system needs to be carefully evaluated by the Agency.

    If the establishment produced product associated with an outbreak, even if the establishment is in category 1, FSIS will scrutinize its corrective actions with particular care, including performing an Incident Investigation Team review (see FSIS Directive 5500.3).

    Generally, if an establishment produces product associated with an outbreak or has failed to meet a pathogen reduction performance standard for Salmonella or Campylobacter and has not addressed those hazards in its HACCP plan, the establishment would need to reassess its HACCP plan for that product to determine whether the plan needs to be modified to address the hazard (9 CFR 417.3(b)). Thus, the establishment, to maintain an adequate HACCP system, will have to address the pathogen in its HACCP plan, rather than through a prerequisite program like the Sanitation Standard Operating Procedures.

    Finally, consistent with FSIS testing of imported beef and poultry products for pathogens, FSIS will begin testing imported pork for Salmonella later in Fiscal Year 2016 (FY2016).

    Summary of Implementation Dates

    FSIS will begin assessing whether establishments meet the new pathogen reduction performance standards for chicken parts and comminuted chicken and turkey products on May 11, 2016. Also beginning no sooner than May 11, 2016, FSIS will begin posting on its Web site the category status of all eligible establishments subject to the existing poultry carcass pathogen reduction performance standards based on sample results from May 2015 (when FSIS stopped set-based, consecutive day testing and began routine sampling throughout the year of broiler and turkey carcasses) to the present. After completion of the first moving window of product sampled under the new pathogen reduction performance standards for chicken parts, comminuted chicken, and turkey products (approximately 1 year from publication of this notice), FSIS will begin web-posting whether individual establishments are in Category 1, 2, or 3, or whether they are passing the standards (in the case of NRTE comminuted chicken or turkey for Campylobacter). However, based on at least the minimum number of samples to assess process control for that product/pathogen pair and other available information about establishments, such as noncompliance rates, if establishment performance overall does not improve or appears to be worsening before the completion of the first moving window, FSIS may begin web-posting individual establishment category information sooner. As soon as practical after May 11, 2016, FSIS will begin sampling 3-4 times per year the following products which have been excluded from Salmonella verification testing: Broilers produced in poultry slaughter establishments operating under a religious exemption, minor species carcasses (minor species are those other than classes of chicken, turkey, pork and beef for which FSIS has previously set pathogen reduction performance standards and that are produced and consumed in larger quantities than other classes of these species or other species under FSIS jurisdiction and inspection, such as squab, ratites, lamb, and goose), and product from low volume establishments that produce up to 1,000 pounds per day of poultry product subject to sampling. This fiscal year, FSIS will also begin sampling imported pork products for Salmonella.

    Summary of Comments and Responses

    In the January 2015 notice, FSIS requested comment on specific issues: The proposed pathogen reduction performance standards for Salmonella and Campylobacter in raw chicken parts and NRTE comminuted chicken and turkey products; sampling of raw chicken parts that have been marinated or injected; the Agency's implementation strategy, including how it plans to assess process control in low volume establishments and the planned modifications to its categorization system; how it plans to web-post the category status of eligible establishments; and the accuracy of the information and assumptions used in its cost-benefit analysis. FSIS received 15 comments in response to these and other issues in the notice. The comments were from consumer advocacy groups, organizations representing the meat/poultry industry, meat/poultry processors, a food ingredient supplier, and an individual.

    FSIS has summarized and responded to the relevant issues raised by commenters below.

    A. General Comments on Actions Announced in the Notice

    Comments: Many comments from both industry and consumer groups supported FSIS establishing pathogen reduction performance standards for Salmonella and Campylobacter in NRTE chicken parts and comminuted chicken and turkey products because the commenters agreed that the standards are likely to benefit public health. In addition, many comments supported FSIS replacing set-based, consecutive-day sampling with routine sampling, including weekly sampling in high volume operations, and using a moving window approach for assessing process control to gain a better sense of ongoing establishment performance. Likewise, several comments supported FSIS using a more sensitive enrichment-based method to analyze samples for Campylobacter, sampling imported raw chicken products, and sampling raw chicken parts other than breasts, legs, and wings to better understand the incidence of Salmonella and Campylobacter in these products and to assess whether additional performance standards may be needed. Finally, several comments supported FSIS's planned action to web-post the individual category status of establishments subject to FSIS sampling to assess whether they meet performance standards because it will provide the public with specific, geographical, and process capability information and will provide industry with incentives for making changes to their operations or from whom they purchase source materials.

    Meanwhile, other commenters, mostly representing industry interests, generally were opposed to the issuance of new pathogen reduction performance standards and to web-posting individual establishment performance.

    Response: FSIS has determined that it is prudent to issue of new pathogen reduction performance standards and to web-post establishment-specific performance as noted in detail below.

    B. Proposed Performance Standards

    Comment: An organization representing the chicken industry objected to the method and scientific evidence used to develop the performance standards. Rather than use the Healthy People 2020 (HP2020) goals to set the standards, the organization argued that FSIS should identify the most significant sources of illnesses from these pathogens and focus its resources on these products. In addition, the organization argued that chicken and turkey are not the most significant sources of illnesses associated with these pathogens.

    Response: The Healthy People Initiatives have served as a science-based framework for public health activities by FSIS, CDC, the Food and Drug Administration, and across other sections of the public health community for years. Furthermore, FSIS disagrees that the proposed pathogen reduction performance standards were not based on sufficient valid scientific evidence. Using a common analytical framework,14 FSIS developed the standards based on a variety of data sources, including Agency sampling data, the CDC foodborne illness and outbreak data, and the most recent available research, as well as the HP2020 national health objectives.

    14http://www.fsis.usda.gov/wps/wcm/connect/afe9a946-03c6-4f0d-b024-12aba4c01aef/Effects-Performance-Standards-Chicken-Parts-Comminuted.pdf?MOD=AJPERES.

    Recent research supports that poultry represents the largest fraction of Salmonella and Campylobacter illnesses attributed to FSIS-regulated products.151617 Furthermore, data from the National Antimicrobial Resistance Monitoring System (NARMS) show that the incidence of Salmonella in poultry products is five to ten times higher than that in ground beef or pork chops.18 Because FSIS can only directly affect those food commodities that fall under its jurisdiction, FSIS is addressing the product it regulates that poses the highest public health risk.

    15 Batz, M.B., et al. 2012. “Ranking the disease burden of 14 pathogens in food sources in the United States using attribution data from outbreak investigations and expert elicitation.” J. Food Prot 75(7):1278-91.

    16 Painter, J.A., et al. 2013. “Attribution of foodborne illnesses, hospitalizations, and deaths to food commodities by using outbreak data, United States, 1998-2008.” Emerg Infect Dis 19(3): 407-15.

    17 Interagency Food Safety Analytics Collaboration, 2015. “Foodborne Illness Source Attribution Estimates for Salmonella, Escherichia coli O157:H7, Listeria monocytogenes, and Campylobacter using Outbreak Surveillance Data.”

    18 Table 6 in NARMS. 2013. Retail Meat Report 2011. At: http://www.fda.gov/downloads/AnimalVeterinary/SafetyHealth/AntimicrobialResistance/NationalAntimicrobialResistanceMonitoringSystem/UCM334834.pdf.

    In addition, evidence of the connection of salmonellosis and contaminated NRTE comminuted poultry products can be found in the recent outbreaks that have been associated with these products. In 2011, there were two outbreaks involving ground turkey product. The 2011 Salmonella Hadar outbreak associated with turkey burgers sickened 12 people in 10 states and led to a recall of 54,960 pounds of turkey burger.19 The 2011 Salmonella Heidelberg outbreak associated with ground turkey product sickened 136 people in 34 states and led to one death. Approximately 36 million pounds of ground turkey were ultimately recalled.20 The CDC reported a 2013-2014 Salmonella Heidelberg illness outbreak associated with the consumption of chicken parts that sickened 634 people in 29 states and Puerto Rico.21

    19http://www.fsis.usda.gov/wps/wcm/connect/fsis-archives-content/internet/main/topics/recalls-and-public-health-alerts/recall-case-archive/archives/ct_index295a.

    20http://www.cdc.gov/salmonella/2011/ground-turkey-11-10-2011.

    21http://www.cdc.gov/salmonella/heidelberg-10-13/.

    In addition, in 2015, the CDC investigated two separate outbreaks of Salmonella Enteritidis infections linked to raw, frozen, stuffed chicken entrees associated with two separate establishments that produced these products. These two outbreaks stemmed from poultry product in which the source materials were either comminuted chicken breast meat or whole chicken breast parts and resulted in twelve illnesses and five hospitalizations. In both outbreaks, the establishment involved did not consider implementing effective controls for the source materials or for the production process to know the frequency of contamination of source materials with Salmonella.

    Thus, FSIS has concluded, using the available data and the public health science principles contained in a quantitative risk assessment, that adopting new pathogen reduction performance standards for comminuted poultry and chicken parts to reduce the Salmonella on these types of products would reduce consumer exposure to this pathogen and thus reduce the occurrence of illness.

    Comment: An organization representing the turkey industry stated that the industry has already made great strides in lowering illness that, according to the commenter, FSIS did not account for in setting the standards. This organization also stated that it will be very difficult to achieve further reduction in illness through the proposed NRTE comminuted turkey product standards.

    Response: FSIS agrees that the turkey industry, particularly, has collectively taken steps to reduce the incidence of pathogens in comminuted product following the Salmonella Heidelberg multistate outbreak in 2011 that infected more than 100 individuals. Nonetheless, setting pathogen reduction performance standards is an important tool in targeting reductions and in protecting public health, and FSIS has decided to proceed to do so.

    In setting the performance standards, FSIS did not explicitly account for the decrease in pathogen contamination observed following the Salmonella Heidelberg outbreak. To do this, FSIS would have needed to use the most up-to-date attribution data. Given that there is about a two year lag in the CDC outbreak data, it was not possible for the Agency to do so. FSIS did, however, use the most up-to-date published attribution data available (Painter et al., 2013). In addition, FSIS used the most recent contamination data available at the time it developed the performance standards (2013-2014). These contamination data reflect some of the reduction in pathogen contamination seen in comminuted turkey.

    Still, FSIS recognizes that the performance standard for Campylobacter, allowing only one positive sample in the moving window, is quite rigorous. Regardless, such a performance standard is necessary to maintain industry focus on continuous improvement. However, as discussed later in this document, FSIS has agreed that, because the comminuted chicken and turkey pathogen reduction performance standards permit only one positive result for Campylobacter in order to pass the standard, there is no Category 2. Thus, FSIS will web-post these establishments as either passing or failing.

    Comment: Several comments criticized the proposed pathogen reduction performance standards for comminuted poultry because they were not based on a full year of data. The commenters also stated that the standards were based on data from the high prevalence season for the pathogens.

    Response: At the time that the pathogen reduction performance standards for comminuted poultry were developed and subsequently published, the standards were based on eight months of data. Meanwhile, FSIS has analyzed the first twelve months of data for NRTE comminuted chicken and turkey and compared the results to that of the 8-month analysis.22 FSIS found no notable difference between these results and earlier test results for comminuted product. Therefore, FSIS made no changes to the standards based on these additional test results.

    22 Additional data is available at http://www.fsis.usda.gov/wps/wcm/connect/25bc47ad-d59d-48d6-b90f-4865d1483f4a/Q2-CY2014-Salmonella-Testing.pdf?MOD=AJPERES (see Table 8a and 8b).

    However, FSIS acknowledges that setting the performance standards on data from a true high prevalence season (i.e., a period in which there was more frequent exposure of the public to pathogens of public health concern) could create an unintended consequence of permitting more exposure of the public to pathogens of public health concern during a true low prevalence season. FSIS's published analysis of seasonal patterns of Salmonella contamination in FSIS regulated products did not identify a significant seasonal pattern in ground chicken or turkey.23 Therefore, FSIS concludes that the performance standards have been appropriately designed, and that no change is necessary.

    23 Williams, M.S., et al. (2014). Temporal Patterns in the Occurrence of Salmonella in Raw Meat and Poultry Products and Their Relationship to Human Illnesses in the United States. Food Control 35, 267-273.

    Comment: As more data become available (and regularly thereafter), several consumer advocacy groups requested that FSIS re-evaluate the performance standards. In addition, comments requested that FSIS assess whether the performance standards need to be updated to account for the actual compliance fraction and other assumptions made during initial calculations. The comments also requested that FSIS periodically measure the impact of the performance standards on public health goals.

    Response: FSIS will periodically assess the effect of the performance standards. This assessment will include an estimation of all the parameters used in the risk assessment model and their contribution to a potential reduction in illnesses. FSIS will assess each pathogen reduction performance standard on at least a five-year basis to determine whether the standard should be adjusted. FSIS will calculate ongoing pathogen prevalence for all products subject to standards and will determine whether the pathogen prevalence has been significantly reduced in deciding whether to revise the performance standards.

    Comment: A consumer advocacy group requested that FSIS also establish a performance standard for live animals entering the slaughter facility.

    Response: FSIS disagrees that it should establish pathogen reduction performance standards for live animals because FSIS does not have jurisdiction on the farm and has not conducted testing on live animals. However, FSIS does recommend that establishments develop pathogen prevention targets for products derived from live animals that an establishment would apply as early as safely possible in its slaughter process. Sampling at this early stage would enable an establishment to determine whether its food safety system is adequately designed to mitigate the incoming load of pathogens.

    The rehang or pre-evisceration sampling point used in the FSIS carcass baseline best represents the contamination on the carcass before there is secondary contamination from the evisceration process. FSIS provides information to industry on median indicator organism values at rehang in its compliance guide, “Modernization of Poultry Slaughter Inspection—Microbiological Sampling of Raw Poultry” (June 2015).24 When an establishment compares its rehang or pre-evisceration sample results to the ones in the table in the compliance guide, a sample value that is higher than the corresponding one listed in the table indicates that the incoming bacterial load on the bird may be higher than expected, and that the establishment may not be able to maintain process control. As a result, the establishment would be less likely to meet the applicable performance criteria.

    24 Available at http://www.fsis.usda.gov/wps/wcm/connect/a18d541e-77d2-40cf-a045-b2d2d13b070d/Microbiological-Testing-Raw-Poultry.pdf?MOD=AJPERES

    Comments: An organization representing the chicken industry urged FSIS to not apply the performance standard for raw chicken parts to any products not consistently sampled in the Raw Chicken Parts Baseline Survey. The organization stated that FSIS has no basis for concluding that the Raw Chicken Parts Baseline Survey is applicable to parts that were marinated with a clear solution. If the Agency has a means to identify which samples in the Survey were from marinated parts, the organization requested that FSIS remove those samples from its calculations.

    In addition, the organization stated that necks and giblets should not be subject to a pathogen reduction performance standard because they are typically sold to (and used by) consumers differently than breasts, legs, and wings. However, several consumer advocacy groups requested that FSIS apply the pathogen reduction performance standard for raw chicken parts to necks, giblets, half carcasses, quarter carcasses, and parts injected or marinated with a clear solution until the Agency has developed a pathogen reduction performance standard specific to those items.

    A consumer advocacy group requested that FSIS establish a sampling program for raw chicken livers. The group cited a CDC report detailing outbreaks linked to the consumption of chicken livers 25 as support for its request. The group also requested that FSIS sample and develop pathogen reduction performance standards for raw turkey parts because turkey parts are commonly purchased by consumers.

    25 Available at http://www.cdc.gov/salmonella/heidelberg-chickenlivers/011112/index.html.

    Response: As FSIS explained in the January 2015 Federal Register notice, during the baseline some inspection personnel sampled parts that were injected with a solution or otherwise marinated (80 FR at 3943). Because FSIS did not identify the samples as injected or otherwise marinated at the time of collection, FSIS is unable to remove these results from its calculations and will apply the performance standards to marinated, injected, tumbled, or tenderized parts. For its ongoing exploratory sampling of parts, FSIS issued instructions to inspection program personnel to make explicit that such parts are to be sampled.26 Based on the first 3-4 months of exploratory chicken parts sampling, Salmonella results for injected, tenderized, or vacuum tumbled parts were not significantly higher than those for intact parts. These products are available to the consumer and do present a risk of exposure. FSIS does not believe it appropriate to set a different pathogen reduction performance standard for these products than for other parts.

    26 FSIS Notice 16-15; available at http://www.fsis.usda.gov/wps/wcm/connect/5233e84c-f4a6-4959-b861-926a4d912eff/16-15.pdf?MOD=AJPERES

    FSIS will not, however, apply the pathogen reduction performance standard for raw chicken parts to necks, giblets, half carcasses, and quarter carcasses at this time. In FY2016, FSIS will begin exploratory sampling of necks, giblets (i.e., gizzards, hearts, and livers), half carcasses, and quarter carcasses to better understand the prevalence of Salmonella and Campylobacter in these parts. FSIS will post the aggregate results of this testing as part of its Salmonella reporting. In addition, FSIS plans to analyze these data to better understand the potential differences in contamination for gizzards, hearts, and livers.

    FSIS will use these data to determine whether further sampling is needed. Such information could then be used by the Agency to decide whether pathogen reduction performance standards for these products are necessary.

    Comment: An organization representing the chicken industry opposed FSIS using the more sensitive, enrichment-based method for Campylobacter testing that the Agency is using for comminuted product and chicken parts because, according to the commenter, the method increases the likelihood of establishments not meeting the performance standard when actual prevalence may not have changed.

    Several consumer advocacy groups requested that the performance standard for Campylobacter in NRTE comminuted chicken and turkey be based on the most sensitive enrichment-based testing method.

    Response: In 2013, FSIS began testing NRTE comminuted poultry for Campylobacter using a direct plating method (1 mL test portion). Later, in August 2015, FSIS began concurrently analyzing all NRTE comminuted poultry samples for Campylobacter using the direct plating method and an enrichment-based method (30 mL test portion).27 The Agency took this step because the enrichment-based method can detect a higher percent of positive samples, as determined from the results of an analysis comparing the direct plating method with the enrichment-based method.

    27http://www.fsis.usda.gov/wps/portal/fsis/newsroom/meetings/newsletters/constituent-updates/archive/2015/ConstUpdate032015.

    FSIS found that the 1 mL direct plating method identified about 3-4 percent Campylobacter-positive samples for comminuted chicken and about 1 percent Campylobacter-positive samples for comminuted turkey. In contrast, the 30 mL enrichment-based method identified about 15 percent of the samples Campylobacter-positive in comminuted chicken, i.e. about a 4-fold increase in percent positive results between the 30 mL enrichment-based method and the 1 mL direct plating method for comminuted chicken.28 FSIS has not completed a similar evaluation for comminuted turkey.

    28 Though comminuted turkey was not tested in this methods comparison, FSIS expects there would also be an increase in the Campylobacter percent positive using the enrichment-based method.

    Regardless, FSIS developed the pathogen reduction performance standards for Campylobacter using a direct plating laboratory method of analysis with a 1 mL test portion. Therefore, FSIS will proceed with assessing establishment performance relative to those standards based on the 1 mL portion size.

    The Agency will continue to perform the 1 mL direct plating method alongside the 30 mL enrichment-based method and analyze data generated from both analytical approaches. These analyses will show whether significant differences exist, and whether these differences support that there is a need to change the combined analytical approach, the pathogen reduction performance standards, and the associated method of analysis for Campylobacter in NRTE comminuted chicken and turkey. If FSIS determines that it needs to changes the standards, it will propose changes in the Federal Register.

    C. Implementation of Final Performance Standards

    Comment: Several industry comments requested that FSIS provide at least a 1- or 2-year transition period after FSIS announces the final performance standards, and before FSIS begins assessing whether establishments meet the standards, to allow industry time to adjust to the new standards.

    Response: FSIS does not agree. FSIS notes that the poultry industry has been aware of the FSIS intent to develop pathogen reduction performance standards for chicken parts since at least 2012 when the baseline study got underway. Multiple recent outbreaks for both chicken parts and comminuted poultry heighten the need for industry to collectively address more optimal process control to limit exposure of the public to pathogens of public health concern. Thus, FSIS is providing a short but practical implementation period sufficient for establishments to adjust their food safety system. FSIS will begin assessing whether establishments meet the new Salmonella and Campylobacter performance standards for NRTE comminuted chicken and turkey and raw chicken parts on May 11, 2016. This 90-day delay is appropriate because 9 CFR 304.3 provides establishments up to 90 days to validate changes to their food safety system. Consequently, sample results affecting whether establishments meet the new standards begin with the first sample collected as part of a moving window on or after May 11, 2016. This 90-day period will effectively provide for a sufficient period of time for establishments to validate that their food safety systems can consistently control for enteric pathogens of public health concern, in accordance with 9 CFR 417.4.

    D. Routine Verification Sampling and Testing

    Comment: An individual and several consumer advocacy groups stated that routine verification sampling should be unannounced, unpredictable, and completely random to prevent establishments from temporarily altering their food safety systems to “pass” tests.

    In addition, two consumer advocacy groups noted that antimicrobial agents used as interventions in poultry establishments may be masking the presence of Salmonella (i.e., in the neutralizing solution used by the Agency during sample collection) resulting in “false negatives.”

    Response: The fact that FSIS no longer collects samples on consecutive days provides establishment less awareness about when a sample is to be collected. FSIS personnel notify establishment management just before collecting each sample that a routine Salmonella and Campylobacter sample is being collected. In addition, FSIS personnel use a method for randomly selecting specific product for sampling such that all product from all shifts, rails, chillers, coolers, and grinders have an equal chance of being selected for sampling.

    FSIS has issued instructions to inspection program personnel, directing them to report changes in establishment practices when FSIS samples are collected.29 FSIS has not noted any significant concern with changed production practices during FSIS sampling. Further, based on experience in-plant, FSIS does not believe that establishments can readily adjust their food safety systems to eliminate pathogens without such a change being obvious and inconsistent with their routine food safety system or HACCP flow chart. FSIS inspection personnel are present every day and are aware of the design of the food safety system in each establishment.

    29 See Chapter VIII, Section II of FSIS Directive 10,250.1; available at http://www.fsis.usda.gov/wps/wcm/connect/ebf83112-4c3b-4650-8396-24cc8d38bf6c/10250.1.pdf?MOD=AJPERES.

    FSIS continues to work with USDA's Agricultural Research Service to investigate the potential impact of carryover of antimicrobial agents on sampling results. The findings of this research will inform any actions the Agency may take. Regardless, in 2016, FSIS plans to begin evaluating the use of a new buffer solution to reduce the potential impact from carryover of antimicrobial agents. If an effective buffering media is identified, the buffer media will be used by inspection program personnel when sampling poultry carcasses and parts to reduce carryover from the common antimicrobial interventions that may potentially impact sampling results.

    Comment: An organization representing the chicken industry and a meat and poultry processor requested that raw chicken parts only be eligible for sampling in the primary producing establishment.

    Response: FSIS disagrees with this comment. Establishment handling and processing of raw chicken parts at secondary processing facilities presents additional opportunity for contamination with pathogens, particularly when new source materials are incorporated. Thus, FSIS will continue sampling finished raw chicken parts at slaughter establishments, as well as at those that further process the product. By doing so, exposure of the public to pathogens of public health concern will be reduced at each practical step in the production process. FSIS has issued instructions to its inspection program personnel that make clear that product that is only repackaged and not subject to further reprocessing is not subject to sampling (see Section V, Part D, of FSIS Notice 16-15).30

    30 Available at http://www.fsis.usda.gov/wps/wcm/connect/5233e84c-f4a6-4959-b861-926a4d912eff/16-15.pdf?MOD=AJPERES.

    Comment: An organization representing the chicken industry requested that FSIS provide more detail about how each sample will be collected, where in the process the product will be sampled, and how the products will be tested.

    Response: FSIS has issued necessary notices and directives 31 on this matter and will issue additional instructions as necessary.

    31 See Directive 10,250.1 and FSIS Notices 16-15, 22-15, 23-15, 31-15 and 32-15.

    Comment: A consumer advocacy group requested that FSIS verification sampling include raw chicken parts derived from carcasses set aside for in-plant “reprocessing” and “salvage” activities.

    Response: Parts derived from “reprocessing” and “salvage” activities most commonly end up as comminuted product or as parts destined for further processing—both of which are subject to FSIS verification sampling and testing. If FSIS finds that these parts are being handled in a manner that consistently circumvents Agency verification testing, FSIS will consider sampling of this product.

    Comment: A meat and poultry processor requested that FSIS enumerate all of its Salmonella results and focus its resources on facilities with higher levels of Salmonella and not focus on presence of the pathogen alone.

    Response: FSIS agrees that high levels of pathogens should be considered in FSIS sampling considerations and is exploring options for enumerating more samples. However, because the occurrence of any Salmonella poses a potential hazard for consumers, FSIS will continue to primarily focus upon the presence or absence of the pathogen. In addition, based on sampling results from establishments linked to outbreaks, FSIS has found low level but frequent contamination does contribute to adverse public health outcomes. Furthermore, pathogen reduction through performance standards results in fewer contaminated products overall, regardless of the levels of Salmonella present. Thus, by setting new performance standards for these products that are based on presence or absence testing, FSIS anticipates establishments will adopt practices that will reduce all pathogens in their products, resulting in a greater overall impact on reducing human illnesses associated with FSIS-regulated products than would result from a focus on enumeration.

    Comment: A consumer advocacy group suggested that FSIS sample the neck skins of several birds in a flock (defined as one broiler house) immediately after the kill step, as is done in Sweden.

    Response: FSIS questions whether such a sampling program would derive different results than those found through other FSIS sampling. Sampling of the neck skins immediately after the slaughter step is one component of Sweden's Salmonella control program which primarily regulates on-farm production. The testing of the neck skins at the time of slaughter is done to verify the effectiveness of on-farm screening activities.

    FSIS encourages establishments to determine the incoming pathogen load on live birds to determine whether its processes can effectively address the pathogens. For example, these data could be used by establishments to determine which farms to obtain birds from for slaughtering, and how to schedule the order of flocks or houses of birds to decrease cross contamination during slaughter.

    In addition, FSIS requires that slaughter establishments sample most poultry pre-chill (9 CFR 381.65(g)(1))— a valuable source of data about how well an establishment is minimizing contamination with enteric pathogens and fecal material on live birds presented for slaughter and on carcasses throughout the evisceration and dressing process.

    Comment: An organization representing the chicken industry requested that FSIS share reserve rinsate (the solution obtained and sent to FSIS laboratories for analysis after mixing/washing product) with establishments at the time of sample collection.

    Response: FSIS does not intend to share rinsate with establishments. FSIS is satisfied with the competency of its laboratory personnel and the procedures they implement, which are able to reliably detect pathogens. FSIS encourages establishments to conduct their own sampling rather than rely upon FSIS sampling results. In fact, FSIS assumes that establishments will choose to increase sampling and testing as a means of verifying process control, and that they are meeting the new pathogen reduction performance standards. FSIS included additional costs associated with increased sampling and testing by establishments in our cost-benefit analysis posted with this notice.

    E. Proposed Moving Window Approach for Assessing Process Control

    Comment: In lieu of the moving window approach, an organization representing the meat/poultry industry suggested that FSIS consider other alternative approaches to evaluate process control in which observations are weighted; e.g., the exponentially weighted moving average in which observations are weighted with the highest weight given to the most recent data.

    Response: While an exponentially weighted moving average could move some establishments out of a failing status more quickly, it would also move some potentially passing establishments into a failing status. Thus, FSIS concludes the equally weighted 12-month moving average is the best approach.

    In the January 2015 notice, FSIS stated that 10 would be the minimum number of samples (over 52 weeks) required to assess process control (80 FR at 3947). Upon further consideration, FSIS has discovered that the proposed minimum number of Salmonella samples for broiler carcasses (10) would effectively equate to a zero tolerance standard. Therefore, FSIS has revised the minimum number of samples to 11 for broiler carcasses only. The following table sets out what FSIS has determined to be the revised minimum number of samples to assess process control for each product class by pathogen.

    Product Maximum acceptable percent positive Salmonella Campylobacter Minimum number of samples to assess process control Salmonella Campylobacter Broiler Carcass 9.8 15.7 11 10 Turkey Carcass 7.1 5.4 14 19 Comminuted Chicken (325 g sample) 25.0 1.9 10 52 Comminuted Turkey (325 g sample) 13.5 1.9 10 52 Chicken Parts (4 lb. sample) 15.4 7.7 10 13

    Comment: Commenters opposed assessing poultry carcass performance categories by combining old and new samples because the results are inconsistent and cannot be compared. In addition, a comment noted that some poultry carcass data may be relatively old and not necessarily indicative of current establishment conditions. Rather than combining old and new sample results to assess performance, comments requested that FSIS “reset” the performance standards for poultry carcasses and begin building new datasets.

    Response: FSIS agrees that for categorization purposes of individual establishments, category status should be reflective of the most current sample results. Therefore, beginning May 11, 2016, FSIS will begin web-posting the category status of all establishments subject to the existing poultry carcass pathogen reduction performance standards based on sample results from May 2015 (when FSIS began routine sampling of broiler and turkey carcasses) to the present.

    Comment: Several commenters from industry stated that assessing process control in an establishment over 52 weeks, based solely on one FSIS verification sample per week, will not reflect current or very recent conditions in the establishment. These commenters also requested that FSIS consider supplemental establishment test results and other establishment measures when assessing process control before determining individual establishment category determinations and presumably posting of establishments' name and category.

    To facilitate data sharing between establishments and FSIS, several comments provided recommendations for “supplemental data” that could be submitted by establishments, such as Salmonella enumeration data, indicator organism process control monitoring, or corrective actions. If an establishment elects to share data to demonstrate process control, an organization representing the chicken industry suggested that FSIS incorporate those data into the establishment's dataset and assess the establishment based on the most recent 52 samples—whether they are FSIS verification samples or establishment samples. In addition, if FSIS proceeds with web-posting establishment-specific data, several industry commenters requested that the Agency allow establishments to review the data and to provide any comments, objections, or explanations, which could be included with released data.

    Response: The concept of data sharing between establishments and FSIS could have merit. This approach could provide an incentive for establishments to gain better process control of individual production lots whereby microbiological independence and improved lotting practices can be incorporated. For example, establishments performing their own robust sampling and testing of microbiologically independent lots of raw poultry product could use the results to assess whether they are maintaining ongoing process control. In addition, such lotting and sampling could provide valuable data for establishments when making final decisions on product disposition during corrective actions and HACCP decisions in performing pre-shipment review. FSIS intends to find a mechanism for ensuring that these data are available to the public if FSIS decides to supplement its decision making based on these data.

    However, there are a number of challenges, such as variation in industry sampling and testing methodologies, collection of on-going establishment data, and data interpretation. Mechanisms need to be identified and implemented to ensure that these non-FSIS data are reliable, and that they remain reliable over time. FSIS intends to make available compliance guidelines for standardizing data collection and reporting.

    FSIS, therefore, is considering initiating a pilot project using volunteer establishments to evaluate the feasibility of the concept. As part of the pilot project, FSIS may request establishment isolates and use them in the same manner as it uses FSIS isolates; data on how the establishment determines and controls risk; and information on corrective actions taken by the establishment when its risk control parameters are not met. If the pilot project is successful, FSIS would then determine how best to use non-FSIS data in Agency decision making. FSIS will make information available to the public on any pilot or any changes to posting as it moves forward.

    Comment: A consumer advocacy group requested that FSIS use data collected to evaluate whether establishment performance for different products (e.g., whole carcasses and parts) is correlated.

    Response: FSIS disagrees with the suggestion that setting performance standards requires such data because of how samples are collected, and how organisms attach to product. Attachment of the microorganisms, recovery from injury, and other factors impact the detection of pathogens throughout the production process. Consequently, it is appropriate to set pathogen reduction performance standards on different product types at all feasible points in the production process where control can be exerted and effective (e.g., for carcasses, parts, and comminuted products). Furthermore, process control demonstrated on carcasses may have no bearing on the level of process control demonstrated for parts or comminuted product.

    F. Proposed Changes to Categorization System and Web-Posting

    Comment: An organization representing the chicken industry stated that the proposed categorization system will result in categories that fail to reflect current conditions in the establishment. The commenter stated that an establishment could remain in categories 2 or 3 up to eighteen months after addressing whatever conditions caused the establishment to be classified in the category. Instead of re-categorizing establishments based on their performance over the last six months, as FSIS proposed, the organization requested that FSIS categorize establishments based on the results of a continuous moving window of the last 52 samples and post categories monthly based on the most recent 52-sample dataset. If the most recent 52-sample dataset indicates that the establishment should be moved into a lower category (Category 2 or 3), the commenter stated that FSIS should provide the establishment with an additional two months to provide supplemental data for FSIS to consider before making its final category determination.

    An organization representing the turkey industry and a meat/poultry processor stated that because the proposed standards for NRTE comminuted turkey product allow for so few positive results, there would be very little difference between a Category 1 or 3 turkey establishment. The organization also stated that web-posting individual turkey establishment category information will put turkey establishments at a competitive disadvantage relative to chicken product because the proposed performance standards allow for fewer positives for turkey establishments. To demonstrate this point, the industry comments argued that consumers may choose a Category 1 chicken product over a Category 2 turkey product thinking the chicken product is “safer” or “better,” when the turkey product may actually have lower numbers of Salmonella. If FSIS proceeds with web-posting establishment-specific data for all eligible turkey establishments, the comments requested that FSIS also post information on the data represented.

    An organization representing the turkey industry stated that posting individual establishments' categories has not historically been a substantial factor in driving industry to reduce pathogens. Rather, the organization stated that posting individual establishments' categories may be harmful to industry and confusing to consumers. Likewise, several industry comments supported posting aggregate data rather than individual establishment-specific data to minimize unintended consequences to industry. An organization representing the chicken industry recommended posting Category 3 establishments only.

    An organization representing the meat industry stated improvements in controlling Escherichia coli O157:H7 in beef were more the result of industry's implementation of new processes and interventions than to public accessibility of establishment-specific data. In addition, for consistency, the organization requested that FSIS outline its Category 1/2/3 posting procedures in the draft Establishment-specific Data Release Strategic Plan.

    An organization representing the chicken industry stated that consumers are only able to associate web-posting with branded products. As a result, the organization stated that web-posting would disproportionately harm establishments producing branded products compared to establishments producing non-branded product.

    Response: FSIS has decided to re-categorize establishments monthly based on their performance over the last three months. For example, if an establishment has exceeded the Salmonella or Campylobacter maximum allowable percent positive during any completed 52-week moving window over the last three months, it will be placed in Category 3 at least until establishments are re-categorized a month later.

    In addition, because the comminuted chicken and turkey pathogen reduction performance standards permit only one positive result for Campylobacter in order to pass the standard, essentially eliminating Category 2, FSIS will categorize eligible establishments producing these products as either passing or failing. Thus, FSIS has revised its category classification system as follows:

    I. Category 1. Consistent Process Control: Establishments that have achieved 50 percent or less of the Salmonella or Campylobacter maximum allowable percent positive during all completed 52-week moving windows over the last three months.

    II. Category 2. Variable Process Control: Establishments that meet the Salmonella or Campylobacter maximum allowable percent positive for all completed 52-week moving windows but have results greater than 50 percent of the maximum allowable percent positive during any completed 52-week moving window over the last three months.

    III. Category 3. Highly Variable Process Control: Establishments that have exceeded the Salmonella or Campylobacter maximum allowable percent positive during any completed 52-week moving window over the last three months.

    IV. Passing. Establishments that meet the Campylobacter maximum allowable percent positive for NRTE comminuted chicken or turkey during all completed 52-week moving windows over the last three months.

    V. Failing. Establishments that have exceeded the Campylobacter maximum allowable percent positive for NRTE comminuted chicken or turkey during any completed 52-week moving window over the last three months.

    FSIS disagrees that a delay in web-posting should occur if an establishment's performance is trending in an adverse direction. One purpose of the pathogen reduction performance standards is to ensure that industry is taking steps to continuously improve its food safety system. Therefore, FSIS will begin web-posting as follows:

    • No sooner than May 11, 2016, for establishments that produce poultry carcasses and that have the minimum number of samples, FSIS will begin posting individual establishment category status based on sample results from May 2015 (when FSIS began routine sampling of broiler and turkey carcasses) to the present. Thereafter, FSIS will update the category status for each eligible establishment monthly.

    • For establishments that produce chicken parts and comminuted poultry products, FSIS intends to begin web-posting quarterly aggregate information relative to categories beginning about May 11, 2016. This information will give industry and other stakeholders timely information about progress being made to reduce contamination in NRTE poultry of all types sampled.

    • For all establishments subject to the new pathogen reduction performance standards, after completion of the first 52-week moving window (approximately one year), FSIS will begin posting whether establishments meet the standards, or what category establishments are in, depending on the standard for the particular product, based on FSIS results. However, as is discussed above, based on at least the minimum number of samples to assess process control for that product/pathogen pair and other available information about establishments, such as noncompliance rates, if establishment performance overall does not improve or appears to be worsening before the completion of the first moving window, FSIS may begin web-posting individual establishment category information sooner.

    FSIS does not agree that the category approach has not been effective. Our experience with performance standards shows that industry does respond to new pathogen reduction performance standards. For example, the proportion of positive Salmonella carcasses fell after implementation of 1996 Pathogen Reduction/Hazard Analysis and Critical Control Point (PR/HACCP) final rule but then began to rise in the mid-2000s. FSIS speculates that this rise was because there were rarely significant consequences to failing a Salmonella set. In 2006, this trend of rising Salmonella positive carcasses was reversed when FSIS instituted categorization and web-posting of Category 2 and 3 establishments. In fact, the number of establishments not meeting the standard fell by 50 percent in the 2-year period following the time FSIS started posting category information.

    On January 15, 2015, FSIS published a notice in the Federal Register that requested comment on the Agency's draft Establishment-specific Data Release Strategic Plan for sharing with the public data on federally inspected meat and poultry establishments (80 FR 2092). Although outside the scope of this policy initiative, FSIS will consider the issue raised by the commenter as it considers other comments received on the draft Plan.

    Finally, FSIS disagrees that web-posting will disproportionately harm establishments producing branded products compared to those producing non-branded product. Any establishment could be potentially affected by the postings because consumers and wholesale buyers in the poultry supply chain can equally view the Web site. Therefore, it is in any establishment's interest, whether branded or non-branded, to put the processes in place to ensure that it meets or exceeds the pathogen reduction performance standards.

    Comment: A consumer advocacy group requested that FSIS post aggregate data for Campylobacter in imported poultry products and post aggregate reports showing the Category 1/2/3 distribution for each product class.

    Response: FSIS disagrees with the comment because FSIS does not collect enough samples from individual foreign establishments to assess whether they meet the standards. The foreign government conducts verification activities at the foreign establishment to make that type of determination. Through records reviews and audits, FSIS verifies that foreign inspection systems include these types of verification activities.

    FSIS plans to develop and implement a voluntary pilot project to explore mechanisms for reporting aggregate data specific to foreign countries that export NRTE poultry to the United States. FSIS will continue to verify whether those governments assess individual establishment process control as part of the equivalency process.

    H. Enforcement

    Comment: Several consumer advocacy groups stated that certain serotypes of Salmonella should be considered adulterants. The comments cited other actions that FSIS should take to enforce the performance standards, including suspending inspection at facilities that do not meet a performance standard until the establishment meets the standard and recommending the recall of product produced during periods when the establishment has inadequate process control.

    Response: FSIS disagrees with the comment. The pathogen reduction performance standards are not lot-release standards. Product produced by an establishment that does not meet the standard is not necessarily adulterated. However, failing to meet the standard provides evidence that the production process is not well controlled, and FSIS will take steps to ensure that the establishment improves its production process to reduce variability and to gain more consistent process control. FSIS does agree that persistent failure to meet the pathogen reduction performance standards can be used as a rationale to progressively encourage the establishment to implement more effective food safety system controls or to discontinue production of product.

    In May 2011, the Center for Science in the Public Interest (CSPI) petitioned FSIS to issue an interpretive rule to declare certain strains of antibiotic-resistant (ABR) Salmonella to be adulterants in raw ground meat and raw ground poultry.32 On July 31, 2014, FSIS denied the petition without prejudice because the Agency concluded that the data do not support giving the four strains of ABR Salmonella identified in the petition a different status as an adulterant in raw ground meat and raw ground poultry than Salmonella strains that are susceptible to antibiotics.33 The Agency concluded that additional data on the characteristics of ABR Salmonella are needed to determine whether certain strains of ABR Salmonella could qualify as adulterants under the Federal Meat Inspection Act and Poultry Products Inspection Act. On October 14, 2014, CSPI refiled its petition to provide additional data and requested that FSIS declare certain strains of ABR Salmonella adulterants in all raw meat and raw poultry products. FSIS is evaluating the new request.

    32http://www.fsis.usda.gov/wps/wcm/connect/04cb5fad-c13e-4de7-b391-acd95191a95/Petition_CSPI_052511.pdf?MOD=AJPERES.

    33http://www.fsis.usda.gov/wps/wcm/connect/73037007-59d6-4b47-87b7-2748edaa1d3e/FSIS-response-CSPI-073114.pdf?MOD=AJPERES.

    Comment: A consumer advocacy group requested that FSIS instruct inspection personnel on when and how to increase enforcement at facilities that do not meet the performance standards. In addition, the commenter requested that FSIS initiate increased enforcement action when an establishment repeatedly fails to meet the performance standard.

    Response: FSIS recently revised FSIS Directive 5100.4 34 to provide instructions to its personnel on how to conduct a PHRE. Enforcement, Investigations, and Analysis Officers (EIAOs) will conduct a PHRE (in priority order) at every establishment that does not meet a performance standard (i.e., the establishment is in Category 3); at establishments that have produced products with repetitive Salmonella serotypes of public health concern, indicating potential higher risk for being identified as contributing to an outbreak; and establishments with Salmonella PFGE patterns matching those found in recent outbreaks or epidemiological evidence linking them to illness to determine the need for a FSA. If, during the PHRE, the EIAO determines that the establishment is shipping or producing adulterated product, operating without a HACCP plan, or engaging in any other type of non-compliance that supports taking a withholding or suspension action without prior notification (9 CFR 500.3), the EIAO will take immediate steps to stop the wrongful practice. Next, the EIAO will consult with the District Office (DO) to determine whether additional enforcement action is needed. For an EIAO to recommend that the DO issue a NOIE, he or she must support that the conditions in the establishment, or the actions of establishment personnel, constitute a situation that would justify the action under 9 CFR 500.4, and that such conditions have resulted in adulterated product or create insanitary conditions that could cause product to be adulterated.

    34 Available at http://www.fsis.usda.gov/wps/wcm/connect/6c30c8b0-ab6a-4a3c-bd87-fbce9bd71001/5100.4.pdf?MOD=AJPERES.

    As stated above, if, after 90 days, the establishment has not been able to gain process control, as determined from FSIS's follow-up sampling and from the results of the PHRE or FSA, and the establishment has not taken corrective actions, FSIS will likely take enforcement actions, such as by issuing a NOIE or by suspending inspection, under the conditions and according to the procedures described in 9 CFR part 500. FSIS will not issue an NOIE or suspend inspection based solely on the fact that an establishment did not meet a performance standard.

    Comment: A consumer advocacy group requested that FSIS refuse entry of imported raw poultry product that FSIS finds positive for Salmonella. On the other hand, an organization representing the chicken industry stated that denying entry of imported products (or determining foreign country equivalency) based on import verification sampling results may result in international trade ramifications.

    Response: Salmonella is not an adulterant in NRTE poultry products. Therefore, a positive test result for Salmonella in imported NRTE poultry product sampled by FSIS import inspection personnel would not result in regulatory control actions at port-of-entry (i.e., refused entry of the product). However, foreign countries that are eligible to export poultry products to the United States must apply inspection, sanitation, and other standards that are equivalent to those that FSIS applies to poultry products. Thus, in evaluating whether a foreign country maintains an equivalent inspection system to that of FSIS, FSIS considers whether the country's pathogen reduction performance standards, testing, and other verification procedures related to Salmonella or Campylobacter are equivalent to those that FSIS uses.

    I. Other Agency Actions

    Comment: A consumer advocacy group requested that FSIS make detailed testing data available to public health officials (e.g., through PulseNet).

    Response: FSIS routinely shares subtyping data for positive samples with public health officials for data analysis, interpretation, and application. This sharing includes submission of serotype and PFGE data to Pulsenet and antimicrobial resistance data to the National Antimicrobial Resistance Monitoring System for Enteric Bacteria (NARMS). FSIS has also recently begun using whole genome sequencing to analyze positive isolates in certain cases and will continue to expand this testing as resources allow. FSIS is submitting this sequencing data to the National Center for Biotechnology Information, a publically accessible database.

    Comment: An organization representing the meat industry requested that FSIS evaluate the correlation between higher sanitary dressing noncompliances and the probability of positive sample results in poultry products, as it did for beef products.

    Response: FSIS will assess this issue and report its findings in FY2016. Meanwhile, outbreaks associated with Salmonella in raw poultry products continue. Improvement in sanitary dressing and other process controls can reduce the levels of Salmonella and other enteric bacteria, such as Campylobacter, on poultry carcasses. Therefore, FSIS believes that establishments should focus more closely on their sanitary dressing and process control procedures to prevent carcass contamination. Importantly, the recent final rule on poultry inspection modernization mandates that establishments prevent contamination of poultry product with feces throughout the slaughter and dressing operation rather than permit carcasses to be contaminated and then reconditioned (9 CFR 381.45(g)).

    Comment: An organization representing the meat/poultry industry requested that FSIS explain how the Agency intends to assess whether the raw beef follow-up sampling model (i.e., either 16 or eight follow-up samples will be collected when an establishment does not meet the standard) is working for Salmonella and Campylobacter testing, and, if changes are made, how FSIS plans to communicate the changes to industry.

    Response: FSIS has found follow-up sampling to be effective at finding additional positives in raw beef samples. FSIS will analyze the data and information collected during follow-up sampling (which will be part of the moving window sampling) of poultry and make any necessary changes to the follow-up sampling procedures based on that analysis.

    Comment: A consumer advocacy group requested that FSIS include improving poultry welfare and living conditions and protecting bird health in its recommended pre-harvest strategies for producers for controlling Salmonella and Campylobacter. The group stated that research has shown that environmental stresses (e.g., depriving a bird of feed, overcrowding) can result in increased incoming poultry pathogen loads.

    Response: FSIS agrees with the comment. FSIS has reviewed available information, including the information provided by the commenter, regarding the impact of animal welfare and living conditions on food safety. FSIS has updated the Compliance Guideline for Controlling Salmonella and Campylobacter in Raw Poultry to include interventions and best practices that should assist producers in providing for animal welfare, living conditions, and bird health at pre-harvest, which should in turn minimize stress in poultry and reduce pathogens in birds presented at slaughter.

    Comment: An organization representing the chicken industry stated that a shift from Category 1 to Category 2 does not warrant a for-cause FSA because Category 2 establishments are technically meeting the standard. The organization requested that FSIS outline situations in which verification sampling would trigger a for-cause FSA and clarify what the Agency means by a “higher number of positives.”

    The same organization also opposed FSIS conducting for-cause FSAs when it finds serotypes of public health significance because, according to the organization, doing so would effectively impose a zero-tolerance standard for these serotypes. The organization argued that using this approach would encourage establishments to focus only on certain serotypes rather than manage overall pathogen levels through a process control program.

    Response: FSIS will not typically schedule an FSA based on an establishment moving from Category 1 to Category 2. As mentioned above, during the PHRE, EIAOs use the decision-making process outlined in FSIS Directive 5100.4 to determine whether the DO needs to schedule an FSA.

    FSIS will focus on Salmonella serotypes of public health concern because the incidence rate of infection by these serotypes is higher than for other serotypes. Moreover, for-cause PHREs in response to serotypes of public health concern will in fact stimulate improvement in industry performance in controlling Salmonella generally.

    As for “higher number of positives,” FSIS intends to analyze results of the routine sampling to identify data trends indicative of an establishment moving in an adverse direction. Once identified, these trends may prompt FSIS to conduct a PHRE or take other appropriate actions, such as additional sanitary dressing verification procedures, at the establishment that produced the product. FSIS provides Salmonella serotype results to establishments to facilitate their efforts in identifying the appropriate intervention.

    FSIS is concerned that there is a misguided belief that new products do not need to be produced in a manner to reduce the presence of pathogens of public health concern. Since the 1996 PR/HACCP final rule, FSIS has stressed that properly operating food safety systems are designed to reduce the presence of pathogens of public health concern.

    J. Cost-Benefit Analysis

    Comment: Factoring in the costs of the additional FSAs and follow-up sampling associated with the high percentage of establishments not expected to initially meet the new standards, an organization representing the meat industry questioned how FSIS does not expect to incur any additional costs as a result of setting new performance standards. The organization requested that FSIS calculate the number and cost of FSAs and follow-up samples the Agency expects to collect for the first three years after the changes are implemented. Other more general comments stated that the proposed changes would be overly resource intensive or potentially cost prohibitive for FSIS.

    Response: To account for the sampling and enforcement actions associated with the new performance standards, FSIS will realign resources, rather than allocating any additional resources beyond what it currently budgets. FSIS will examine the following in a retrospective analysis to realign resources: the allocation of sampling and outcome of FSAs initiated as a result of the new pathogen reduction performance standards.

    In addition, FSIS has updated its FSA methodology by shortening the timeline for completion of most FSAs from 2 to 4 weeks to 5 to 7 production days.35 This change will enable FSIS personnel to perform a greater number of FSAs each year, thereby improving Agency efficiency.

    35 FSIS Directive 5100.1, Revision 4; available at: http://www.fsis.usda.gov/wps/wcm/connect/31bb8000-fb33-4b51-964b-1db9dfb488dd/5100.1.pdf?MOD=AJPERES.

    Cost-Benefit Analysis

    FSIS has considered the economic effects of new pathogen reduction performance standards for Salmonella and Campylobacter in NRTE chicken parts and comminuted poultry. FSIS published a preliminary cost-benefit analysis in support of the January 2015 Federal Register notice in which FSIS proposed the new performance standards and sought comment on the estimates and the methodology used.36 After reviewing the comments received, FSIS updated the cost benefit analysis to reflect a change in a cost assumption. In addition to making changes to their production processes in order to meet the new pathogen reduction performance standards, FSIS originally assumed that only 30, 40, or 50 percent of establishments that fail to meet the performance standard would re-asses their HACCP plan. However, FSIS now assumes that all, or 100 percent, of establishments that fail to meet the standard will re-assess their HACCP plans to comply with 9 CFR 417(3)(b). A summary of the analysis follows. The full analysis is published on the FSIS Web site as supporting documentation to this notice.

    36 Chicken Parts and Not Ready-To-Eat Comminuted Poultry Performance Standards Preliminary Cost-Benefit Analysis; available at: http://www.fsis.usda.gov/wps/wcm/connect/e146ef97-c269-44ee-bea2-0c04fcc6f463/CBA-Chicken-Parts-Comminuted.pdf?MOD=AJPERES .

    Industry Costs

    Establishments will incur costs as they make changes to their processes to meet the new standards. FSIS estimates that approximately 63 percent of raw chicken parts producing establishments, 62 percent of NRTE comminuted chicken producing establishments, and 58 percent of NRTE comminuted turkey producing establishments will not meet the new Salmonella standards. FSIS estimates that approximately 46 percent of raw chicken parts producing establishments, 24 percent of NRTE comminuted chicken producing establishments, and 9 percent of NRTE comminuted turkey producing establishments will not meet the new Campylobacter standards.

    Establishments that initially do not meet the standard but that choose to do so will need to make changes to their production processes to lower the prevalence of Salmonella and Campylobacter in their products. Changes made by poultry slaughter establishments could include pre-harvest interventions, such as vaccination programs; well-timed feed withdrawal; clean and dry litter and transportation; and supplier contract guarantees of pathogen-free flocks. During processing, establishments could add additional cleaning procedures, apply chemical antimicrobial agents to parts and source materials for comminuted poultry product, and provide additional sanitation training to employees. For the purposes of the cost-benefit analysis, FSIS used the cost of adding antimicrobial agents to poultry parts as a proxy for the costs of interventions and changes that could be implemented. FSIS used this approach based on information from FSAs in response to broiler Salmonella sets not meeting the standards and information from the FSIS Poultry Checklist. Through FSAs, FSIS has found that the majority of establishments added antimicrobial agents to the production process as a corrective action, suggesting that an antimicrobial intervention would be the most likely response should an establishment not meet the proposed performance standards. Also, information from the FSIS Poultry Checklist showed that the majority of establishments are not applying antimicrobial agents to raw poultry parts and source materials for comminuted poultry product. FSIS accounted for uncertainty in the proportion of establishments making changes to their production processes by providing a range of 30, 40, and 50 percent (of establishments initially falling short of but eventually meeting the standards in two years) for cost estimates for capital equipment, antimicrobial agents, and microbial sampling. For HACCP plan re-evaluation and training costs, FSIS assumes that all establishments (100 percent) that do not meet the standard will re-evaluate their HACCP plan. These costs are summarized and annualized over 10 years at a discount rate of 7 percent in Table 1.

    Table 1—Total Industry Costs Annualized 1 Compliance level of establishments
  • not meeting standard
  • Cost component Primary
  • estimate
  • ($mil)
  • Low estimate ($mil) High estimate ($mil)
    30% Capital Equipment 2.15 Antimicrobial Agent 6.54 4.61 8.46 Microbiological Sampling 9.27 6.18 12.36 HACCP Reassessment & Training * Total Costs 17.96 12.94 22.97 40% Capital Equipment 2.86 Antimicrobial Agent 8.72 6.14 11.28 Microbiological Sampling 9.82 6.52 13.05 HACCP Reassessment & Training * Total Costs 21.41 15.52 27.19 50% Capital Equipment 3.58 Antimicrobial Agent 10.89 7.68 14.12 Microbiological Sampling 10.40 6.91 13.81 HACCP Reassessment & Training * Total Costs 24.88 18.17 31.51 1 Costs annualized at a discount rate of 7 percent over 10 years. * Approximately $12,216, a value too small to display in table.
    Agency Costs

    FSIS will not request additional funding as a result of introducing new performance standards. FSIS allocates a fixed number of samples by product class, sampling project, and pathogen each year. The two major components of the pathogen reduction performance standards—product sampling and follow-up actions—will be implemented in such a way that they are resource neutral. FSIS is not expanding the number of samples it will analyze. Instead, it will reallocate samples from other programs, specifically the young chicken and turkey sampling programs for Salmonella and Campylobacter, as FSIS moves towards assessing performance using a moving window (described above) of sampling results. FSIS does not anticipate the need to exclude any of the other testing programs allocated to other product classes. FSIS intends to test carcasses at the level that is needed to document establishment performance status. Furthermore, enforcement actions taken as a result of the new performance standards, namely FSAs, will not require additional FSIS resources. FSIS has updated its FSA methodology and has shortened the timeline for the completion of most FSAs from 2 to 4 weeks to 5 to 7 production days.37 The shortened FSA will enable FSIS Enforcement, Investigations and Analysis Officers to perform more FSAs each year. Therefore, FSIS will not expend additional resources to implement the proposed performance standards.

    37 FSIS Directive 5100.1, Revision 4; available at: http://www.fsis.usda.gov/wps/wcm/connect/31bb8000-fb33-4b51-964b-1db9dfb488dd/5100.1.pdf?MOD=AJPERES.

    Public Health Benefits

    As establishments make changes to their production processes and reduce the prevalence of Salmonella and Campylobacter in chicken parts and NRTE comminuted poultry, public health benefits will be realized in the form of averted illnesses. For each assumed compliance level FSIS estimated the cost savings associated with the percentage reduction in human illnesses as calculated in the 2015 Risk Assessment. The results of this calculation were annualized over 10 years at a discount rate of 7 percent and are displayed in Table 2.

    Table 2—Public Health Benefits Annualized 1 Compliance level of establishments not meeting the standard
  • %
  • Primary
  • estimate
  • ($mil)
  • Low estimate
  • ($mil)
  • High estimate
  • ($mil)
  • 30 50.87 31.84 79.89 40 79.66 50.43 125.89 50 109.10 68.80 171.24 1 Benefits annualized over 10 years at a discount rate of 7 percent.
    Summary of Net Benefits

    Table 3 displays the total costs and benefits expected from the implementation of performance standards for chicken parts and comminuted poultry. All values have been annualized over 10 years at a 7 percent discount rate. For all compliance levels considered, the performance standards result in net benefits.

    Table 3—Summary of Net Benefits 1 Compliance level of establishments
  • not meeting the standard
  • %
  • Cost/benefit component Primary
  • estimate
  • ($mil)
  • Low estimate
  • ($mil)
  • High estimate
  • ($mil)
  • 30 Industry Costs (18.0) (12.9) (23.0) FSIS Costs Public Health Benefits 50.9 31.8 79.9 Net Benefits 32.9 18.9 56.9 40 Industry Costs (21.4) (15.5) (27.2) FSIS Costs Public Health Benefits 79.7 50.4 125.9 Net Benefits 58.3 34.9 98.7 50 Industry Costs (24.9) (18.2) (31.5) FSIS Costs Public Health Benefits 109.1 68.8 171.2 Net Benefits 84.2 50.6 139.7 1 All costs and benefits annualized over 10 years at a 7 percent discount rate.
    USDA Nondiscrimination Statement

    No agency, officer, or employee of the USDA shall, on the grounds of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, or political beliefs, exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States under any program or activity conducted by the USDA.

    To file a complaint of discrimination, complete the USDA Program Discrimination Complaint Form, which may be accessed online at http://www.ocio.usda.gov/sites/default/files/docs/2012/Complain_combined_6_8_12.pdf, or write a letter signed by you or your authorized representative.

    Send your completed complaint form or letter to USDA by mail, fax, or email:

    Mail

    U.S. Department of Agriculture, Director, Office of Adjudication, 1400 Independence Avenue SW., Washington, DC 20250-9410.

    Fax

    (202) 690-7442.

    Email

    [email protected]

    Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).

    Additional Public Notification

    FSIS will announce this notice online through the FSIS Web page located at http://www.fsis.usda.gov/federal-register.

    FSIS will also make copies of this Federal Register publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations, Federal Register notices, FSIS public meetings, and other types of information that could affect or would be of interest to constituents and stakeholders. The Update is communicated via Listserv, a free electronic mail subscription service for industry, trade groups, consumer interest groups, health professionals, and other individuals who have asked to be included. The Update is also available on the FSIS Web page. In addition, FSIS offers an electronic mail subscription service which provides automatic and customized access to selected food safety news and information. This service is available at http://www.fsis.usda.gov/subscribe. Options range from recalls to export information to regulations, directives, and notices. Customers can add or delete subscriptions themselves, and have the option to password protect their accounts.

    Done at Washington, DC, on: February 4, 2016. Alfred V. Almanza, Acting Administrator.
    [FR Doc. 2016-02586 Filed 2-10-16; 8:45 am] BILLING CODE 3410-DM-P
    DEPARTMENT OF AGRICULTURE Food Safety and Inspection Service [Docket No. FSIS-2015-0047] Codex Alimentarius Commission: Meeting of the Codex Committee on Contaminants in Food AGENCY:

    Office of the Deputy Under Secretary for Food Safety, USDA.

    ACTION:

    Notice of public meeting and request for comments.

    SUMMARY:

    The Office of the Deputy Under Secretary for Food Safety, U.S. Department of Agriculture (USDA), and the Food and Drug Administration (FDA), U.S. Department of Health and Human Services, are sponsoring a public meeting on March 7, 2016. The objective of the public meeting is to provide information and receive public comments on agenda items and draft United States (U.S.) positions to be discussed at the 10th Session of the Codex Committee on Contaminants in Food (CCCF) of the Codex Alimentarius Commission (Codex), taking place in Rotterdam, The Netherlands, April 4-8, 2016. The Deputy Under Secretary for Food Safety and FDA recognize the importance of providing interested parties the opportunity to obtain background information on the 10th Session of the CCCF and to address items on the agenda.

    DATES:

    The public meeting is scheduled for Monday, March 7, 2016, from 1:00 p.m.-4:00 p.m.

    ADDRESSES:

    The public meeting will take place at the Food and Drug Administration (FDA), Harvey W. Wiley Federal Building, Room 1A-001, Center for Food Safety and Applied Nutrition (CFSAN), 5100 Paint Branch Parkway, College Park, MD 20740. Documents related to the 10th Session of the CCCF will be accessible via the Internet at http://www.codexalimentarius.org/meetings-reports/en/.

    Dr. Lauren Posnick Robin, U.S. Delegate to the 10th Session of the CCCF invites interested U.S. parties to submit their comments electronically to the following email address [email protected].

    Call-in-Number:

    If you wish to participate in the public meeting for the 10th Session of the CCCF by conference call. Please use the call-in-number.

    Call-in-Number: 1-888-844-9904.

    The participant code will be posted on the Web page below: http://www.fsis.usda.gov/wps/portal/fsis/topics/international-affairs/us-codex-alimentarius/public-meetings.

    Registration:

    Attendees may register electronically at the same email address provided above by March 3, 2016. The meeting will be held in a Federal building. Early registration is encouraged as it will expedite entry into the building and parking area. Attendees should bring photo identification and plan for adequate time to pass through security screening systems. If you require parking, please include the vehicle make and tag number when you register. Attendees that are not able to attend the meeting in person, but wish to participate, may do so by phone.

    Further Information About the 10th Session of the CCCF Contact: Henry Kim, Ph.D., Office of Food Safety, CFSAN/FDA, HFS-317, 5100 Paint Branch Parkway, College Park, MD 20740, Telephone: (240) 402-2023, Fax: (301) 436-2651, email: [email protected]

    For Further Information About the Public Meeting Contact: Henry Kim, Ph.D., Office of Food Safety, CFSAN/FDA, HFS-317, 5100 Paint Branch Parkway, College Park, MD 20740, Telephone: (240) 402-2023, Fax: (301) 436-2651, email: [email protected]

    SUPPLEMENTARY INFORMATION: Background

    Codex was established in 1963 by two United Nations organizations, the Food and Agriculture Organization (FAO) and the World Health Organization (WHO). Through adoption of food standards, codes of practice, and other guidelines developed by its committees, and by promoting their adoption and implementation by governments, Codex seeks to protect the health of consumers and ensure that fair practices are used in the food trade.

    The CCCF is responsible for:

    (a) Establishing or endorsing permitted maximum levels, and where necessary, revising existing guideline levels for contaminants and naturally occurring toxicants in food and feed;

    (b) Preparing priority lists of contaminants and naturally occurring toxicants for risk assessment by the Joint FAO/WHO Expert Committee on Food Additives (JECFA);

    (c) Considering and elaborating methods of analysis and sampling for the determination of contaminants and naturally occurring toxicants in food and feed;

    (d) Considering and elaborating standards or codes of practice for related subjects; and

    (e) Considering other matters assigned to it by the Commission in relation to contaminants and naturally occurring toxicants in food and feed.

    The Committee is chaired by The Netherlands.

    Issues To Be Discussed at the Public Meeting

    The following items on the Agenda for the 10th Session of the CCCF will be discussed during the public meeting:

    • Matters referred to the CCCF by the Codex Alimentarius Commission or its subsidiary bodies;

    • Matters of interest arising from FAO and WHO (including JECFA);

    • Matters of interest arising from other international organizations;

    • Draft maximum level for inorganic arsenic in husked rice (at Step 7 of the Codex Decision Process);

    • Proposed draft revision of maximum levels for lead in selected fruits and vegetables (fresh and processed) in the General Standard for Contaminants and Toxins in Food and Feed (at Step 4 of the Codex Decision Process);

    • Proposed draft Code of Practice for the prevention and reduction of arsenic contamination in rice;

    • Proposed draft maximum levels for cadmium in cocoa and cocoa derived products (at Step 4 of the Codex Decision Process);

    • Draft Revision of the Code of Practice for the prevention of mycotoxin contamination in cereals (general provisions) (at Step 7 of the Codex Decision Process);

    • Proposed draft Annexes to the Code of Practice for the prevention and reduction of mycotoxin contamination in cereals (at Step 4 of the Codex Decision Process);

    • Proposed draft Code of Practice for the prevention and reduction of mycotoxin contamination in spices;

    • Discussion paper on an Annex for ergot alkaloids to the Code of Practice for the prevention and reduction of mycotoxin contamination in cereals;

    • Discussion paper on the development of maximum levels for mycotoxins in spices;

    • Discussion paper on maximum levels for methylmercury in fish; and

    • Priority list of contaminants and naturally occurring toxicants for evaluation by JECFA.

    Each issue listed will be fully described in documents distributed, or to be distributed, by the Secretariat before the meeting. Members of the public may access or request copies of these documents (see ADDRESSES).

    Public Meeting

    At the March 7, 2016, public meeting, draft U.S. positions on the agenda items will be described and discussed, and attendees will have the opportunity to pose questions and offer comments. Written comments may be offered at the meeting or sent to Dr. Henry Kim for the 10th Session of the CCCF (see ADDRESSES). Written comments should state that they relate to activities of the 10th Session of the CCCF.

    Additional Public Notification

    Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce this Federal Register publication on-line through the FSIS Web page located at: http://www.fsis.usda.gov/federal-register.

    FSIS also will make copies of this publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations, Federal Register notices, FSIS public meetings, and other types of information that could affect or would be of interest to our constituents and stakeholders. The Update is available on the FSIS Web page. Through the Web page, FSIS is able to provide information to a much broader, more diverse audience. In addition, FSIS offers an email subscription service which provides automatic and customized access to selected food safety news and information. This service is available at: http://www.fsis.usda.gov/subscribe. Options range from recalls to export information, regulations, directives, and notices. Customers can add or delete subscriptions themselves, and have the option to password protect their accounts.

    USDA Non-Discrimination Statement

    No agency, officer, or employee of the USDA shall, on the grounds of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, or political beliefs, exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States under any program or activity conducted by the USDA.

    How To File a Complaint of Discrimination

    To file a complaint of discrimination, complete the USDA Program Discrimination Complaint Form, which may be accessed online at http://www.ocio.usda.gov/sites/default/files/docs/2012/Complain_combined_6_8_12.pdf, or write a letter signed by you or your authorized representative.

    Send your completed complaint form or letter to USDA by mail, fax, or email:

    Mail: U.S. Department of Agriculture, Director, Office of Adjudication, 1400 Independence Avenue SW., Washington, DC 20250-9410.

    Fax: (202) 690-7442.

    Email: [email protected].

    Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.), should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).

    Done at Washington, DC, on February 8, 2016. Paulo Almeida, Acting U.S. Manager for Codex Alimentarius.
    [FR Doc. 2016-02807 Filed 2-10-16; 8:45 am] BILLING CODE 3410-DM-P
    DEPARTMENT OF AGRICULTURE Food and Nutrition Service Submission for OMB Review; Comment Request February 5, 2016.

    The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

    Comments regarding this information collection received by March 14, 2016 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), [email protected] or fax (202) 395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Copies of the submission(s) may be obtained by calling (202) 720-8958.

    An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.

    Food and Nutrition Service

    Title: Child Nutrition Program Operations Study II (CN-OPS II).

    OMB Control Number: 0584-NEW.

    Summary of Collection: The objective of the Child Nutrition Program Operations Study II (CN-OPS II) is to collect timely data on policy, administrative, and operational issues for the Child Nutrition Programs. The ultimate goal of this study is to analyze these data and to provide input for new legislation on Child Nutrition Programs as well as to provide pertinent technical assistance and training to program implementation staff. The CN-OPS II will help the Food and Nutrition Service (FNS) better understand and address current policy issues related to Child Nutrition Programs (CNP) operations. The policy and operational issues include, but are not limited to, the preparation of the program budget, development and implementation of program policy and regulations, and identification of areas for technical assistance and training.

    Need and Use of the Information: This study will provide FNS with the data needed for the evaluation of various policy and operational issues related to CNP operations. This study will assist FNS in obtaining general descriptive data on the Child Nutrition program characteristics needed to respond to questions about the nutrition programs in schools; obtaining data related to program administration for designing and revising program regulations, managing resources, and reporting requirements; and in obtaining data related to program operations to help FNS develop and provide training and technical assistance for the School Food Authorities (SFAs) and State Agencies responsible for administering the Child Nutrition programs.

    Description of Respondents: State, Local, or Tribal Government.

    Number of Respondents: 3,345.

    Frequency of Responses: Reporting: Annually.

    Total Burden Hours: 3,792.

    Ruth Brown, Departmental Information Collection Clearance Officer.
    [FR Doc. 2016-02742 Filed 2-10-16; 8:45 am] BILLING CODE 3410-30-P
    ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD Meetings AGENCY:

    Architectural and Transportation Barriers Compliance Board.

    ACTION:

    Notice of meetings.

    SUMMARY:

    The Architectural and Transportation Barriers Compliance Board (Access Board) plans to hold its regular committee and Board meetings in Washington, DC, Monday through Wednesday, March 7-9, 2016 at the times and location listed below.

    DATES:

    The schedule of events is as follows:

    Monday, March 7, 2016 10:30-Noon Ad Hoc Committee on Frontier Issues 1:30-2:30 p.m. Technical Programs Committee 2:30-3:00 Ad Hoc Committee on Design Guidance 3:00-4:00 Ad Hoc Committees: Closed to Public Wednesday, March 9, 2016 11:00-Noon Planning and Evaluation Committee 1:30-3:00 Board Meeting ADDRESSES:

    Meetings will be held at the Access Board Conference Room, 1331 F Street NW., Suite 800, Washington, DC 20004.

    FOR FURTHER INFORMATION CONTACT:

    For further information regarding the meetings, please contact David Capozzi, Executive Director, (202) 272-0010 (voice); (202) 272-0054 (TTY).

    SUPPLEMENTARY INFORMATION:

    At the Board meeting scheduled on the afternoon of Wednesday, March 9, 2016, the Access Board will consider the following agenda items:

    • Approval of draft meeting minutes (vote): November 10, 2015 and January 13, 2016

    • Ad Hoc Committee Reports: Design Guidance; Frontier Issues; and Information and Communication Technology

    • Technical Programs Committee

    • Planning and Evaluation Committee

    • Election Assistance Commission Report

    • Election of Officers

    • Executive Director's Report

    • Public Comment (final 15 minutes of the meeting)

    Members of the public can provide comments either in-person or over the telephone during the final 15 minutes of the Board meeting on Wednesday, March 9, 2016. Any individual interested in providing comment is asked to pre-register by sending an email to [email protected] with the subject line “Access Board meeting—Public Comment” with your name, organization, state, and topic of comment included in the body of your email. All emails to register for public comment must be received by Wednesday, March 2, 2016. Commenters will be called on in the order by which they pre-registered. Due to time constraints, each commenter is limited to two minutes. Commenters on the telephone will be in a listen-only capacity until they are called on. Use the following call-in number: (877) 701-1628; passcode: 9837 8152 and dial in 5 minutes before the meeting begins at 1:30 p.m.

    All meetings are accessible to persons with disabilities. An assistive listening system, Communication Access Realtime Translation (CART), and sign language interpreters will be available at the Board meeting and committee meetings.

    Persons attending Board meetings are requested to refrain from using perfume, cologne, and other fragrances for the comfort of other participants (see www.access-board.gov/the-board/policies/fragrance-free-environment for more information).

    You may view the Wednesday, March 9, 2016 meeting through a live webcast from 1:30 p.m. to 3:00 p.m. at: www.access-board.gov/webcast.

    David M. Capozzi, Executive Director.
    [FR Doc. 2016-02787 Filed 2-10-16; 8:45 am] BILLING CODE 8150-01-P
    COMMISSION ON CIVIL RIGHTS Notice of Public Meeting of the North Carolina (State) Advisory Committee (SAC) for a Meeting To Discuss Potential Project Topics AGENCY:

    U.S. Commission on Civil Rights.

    ACTION:

    Notice of meeting.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the North Carolina (State) Advisory Committee will hold a meeting on Friday, January 29, 2016, for the purpose of discussing and approving a project proposal on environmental justice issues in North Carolina.

    This meeting is available to the public through the following toll-free call-in number: 888-572-7033, conference ID: 9946088. Any interested member of the public may call this number and listen to the meeting. An open comment period will be provided to allow members of the public to make a statement at the end of the meeting. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-977-8339 and providing the Service with the conference call number and conference ID number.

    Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Southern Regional Office, U.S. Commission on Civil Rights, 61 Forsyth Street, Suite 16T126, Atlanta, GA 30303. They may also be faxed to the Commission at (404) 562-7005, or emailed to Regional Director, Jeffrey Hinton at [email protected] Persons who desire additional information may contact the Southern Regional Office at (404) 562-7000.

    Records and documents discussed during the meeting will be available for public viewing prior to and after the meeting at http://facadatabase.gov/committee/meetings.aspx?cid=266. Click on the “Meeting Details” and “Documents” links to download. Records generated from this meeting may also be inspected and reproduced at the Regional Programs Unit, as they become available, both before and after the meeting. Persons interested in the work of this Committee are directed to the Commission's Web site, http://www.usccr.gov, or may contact the Regional Programs Unit at the above email or street address.

    Agenda
    Welcome and Introductions Matty Lazo-Chadderton, Chair Discussion and vote on Environmental Justice proposal (Coal Ash) North Carolina Advisory Committee Open Comment Adjournment DATES:

    The meeting will be held on Monday, February 22, 2016, 12:00 p.m. EST.

    Public Call Information: Toll-free call-in number: 888-572-7033; Conference ID: 9946088.

    FOR FURTHER INFORMATION CONTACT:

    Jeff Hinton at [email protected] or 404-562-7006.

    Dated February 5, 2016. David Mussatt, Chief, Regional Programs Unit.
    [FR Doc. 2016-02760 Filed 2-10-16; 8:45 am] BILLING CODE 6335-01-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [B-67-2015] Foreign-Trade Zone (FTZ) 183—Austin, Texas, Authorization of Production Activity, Flextronics America, LLC (Automatic Data Processing Machines), Austin, Texas

    On October 9, 2015, Flextronics America, LLC submitted a notification of proposed production activity to the Foreign-Trade Zones (FTZ) Board for its facility within Subzone 183C, in Austin, Texas.

    The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the Federal Register inviting public comment (80 FR 63533-63534, October 20, 2015). The FTZ Board has determined that no further review of the activity is warranted at this time. The production activity described in the notification is authorized, subject to the FTZ Act and the Board's regulations, including Section 400.14.

    Dated: February 8, 2016. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2016-02803 Filed 2-10-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security In the Matter of: Qiang Hu, a/k/a Johnson Hu, #602, No. 39, Nong #78, Shou Guang Road, Pu Dong, Shanghai PRC; Order Denying Export Privileges

    On July 24, 2014, in the U.S. District Court for the District of Massachusetts, Qiang Hu, a/k/a Johnson Hu (“Hu”) was convicted of violating the International Emergency Economic Powers Act (50 U.S.C. § 1701, et seq. (2006 & Supp. IV 2010)) (“IEEPA”). Specifically, Hu knowingly and willfully conspired, combined, confederated and agreed with other persons known and unknown to cause the export of U.S. origin pressure transducers (manometer types 622B, 623B, 626A, 626B, 627B, 722A, and 722B), from the United States to end-users in China and elsewhere in violation of the Regulations, Executive Order 13222, and IEEPA. Hu was sentenced to 34 months in prison and a special assessment of $100.00.

    Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”) 1 provides, in pertinent part, that “[t]he Director of the Office of Exporter Services, in consultation with the Director of the Office of Export Enforcement, may deny the export privileges of any person who has been convicted of a violation of the Export Administration Act (“EAA”), the EAR, or any order, license or authorization issued thereunder; any regulation, license, or order issued under the International Emergency Economic Powers Act (50 U.S.C. § 1701-1706); 18 U.S.C. §§ 793, 794 or 798; section 4(b) of the Internal Security Act of 1950 (50 U.S.C. § 783(b)), or section 38 of the Arms Export Control Act (22 U.S.C. § 2778).” 15 CFR § 766.25(a); see also Section 11(h) of the EAA, 50 U.S.C. app. § 2410(h). The denial of export privileges under this provision may be for a period of up to 10 years from the date of the conviction. 15 CFR § 766.25(d); see also 50 U.S.C. app. § 2410(h). In addition, Section 750.8 of the Regulations states that the Bureau of Industry and Security's Office of Exporter Services may revoke any Bureau of Industry and Security (“BIS”) licenses previously issued in which the person had an interest in at the time of his conviction.

    1 The Regulations are currently codified in the Code of Federal Regulations at 15 CFR parts 730-774 (2015). The Regulations issued pursuant to the Export Administration Act (50 U.S.C. app. §§ 2401-2420 (2000)) (“EAA”). Since August 21, 2001, the EAA has been in lapse and the President, through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), which has been extended by successive Presidential Notices, the most recent being that of August 7, 2015 (80 FR 48233 (August 11, 2015)), has continued the Regulations in effect under the International Emergency Economic Powers Act (50 U.S.C. § 1701, et seq. (2006 & Supp. IV 2010)).

    BIS has received notice of Hu's conviction for violating IEEPA, and in accordance with Section 766.25 of the Regulations, BIS has provided notice and an opportunity for Hu to make a written submission to BIS. BIS has received a submission from Hu.

    Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Hu's export privileges under the Regulations for a period of 10 years from the date of Hu's conviction.

    Accordingly, it is hereby ordered:

    First, from the date of this Order until July 24, 2024, Qiang Hu, a/k/a Johnson Hu with a last known address of #602, No. 39, Nong #78, Shou Guang Road, Pu Dong, Shanghai PRC, and when acting for or on his behalf, his successors, assigns, employees, agents or representatives (the “Denied Person”), may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Regulations, including, but not limited to:

    A. Applying for, obtaining, or using any license, License Exception, or export control document;

    B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations; or

    C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations.

    Second, no person may, directly or indirectly, do any of the following:

    A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;

    B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;

    C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;

    D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or

    E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.

    Third, after notice and opportunity for comment as provided in Section 766.23 of the Regulations, any other person, firm, corporation, or business organization related to Hu by ownership, control, position of responsibility, affiliation, or other connection in the conduct of trade or business may also be made subject to the provisions of this Order in order to prevent evasion of this Order.

    Fourth, in accordance with Part 756 of the Regulations, Hu may file an appeal of this Order with the Under Secretary of Commerce for Industry and Security. The appeal must be filed within 45 days from the date of this Order and must comply with the provisions of Part 756 of the Regulations.

    Fifth, a copy of this Order shall be delivered to the Hu. This Order shall be published in the Federal Register.

    Sixth, this Order is effective immediately and shall remain in effect until July 24, 2024.

    Issued this 3rd day of February, 2016. Karen H. Nies-Vogel, Director, Office of Exporter Services.
    [FR Doc. 2016-02771 Filed 2-10-16; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-956] Seamless Carbon and Alloy Steel Standard, Line, and Pressure Pipe From the People's Republic of China: Final Results of the Expedited Sunset Review of the Antidumping Duty Order AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (“the Department”) finds that revocation of the antidumping duty order on seamless carbon and alloy steel standard, line, and pressure pipe from the People's Republic of China (“PRC”) 1 would likely lead to continuation or recurrence of dumping, at the levels indicated in the “Final Results of Sunset Review”' section of this notice.

    1See Certain Seamless Carbon and Alloy Steel Standard, Line, and Pressure Pipe from the People's Republic of China: Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order, 75 FR 69052 (November 10, 2010) (“Order”).

    DATES:

    Effective Date: February 11, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Aleksandras Nakutis, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 4823147.

    SUPPLEMENTARY INFORMATION: Background

    On October 1, 2015, the Department initiated a sunset review of the antidumping duty order on seamless carbon and alloy steel standard, line, and pressure pipe from the PRC.2 On October 14, 2015, the Department received a timely notice of intent to participate in the sunset review from TMK IPSCO, United States Steel Corporation (“U.S. Steel”), and Vallourec Star, L.P. (“Vallourec”), domestic interested parties. On November 2, 2015, TMK IPSCO, U.S. Steel, and Vallourec filed a timely substantive response with the Department. The Department did not receive a response from any respondent interested party. As a result, pursuant to section 751(c)(3)(B) of the Act and 19 CFR 351.218(e)(1)(ii)(C)(2), the Department conducted an expedited sunset review of the Order.

    2See Initiation of Five-year (“Sunset”) Review, 80 FR 59133 (October 1, 2015).

    Scope of the Order

    The merchandise covered by this order is certain seamless carbon and alloy steel. The merchandise covered by the order is currently classified in the Harmonized Tariff Schedule of the United States (“HTSUS”) under item numbers: 7304.19.1020, 7304.19.1030, 7304.19.1045, 7304.19.1060, 7304.19.5020, 7304.19.5050, 7304.31.6050, 7304.39.0016, 7304.39.0020, 7304.39.0024, 7304.39.0028, 7304.39.0032, 7304.39.0036, 7304.39.0040, 7304.39.0044, 7304.39.0048, 7304.39.0052, 7304.39.0056, 7304.39.0062, 7304.39.0068, 7304.39.0072, 7304.51.5005, 7304.51.5060, 7304.59.6000, 7304.59.8010, 7304.59.8015, 7304.59.8020, 7304.59.8025, 7304.59.8030, 7304.59.8035, 7304.59.8040, 7304.59.8045, 7304.59.8050, 7304.59.8055, 7304.59.8060, 7304.59.8065, and 7304.59.8070. Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the merchandise subject to this scope is dispositive.

    For a complete description of the order, see the Department Memorandum, “Issues and Decision Memorandum for the Expedited Sunset Review of the Antidumping Duty Order on Seamless Carbon and Alloy Steel Standard, Line, and Pressure Pipe from the People's Republic of China” (Decision Memorandum), dated concurrently with, and hereby adopted by, this notice. The Decision Memorandum is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Services System (“ACCESS”). ACCESS is available to registered users at http://access.trade.gov and is available to all parties in the Central Records Unit, Room B8024 of the main Department of Commerce building. In addition, a complete version of the Decision Memorandum is available directly on the Web at http://enforcement.trade.gov/frn/index.html. The signed Decision Memorandum and the electronic versions of the Decision Memorandum are identical in content.

    Analysis of Comments Received

    All issues raised in this sunset review are addressed in the Decision Memorandum. The issues discussed in the Decision Memorandum include the likelihood of continuation or recurrence of dumping, and the magnitude of the margins likely to prevail if the Order were to be revoked. Parties may find a complete discussion of all issues raised in the review and the corresponding recommendations in this public memorandum.

    Final Results of Sunset Review

    Pursuant to section 752(c)(3) of the Act, the Department determines that revocation of the Order would be likely to lead to continuation or recurrence of dumping, and the magnitude of the margins of dumping likely to prevail would be weighted-average margins up to 98.74 percent.

    Notification Regarding Administrative Protective Orders

    This notice also serves as the only reminder to parties subject to administrative protective order (“APO”') of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.

    We are issuing and publishing these results and notice in accordance with sections 751(c), 752, and 777(i)(1) of the Act and 19 CFR 351.218.

    Dated: February 4, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2016-02804 Filed 2-10-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [Application No. 03-2A007] Export Trade Certificate of Review ACTION:

    Notice of application for an amended Export Trade Certificate of Review by The Great Lakes Fruit Exporters Association, LLC, Application No. 03-2A007.

    SUMMARY:

    The Secretary of Commerce, through the International Trade Administration, Office of Trade and Economic Analysis (OTEA), has received an application for an amended Export Trade Certificate of Review (“Certificate”) from The Great Lakes Fruit Exporters Association, LLC. This notice summarizes the proposed amendment and seeks public comments on whether the amended Certificate should be issued.

    FOR FURTHER INFORMATION CONTACT:

    Joseph E. Flynn, Director, Office of Trade and Economic Analysis, International Trade Administration, by telephone at (202) 482-5131 (this is not a toll-free number) or email at [email protected]

    SUPPLEMENTARY INFORMATION:

    Title III of the Export Trading Company Act of 1982 (15 U.S.C. Sections 4001-21) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. An Export Trade Certificate of Review protects the holder and the members identified in the Certificate from State and Federal government antitrust actions and from private treble damage antitrust actions for the export conduct specified in the Certificate and carried out in compliance with its terms and conditions. The regulations implementing Title III are found at 15 CFR part 325 (2016). Section 302(b)(1) of the Export Trading Company Act of 1982 and 15 CFR 325.6(a) require the Secretary to publish a notice in the Federal Register identifying the applicant and summarizing its application. Under 15 CFR 325.6 (a), interested parties may, within twenty days after the date of this notice, submit written comments to the Secretary through OTEA on the application.

    Request for Public Comments: Interested parties may submit written comments relevant to the determination whether an amended Certificate should be issued. If the comments include any privileged or confidential business information, it must be clearly marked and a nonconfidential version of the comments (identified as such) should be included. Any comments not marked as privileged or confidential business information will be deemed to be nonconfidential.

    An original and five (5) copies, plus two (2) copies of the nonconfidential version, should be submitted no later than 20 days after the date of this notice to: Office of Trade and Economic Analysis, International Trade Administration, U.S. Department of Commerce, Room 21028, Washington, DC 20230.

    Information submitted by any person is exempt from disclosure under the Freedom of Information Act (5 U.S.C. 552). However, nonconfidential versions of the comments will be made available to the applicant if necessary for determining whether or not to issue the amended Certificate. Comments should refer to this application as “Export Trade Certificate of Review, application number 14-2A004.”

    Summary of the Application

    Applicant: The Great Lakes Fruit Exporters Association, LLC.

    Contact: c/o Shirlee M. Bobryk, White Schneider PC, 2300 Jolly Oak Road, Okemos MI 48864.

    Application No.: 03-2A007.

    Date Deemed Submitted: January 28, 2016.

    Proposed Amendments:

    1. Add as new Member:

    a. All Fresh GPS, LLC.

    2. Delete the following members:

    a. Greg Orchards and Produce, Inc.; Applewood Orchards, Inc.; Heeren Brothers Inc.; AJ's Produce Inc.; Appletree Marketing LLC; and Michigan Fresh Marketing LLC.

    The Great Lakes Fruit Exporters Association, LLC's proposed amendment of its Export Trade Certificate of Review would result in the following entities as Members under the Certificate:

    1. Riveridge Produce Marketing, Inc.

    2. North Bay Produce, Inc.

    3. Greenridge Fruit, Inc.

    4. Jack Brown Produce, Inc.

    5. BelleHarvest Sales, Inc.

    6. All Fresh GPS, LLC.

    Dated: February 8, 2016. Joseph Flynn, Director, Office of Trade and Economic Analysis, International Trade Administration.
    [FR Doc. 2016-02806 Filed 2-10-16; 8:45 am] BILLING CODE 3510-DR-P
    DEPARTMENT OF COMMERCE National Institute of Standards and Technology Manufacturing Extension Partnership Advisory Board AGENCY:

    National Institute of Standards and Technology, Commerce.

    ACTION:

    Notice of open meeting.

    SUMMARY:

    The National Institute of Standards and Technology (NIST) announces that the Manufacturing Extension Partnership (MEP) Advisory Board will hold an open meeting on Tuesday March 1, 2016, from 8:30 a.m. to 3:45p.m. Eastern Standard Time.

    DATES:

    The meeting will be held Tuesday, March 1, 2016, from 8:30 a.m. to 3:45 p.m. Eastern Standard Time.

    ADDRESSES:

    The meeting will be held at the Ronald Reagan and International Trade Center, 1300 Pennsylvania Ave NW., Washington, DC 20004. Please note admittance instructions in the SUPPLEMENTARY INFORMATION section below.

    FOR FURTHER INFORMATION CONTACT:

    Zara Brunner, Manufacturing Extension Partnership, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 4800, Gaithersburg, Maryland 20899-4800, telephone number (301) 975-2001, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The MEP Advisory Board (Board) is authorized under Section 3003(d) of the America COMPETES Act (Pub. L. 110-69); codified at 15 U.S.C. 278k(e), as amended, in accordance with the provisions of the Federal Advisory Committee Act, as amended, 5 U.S.C. App. The Board is composed of 10 members, appointed by the Director of NIST. Hollings MEP is a unique program, consisting of centers across the United States and Puerto Rico with partnerships at the state, federal, and local levels. The Board provides a forum for input and guidance from Hollings MEP program stakeholders in the formulation and implementation of tools and services focused on supporting and growing the U.S. manufacturing industry, provides advice on MEP programs, plans, and policies, assesses the soundness of MEP plans and strategies, and assesses current performance against MEP program plans.

    Background information on the Board is available at http://www.nist.gov/mep/about/advisory-board.cfm.

    Pursuant to the Federal Advisory Committee Act, as amended, 5 U.S.C. App., notice is hereby given that the MEP Advisory Board will hold an open meeting on Tuesday, March 1, 2016, from 8:30 a.m. to 3:45 p.m. Eastern Standard Time. This meeting will focus on an update from the Advisory Board Sub-committee on Technology Acceleration, an update on MEP's Strategic Planning activities, and the 2017 National Summit. The final agenda will be posted on the MEP Advisory Board Web site at http://www.nist.gov/mep/about/advisory-board.cfm. This meeting is being held in conjunction with the MEP Center Board Member Distinctive Practice Meeting that will be held March 1, 2016 also at the Ronald Reagan and International Trade Center.

    Admittance Instructions: Anyone wishing to attend the MEP Advisory Board meeting should submit their name, email address, and phone number to Monica Claussen ([email protected] or 301-975-4852) no later than Monday, February 22, 2016, 5:00 p.m. Eastern Standard Time.

    Individuals and representatives of organizations who would like to offer comments and suggestions related to the MEP Advisory Board's business are invited to request a place on the agenda. Approximately 15 minutes will be reserved for public comments at the end of the meeting. Speaking times will be assigned on a first-come, first-served basis. The amount of time per speaker will be determined by the number of requests received but is likely to be no more than three to five minutes each. The exact time for public comments will be included in the final agenda that will be posted on the MEP Advisory Board Web site at http://www.nist.gov/mep/about/advisory-board.cfm. Questions from the public will not be considered during this period. Speakers who wish to expand upon their oral statements, those who had wished to speak but could not be accommodated on the agenda, and those who were unable to attend in person are invited to submit written statements to the MEP Advisory Board, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 4800, Gaithersburg, Maryland 20899-4800, via fax at (301) 963-6556, or electronically by email to [email protected]

    Kevin Kimball, Chief of Staff.
    [FR Doc. 2016-02768 Filed 2-10-16; 8:45 am] BILLING CODE 3510-13-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE343 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the U.S. Air Force Conducting Maritime Weapon Systems Evaluation Program Operational Testing Within the Eglin Gulf Test and Training Range AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice; issuance of an incidental harassment authorization.

    SUMMARY:

    In accordance with the Marine Mammal Protection Act (MMPA) implementing regulations, NMFS, we, hereby give notice that we have issued an Incidental Harassment Authorization (Authorization) to the U.S. Air Force, Eglin Air Force Base (Eglin AFB), to take two species of marine mammals, the Atlantic bottlenose dolphin (Tursiops truncatus) and Atlantic spotted dolphin (Stenella frontalis), by harassment, incidental to a Maritime Weapon Systems Evaluation Program (Maritime WSEP) within the Eglin Gulf Test and Training Range in the Gulf of Mexico from February 4, 2016 through February 3, 2017. Eglin AFB's activities are military readiness activities per the MMPA, as amended by the National Defense Authorization Act (NDAA) for Fiscal Year 2004.

    DATES:

    Effective February 4, 2016, through February 3, 2017.

    ADDRESSES:

    An electronic copy of the final Authorization, Eglin AFB's application and their final Environmental Assessment (EA) titled, “Maritime Weapons System Evaluation Program are available by writing to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910; by telephoning the contacts listed here, or by visiting the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental/military.htm.

    FOR FURTHER INFORMATION CONTACT:

    Jeannine Cody, Office of Protected Resources, NMFS, (301) 427-8401.

    SUPPLEMENTARY INFORMATION: Background

    Sections 101(a)(5)(A) and (D) of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361 et seq.) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals of a species or population stock, by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if, after NMFS provides a notice of a proposed authorization to the public for review and comment: (1) NMFS makes certain findings; and (2) the taking is limited to harassment.

    An Authorization for incidental takings for marine mammals shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring, and reporting of such taking are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

    The National Defense Authorization Act of 2004 (NDAA; Pub. L. 108-136) removed the “small numbers” and “specified geographical region” limitations indicated earlier and amended the definition of harassment as it applies to a “military readiness activity” to read as follows (Section 3(18)(B) of the MMPA): (i) Any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild [Level A Harassment]; or (ii) any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered [Level B Harassment].

    Summary of Request

    On February 5, 2015, we issued an Authorization to Eglin AFB to take marine mammals, by harassment, incidental to a Maritime Weapon Systems Evaluation Program (Maritime WSEP) within the Eglin Gulf Test and Training Range (EGTTR) in the Gulf of Mexico from February through April 2015 (see 80 FR 17394, April 1, 2015). Eglin AFB conducted the Maritime WSEP training activities between February 9-12, and March 16-19, 2015. However, due to unavailability of some of the live munitions, Eglin AFB released only 1.05 percent of the munitions proposed for the 2015 military readiness activities. On May 28, 2015, we received a renewal request for an Authorization from Eglin AFB to complete the missions authorized in 2015. Following the initial application submission, Eglin AFB submitted a revised version of the renewal request on December 3, 2015. We considered the revised renewal request as adequate and complete on December 10, 2015 and published a notice of proposed Authorization on December 23, 2015 (80 FR 79843). The notice afforded the public a 30-day comment period on the proposed MMPA Authorization.

    Eglin AFB proposes to conduct Maritime WESP missions within the EGTTR airspace over the Gulf of Mexico, specifically within Warning Area 151 (W-151). The proposed Maritime WSEP training activities would occur February through April (spring) in the daytime; however, the activities could occur between February 2016 and February 2017.

    Eglin AFB proposes to use multiple types of live munitions (e.g., gunnery rounds, rockets, missiles, and bombs) against small boat targets in the EGTTR. These activities qualify as a military readiness activities under the MMPA and NDAA.

    The following aspects of the proposed Maritime WSEP training activities have the potential to take marine mammals: exposure to impulsive noise and pressure waves generated by live ordnance detonation at or near the surface of the water. Take, by Level B harassment of individuals of common bottlenose dolphin or Atlantic spotted dolphin could potentially result from the specified activity. Additionally, although NMFS does not expect it to occur, Eglin AFB has also requested authorization for Level A Harassment of a small number of individuals of either common bottlenose dolphins or Atlantic spotted dolphins. Therefore, Eglin AFB has requested authorization to take individuals of two cetacean species by Level A and Level B harassment.

    Eglin AFB's Maritime WSEP training activities may potentially impact marine mammals at or near the water surface in the absence of mitigation. Marine mammals could potentially be harassed, injured, or killed by exploding projectiles. However, based on analyses provided in Eglin AFB's 2015 Authorization renewal request; 2014 application; 2015 Environmental Assessment (EA); the 2015 monitoring report for the authorized activities conducted in February and March 2015; and for reasons discussed later in this document, we do not anticipate that Eglin AFB's Maritime WSEP activities would result in any serious injury or mortality to marine mammals.

    For Eglin AFB, this would be the second issued Authorization following the Authorization issued effective from February through April 2015 (80 FR 17394, April 1, 2015). The monitoring report associated with the 2015 Authorization is available at www.nmfs.noaa.gov/pr/permits/incidental/military.htm and provides additional environmental information related to proposed issuance of this Authorization for public review and comment.

    Description of the Specified Activity Overview

    Eglin AFB proposes to conduct live ordnance testing and training in the Gulf of Mexico as part of the Maritime WSEP operational testing missions. The Maritime WSEP test objectives are to evaluate maritime deployment data, evaluate tactics, techniques and procedures, and to determine the impact of techniques and procedures on combat Air Force training. The need to conduct this type of testing has developed in response to increasing threats at sea posed by operations conducted from small boats which can carry a variety of weapons; can form in large or small numbers; and may be difficult to locate, track, and engage in the marine environment. Because of limited Air Force aircraft and munitions testing on engaging and defeating small boat threats, Eglin AFB proposes to employ live munitions against boat targets in the EGTTR in order to continue development of techniques and procedures to train Air Force strike aircraft to counter small maneuvering surface vessels. Thus, the Department of Defense considers the Maritime WSEP training activities as a high priority for national security.

    Dates and Duration

    Eglin AFB proposes to schedule the Maritime WSEP training missions over an approximate three-week period that would begin in early February 2016. The proposed missions would occur in the spring, on weekdays, during daytime hours only, with one or two missions occurring per day. Some minor deviation from Eglin AFB's requested dates is possible and the proposed Authorization, if issued, would be effective from February 4, 2016 through February 3, 2017.

    Specified Geographic Region

    The specific planned mission location is approximately 17 miles (mi) (27.3 kilometers [km]) offshore from Santa Rosa Island, Florida, in nearshore waters of the continental shelf in the Gulf of Mexico. All activities would take place within the EGTTR, defined as the airspace over the Gulf of Mexico controlled by Eglin AFB, beginning at a point three nautical miles (nmi) (3.5 miles [mi]; 5.5 kilometers [km]) from shore. The EGTTR consists of subdivided blocks including Warning Area 151 (W-151) where the proposed activities would occur, specifically in sub-area W-151A.

    NMFS provided detailed descriptions of the activity area in a previous notice for the proposed Authorization (80 FR 7984, December 23, 2015). The information has not changed between the notice of proposed Authorization and this final notice announcing the issuance of the Authorization.

    Detailed Description of Activities

    The Maritime WSEP training missions, classified as military readiness activities, include the release of multiple types of inert and live munitions from fighter and bomber aircraft, unmanned aerial vehicles, and gunships against small, static, towed, and remotely-controlled boat targets. Munition types include bombs, missiles, rockets, and gunnery rounds (Table 1).

    Table 1—Live Munitions and Aircraft Munitions Aircraft
  • (not associated with specific munitions)
  • GBU-10 laser-guided Mk-84 bomb F-16C fighter aircraft. GBU-24 laser-guided Mk-84 bomb F-16C+ fighter aircraft. GBU-12 laser-guided Mk-82 bomb F-15E fighter aircraft. GBU-54 Laser Joint Direct Attack Munition (LJDAM), laser-guided Mk-82 bomb A-10 fighter aircraft. CBU-105 (WCMD) (inert) B-1B bomber aircraft. AGM-65 Maverick air-to-surface missile B-52H bomber aircraft. GBU-38 Small Diameter Bomb II (Laser SDB) MQ-1/9 unmanned aerial vehicle. AGM-114 Hellfire air-to-surface missile AC-130 gunship. AGM-176 Griffin air-to-surface missile 2.75 Rockets PGU-13/B high explosive incendiary 30 mm rounds 7.62 mm/.50 Cal (inert) Key: AGM = air-to-ground missile; CBU = Cluster Bomb Unit; GBU = Guided Bomb Unit; LJDAM = Laser Joint Direct Attack Munition; Laser SDB = Laser Small Diameter Bomb; mm = millimeters; PGU = Projectile Gun Unit; WCMD = wind corrected munition dispenser.

    The proposed Maritime WSEP training activities involve detonations above the water, near the water surface, and under water within the EGTTR. However, because the tests will focus on weapons/target interaction, Eglin AFB will not specify a particular aircraft for a given test as long as it meets the delivery parameters.

    Eglin AFB would deploy the munitions against static, towed, and remotely-controlled boat targets within the W-151A. Eglin AFB would operate the remote-controlled boats from an instrumentation barge (i.e., the Gulf Range Armament Test Vessel; GRATV) anchored on site within the test area. The GRATV would provide a platform for video cameras and weapons-tracking equipment. Eglin AFB would position the target boats approximately 182.8 m (600 ft) from the GRATV, depending on the munition type.

    Table 2 lists the number, height, or depth of detonation, explosive material, and net explosive weight (NEW) in pounds (lbs) of each munition proposed for use during the Maritime WSEP activities.

    Table 2—Maritime WSEP Munitions Proposed for use in the W-151A Test Area Type of munition Total # of live munitions Detonation type Warhead—explosive material Net explosive
  • weight per
  • munition
  • GBU-10 or GBU-24 2 Surface MK-84—Tritonal 945 lbs. GBU-12 or GBU-54 (LJDAM) 6 Surface MK-82—Tritonal 192 lbs. AGM-65 (Maverick) 6 Surface WDU-24/B penetrating blast-fragmentation warhead 86 lbs. CBU-105 (WCMD) 4 Airburst 10 BLU-108 sub-munitions each containing 4 projectiles parachute, rocket motor and altimeter Inert. GBU-38 (Laser Small Diameter Bomb) 4 Surface AFX-757 (Insensitive munition) 37 lbs. AGM-114 (Hellfire) 15 Subsurface (10 msec delay) High Explosive Anti-Tank (HEAT) tandem anti-armor metal augmented charge 20 lbs. AGM-176 (Griffin) 10 Surface Blast fragmentation 13 lbs. 2.75 Rockets 100 Surface Comp B-4 HEI Up to 12 lbs. PGU-12 HEI 30 mm 1,000 Surface 30 x 173 mm caliber with aluminized RDX explosive. Designed for GAU-8/A Gun System 0.1 lbs. 7.62 mm/.50 cal 5,000 Surface N/A Inert. Key: AGL = above ground level; AGM = air-to-ground missile; CBU = Cluster Bomb Unit; GBU = Guided Bomb Unit; JDAM = Joint Direct Attack Munition; LJDAM = Laser Joint Direct Attack Munition; mm = millimeters; msec = millisecond; lbs = pounds; PGU = Projectile Gun Unit; HEI = high explosive incendiary.

    At least two ordnance delivery aircraft will participate in each live weapons release training mission which lasts approximately four hours. Before delivering the ordnance, mission aircraft would make a dry run over the target area to ensure that it is clear of commercial and recreational boats. Jets will fly at a minimum air speed of 300 knots (approximately 345 miles per hour, depending on atmospheric conditions) and at a minimum altitude of 305 m (1,000 ft). Due to the limited flyover duration and potentially high speed and altitude, the pilots would not participate in visual surveys for protected species.

    NMFS provided detailed descriptions of the WSEP training operations in a previous notice for the proposed Authorization (80 FR 7984, December 23, 2015). This information has not changed between the notice of proposed Authorization and this final notice announcing the issuance of the Authorization.

    Comments and Responses

    A notice of receipt of Eglin AFB's application and NMFS' proposal to issue an Authorization to the USAF, Eglin AFB, published in the Federal Register on December 23, 2015 (80 FR 7984). During the 30-day public comment period, NMFS received comments from the Marine Mammal Commission (Commission) only. Following are the comments from the Commission and NMFS' responses.

    Comment 1: The Commission notes that Eglin AFB has applied for MMPA authorizations to take marine mammals on an activity-by-activity basis (e.g., naval explosive ordnance disposal school, precision strike weapon, air-to-surface gunnery, and maritime strike operations) rather than through a programmatic basis. The Commission believes that the agencies should evaluate the impacts of all training and testing activities under a single letter of authorization application and National Environmental Policy Act (NEPA) document rather than segmenting the analyses based on specific types of missions under various authorizations.

    Response: Both Eglin AFB and NMFS concur with the Commission's recommendation to streamline the rulemaking process for future activities conducted within the EGGTR. In 2015, Eglin AFB developed a Programmatic Environmental Assessment as for all testing and training activities that would occur in the EGGTR over the next five years. Eglin AFB has also developed and submitted a request for a Letter of Authorization under the MMPA to NMFS for all testing and training activities that would also occur in the EGGTR over the same five year period. Both of these efforts will facilitate a more comprehensive review of actions occurring within the EGGTR that have the potential to take marine mammals incidental to military readiness activities and NMFS will be able to evaluate the impacts of all training and testing activities under a single letter of authorization application rather than segmenting our analyses based on specific types of missions under separate authorizations.

    Comment 2: The Commission states that Eglin AFB overestimated marine mammal take because they based estimates on a single detonation event of each munition type which multiplied the number of animals estimated to be taken by a single detonation event for each munition type by the total number of munitions that would be detonated, irrespective of when those detonations would occur. The Commission states that this method does not consider the accumulation of energy in a 24-hour period which would more accurately correspond to zones of exposure for the representative scenario and serve as more a realistic estimate of the numbers of animals that Eglin AFB could potentially take during the WSEP activities. In estimating take, the Commission commented Eglin AFB's model approach was an additive process for estimating each zone of exposure, and thus the associated takes. Effectively, The Commission states that Eglin AFB overestimated the number of take but is unsure to what degree. Further, the Commission recommends that Eglin AFB and NMFS should treat fractions of estimated take appropriately, that is generally, round down if less than 0.50 and round up if greater than or equal to 0.50 before summing the estimates for each species.

    Response: NMFS and Eglin AFB acknowledge that this approach contributes to the overestimation of take estimates. Eglin AFB's modeling approach for take estimates treated each munition detonation as a separate event impacting a new set of animals which results in a worst case scenario of potential take and is an overestimate of potential harassment.

    NMFS agrees with the Commission's recommendations and has recalculated the takes by accounting for the accumulation of energy in a 24-hour period and by eliminating the double counting of the estimated take for each species and appropriately rounding take estimates before summing the total take. Table 8 in this notice provides the revised number of marine mammals, by species, that Eglin AFB could potentially take incidental to the conduct of Maritime WSEP operations. The re-calculation results in zero take by mortality, zero take by slight lung injury, and zero take by gastrointestinal tract injury. Compared to the take levels that NMFS previously presented in the notice for the proposed Authorization (80 FR 7984, December 23, 2015), our re-estimation has reduced take estimates for Level A harassment (PTS) from 38 to 14 marine mammals. Based on the remodeling of the number of marine mammals potentially affected by the Maritime WSEP missions, NMFS would authorize take for Level A and Level B harassment presented in Table 8 of this notice.

    Comment 3: The Commission states that Eglin AFB proposes to use live-feed video cameras to supplement its effectiveness in detecting marine mammals when implementing mitigation measures. However, the Commission is not convinced that those measures are sufficient to effectively monitor for marine mammals entering the training areas during the 30 minute timeframe prior to detonation. In addition, the Commission states that it does not believe that Eglin AFB cannot deem the Level A harassment zone clear of marine mammals when using only three video cameras for monitoring. Thus, the Commission recommends that NMFS require Eglin AFB to supplement its mitigation measures with passive acoustic monitoring and determine the effectiveness of its suite of mitigation measures for activities at Eglin prior to incorporating presumed mitigation effectiveness into its take estimation analyses or negligible impact determinations.

    Response: NMFS has worked closely with Eglin AFB over the past several Authorization cycles to develop proper mitigation, monitoring, and reporting requirements designed to minimize and detect impacts from the specified activities and ensure that NMFS can make the findings necessary for issuance of an Authorization.

    Monitoring also includes vessel-based observers for marine species up to 30 minutes prior to deploying live munitions in the area. Eglin AFB has submitted annual reports to NMFS every year that describes all activities that occur in the EGTTR. In addition, Eglin AFB submitted annual reports to NMFS at the conclusion of the Maritime Strike Operations These missions are similar in nature to the proposed maritime WSEP operations and the Eglin AFB provided information on sighting information and results from post-mission survey observations. Based on those results, NMFS determined that the mitigation measures ensured the least practicable adverse impact to marine mammals. There were no observations of injured marine mammals and no reports of marine mammal mortality during the Maritime Strike Operation activities. The measures proposed for Maritime WSEP are similar, except they will include larger survey areas based on updated acoustic analysis and previous discussions with the Commission and NMFS.

    Eglin AFB will continue to research the feasibility of supplementing existing monitoring efforts with passive acoustic monitoring devices for future missions and is in the process of discussing alternatives with the Commission and NMFS during the review of the environmental planning efforts discussed earlier in Comment 1.

    Comment 4: The MMC expressed their belief that all permanent hearing loss should be considered a serious injury and recommends that NMFS propose to issue regulations under section 101(a)(5)(A) of the MMPA and a letter of authorization, rather than an incidental harassment authorization, for any proposed activities expected to cause a permanent threshold shift (PTS).

    Response: NMFS considers PTS to fall under the injury category (Level A Harassment). However, an animal would need to stay very close to the sound source for an extended amount of time to incur a serious degree of PTS, which could increase the probability of mortality. In this case, it would be highly unlikely for this scenario to unfold given the nature of any anticipated acoustic exposures that could potentially result from a mobile marine mammal that NMFS generally expects to exhibit avoidance behavior to loud sounds within the EGTTR.

    NMFS has recalculated the takes presented in the notice for the proposed Authorization (80 FR 7984, December 23, 2015) and the results of the recalculation show zero takes for mortality, zero takes by slight lung injury, and zero takes by gastrointestinal tract injury. Further, the re-estimation has reduced the number of take by Level A harassment (from PTS) from 38 to 14. Based on this re-estimation, NMFS does not believe that serious injury will result from this activity and that therefore it is not necessary to issue regulations through section 101(a)(5)(A), rather, an Incidental Harassment Authorization may be issued.

    Description of Marine Mammals in the Area of the Specified Activity

    Table 3 lists marine mammal species with potential or confirmed occurrence in the proposed activity area during the project timeframe and summarizes key information regarding stock status and abundance. Please see NMFS' draft 2015 and 2014 Stock Assessment Reports (SAR), available at www.nmfs.noaa.gov/pr/sars and Garrison et al., 2008; Navy, 2007; Davis et al., 2000 for more detailed accounts of these stocks' status and abundance.

    Table 3—Marine Mammals That Could Occur in the Proposed Activity Area Species Stock name Regulatory status 12 Estimated abundance Relative
  • occurrence
  • in W-151
  • Common bottlenose dolphin Choctawatchee Bay MMPA—S, ESA—NL 179, CV = 0.04 3 Uncommon. Pensacola/East Bay MMPA—S, ESA—NL 33, CV = 0.80 4 Uncommon. St. Andrew Bay MMPA—S, ESA—NL 124, CV = 0.57 4 Uncommon. Gulf of Mexico Northern Coastal MMPA—S, ESA—NL 7,185, CV = 0.21 3 Common. Northern Gulf of Mexico Continental Shelf MMPA—NC, ESA—NL 51,192, CV = 0.10 3 Uncommon. Northern Gulf of Mexico Oceanic MMPA—NC, ESA—NL 5,806, CV = 0.39 4 Uncommon. Atlantic spotted dolphin Northern Gulf of Mexico MMPA—NC, ESA—NL 37,611 4, CV = 0.28 Common. 1 MMPA: D = Depleted, S = Strategic, NC = Not Classified. 2 ESA: EN = Endangered, T = Threatened, DL = Delisted, NL = Not listed. 3 NMFS Draft 2015 SAR (Waring et al., 2015). 4 NMFS 2014 SAR (Waring et al., 2014).

    An additional 19 cetacean species could occur within the northeastern Gulf of Mexico, mainly occurring at or beyond the shelf break (i.e., water depth of approximately 200 m (656.2 ft)) located beyond the W-151A test area. NMFS and Eglin AFB consider these 19 species to be rare or extralimital within the W-151A test location area. These species are the Bryde's whale (Balaenoptera edeni), sperm whale (Physeter macrocephalus), dwarf sperm whale (Kogia sima), pygmy sperm whale (K. breviceps), pantropical spotted dolphin (Stenella atenuarta), Blainville's beaked whale (Mesoplodon densirostris), Cuvier's beaked whale (Ziphius cavirostris), Gervais' beaked whale (M. europaeus), Clymene dolphin (S. clymene), spinner dolphin (S. longirostris), striped dolphin (S. coeruleoalba), killer whale (Orcinus orca), false killer whale (Pseudorca crassidens), pygmy killer whale (Feresa attenuata), Risso's dolphin (Grampus griseus), Fraser's dolphin (Lagenodelphis hosei), melon-headed whale (Peponocephala electra), rough-toothed dolphin (Steno bredanensis), and short-finned pilot whale (Globicephala macrorhynchus).

    Of these species, only the sperm whale is listed as endangered under the ESA and as depleted throughout its range under the MMPA. Sperm whale occurrence within W-151A is unlikely because almost all reported sightings have occurred in water depths greater than 200 m (656.2 ft).

    Because these species are unlikely to occur within the W-151A area, Eglin AFB has not requested and NMFS has not issued take authorizations for them. Thus, NMFS does not consider these species further in this notice.

    Other Marine Mammals in the Proposed Action Area

    The endangered West Indian manatee (Trichechus manatus) rarely occurs in the area (USAF, 2014). The U.S. Fish and Wildlife Service has jurisdiction over the manatee; therefore, we would not include a proposed Authorization to harass manatees and do not discuss this species further in this notice.

    Potential Effects of the Specified Activity on Marine Mammals and Their Habitat

    This section of the notice of the proposed Authorization (80 FR 7984, December 23, 2015) included a summary and discussion of the ways that components (e.g., exposure to impulsive noise and pressure waves generated by live ordnance detonation at or near the surface of the water) of the specified activity, including mitigation may impact marine mammals and their habitat. The “Estimated Take by Incidental Harassment” section later in this document will include a quantitative analysis of the number of individuals that we expect Eglin AFB to take during this activity. The “Negligible Impact Analysis” section will include the analysis of how this specific activity would impact marine mammals. We will consider the content of the following sections: “Estimated Take by Incidental Harassment” and “Proposed Mitigation” to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals—and from that consideration—the likely impacts of this activity on the affected marine mammal populations or stocks.

    In summary, the Maritime WSEP training exercises proposed for taking of marine mammals under an Authorization have the potential to take marine mammals by exposing them to impulsive noise and pressure waves generated by live ordnance detonation at or near the surface of the water. Exposure to energy or pressure resulting from these detonations could result in Level A harassment (PTS) and by Level B harassment (TTS and behavioral). In addition, NMFS also considered the potential for harassment from vessel operations.

    The potential effects of impulsive sound sources (underwater detonations) from the proposed training activities may include one or more of the following: Tolerance, masking, disturbance, hearing threshold shift, stress response, and mortality. NMFS provided detailed information on these potential effects in the notice of the proposed Authorization (80 FR 7984, December 23, 2015). The information presented in that notice has not changed.

    Anticipated Effects on Habitat

    Detonations of live ordnance would result in temporary changes to the water environment. Munitions could hit the targets and not explode in the water. However, because the targets are located over the water, in water explosions could occur. An underwater explosion from these weapons could send a shock wave and blast noise through the water, release gaseous by-products, create an oscillating bubble, and cause a plume of water to shoot up from the water surface. However, these effects would be temporary and not expected to last more than a few seconds.

    Similarly, Eglin AFB does not expect any long-term impacts with regard to hazardous constituents to occur. Eglin AFB considered the introduction of fuel, debris, ordnance, and chemical materials into the water column within its EA and determined the potential effects of each to be insignificant. Eglin AFB analyzed the potential effects of each in their EA and determined them to be insignificant. NMFS provided a summary of the analyses in the notice for the proposed Authorization (80 FR 7984, December 23, 2015). The information presented in that notice has not changed.

    Mitigation

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

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

    NMFS and Eglin AFB have worked to identify potential practicable and effective mitigation measures, which include a careful balancing of the likely benefit of any particular measure to the marine mammals with the likely effect of that measure on personnel safety, practicality of implementation, and impact on the “military-readiness activity.” We refer the reader to Section 11 of Eglin AFB's application for more detailed information on the proposed mitigation measures which include the following:

    Vessel-Based Monitoring: Eglin AFB would station a large number of range clearing boats (approximately 20 to 25) around the test site to prevent non-participating vessels from entering the human safety zone. Based on the composite footprint, range clearing boats will be located approximately (see Figure 11-1 in Eglin AFB's application). However, the actual distance will vary based on the size of the munition being deployed.

    Trained protected species observers would be aboard five of these boats and will conduct protected species surveys before and after each test. The protected species survey vessels will be dedicated solely to observing for marine species during the pre-mission surveys while the remaining safety boats clear the area of non-authorized vessels. The protected species survey vessels will begin surveying the area at sunrise. The area to be surveyed will encompass the zone of influence (ZOI), which is 5 km (3.1 mi). Animals that may enter the area after Eglin AFB has completed the pre-mission surveys and prior to detonation would not reach the predicted smaller slight lung injury and/or mortality zones.

    Because of human safety issues, observers will be required to leave the test area at least 30 minutes in advance of live weapon deployment and move to a position on the safety zone periphery, approximately 15.28 km (9.5 mi) from the detonation point. Observers will continue to scan for marine mammals from the periphery.

    Determination of the Zone of Influence

    Eglin AFB has created a sample day reflecting the maximum number of munitions that could be released and resulting in the greatest impact in a single mission day. However, this scenario is only a representation and may not accurately reflect how Eglin AFB may conduct actual operations. However, NMFS and Eglin AFB are considering this conservative assumption to calculate the impact range for mitigation monitoring measures. Thus, Eglin AFB has modeled, combined, and compared the sum of all energies from these detonations against thresholds with energy metric criteria to generate the accumulated energy ranges for this scenario. Table 4 lists these ranges which form the basis of the mitigation monitoring.

    Table 4—Distances (m) to Harassment Thresholds for an Example Mission Day Munition NEW
  • (lbs)
  • Total #
  • per day
  • Detonation scenario Level A
  • harassment
  • PTS
  • 187 dB
  • SEL
  • Level B
  • harassment
  • TTS 172 dB
  • SEL
  • Behavioral 167 dB
  • SEL
  • GBU-10 or GBU-24 945 1 Surface 5,120 12,384 15,960 GBU-12 or GBU-54 192 1 Surface AGM-65 (Maverick) 86 1 Surface GBU-39 (LSDB) 37 1 Surface AGM-114 (Hellfire) 20 3 (10 ft depth) AGM-175 (Griffin) 13 2 Surface 2.75 Rockets 12 12 Surface PGU-13 HEI 30 mm 0.1 125 Surface AGM = air-to-ground missile; cal = caliber; CBU = Cluster Bomb Unit; ft = feet; GBU = Guided Bomb Unit; HEI = high explosive incendiary; lbs = pounds; mm = millimeters; N/A = not applicable; NEW = net explosive weight; PGU = Projectile Gun Unit; SDB = small diameter bomb; PTS = permanent threshold shift; TTS = temporary threshold shift; WCMD = wind corrected munition dispenser.

    Based on the ranges presented in Table 4 and factoring operational limitations associated with survey-based vessel support for the missions, Eglin AFB estimates that during pre-mission surveys, the proposed monitoring area would be approximately 5 km (3.1 miles) from the target area, which corresponds to the Level A harassment threshold range. Eglin AFB proposes to survey the same-sized area for each mission day, regardless of the planned munition expenditures. By clearing the Level A harassment threshold range of protected species, animals that may enter the area after the completed pre-mission surveys but prior to detonation would not reach the smaller slight lung injury or mortality zones (presented in Table 6 later in this document). Because of human safety issues, Eglin AFB would require observers to leave the test area at least 30 minutes in advance of live weapon deployment and move to a position on the safety zone periphery, approximately 15 km (9.5 miles) from the detonation point. Observers would continue to scan for marine mammals from the periphery, but effectiveness would be limited as the boat would remain at a designated station.

    Video Monitoring: In addition to vessel-based monitoring, Eglin AFB would position three high-definition video cameras on the GRATV anchored on-site, as described earlier, to allow for real-time monitoring for the duration of the mission. The camera configuration and actual number of cameras used would depend on specific mission requirements. In addition to monitoring the area for mission objective issues, the camera(s) would also monitor for the presence of protected species. A trained marine species observer from Eglin Natural Resources would be located in Eglin AFB's Central Control Facility, along with mission personnel, to view the video feed before and during test activities. The distance to which objects can be detected at the water surface by use of the cameras is considered generally comparable to that of the human eye.

    The GRATV will be located about 183 m (600 ft) from the target. The larger mortality threshold ranges correspond to the modified Goertner model adjusted for the weight of an Atlantic spotted dolphin calf, and extend from 0 to 237 m (0 to 778 ft) from the target, depending on the ordnance, and the Level A ranges for both common bottlenose and Atlantic spotted dolphins extend from 7 to 965 m (23 to 3,166 ft) from the target, depending on the ordnance and harassment criterion. Given these distances, observers could reasonably be expected to view a substantial portion of the mortality zone in front of the camera, although a small portion would be behind or to the side of the camera view. Based on previous monitoring reports for this activity, the pre-training surveys for delphinids and other protected species within the mission area are effective. Observers can view some portion of the Level A harassment zone, although the view window would be less than that of the mortality zone (a large percentage would be behind or to the side of the camera view).

    If the high-definition video cameras are not operational for any reason, Eglin AFB will not conduct Maritime WSEP missions.

    In addition to the two types of visual monitoring discussed earlier in this section, Eglin AFB personnel are present within the mission area (on boats and the GRATV) on each day of testing well in advance of weapon deployment, typically near sunrise. They will perform a variety of tasks including target preparation, equipment checks, etc., and will opportunistically observe for marine mammals and indicators as feasible throughout test preparation. However, we consider these observations as supplemental to the proposed mitigation monitoring and would only occur as time and schedule permits. Eglin AFB personnel would relay information on these types of sightings to the Lead Biologist, as described in the following mitigation sections.

    Pre-Mission Monitoring

    The purposes of pre-mission monitoring are to: (1) Evaluate the mission site for environmental suitability, and (2) verify that the ZOI (in this case, 5 km [3.1 mi]) is free of visually detectable marine mammals, as well as potential indicators of these species. On the morning of the mission, the Test Director and Safety Officer will confirm that there are no issues that would preclude mission execution and that weather is adequate to support mitigation measures.

    Sunrise or Two Hours Prior to Mission

    Eglin AFB range clearing vessels and protected species survey vessels will be on site at least two hours prior to the mission. The Lead Biologist on board one survey vessel will assess the overall suitability of the mission site based on environmental conditions (sea state) and presence/absence of marine mammal indicators. Eglin AFB personnel will communicate this information to Tower Control and personnel will relay the information to the Safety Officer in Central Control Facility.

    One and One-Half Hours Prior to Mission

    Vessel-based surveys will begin approximately one and one-half hours prior to live weapons deployment. Surface vessel observers will survey the ZOI (in this case, 5 km [3.1 mi]) and relay all marine species and indicator sightings, including the time of sighting, GPS location, and direction of travel, if known, to the Lead Biologist. The lead biologist will document all sighting information on report forms which he/she will submit to Eglin Natural Resources after each mission. Surveys would continue for approximately one hour. During this time, Eglin AFB personnel in the mission area will also observe for marine species as feasible. If marine mammals or indicators are observed within the ZOI (5 km [3.1 mi]), the range will be declared “fouled,” a term that signifies to mission personnel that conditions are such that a live ordnance drop cannot occur (e.g., protected species or civilian vessels are in the mission area). If there are no observations of marine mammals or indicators of marine mammals, Eglin AFB would declare the range clear of protected species.

    One-Half Hour Prior to Mission

    At approximately 30 minutes to one hour prior to live weapon deployment, marine species observers will be instructed to leave the mission site and remain outside the safety zone, which on average will be 15.28 km (9.5 mi) from the detonation point. The actual size is determined by weapon net explosive weight and method of delivery. The survey team will continue to monitor for protected species while leaving the area. As the survey vessels leave the area, marine species monitoring of the immediate target areas will continue at the Central Control Facility through the live video feed received from the high definition cameras on the GRATV. Once the survey vessels have arrived at the perimeter of the safety zone (approximately 30 minutes after leaving the area per instructions from Eglin AFB, depending on actual travel time), Eglin AFB will declare the range as “green” and the mission will proceed, assuming all non-participating vessels have left the safety zone as well.

    Execution of Mission

    Immediately prior to live weapons drop, the Test Director and Safety Officer will communicate to confirm the results of marine mammal surveys and the appropriateness of proceeding with the mission. The Safety Officer will have final authority to proceed with, postpone, or cancel the mission. Eglin AFB would postpone the mission if:

    • Any of the high-definition video cameras are not operational for any reason;

    • Any marine mammal is visually detected within the ZOI (5 km [3.1 mi]). Postponement would continue until the animal(s) that caused the postponement is: (1) confirmed to be outside of the ZOI (5 km [3.1 mi]) on a heading away from the targets; or (2) not seen again for 30 minutes and presumed to be outside the ZOI (5 km [3.1 mi]) due to the animal swimming out of the range;

    • Any large schools of fish or large flocks of birds feeding at the surface are within the ZOI (5 km [3.1 mi]). Postponement would continue until Eglin AFB personnel confirm that these potential indicators are outside the ZOI (5 km [3.1 mi]):

    • Any technical or mechanical issues related to the aircraft or target boats; or

    • Any non-participating vessel enters the human safety zone prior to weapon release.

    In the event of a postponement, protected species monitoring would continue from the Central Control Facility through the live video feed.

    Post-Mission Monitoring

    Post-mission monitoring determines the effectiveness of pre-mission mitigation by reporting sightings of any marine mammals. Post-detonation monitoring surveys will commence once the mission has ended or, if required, as soon as personnel declare the mission area safe. Vessels will move into the survey area from outside the safety zone and monitor for at least 30 minutes, concentrating on the area down-current of the test site. This area is easily identifiable because of the floating debris in the water from impacted targets. Up to 10 Eglin AFB support vessels will be cleaning debris and collecting damaged targets from this area thus spending several hours in the area once Eglin AFB completes the mission. Observers will document and report any marine mammal species, number, location, and behavior of any animals observed to Eglin Natural Resources.

    Mission Delays Due to Weather

    Eglin AFB would delay or reschedule Maritime WSEP missions if the Beaufort sea state is greater than number 4 at the time of the testing activities. The Lead Biologist aboard one of the survey vessels will make the final determination of whether conditions are conducive for sighting protected species or not.

    We have carefully evaluated Eglin AFB's proposed mitigation measures in the context of ensuring that we prescribe the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:

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

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

    • The practicability of the measure for applicant implementation.

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

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

    2. A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing takes by behavioral harassment only).

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

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

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

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

    Based on our evaluation of Eglin AFB's proposed measures, as well as other measures that may be relevant to the specified activity, we have determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance. while also considering personnel safety, practicality of implementation, and the impact of effectiveness of the military readiness activity.

    Monitoring and Reporting

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

    Eglin AFB submitted a marine mammal monitoring plan in their Authorization application. We have not modified or supplemented the plan based on comments or new information received from the public during the public comment period. Any monitoring requirement we prescribe should improve our understanding of one or more of the following:

    • Occurrence of marine mammal species in action area (e.g., presence, abundance, distribution, density).

    • Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (e.g., source characterization, propagation, ambient noise); (2) Affected species (e.g., life history, dive patterns); (3) Co-occurrence of marine mammal species with the action; or (4) Biological or behavioral context of exposure (e.g., age, calving or feeding areas).

    • Individual responses to acute stressors, or impacts of chronic exposures (behavioral or physiological).

    • How anticipated responses to stressors impact either: (1) Long-term fitness and survival of an individual; or (2) Population, species, or stock.

    • Effects on marine mammal habitat and resultant impacts to marine mammals.

    • Mitigation and monitoring effectiveness.

    The Authorization for Maritime WSEP operations will require the following measures. They are:

    (1) Eglin AFB will track the use of the EGTTR for test firing missions and protected species observations, through the use of mission reporting forms.

    (2) Eglin AFB will submit a summary report of marine mammal observations and Maritime WSEP activities to the NMFS Southeast Regional Office (SERO) and the Office of Protected Resources 90 days after expiration of the current Authorization. This report must include the following information: (i) Date and time of each Maritime WSEP exercise; (ii) a complete description of the pre-exercise and post-exercise activities related to mitigating and monitoring the effects of Maritime WSEP exercises on marine mammal populations; and (iii) results of the Maritime WSEP exercise monitoring, including number of marine mammals (by species) that may have been harassed due to presence within the activity zone.

    (3) Eglin AFB will monitor for marine mammals in the proposed action area. If Eglin AFB personnel observe or detect any dead or injured marine mammals prior to testing, or detects any injured or dead marine mammal during live fire exercises, Eglin AFB must cease operations and submit a report to NMFS within 24 hours.

    (4) Eglin AFB must immediately report any unauthorized takes of marine mammals (i.e., serious injury or mortality) to NMFS and to the respective Southeast Region stranding network representative. Eglin AFB must cease operations and submit a report to NMFS within 24 hours.

    Monitoring Results From Previously Authorized Activities

    Eglin AFB complied with the mitigation and monitoring required under the previous Authorization for 2015 WSEP activities. Marine mammal monitoring occurred before, during, and after each Maritime WSEP mission. During the course of these activities, Eglin AFB's monitoring did not suggest that they had exceeded the take levels authorized under Authorization. In accordance with the 2015 Authorization, Eglin AFB submitted a monitoring report (available at: www.nmfs.noaa.gov/pr/permits/incidental/military.htm).

    Under the 2015 Authorization, Eglin AFB anticipated conducting Maritime WSEP training missions over approximately two to three weeks, but actually conducted a total of eight mission days: four days (February 9, 10, 11, and 12, 2015) associated with inert ordnance delivery and four days (March 16, 17, 18, and 19, 2015) associated with live ordnance delivery.

    During the February 2015 missions, Eglin AFB released two inert CBU-105s in air which resulted in no acoustic impacts to marine mammals. The CBU-105 is a cluster bomb unit that detonates in air (airburst), contains 10 submunition cylinders with each cylinder containing four sub-submunitions (skeets) which fire inert projectiles.

    During the March 2015 live fire missions, Eglin AFB expended four AGM-65 Mavericks and six AGM-114 Hellfire missiles against remotely-controlled boats approximately 27 km (17 mi) offshore Santa Rosa Island, FL. Net explosive weights of the munitions that detonated at the water surface or up to 3 m (10 ft) below the surface are 86 lbs for the AGM-65 Maverick missiles and 13 pounds for the AGM-114 Hellfire missiles. Eglin AFB conducted the required monitoring for marine mammals or indicators of marine mammals (e.g., flocks of birds, baitfish schools, or large fish schools) before, during, and after each mission and observed only two species of marine mammals: the common bottlenose dolphin and Atlantic spotted dolphin. Total protected species observed during pre-mission surveys ranged between 149 and 156 individuals and Eglin AFB confirmed that marine mammals were outside of the ZOI (5 km [3.1 mi]) at the conclusion of each pre-mission survey.

    For one mission day (March 17, 2015), Eglin AFB personnel extended the duration of the pre-mission surveys to continue to monitoring a pod of 10 bottlenose dolphins until the vessel captain could confirm that the pod remained outside the ZOI (5 km [3.1 mi]) and did not change travel direction. Eglin AFB delayed weapons delivery as required by the Authorization. Eglin AFB continued with their mission activities after all animals cleared the ZOI (5 km [3.1 mi]).

    After each mission, Eglin AFB re-entered the ZOI (5 km [3.1 mi]) to begin post-mission surveys for marine mammals and debris-clean-up operations. Eglin AFB personnel did not observe reactions indicative of disturbance during the pre-mission surveys and did not observe any marine mammals during the post-mission surveys. In summary, Eglin AFB reports that no observable instances of take of marine mammals occurred incidental to the Maritime WSEP training activities under the 2015 Authorization.

    Estimated Numbers of Marine Mammals Taken by Harassment

    The NDAA amended the definition of harassment as it applies to a “military readiness activity” to read as follows (Section 3(18)(B) of the MMPA): (i) Any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild [Level A Harassment]; or (ii) any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered [Level B Harassment].

    NMFS' analysis identified the physiological responses, and behavioral responses that could potentially result from exposure to underwater explosive detonations. In this section, we will relate the potential effects to marine mammals from underwater detonation of explosives to the MMPA regulatory definitions of Level A and Level B harassment. This section will also quantify the effects that might occur from the proposed military readiness activities in W-151.

    At NMFS' recommendation, Eglin AFB updated the thresholds used for onset of temporary threshold shift (TTS; Level B Harassment) and onset of permanent threshold shift (PTS; Level A Harassment) to be consistent with the thresholds outlined in the Navy's report titled, “Criteria and Thresholds for U.S. Navy Acoustic and Explosive Effects Analysis Technical Report,” which the Navy coordinated with NMFS. NMFS believes that the thresholds outlined in the Navy's report represent the best available science. The report is available on the Internet at: http://aftteis.com/Portals/4/aftteis/Supporting%20Technical%20Documents/Criteria_and_Thresholds_for_US_Navy_Acoustic_and_Explosive_Effects_Analysis-Apr_2012.pdf.

    Level B Harassment

    Of the potential effects described earlier in this document, the following are the types of effects that fall into the Level B harassment category:

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

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

    Level A Harassment

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

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

    Table 5 in this document outlines the acoustic thresholds used by NMFS for this Authorization when addressing noise impacts from explosives.

    Table 5—Impulsive Sound Explosive Thresholds Used by Eglin AFB in its Current Acoustics Impacts Modeling Group Behavior Behavioral TTS Slight injury PTS Gastro-
  • Intestinal
  • Tract
  • Lung Mortality
    Mid-frequency Cetaceans 167 dB SEL 172 dB SEL or 23 psi 187 dB SEL or 45.86 psi 104 psi 39.1 M1/3 (1+[DRm/10.081])1/2 Pa-sec Where: M = mass of the animals in kg DRm = depth of the receiver (animal) in meters 91.4 M1/3 (1+DRm/10.081])1/2 Pa-sec Where: M = mass of the animals in kg DRm = depth of the receiver (animal) in meters

    Eglin AFB modeled that all explosives would detonate at a 1.2 m (3.9 ft) water depth despite the training goal of hitting the target, resulting in an above water or on land explosion. For sources detonated at shallow depths, it is frequently the case that the explosion may breech the surface with some of the acoustic energy escaping the water column. Table 6 provides the estimated maximum range or radius, from the detonation point to the various thresholds described in Table 5.

    Table 6—Distances (m) to Harassment Thresholds From Eglin AFB's Explosive Ordnance Munition NEW
  • (lbs)
  • Total
  • #
  • Detonation
  • scenario
  • Mortality Modified Goertner Model 1 Level A harassment Slight
  • Lung
  • Injury
  • Modified Goertner Model 2 GI
  • Track
  • Injury
  • 237 dB SPL
  • PTS 187 dB SEL
  • 230 dB peak
  • SPL
  • Level B harassment TTS 172 dB SEL 224 dB peak SPL Behavioral 167 dB
  • SEL
  • Bottlenose Dolphin GBU-10 or GBU-24 945 2 Surface 199 350 340 965 698 1,582 1,280 2,549 GBU-12 or GBU-54 192 6 Surface 111 233 198 726 409 2,027 752 2,023 AGM-65 (Maverick) 86 6 Surface 82 177 150 610 312 1,414 575 1,874 GBU-39 (LSDB) 37 4 Surface 59 128 112 479 234 1,212 433 1,543 AGM-114 (Hellfire) 20 15 (10 ft depth) 110 229 95 378 193 2,070 354 3,096 AGM-175 (Griffin) 13 10 Surface 38 83 79 307 165 1,020 305 1,343 2.75 Rockets 12 100 Surface 36 81 77 281 161 1,010 296 1,339 PGU-13 HEI 30 mm 0.1 1,000 Surface 0 7 16 24 33 247 60 492 Atlantic Spotted Dolphin and Unidentified Dolphin1 GBU-10 or GBU-24 945 2 Surface 237 400 340 965 698 1,582 1,280 2,549 GBU-12 or GBU-54 192 6 Surface 138 274 198 726 409 2,027 752 2,023 AGM-65 (Maverick) 86 6 Surface 101 216 150 610 312 1,414 575 1,874 GBU-39 (LSDB) 37 4 Surface 73 158 112 479 234 1,212 433 1,543 AGM-114 (Hellfire) 20 15 (10 ft depth) 135 277 95 378 193 2,070 354 3,096 AGM-175 (Griffin) 13 10 Surface 47 104 79 307 165 1,020 305 1,343 2.75 Rockets 12 100 Surface 45 100 77 281 161 1,010 296 1,339 PGU-13 HEI 30 mm 0.1 1,000 Surface 0 9 16 24 33 247 60 492 AGM = air-to-ground missile; cal = caliber; CBU = Cluster Bomb Unit; ft = feet; GBU = Guided Bomb Unit; HEI = high explosive incendiary; lbs = pounds; mm = millimeters; N/A = not applicable; NEW = net explosive weight; PGU = Projectile Gun Unit; SDB = small diameter bomb; PTS = permanent threshold shift; TTS = temporary threshold shift; WCMD = wind corrected munition dispenser. 1 Unidentified dolphin can be either bottlenose or Atlantic spotted dolphin. Eglin AFB based the mortality and slight lung injury criteria on the mass of a newborn Atlantic spotted dolphin.

    Eglin AFB uses the distance information shown in Table 6 to calculate the radius of impact for a given threshold from a single detonation of each munition/detonation scenario, then combine the calculated impact radii with density estimates (adjusted for depth distribution) and the number of live munitions to provide an estimate of the number of marine mammals potentially exposed to the various impact thresholds. The ranges presented in Table 6 represent a radius of impact for a given threshold from a single detonation of each munition/detonation scenario. They do not consider accumulated energies from multiple detonation occurring within the same 24-hour time period.

    Density Estimation

    Density estimates for bottlenose dolphin and spotted dolphin were derived from two sources (see Table 7). NMFS provided detailed information on Eglin AFB's derivation of density estimates for the common bottlenose and Atlantic spotted dolphins in a previous Federal Register notice for a proposed Authorization to Eglin AFB for the same activities (79 FR 72631, December 8, 2014). The information presented in that notice has not changed and NMFS refers the reader to Section 3 of Eglin AFB's application for detailed information on all equations used to calculate densities presented in Table 7.

    Table 7—Marine Mammal Density Estimates Within Eglin AFB's EGTTR Species Density
  • (animals/km2)
  • Bottlenose dolphin 1 1.194 Atlantic spotted dolphin 2 0.265 Unidentified bottlenose dolphin/Atlantic spotted dolphin 2 0.009 1 Source: Garrison, 2008; adjusted for observer and availability bias by the author. 2 Source: Fulling et al., 2003; adjusted for negative bias based on information provided by Barlow (2003; 2006).
    Take Estimation

    NMFS recalculated the takes proposed in previous notice for the proposed Authorization (80 FR 7984, December 23, 2015) based upon the Commission's recommendations to eliminate the double counting of the estimated take for each species and appropriately rounding take estimates before summing the total take. Table 8 indicates the modeled potential for lethality, injury, and non-injurious harassment (including behavioral harassment) to marine mammals in the absence of mitigation measures. Eglin AFB and NMFS estimate that approximately 14 marine mammals could be exposed to injurious Level A harassment noise levels (187 dB SEL) and approximately 671 animals could be exposed to Level B harassment (TTS and Behavioral) noise levels in the absence of mitigation measures.

    Table 8—Modeled Number of Marine Mammals Potentially Affected by Maritime WSEP Operations Species Mortality Level A
  • Harassment
  • (PTS only)
  • Level B
  • Harassment
  • (TTS)
  • Level B
  • Harassment
  • (Behavioral)
  • Bottlenose dolphin 0 14 255 353 Atlantic spotted dolphin 0 0 23 40 Unidentified bottlenose dolphin/Atlantic spotted dolphin 0 0 0 0 Total 0 14 278 393

    Based on the mortality exposure estimates calculated by the acoustic model, zero marine mammals are expected to be affected by pressure levels associated with mortality or serious injury. Zero marine mammals are expected to be exposed to pressure levels associated with slight lung injury or gastrointestinal tract injury.

    NMFS generally considers PTS to fall under the injury category (Level A Harassment). An animal would need to stay very close to the sound source for an extended amount of time to incur a serious degree of PTS, which could increase the probability of mortality. In this case, it would be highly unlikely for this scenario to unfold given the nature of any anticipated acoustic exposures that could potentially result from a mobile marine mammal that NMFS generally expects to exhibit avoidance behavior to loud sounds within the EGTTR.

    NMFS has relied on the best available scientific information to support the issuance of Eglin AFB's authorization. In the case of authorizing Level A harassment, NMFS has estimated that no more than 14 bottlenose dolphins and no Atlantic spotted dolphins could, although unlikely, experience minor permanent threshold shifts of hearing sensitivity (PTS). The available data and analyses, as described more fully in a previous notice for a proposed Authorization (80 FR 7984, December 23, 2015) and this notice include extrapolation results of many studies on marine mammal noise-induced temporary threshold shifts of hearing sensitivities. An extensive review of TTS studies and experiments prompted NMFS to conclude that possibility of minor PTS in the form of slight upward shift of hearing threshold at certain frequency bands by a few individuals of marine mammals is extremely low, but not unlikely.

    Negligible Impact Analysis and Determinations

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

    To avoid repetition, the discussion below applies to all the species listed in Table 8 for which we propose to authorize incidental take for Eglin AFB's activities.

    In making a negligible impact determination, we consider:

    • The number of anticipated injuries, serious injuries, or mortalities;

    • The number, nature, and intensity, and duration of Level B harassment;

    • The context in which the takes occur (e.g., impacts to areas of significance, impacts to local populations, and cumulative impacts when taking into account successive/contemporaneous actions when added to baseline data);

    • The status of stock or species of marine mammals (i.e., depleted, not depleted, decreasing, increasing, stable, impact relative to the size of the population);

    • Impacts on habitat affecting rates of recruitment/survival; and

    • The effectiveness of monitoring and mitigation measures to reduce the number or severity of incidental take.

    For reasons stated previously in this document and based on the following factors, Eglin AFB's specified activities are not likely to cause long-term behavioral disturbance, serious injury, or death.

    The takes from Level B harassment would be due to potential behavioral disturbance and TTS. The takes from Level A harassment would be due to some form of PTS. Activities would only occur over a timeframe of two to three weeks in beginning in February 2016, with one or two missions occurring per day. It is possible that some individuals may be taken more than once if those individuals are located in the exercise area on two different days when exercises are occurring.

    Noise-induced threshold shifts (TS, which includes PTS) are defined as increases in the threshold of audibility (i.e., the sound has to be louder to be detected) of the ear at a certain frequency or range of frequencies (ANSI 1995; Yost 2000). Several important factors relate to the magnitude of TS, such as level, duration, spectral content (frequency range), and temporal pattern (continuous, intermittent) of exposure (Yost 2000; Henderson et al. 2008). TS occurs in terms of frequency range (Hz or kHz), hearing threshold level (dB), or both frequency and hearing threshold level (CDC, 2004).

    In addition, there are different degrees of PTS: ranging from slight/mild to moderate and from severe to profound (Clark, 1981). Profound PTS or the complete loss of the ability to hear in one or both ears is commonly referred to as deafness (CDC, 2004; WHO, 2006). High-frequency PTS, presumably as a normal process of aging that occurs in humans and other terrestrial mammals, has also been demonstrated in captive cetaceans (Ridgway and Carder, 1997; Yuen et al. 2005; Finneran et al., 2005; Houser and Finneran, 2006; Finneran et al. 2007; Schlundt et al., 2011) and in stranded individuals (Mann et al., 2010).

    In terms of what is analyzed for the potential PTS (Level A harassment) in marine mammals as a result of Eglin AFB's Maritime WSEP operations, if it occurs, NMFS has determined that the levels would be slight/mild because research shows that most cetaceans show relatively high levels of avoidance. Further, it is uncommon to sight marine mammals within the target area, especially for prolonged durations. Results from monitoring programs associated other Eglin AFB activities and for Eglin AFB's 2015 Maritime WSEP activities have shown the absence of marine mammals within the EGTTR during and after maritime operations. Avoidance varies among individuals and depends on their activities or reasons for being in the area.

    NMFS' predicted estimates for Level A harassment take are likely overestimates of the likely injury that will occur. NMFS expects that successful implementation of the required vessel-based and video-based mitigation measures would avoid Level A take in some instances. Also, NMFS expects that some individuals would avoid the source at levels expected to result in injury. Nonetheless, although NMFS expects that Level A harassment is unlikely to occur at the numbers proposed to be authorized, because it is difficult to quantify the degree to which the mitigation and avoidance will reduce the number of animals that might incur PTS, we are proposing to authorize (and analyze) the modeled number of Level A takes (14), which does not take the mitigation or avoidance into consideration. However, we anticipate that any PTS incurred because of mitigation and the likely short duration of exposures, would be in the form of only a small degree of permanent threshold shift and not total deafness.

    While animals may be impacted in the immediate vicinity of the activity, because of the short duration of the actual individual explosions themselves (versus continual sound source operation) combined with the short duration of the Maritime WSEP operations, NMFS has determined that there will not be a substantial impact on marine mammals or on the normal functioning of the nearshore or offshore Gulf of Mexico ecosystems. We do not expect that the proposed activity would impact rates of recruitment or survival of marine mammals since we do not expect mortality (which would remove individuals from the population) or serious injury to occur. In addition, the proposed activity would not occur in areas (and/or times) of significance for the marine mammal populations potentially affected by the exercises (e.g., feeding or resting areas, reproductive areas), and the activities would only occur in a small part of their overall range, so the impact of any potential temporary displacement would be negligible and animals would be expected to return to the area after the cessations of activities. Although the proposed activity could result in Level A (PTS only, not slight lung injury or gastrointestinal tract injury) and Level B (behavioral disturbance and TTS) harassment of marine mammals, the level of harassment is not anticipated to impact rates of recruitment or survival of marine mammals because the number of exposed animals is expected to be low due to the short-term (i.e., four hours a day or less) and site-specific nature of the activity. We do not anticipate that the effects would be detrimental to rates of recruitment and survival because we do not expect serious of extended behavioral responses that would result in energetic effects at the level to impact fitness.

    Moreover, the mitigation and monitoring measures proposed for the Authorization (described earlier in this document) are expected to further minimize the potential for harassment. The protected species surveys would require Eglin AFB to search the area for marine mammals, and if any are found in the live fire area, then the exercise would be suspended until the animal(s) has left the area or relocated. Moreover, marine species observers located in the Eglin control tower would monitor the high-definition video feed from cameras located on the instrument barge anchored on-site for the presence of protected species. Furthermore, Maritime WSEP missions would be delayed or rescheduled if the sea state is greater than a 4 on the Beaufort Scale at the time of the test. In addition, Maritime WSEP missions would occur no earlier than two hours after sunrise and no later than two hours prior to sunset to ensure adequate daylight for pre- and post-mission monitoring.

    Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS finds that Eglin AFB's Maritime WSEP operations will result in the incidental take of marine mammals, by Level A and Level B harassment only, and that the taking from the Maritime WSEP exercises will have a negligible impact on the affected species or stocks.

    Impact on Availability of Affected Species or Stock for Taking for Subsistence Uses

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

    Endangered Species Act (ESA)

    Due to the location of the activity, no ESA-listed marine mammal species are likely to be affected; therefore, NMFS has determined that this proposed Authorization would have no effect on ESA-listed species. Therefore, NMFS has determined that a section 7 consultation under the ESA is not required for the issuance of an MMPA Authorization to Eglin AFB.

    National Environmental Policy Act (NEPA)

    In 2015, Eglin AFB provided NMFS with an EA titled, Maritime Weapon Systems Evaluation Program (WSEP) Operational Testing in the Eglin Gulf Testing and Training Range (EGTTR), Florida. The EA analyzed the direct, indirect, and cumulative environmental impacts of the specified activities on marine mammals. NMFS, after review and evaluation of the Eglin AFB EA for consistency with the regulations published by the Council of Environmental Quality (CEQ) and NOAA Administrative Order 216-6, Environmental Review Procedures for Implementing the National Environmental Policy Act, adopted the EA. After considering the EA, the information in the 2014 IHA application, and the Federal Register notice, as well as public comments, NMFS has determined that the issuance of the 2015 Authorization was not likely to result in significant impacts on the human environment; adopted Eglin AFB's EA under 40 CFR 1506.3; and issued a FONSI statement on issuance of an Authorization under section 101(a)(5) of the MMPA.

    In accordance with NOAA Administrative Order 216-6 (Environmental Review Procedures for Implementing the National Environmental Policy Act, May 20, 1999), NMFS will again review the information contained in Eglin AFB's EA and determine whether the EA accurately and completely describes the preferred action alternative and the potential impacts on marine mammals. Based on this review and analysis, NMFS has reaffirmed the 2015 FONSI statement on issuance of an annual authorization under section 101(a)(5) of the MMPA or supplement the EA if necessary.

    Authorization

    As a result of these determinations, NMFS has issued an Incidental Harassment Authorization to Eglin AFB for conducting Maritime WSEP activities, for a period of one year from the date of issuance, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.

    Dated: February 8, 2016. Perry F. Gayaldo, Deputy Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2016-02801 Filed 2-10-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE282 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Rocky Intertidal Monitoring Surveys Along the Oregon and California Coasts AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice; issuance of an incidental harassment authorization.

    SUMMARY:

    In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that we have issued an incidental harassment authorization (IHA) to the Partnership for Interdisciplinary Study of Coastal Oceans (PISCO) at the University of California (UC) Santa Cruz for an Incidental Harassment Authorization (IHA) to take three species of marine mammals, by harassment, incidental to rocky intertidal monitoring surveys.

    DATES:

    This authorization is effective from February 3, 2016, through February 2, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Robert Pauline, Office of Protected Resources, NMFS, (301) 427-8401.

    SUPPLEMENTARY INFORMATION: Availability

    An electronic copy of PISCO's application and supporting documents, as well as a list of the references cited in this document, may be obtained by visiting the Internet at: www.nmfs.noaa.gov/pr/permits/incidental/research.htm. In case of problems accessing these documents, please call the contact listed above (see FOR FURTHER INFORMATION CONTACT).

    Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

    Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

    Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the U.S. can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Section 101(a)(5)(D) establishes a 45-day time limit for NMFS' review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny the authorization. Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as “any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].”

    Summary of Request

    On August 10, 2015 NMFS received an application from PISCO for the taking of marine mammals incidental to rocky intertidal monitoring surveys along the Oregon and California coasts. NMFS determined that the application was adequate and complete on October 9, 2015. In December 2012, NMFS issued a 1-year IHA to PISCO to take marine mammals incidental to these same proposed activities (77 FR 72327, December 5, 2012). In December 2013, NMFS issued a second 1-year IHA to PISCO to take marine mammals incidental to these same proposed activities (78 FR 79403, December 30, 2013). The 2013 IHA expired on December 16, 2014. A third IHA was issued to PISCO with an effective date of December 17, 2014 (79 FR 73048, December 9, 2014) to take animals for these identical activities and expires on December 16, 2015. The IHA announced in this notice is valid from February 3, 2016 through February 2, 2017.

    The research group at UC Santa Cruz operates in collaboration with two large-scale marine research programs: PISCO and the Multi-agency Rocky Intertidal Network (MARINe). The research group at UC Santa Cruz (PISCO) is responsible for many of the ongoing rocky intertidal monitoring programs along the Pacific coast. Monitoring occurs at rocky intertidal sites, often large bedrock benches, from the high intertidal to the water's edge. Long-term monitoring projects include Community Structure Monitoring, Intertidal Biodiversity Surveys, Marine Protected Area Baseline Monitoring, Intertidal Recruitment Monitoring, and Ocean Acidification. Research is conducted throughout the year along the California and Oregon coasts and will continue indefinitely. Most sites are sampled one to two times per year over a 4-6 hour period during a negative low tide series. The following specific aspects of the proposed activities are likely to result in the take of marine mammals: Presence of survey personnel near pinniped haulout sites and unintentional approach of survey personnel towards hauled out pinnipeds. Take, by Level B harassment only, of individuals of California sea lions (Zalophus californianus), harbor seals (Phoca vitulina richardii) and northern elephant seals (Mirounga angustirostris) is anticipated to result from the specified activity.

    Description of the Specified Activity Overview

    PISCO requested an IHA for work to continue a rocky intertidal monitoring project that has been ongoing for 20 years. Research activities would include the presence of survey personnel near pinniped haulout sites as well as the unintentional approach of survey personnel towards hauled out pinnipeds. PISCO focuses on understanding the nearshore ecosystems of the U.S. west coast through a number of interdisciplinary collaborations. The program integrates long-term monitoring of ecological and oceanographic processes at dozens of sites with experimental work in the lab and field.

    Dates and Duration

    PISCO's research is conducted throughout the year but will begin no sooner than February 3, 2016 and end on February 2, 2017. Most sites are sampled one to two times per year over a 1-day period (4-6 hours per site) during a negative low tide series. Due to the large number of research sites, scheduling constraints, and the necessity for negative low tides and favorable weather/ocean conditions, exact survey dates are variable and difficult to predict. Some sampling is anticipated to occur in all months.

    Specific Geographic Region

    Sampling sites occur along the California and Oregon coasts. Community Structure Monitoring sites range from Ecola State Park near Cannon Beach, Oregon to Government Point located northwest of Santa Barbara, California. Biodiversity Survey sites extend from Ecola State Park south to Cabrillo National Monument in San Diego County, California. Exact locations of sampling sites can be found in Tables 1 and 2 of PISCO's application (see ADDRESSES).

    Detailed Description of Activities

    We provided a description of the proposed action in our Federal Register notice announcing the proposed authorization (80 FR 76448; December 9, 2015). Please refer to that document; we provide only summary information here.

    Researchers will utilize a Community Structure Monitoring approach which is based largely on surveys that quantify the percent cover and distribution of algae and invertebrates that constitute these communities. This approach allows researchers to quantify both the patterns of abundance of targeted species, as well as characterize changes in the communities in which they reside. Such information provides managers with insight into the causes and consequences of changes in species abundance. There are 47 Community Structure sites, each of which is surveyed over a 1-day period during a low tide series one to two times per year.

    Biodiversity surveys are also part of a long-term monitoring project and are conducted every 3-5 years across 140 established sites. These surveys involve point contact identification along permanent transects, mobile invertebrate quadrat counts, sea star band counts, and tidal height topographic measurements. Additionally, California has established a network of Marine Protected Areas along the California coast which will require sampling at both new and established sites within and outside of marine protected areas. These sites were sampled using existing Community Structure and Biodiversity protocols for consistency. Resampling of these sites may take place as part of future marine protected area evaluation.

    The intertidal zones where PISCO conducts intertidal monitoring are also areas where pinnipeds can be found hauled out on the shore at or adjacent to some research sites. Accessing portions of the intertidal habitat may cause incidental Level B (behavioral) harassment of pinnipeds through some unavoidable approaches if pinnipeds are hauled out directly in the study plots or while biologists walk from one location to another. No motorized equipment is involved in conducting these surveys.

    Comments and Responses

    A notice of NMFS' proposal to issue an IHA was published in the Federal Register on December 9, 2015 (80 FR 76448). During the 30-day public comment period, the Marine Mammal Commission (Commission) submitted a letter on December 15, 2015. The letter is available on the Internet at www.nmfs.noaa.gov/pr/permits/incidental/research.htm. The Commission had no formal comments and concurred with NMFS's preliminary finding that recommended that NMFS issue an IHA to PISCO, subject to the inclusion of the mitigation, monitoring, and reporting measures.

    Description of Marine Mammals in the Area of the Specified Activity

    There are three marine mammal species known to occur in the vicinity of the project areas which may be subjected to Level B harassment. These are the California sea lion, harbor seal and northern elephant seal. Steller sea lions are also observed rarely but take for this animal is not requested.

    We have reviewed PISCO's detailed species descriptions, including life history information, for accuracy and completeness and refer the reader to POA's application as well as the proposed incidental harassment authorization published in the Federal Register (80 FR 76448) instead of reprinting the information here. We have also provided information for the potentially affected stocks, including details of stock-wide status, trends, and threats, in our Federal Register. Please refer to NMFS' Web site (www.nmfs.noaa.gov/pr/species/mammals) for generalized species accounts which provide information regarding the biology and behavior of the marine resources that occur in the vicinity of the project area.

    Potential Effects of the Specified Activity on Marine Mammals

    The Federal Register notice of proposed authorization (80 FR 76448) provides a general background on sound relevant to the specified activity as well as a detailed description of marine mammal hearing and of the potential effects of these construction activities on marine mammals, and is not repeated here.

    Anticipated Effects on Habitat

    We described potential impacts to marine mammal habitat in detail in our Federal Register notice of proposed authorization. In summary, the project activities would not modify existing marine mammal habitat. Because of the short duration of the activities and the relatively small area of the habitat that may be affected, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences for individual marine mammals or their populations

    Mitigation

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

    PISCO shall implement several mitigation measures to reduce potential take by Level B (behavioral disturbance) harassment. Measures include: (1) Conducting slow movements and staying close to the ground to prevent or minimize stampeding; (2) avoiding loud noises (i.e., using hushed voices); (3) avoiding pinnipeds along access ways to sites by locating and taking a different access way and vacating the area as soon as sampling of the site is completed; (4) monitoring the offshore area for predators (such as killer whales and white sharks) and avoid flushing of pinnipeds when predators are observed in nearshore waters; (5) using binoculars to detect pinnipeds before close approach to avoid being seen by animals; and (6) only approaching pinnipeds when are located in the sampling plots if there are no other means to accomplish the survey.

    The methodologies and actions noted in this section shall be utilized and included as mitigation measures in the IHA to ensure that impacts to marine mammals are mitigated to the lowest level practicable. The primary method of mitigating the risk of disturbance to pinnipeds, which will be in use at all times, is the selection of judicious routes of approach to study sites, avoiding close contact with pinnipeds hauled out on shore, and the use of extreme caution upon approach. In no case will marine mammals be deliberately approached by survey personnel, unless they are located in sampling plots and there is no other method available and in all cases every possible measure will be taken to select a pathway of approach to study sites that minimizes the number of marine mammals potentially harassed. In general, researchers will stay inshore of pinnipeds whenever possible to allow maximum escape to the ocean. Each visit to a given study site will last for approximately 4-6 hours, after which the site is vacated and can be re-occupied by any marine mammals that may have been disturbed by the presence of researchers. By arriving before low tide, worker presence will tend to encourage pinnipeds to move to other areas for the day before they haul out and settle onto rocks at low tide.

    Mitigation Conclusions

    We have carefully evaluated PISCO's mitigation measures and considered their effectiveness in past implementation to determine whether they are likely to effect the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another: (1) The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals, (2) the proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and (3) the practicability of the measure for applicant implementation.

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

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

    (2) A reduction in the number (total number or number at biologically important time or location) of individual marine mammals exposed to stimuli expected to result in incidental take (this goal may contribute to 1 above).

    (3) A reduction in the number (total number or number at biologically important time or location) of times any individual marine mammal would be exposed to stimuli expected to result in incidental take (this goal may contribute to 1 above).

    (4) A reduction in the intensity of exposure to stimuli expected to result in incidental take (this goal may contribute to 1 above).

    (5) Avoidance or minimization of adverse effects to marine mammal habitat, paying particular attention to the prey base, blockage or limitation of passage to or from biologically important areas, permanent destruction of habitat, or temporary disturbance of habitat during a biologically important time.

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

    Based on our evaluation of PISCO's proposed measures, including information from monitoring of implementation of mitigation measures very similar to those described here under previous IHAs from other research projects, we have determined that the mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.

    Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking”. The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for incidental take authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area.

    PISCO can add to the knowledge of pinnipeds in California and Oregon by noting observations of: (1) Unusual behaviors, numbers, or distributions of pinnipeds, such that any potential follow-up research can be conducted by the appropriate personnel; (2) tag-bearing carcasses of pinnipeds, allowing transmittal of the information to appropriate agencies and personnel; and (3) rare or unusual species of marine mammals for agency follow-up.

    Monitoring requirements in relation to PISCO's rocky intertidal monitoring will include observations made by project field biologists who will function as marine mammal observers (MMOs). Minimum qualifications for MMOs include an undergraduate degree in biology. Information recorded will include species counts (with numbers of pups/juveniles when possible) of animals present before approaching, numbers of observed disturbances, and descriptions of the disturbance behaviors during the monitoring surveys, including location, date, and time of the event. Disturbances will be recorded according to a three-point scale of intensity including: (1) Head orientation in response to disturbance, which may include turning head towards the disturbance, craning head and neck while holding the body rigid in a u-shaped position, or changing from a lying to a sitting position and/or slight movement of less than 1 m; “alert”; (2) Movements in response to or away from disturbance, over short distances (typically two times its body length) and including dramatic changes in direction or speed of locomotion for animals already in motion; “movement”; and (3) All flushes to the water as well as lengthier retreats (>3 m); “flight”. However, only observations fitting the descriptions of # 2 and # 3 on the three-point scale need to be recorded as authorized takes. Observations regarding the number and species of any marine mammals observed, either in the water or hauled out, at or adjacent to the site, will be recorded as part of field observations during research activities. Observations of unusual behaviors, numbers, or distributions of pinnipeds will be reported to NMFS so that any potential follow-up observations can be conducted by the appropriate personnel. In addition, observations of tag-bearing pinniped carcasses as well as any rare or unusual species of marine mammals will be reported to NMFS. Information regarding physical and biological conditions pertaining to a site, as well as the date and time that research was conducted will also be noted.

    If at any time injury, serious injury, or mortality of the species for which take is authorized should occur, or if take of any kind of any other marine mammal occurs, and such action may be a result of the research, PISCO will suspend research activities and contact NMFS immediately to determine how best to proceed to ensure that another injury or death does not occur and to ensure that the applicant remains in compliance with the MMPA.

    Summary of Previous Monitoring

    PISCO complied with the mitigation and monitoring required under the previous authorization (2014-2015). However, in compliance with that Authorization, PISCO submitted a report on activities covering the period of December 17, 2014 through September 30, 2015. PISCO was authorized to take 60 California sea lions, 183 Pacific harbor seals and 30 Northern elephant seals and actual recorded takes were documented at 19, 37 and 4 respectively.

    Reporting

    PISCO must submit a draft final report to NMFS Office of Protected Resources within 60 days after the conclusion of the 2016-2017 field season or 60 days prior to the start of the next field season if a new IHA will be requested. The report will include a summary of the information gathered pursuant to the monitoring requirements set forth in the IHA. A final report must be submitted to the Director of the NMFS Office of Protected Resources and to the NMFS West Coast Regional Administrator within 30 days after receiving comments from NMFS on the draft final report. If no comments are received from NMFS, the draft final report will be considered to be the final report.

    Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].

    All anticipated takes would be by Level B harassment, involving temporary changes in behavior. The mitigation and monitoring measures are expected to minimize the possibility of injurious or lethal takes such that take by injury, serious injury, or mortality is considered remote. Animals hauled out close to the actual survey sites may be disturbed by the presence of biologists and may alter their behavior or attempt to move away from the researchers.

    NMFS considers an animal to have been harassed if it moved greater than 2 times its body length in response to the researcher's presence or if the animal was already moving and changed direction and/or speed, or if the animal flushed into the water. Animals that became alert without such movements were not considered harassed.

    For the purpose of this IHA, only Oregon and California sites that are frequently sampled and have a marine mammal presence during sampling were included in generating take estimates. Sites where only Biodiversity Surveys are conducted did not provide enough data to confidently estimate takes since they are sampled infrequently (once every 3-5 years). A small number of harbor seal, northern elephant seal and California sea lion pup takes are anticipated as pups may be present at several sites during spring and summer sampling.

    Take estimates are based on marine mammal observations from each site. Marine mammal observations are done as part of PISCO site observations, which include notes on physical and biological conditions at the site. The maximum number of marine mammals, by species, seen at any given time throughout the sampling day is recorded at the conclusion of sampling. A marine mammal is counted if it is seen on access ways to the site, at the site, or immediately up-coast or down-coast of the site. Marine mammals in the water immediately offshore are also recorded. Any other relevant information, including the location of a marine mammal relevant to the site, any unusual behavior, and the presence of pups is also noted.

    These observations formed the basis from which researchers with extensive knowledge and experience at each site estimated the actual number of marine mammals that may be subject to take. In most cases the number of takes is based on the maximum number of marine mammals that have been observed at a site throughout the history of the site (1-3 observation per year for 5-10 years or more). Section 6 in PISCO's application outlines the number of visits per year for each sampling site and the potential number of pinnipeds anticipated to be encountered at each site. Tables 3, 4, 5 in PISCO's application outlines the number of potential takes per site (see ADDRESSES).

    Harbor seals are expected to occur at 15 locations in numbers ranging from 30 per visit (25 adults and 5 pups) at the Pebble Beach site to 5 per visit (all adults) at the Shelter Cove, Kibesillah Hill, Sea Ranch and Franklin Point sites (Table 3 in Application). These numbers are based on past observations at each site as well as input from researchers with extensive knowledge of individual sites. NMFS took the number of takes estimated at each site, based on past observations as well as input from researchers with extensive site knowledge, and multiplied by the number of site visits scheduled during the authorization period. Nine sites were scheduled for one visit while six sites were projected to have 2 sites. A total of 190 adults and 13 pups were anticipated for take and, therefore, NMFS has permitted the take of 203 harbor seals.

    Due to the potentially significant effect of El Niño on California sea lions NMFS will increase the number of California sea lion takes beyond what PISCO requested. Changes in sea surface temperature associated with El Niño can have significant impacts throughout the food web. Historically, El Niño years have resulted in high numbers of marine mammal strandings, likely due to changes in prey availability and increased physiologic stress on the animals. NOAA fisheries west coast region office has reported elevated strandings at locations in central and southern California. For a five-month period from January to May 2015, strandings were over ten times higher than the average stranding level for the same 5 month period during 2004-2012. PISCO plans to conduct 8 visits under this authorization at 5 different sites during the one-year authorization period (see Table 2 in Application). PISCO had requested 90 takes for these 8 visits at five sites. However, given the increased numbers of California sea lions recorded earlier in 2015 during the current El Niño event, NMFS authorized 8 times that number for a total of 720 authorized takes. While all of the five sites may not experience numbers that are ten times greater than is typical, as was reported from January through May 2015, it is likely that observations will be significantly elevated. As such, NMFS has elected to increase the total number of takes originally anticipated by PISCO to 720 California sea lions.

    Northern elephant seals are only expected to occur at one site this year, Piedras Blancs, which will experience two separate visits. Up to twenty takes are expected during each visit for a total of 40 authorized takes.

    PISCO researchers report that they have very rarely observed Steller sea lions at any of their research sites and none have been seen the last several years. Given that the likelihood of taking Steller sea lions is extremely low, NMFS has not authorized take of Steller sea lions and PISCO has agreed to re-schedule surveys if when Steller sea lions are present to avoid take of this species.

    NMFS has authorized the take, by Level B harassment only, of 720 California sea lions, 203 harbor seals and 40 northern elephant seals. These numbers are considered to be maximum take estimates; therefore, actual take may be less if animals decide to haul out at a different location for the day or animals are out foraging at the time of the survey activities.

    Analyses and Determinations Negligible Impact Analysis

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

    No injuries or mortalities are anticipated to occur as a result of PISCO's rocky intertidal monitoring, and none are authorized. The risk of marine mammal injury, serious injury, or mortality associated with rocky intertidal monitoring increases somewhat if disturbances occur during breeding season. These situations present increased potential for mothers and dependent pups to become separated and, if separated pairs do not quickly reunite, the risk of mortality to pups (through starvation) may increase. Separately, adult male elephant seals may trample elephant seal pups if disturbed, which could potentially result in the injury, serious injury, or mortality of the pups. The risk of either of these situations is greater in the event of a stampede.

    Very few pups are anticipated to be encountered during the monitoring surveys. However, a small number of harbor seal, northern elephant seal and California sea lion pups have been observed at several of the monitoring sites during past years. Harbor seals are very precocious with only a short period of time in which separation of a mother from a pup could occur. Though elephant seal pups are occasionally present when researchers visit survey sites, risk of pup mortalities is very low because elephant seals are far less reactive to researcher presence than the other two species. Furthermore, pups are typically found on sand beaches, while study sites are located in the rocky intertidal zone, meaning that there is typically a buffer between researchers and pups. Finally, the caution used by researchers in approaching sites generally precludes the possibility of behavior, such as stampeding, that could result in extended separation of mothers and dependent pups or trampling of pups. No research would occur where separation of mother and her nursing pup or crushing of pups can become a concern.

    Typically, even those reactions constituting Level B harassment would result at most in temporary, short-term disturbance. In any given study season, researchers will visit sites one to two times per year for a total of 4-6 hours per visit. Therefore, disturbance of pinnipeds resulting from the presence of researchers lasts only for short periods of time and is separated by significant amounts of time in which no disturbance occurs.

    Some of the pinniped species may use some of the sites during certain times of year to conduct pupping and/or breeding. However, some of these species prefer to use the offshore islands for these activities. At the sites where pups may be present, PISCO has shall implement certain mitigation measures, such as no intentional flushing if dependent pups are present, which will avoid mother/pup separation and trampling of pups.

    Of the three marine mammal species most likely to occur in the activity areas, none are listed under the ESA. Taking into account the mitigation measures that are planned, effects to marine mammals are generally expected to be restricted to short-term changes in behavior or temporary abandonment of haulout sites. Pinnipeds are not expected to permanently abandon any area that is surveyed by researchers, as is evidenced by continued presence of pinnipeds at the sites during annual monitoring counts. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS finds that the total marine mammal take from PISCO's rocky intertidal monitoring program will not adversely affect annual rates of recruitment or survival and therefore will have a negligible impact on the affected species or stocks.

    Table 1—Population Abundance Estimates, Total Level B Take, and Percentage of Population That May Be Taken for the Potentially Affected Species During the Rocky Intertidal Monitoring Program Species Abundance * Total Level B take Percentage of stock or
  • population
  • Harbor seal 1 30,968,
  • 2 24,732
  • 203 0.6-0.8
    California sea lion 296,750 720 0.2 Northern elephant seal 179,000 40 <0.01 * Abundance estimates are taken from the 2014 U.S. Pacific Marine Mammal Stock Assessments (Carretta et al., 2014). 1 California stock abundance estimate; 2 Oregon/Washington stock abundance estimate from 1999—Most recent surveys.
    Small Numbers Analysis

    Table 1 in this document presents the abundance of each species or stock, the authorized take estimates, the percentage of the affected populations or stocks that may be taken by harassment, and the species or stock trends. According to these estimates, PISCO would take less than 0.8% of each species or stock. Because these are maximum estimates, actual take numbers are likely to be lower, as some animals may select other haulout sites the day the researchers are present.

    Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, which are expected to reduce the number of marine mammals potentially affected by the action, NMFS finds that small numbers of marine mammals will be taken relative to the populations of the affected species or stocks.

    Impact on Availability of Affected Species for Taking for Subsistence Uses

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

    Endangered Species Act (ESA)

    None of the marine mammals for which incidental take is authorized are listed as threatened or endangered under the ESA. Therefore, NMFS has determined that issuance of the IHA to PISCO under section 101(a)(5)(D) of the MMPA will have no effect on species listed as threatened or endangered under the ESA.

    National Environmental Policy Act (NEPA)

    In 2012, NMFS prepared an EA analyzing the potential effects to the human environment from conducting rocky intertidal surveys along the California and Oregon coasts and issued a Finding of No Significant Impact (FONSI) on November 26, 2012 on the issuance of an IHA for PISCO's rocky intertidal surveys in accordance with section 6.01 of the NOAA Administrative Order 216-6 (Environmental Review Procedures for Implementing the National Environmental Policy Act, May 20, 1999). We have reviewed the application for a renewed IHA for ongoing monitoring activities for 2016-17 as well as results from the 2014-15 monitoring report. Based on that review, we have determined that the action is very similar to that considered in the previous IHA. In addition, no significant new circumstances or information relevant to environmental concerns have been identified. Thus, we have determined that the preparation of a new or supplemental NEPA document is not necessary, and will, after review of public comments determine whether or not to reaffirm our 2012 FONSI. The 2012 NEPA documents are available for review at www.nmfs.noaa.gov/pr/permits/incidental/research.htm.

    Authorization

    As a result of these determinations, we have issued an IHA to PISCO for conducting the described activities related to rocky intertidal monitoring surveys along the Oregon and Washington coasts from February 3, 2016 and end on February 2, 2017 provided the previously described mitigation, monitoring, and reporting requirements are incorporated.

    Dated: February 3, 2016. Perry Gayaldo, Deputy Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2016-02802 Filed 2-10-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE434 Gulf of Mexico Fishery Management Council; Public Meeting AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice of a public meeting.

    SUMMARY:

    The Gulf of Mexico Fishery Management Council will hold a meeting of its Shrimp Optimum Yield (OY) and Maximum Sustainable Yield (MSY) Working Group.

    DATES:

    The meeting will convene on Wednesday, March 2, 2016, from 9 a.m. to 5 p.m.

    ADDRESSES:

    The meeting will take place at the Gulf of Mexico Fishery Management Council, 2203 N. Lois Avenue, Suite 1100, Tampa, FL 33607; telephone: (813) 348-1630.

    FOR FURTHER INFORMATION CONTACT:

    Dr. Morgan Kilgour, Fishery Biologist, Gulf of Mexico Fishery Management Council; [email protected], telephone: (813) 348-1630.

    SUPPLEMENTARY INFORMATION: Agenda

    The Working Group will discuss appropriate methodology and data needs for evaluating aggregate Maximum Sustainable Yield (MSY) and Optimum Yield (OY) for all shrimp species; and identify next steps, timeline, and assign responsibilities.

    —Meeting Adjourns—

    The Agenda is subject to change, and the latest version along with other meeting materials will be posted on the Council's file server. To access the file server, the URL is https://public.gulfcouncil.org:5001/webman/index.cgi, or go to the Council's Web site and click on the FTP link in the lower left of the Council Web site (http://www.gulfcouncil.org). The username and password are both “gulf guest.” Click on the “Library Folder,” then scroll down to “Shrimp MSY OY Working Group.”

    The meeting will be webcast over the internet. A link to the webcast will be available on the Council's Web site, http://www.gulfcouncil.org.

    Although other non-emergency issues not on the agenda may come before the Shrimp Working Group for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, those issues may not be the subject of formal action during this meeting. Actions of the Shrimp Working Group will be restricted to those issues specifically identified in the agenda and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take action to address the emergency.

    Special Accommodations

    This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kathy Pereira at the Gulf Council Office (see ADDRESSES), at least 5 working days prior to the meeting.

    Dated: February 8, 2016. Tracey L. Thompson, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-02783 Filed 2-10-16; 8:45 am] BILLING CODE 3510-22-P
    COMMISSION OF FINE ARTS Notice of Meeting

    The next meeting of the U.S. Commission of Fine Arts is scheduled for 18 February 2016, at 9:00 a.m. in the Commission offices at the National Building Museum, Suite 312, Judiciary Square, 401 F Street NW., Washington, DC 20001-2728. Items of discussion may include buildings, parks and memorials.

    Draft agendas and additional information regarding the Commission are available on our Web site: www.cfa.gov. Inquiries regarding the agenda and requests to submit written or oral statements should be addressed to Thomas Luebke, Secretary, U.S. Commission of Fine Arts, at the above address; by emailing [email protected]; or by calling 202-504-2200. Individuals requiring sign language interpretation for the hearing impaired should contact the Secretary at least 10 days before the meeting date.

    Dated: February 3, 2016 in Washington, DC. Thomas Luebke, Secretary.
    [FR Doc. 2016-02541 Filed 2-10-16; 8:45 am] BILLING CODE 6330-01-M
    DEPARTMENT OF DEFENSE Office of the Secretary [Docket ID: DOD-2016-OS-0010] Privacy Act of 1974; System of Records AGENCY:

    Office of the Secretary of Defense, DoD.

    ACTION:

    Notice to alter a System of Records.

    SUMMARY:

    The Office of the Secretary of Defense proposes to alter a system of records notice DPFPA 02, entitled “Pentagon Reservation Vehicle Parking Program” to manage the Pentagon Facilities Parking Program for DoD civilian, military, and contractor personnel applying for and in receipt of Pentagon parking permits. Records are also used to ensure DoD military personnel and civilians are not in receipt of both an issued parking pass and mass transit benefits.

    DATES:

    Comments will be accepted on or before March 14, 2016. This proposed action will be effective on the date following the end of the comment period unless comments are received which result in a contrary determination.

    ADDRESSES:

    You may submit comments, identified by docket number and title, by any of the following methods:

    Federal Rulemaking Portal: http://www.regulations.gov.

    Follow the instructions for submitting comments.

    Mail: Department of Defense, Office of the Deputy Chief Management Officer, Directorate of Oversight and Compliance, Regulatory and Audit Matters Office, 9010 Defense Pentagon, Washington, DC 20301-9010.

    Instructions: All submissions received must include the agency name and docket number for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Cindy Allard, Chief, OSD/JS Privacy Office, Freedom of Information Directorate, Washington Headquarters Service, 1155 Defense Pentagon, Washington, DC 20301-1155, or by phone at (571) 372-0461.

    SUPPLEMENTARY INFORMATION:

    The Office of the Secretary of Defense notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the Federal Register and are available from the address in the FOR FURTHER INFORMATION CONTACT or from the Defense Privacy and Civil Liberties Division Web site at http://dpcld.defense.gov/.

    The proposed systems reports, as required by 5 U.S.C. 552a(r) of the Privacy Act, as amended, were submitted on February 4, 2016, to the House Committee on Oversight and Government Reform, the Senate Committee on Homeland Security and Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” dated February 8, 1996, (February 20, 1996, 61 FR 6427).

    Dated: February 8, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense. DPFPA 02 System name:

    Pentagon Reservation Vehicle Parking Program (October 20, 2010, 75 FR 64713).

    Changes: System ID:

    Delete entry and replace with “DWHS D04”.

    System name:

    Delete entry and replace with “Pentagon Facilities Parking Program.”

    Categories of individuals covered by the system:

    Delete entry and replace with “All DoD civilians, military, and contractors holding DoD parking permits, participating in DoD carpools, or are otherwise authorized to park at the Pentagon Reservation (to include the Pentagon, Mark Center, and Suffolk Building). This includes concessionaires and custodial workers who are authorized to park at Pentagon Facilities.”

    Categories of records in the system:

    Delete entry and replace with “Full name, Social Security Numbers (SSN), work email address, rank/grade, work location, work telephone number, home zip code, organizational affiliation, vehicle license plate number, state, and parking permit number.”

    Authority for maintenance of the system:

    Delete entry and replace with “10 U.S.C. 2674, Operation and Control of Pentagon Reservation and Defense Facilities in National Capital Region; and Administrative Instruction 88, Pentagon Reservation Vehicle Parking Program, and E.O. 9397 (SSN), as amended.”

    Purpose(s):

    Delete entry and replace with “To manage the Pentagon Facilities Parking Program for DoD civilian, military, and contractor personnel applying for and in receipt of Pentagon parking permits. Records are also used to ensure DoD military personnel and civilians are not in receipt of both an issued parking pass and mass transit benefits.”

    Routine uses of records maintained in the system, including categories of users and the purposes of such uses:

    Delete entry and replace with “In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, as amended, the records contained herein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:

    Law Enforcement Routine Use:

    If a system of records maintained by a DoD Component to carry out its functions indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or by regulation, rule, or order issued pursuant thereto, the relevant records in the system of records may be referred, as a routine use, to the agency concerned, whether federal, state, local, or foreign, charged with the responsibility of investigating or prosecuting such violation or charged with enforcing or implementing the statute, rule, regulation, or order issued pursuant thereto.

    Congressional Inquiries Disclosure Routine Use:

    Disclosure from a system of records maintained by a DoD Component may be made to a congressional office from the record of an individual in response to an inquiry from the congressional office made at the request of that individual.

    Disclosure to the Department of Justice for Litigation Routine Use:

    A record from a system of records maintained by a DoD Component may be disclosed as a routine use to any component of the Department of Justice for the purpose of representing the Department of Defense, or any officer, employee or member of the Department in pending or potential litigation to which the record is pertinent.

    Disclosure of Information to the National Archives and Records Administration Routine Use:

    A record from a system of records maintained by a DoD Component may be disclosed as a routine use to the National Archives and Records Administration for the purpose of records management inspections conducted under authority of 44 U.S.C. 2904 and 2906.

    Data Breach Remediation Purposes Routine Use:

    A record from a system of records maintained by a Component may be disclosed to appropriate agencies, entities, and persons when (1) The Component suspects or has confirmed that the security or confidentiality of the information in the system of records has been compromised; (2) the Component has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Component or another agency or entity) that rely upon the compromised information; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Components efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.

    The DoD Blanket Routine Uses set forth at the beginning of the Office of the Secretary of Defense (OSD) compilation of systems of records notices apply to this system. The complete list of DoD Blanket Routine Uses can be found Online at: http://dpcld.defense.gov/Privacy/SORNsIndex/BlanketRoutineUses.aspx.”

    Policies and practices for storing, retrieving, accessing, retaining, and disposing of records in the system: Retrievability:

    Delete entry and replace with “Full name, SSN, parking permit number, and vehicle tag number.”

    Safeguards:

    Delete entry and replace with “Records are maintained in controlled areas accessible only to authorized DoD personnel, including system users, system administrators, and authorized contractors who have a need-to-know in the performance of official duties and who are properly screened and cleared. Physical entry is restricted by the use of locks, guards, identification badges, key cards and closed circuit TV. Paper records are stored in locked cabinets in secured offices. Access to personal information is further restricted by the use of Common Access Card and user ID/passwords, intrusion detection system, encryption, and firewalls. Administrative procedures include periodic security audits, regular monitoring of users' security practices, methods to ensure only authorized personnel access to Personally Identifiable Information (PII) and encryption of back-up and recovery Standard Operating Procedures.”

    Retention and disposal:

    Delete entry and replace with “Destroy credentials three months after return to issuing office.”

    System manager(s) and address:

    Delete entry an