Federal Register Vol. 81, No.67,

Table of Contents I. Background II. Definitions A. Rough Service Lamps B. Vibration Service Lamps C. Three-Way Incandescent Lamps D. 2,601-3,300 Lumen General Service Incandescent Lamps E. Shatter-Resistant Lamps III. Comparison Methodology IV. Comparison Results A. Rough Service Lamps B. Vibration Service Lamps C. Three-Way Incandescent Lamps D. 2,601-3,300 Lumen General Service Incandescent Lamps E. Shatter-Resistant Lamps V. Conclusion VI. Review Under the National Environmental Policy Act of 1969 I. Background

The Energy Independence and Security Act of 2007 (EISA 2007; Pub. L. 110-140) was enacted on December 19, 2007. Among the requirements of subtitle B (Lighting Energy Efficiency) of title III of EISA 2007 were provisions directing DOE to collect, analyze, and monitor unit sales of five lamp types (i.e., rough service lamps, vibration service lamps, 3-way incandescent lamps, 2,601-3,300 lumen general service incandescent lamps, and shatter-resistant lamps). In relevant part, section 321(a)(3)(B) of EISA 2007 amended section 325(l) of the Energy Policy and Conservation Act of 1975 (EPCA) by adding paragraph (4)(B), which generally directs DOE, in consultation with the National Electrical Manufacturers Association (NEMA), to: (1) Collect unit sales data for each of the five lamp types for calendar years 1990 through 2006 in order to determine the historical growth rate for each lamp type; and (2) construct a model for each of the five lamp types based on coincident economic indicators that closely match the historical annual growth rates of each lamp type to provide a neutral comparison benchmark estimate of future unit sales. (42 U.S.C. 6295(l)(4)(B)) Section 321(a)(3)(B) of EISA 2007 also amends section 325(l) of EPCA by adding paragraph (4)(C), which, in relevant part, directs DOE to collect unit sales data for calendar years 2010 through 2025, in consultation with NEMA, for each of the five lamp types. DOE must then: (1) Compare the actual lamp sales in that year with the benchmark estimate; (2) determine if the unit sales projection has been exceeded; and (3) issue the findings within 90 days of the end of the analyzed calendar year. (42 U.S.C. 6295(l)(4)(C))

On December 18, 2008, DOE issued a notice of data availability (NODA) for the Report on Data Collection and Estimated Future Unit Sales of Five Lamp Types (hereafter the “2008 analysis”), which was published in the Federal Register on December 24, 2008. 73 FR 79072. The 2008 analysis presented the 1990 through 2006 shipment data collected in consultation with NEMA, the spreadsheet model DOE constructed for each lamp type, and the benchmark unit sales estimates for 2010 through 2025. On April 4, 2011, DOE published a NODA in the Federal Register announcing the availability of updated spreadsheet models presenting the benchmark estimates from the 2008 analysis and the collected sales data from 2010 for the first annual comparison. 76 FR 18425. Similarly, DOE published NODAs in the Federal Register in the following four years announcing the updated spreadsheet models and sales data for the annual comparisons. 77 FR 16183 (March 20, 2012); 78 FR 15891 (March 13, 2013); 79 FR 15058 (March 18, 2014); 80 FR 13791 (March 17, 2015). This NODA presents the sixth annual comparison; specifically, section IV of this report compares the actual unit sales against benchmark unit sales estimates for 2015.1

EISA 2007 also amends section 325(l) of EPCA by adding paragraphs (4)(D) through (4)(H), which state that if DOE finds that the unit sales for a given lamp type in any year between 2010 and 2025 exceed the benchmark estimate of unit sales by at least 100 percent (i.e., are greater than 200 percent of the anticipated sales), then DOE must take regulatory action to establish an energy conservation standard for such lamps. (42 U.S.C. 6295(l)(4)(D) through (H)) For 2,601-3,300 lumen general service incandescent lamps, DOE must adopt a statutorily prescribed energy conservation standard. For the other four types of lamps, the statute requires DOE to initiate an accelerated rulemaking to establish energy conservation standards. If the Secretary does not complete the accelerated rulemakings within one year from the end of the previous calendar year, there is a “backstop requirement” for each lamp type, which would establish energy conservation standard levels and related requirements by statute. Id.

As in the 2008 analysis and previous comparisons, DOE uses manufacturer shipments as a surrogate for unit sales in this NODA because manufacturer shipment data are tracked and aggregated by the trade organization, NEMA. DOE believes that annual shipments track closely with actual unit sales of these five lamp types, as DOE presumes that retailer inventories remain constant from year to year. DOE believes this is a reasonable assumption because the markets for these five lamp types have existed for many years, thereby enabling manufacturers and retailers to establish appropriate inventory levels that reflect market demand. In addition, increasing unit sales must eventually result in increasing manufacturer shipments. This is the same methodology presented in DOE's 2008 analysis and subsequent annual comparisons, and DOE did not receive any comments challenging this assumption or the general approach.

Section 321(a)(1)(B) of EISA 2007 amended section 321(30) of EPCA by adding the definition of a “rough service lamp.” A “rough service lamp” means a lamp that—(i) has a minimum of 5 supports with filament configurations that are C-7A, C-11, C-17, and C-22 as listed in Figure 6-12 of the 9th edition of the IESNA [Illuminating Engineering Society of North America] Lighting handbook, or similar configurations where lead wires are not counted as supports; and (ii) is designated and marketed specifically for “rough service” applications, with—(I) the designation appearing on the lamp packaging; and (II) marketing materials that identify the lamp as being for rough service. (42 U.S.C. 6291(30)(X))

As noted above, rough service incandescent lamps must have a minimum of five filament support wires (not counting the two connecting leads at the beginning and end of the filament), and must be designated and marketed for “rough service” applications. This type of incandescent lamp is typically used in applications where the lamp would be subject to mechanical shock or vibration while it is operating. Standard incandescent lamps have only two support wires (which also serve as conductors), one at each end of the filament coil. When operating (i.e., when the tungsten filament is glowing so hot that it emits light), a standard incandescent lamp's filament is brittle, and rough service applications could cause it to break prematurely. To address this problem, lamp manufacturers developed lamp designs that incorporate additional support wires along the length of the filament to ensure that it has support not just at each end, but at several other points as well. The additional support protects the filament during operation and enables longer operating life for incandescent lamps in rough service applications. Typical applications for these rough service lamps might include commercial hallways and stairwells, gyms, storage areas, and security areas.

Section 321(a)(1)(B) of EISA 2007 amended section 321(30) of EPCA by adding the definition of a “vibration service lamp.” A “vibration service lamp” means a lamp that—(i) has filament configurations that are C-5, C-7A, or C-9, as listed in Figure 6-12 of the 9th Edition of the IESNA Lighting Handbook or similar configurations; (ii) has a maximum wattage of 60 watts; (iii) is sold at retail in packages of 2 lamps or less; and (iv) is designated and marketed specifically for vibration service or vibration-resistant applications, with—(I) the designation appearing on the lamp packaging; and (II) marketing materials that identify the lamp as being vibration service only. (42 U.S.C. 6291(30)(AA))

The statute mentions three examples of filament configurations for vibration service lamps in Figure 6-12 of the IESNA Lighting Handbook, one of which, C-7A, is also listed in the statutory definition of “rough service lamp.” The definition of “vibration service lamp” requires that such lamps have a maximum wattage of 60 watts and be sold at a retail level in packages of two lamps or fewer. Vibration service lamps must be designated and marketed for vibration service or vibration-resistant applications. As the name suggests, this type of incandescent lamp is generally used in applications where the incandescent lamp would be subject to a continuous low level of vibration, such as in a ceiling fan light kit. In such applications, standard incandescent lamps without additional filament support wires may not achieve the full rated life, because the filament wire is brittle and would be subject to breakage at typical operating temperature. To address this problem, lamp manufacturers typically use a more malleable tungsten filament to avoid damage and short circuits between coils.

Section 321(a)(1)(B) of EISA 2007 amended section 321(30) of EPCA by adding the definition of a “3-way incandescent lamp.” A “3-way incandescent lamp” includes an incandescent lamp that—(i) employs 2 filaments, operated separately and in combination, to provide 3 light levels; and (ii) is designated on the lamp packaging and marketing materials as being a 3-way incandescent lamp. (42 U.S.C. 6291(30)(Y))

Three-way lamps are commonly found in wattage combinations such as 50, 100, and 150 watts or 30, 70, and 100 watts. These lamps use two filaments (e.g., a 30-watt and a 70-watt filament) and can be operated separately or together to produce three different lumen outputs (e.g., 305 lumens with one filament, 995 lumens with the other, or 1,300 lumens using the filaments together). When used in three-way sockets, these lamps allow users to control the light level. Three-way incandescent lamps are typically used in residential multi-purpose areas, where consumers may adjust the light level to be appropriate for the task they are performing.

The statute does not provide a definition of “2,601-3,300 Lumen General Service Incandescent Lamps;” however, DOE is interpreting this term to be a general service incandescent lamp 2 that emits light between 2,601 and 3,300 lumens. These lamps are used in general service applications when high light output is needed.

Section 321(a)(1)(B) of EISA 2007 amended section 321(30) of EPCA by adding the definition of a “shatter-resistant lamp, shatter-proof lamp, or shatter-protected lamp.” “Shatter-resistant lamp, shatter-proof lamp, and shatter-protected lamp” mean a lamp that—(i) has a coating or equivalent technology that is compliant with NSF/ANSI 51 [National Sanitation Foundation/American National Standards Institute] and is designed to contain the glass if the glass envelope of the lamp is broken; and (ii) is designated and marketed for the intended application, with—(I) the designation on the lamp packaging; and (II) marketing materials that identify the lamp as being shatter-resistant, shatter-proof, or shatter-protected. (42 U.S.C. 6291(30)(Z)) Although the definition provides three names commonly used to refer to these lamps, DOE simply refers to them collectively as “shatter-resistant lamps.”

Shatter-resistant lamps incorporate a special coating designed to prevent glass shards from being dispersed if a lamp's glass envelope breaks. Shatter-resistant lamps incorporate a coating compliant with industry standard NSF/ANSI 51,3 “Food Equipment Materials,” and are labeled and marketed as shatter-resistant, shatter-proof, or shatter-protected. Some types of the coatings can also protect the lamp from breakage in applications subject to heat and thermal shock that may occur from water, sleet, snow, soldering, or welding.

In the 2008 analysis, DOE reviewed each of the five sets of shipment data that was collected in consultation with NEMA and applied two curve fits to generate unit sales estimates for the five lamp types after calendar year 2006. One curve fit applied a linear regression to the historical data and extended that line into the future. The other curve fit applied an exponential growth function to the shipment data and projected unit sales into the future. For this calculation, linear regression treats the year as a dependent variable and shipments as the independent variable. The linear regression curve fit is modeled by minimizing the differences among the data points and the best curve-fit linear line using the least squares function.4 The exponential curve fit is also a regression function and uses the same least squares function to find the best fit. For some data sets, an exponential curve provides a better characterization of the historical data, and, therefore, a better projection of the future data.

For 3-way incandescent lamps, 2,601-3,300 lumen general service incandescent lamps, and shatter-resistant lamps, DOE found that the linear regression and exponential growth curve fits produced nearly the same estimates of unit sales (i.e., the difference between the two forecasted values was less than 1 or 2 percent). However, for rough service and vibration service lamps, the linear regression curve fit projected lamp unit sales would decline to zero for both lamp types by 2018. In contrast, the exponential growth curve fit projected a more gradual decline in unit sales, such that lamps would still be sold beyond 2018, and it was, therefore, considered the more realistic forecast. While DOE was satisfied that either the linear regression or exponential growth spreadsheet model generated a reasonable benchmark unit sales estimate for 3-way incandescent lamps, 2,601-3,300 lumen general service incandescent lamps, and shatter-resistant lamps, DOE selected the exponential growth curve fit for these lamp types for consistency with the selection made for rough service and vibration service lamps.5 DOE examines the benchmark unit sales estimates and actual sales for each of the five lamp types in the following section and also makes the comparisons available in a spreadsheet online: https://www1.eere.energy.gov/buildings/appliance_standards/standards.aspx?productid=16.

For rough service lamps, the exponential growth forecast projected the benchmark unit sales estimate for 2015 to be 4,967,000 units. The NEMA-provided shipment data reported shipments of 6,731,000 units in 2015. As this finding is only 135.5 percent of the estimate,6 DOE will continue to track rough service lamp sales data and will not initiate regulatory action for this lamp type at this time.

For vibration service lamps, the exponential growth forecast projected the benchmark unit sales estimate for 2015 to be 2,594,000 units. The NEMA-provided shipment data reported 7,071,000 vibration service lamp shipments in 2015, which is 272.5 percent of the benchmark estimate.

Section 321(a)(3)(B) of EISA 2007 in part amends paragraph 325(l)(4) of EPCA by adding paragraphs (D) through (H), which direct DOE to take regulatory action if the actual annual unit sales of any of the five lamp types are more than 200 percent of the predicted shipments (i.e., more than double the benchmark unit sales estimate). (42 U.S.C. 6295(l)(4)(D)-(H)) As the actual unit sales for vibration service lamps are 272.5 percent of the benchmark estimate for the 2015 calendar year, DOE must conduct an accelerated energy conservation standards rulemaking for vibration service lamps to be completed no later than December 31, 2016. If the Secretary does not complete the accelerated rulemaking in the allotted time, the statute provides a backstop requirement that becomes the regulatory standard for vibration service lamps. This backstop requirement would establish standards beginning one year after the date of issuance of this NODA, and would require vibration service lamps to: (1) Have a maximum 40-watt limitation and (2) be sold at retail only in a package containing one lamp.

The requirement to collect and model data for vibration service lamps shall terminate unless, as part of the rulemaking, the Secretary determines that continued tracking is necessary. If, however, the Secretary imposes a backstop requirement as a result of a failure to complete the accelerated rulemaking in accordance with the statute, the requirement to collect and model data for the applicable type of lamp shall continue for two years after the compliance date of the backstop requirement. (42 U.S.C. 6295(l)(4)(I)(i) and (ii))

For 3-way incandescent lamps, the exponential growth forecast projected the benchmark unit sales estimate for 2015 to be 48,603,000 units. The NEMA-provided shipment data reported shipments of 32,665,000 units in 2015. As this finding is only 67.2 percent of the estimate, DOE will continue to track 3-way incandescent lamp sales data and will not initiate regulatory action for this lamp type at this time.

For 2,601-3,300 lumen general service incandescent lamps, the exponential growth forecast projected the benchmark unit sales estimate for 2015 to be 34,175,000 units. The NEMA-provided shipment data reported shipments of 4,049,000 units in 2015. As this finding is 11.8 percent of the estimate, DOE will continue to track 2,601-3,300 lumen general service incandescent lamp sales data and will not initiate regulatory action for this lamp type at this time.

For shatter-resistant lamps, the exponential growth forecast projected the benchmark unit sales estimate for 2015 to be 1,675,000 units. The NEMA-provided shipment data reported shipments of 689,000 units in 2015. As this finding is only 41.1 percent of the estimate, DOE will continue to track shatter-resistant lamp sales data and will not initiate regulatory action for this lamp type at this time.

The shipments for rough service lamps, 3-way incandescent lamps, 2,601-3,300 lumen general service incandescent lamps, and shatter-resistant lamps did not cross the statutory threshold for a standard. DOE will continue to monitor these four currently exempted lamp types and will assess 2016 sales by March 31, 2017, in order to determine whether an energy conservation standards rulemaking is required, consistent with 42 U.S.C. 6295(l)(4)(D) through (H). The actual unit sales for vibration service lamps are 272.5 of the benchmark unit sales estimate. Therefore, DOE will begin an accelerated energy conservation standard rulemaking for vibration service lamps that must be completed by December 31, 2016.

DOE has determined that this proposed action falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and DOE's implementing regulations at 10 CFR part 1021. Specifically, this proposed action would find that for vibration service lamps energy conservation standards would be appropriate. However, this proposed action would not establish energy conservation standards at this time, and, therefore, would not result in any environmental impacts. Thus, this action is covered by Categorical Exclusion A6 “Procedural rulemakings” under 10 CFR part 1021, subpart D. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

Background

On March 14, 2016, the FAA published a Notice of Proposed Rulemaking (NPRM) titled “Revision of Airworthiness Standards for Normal, Utility, Acrobatic, and Commuter Category Airplanes”. The FAA proposes in this NPRM to amend its airworthiness standards for normal, utility, acrobatic, and commuter category airplanes by removing current prescriptive design requirements and replacing them with performance-based airworthiness standards. The proposed standards would also replace the current weight and propulsion divisions in part 23 with performance- and risk-based divisions for airplanes with a maximum seating capacity of 19 passengers or less and a maximum takeoff weight of 19,000 pounds or less. The proposed airworthiness standards are based on, and would maintain, the level of safety of the current part 23. Finally, the FAA proposes to adopt additional airworthiness standards to address certification for flight in icing conditions, enhanced stall characteristics, and minimum control speed to prevent departure from controlled flight for multiengine airplanes. The NPRM addresses the Congressional mandate set forth in the Small Airplane Revitalization Act of 2013 1 (Pub. L. 113-53, 49 U.S.C. 44704 note).

The purpose of the public meetings is for the FAA to discuss the NPRM, hear the public's questions, address any confusion, and obtain information relevant to the final rule under consideration. The FAA will consider comments made at the public meetings before making a final decision on issuance of the final rule.

A panel of representatives from the FAA will be present. An FAA representative will facilitate the meetings in accordance with the following procedures:

(1) There will be no admission fees or other charges to attend or to participate in the public meetings. The meetings will be open to all persons, subject to availability of space in the meeting room. The FAA will make every effort to accommodate all persons wishing to attend. The FAA asks that participants sign in between 7:00-8:00 a.m. on the day of the meeting being attended. The meetings may adjourn early if the agenda items are completed in less time than is scheduled for the meetings.

(2) The meetings will be recorded by a court reporter. A transcript of the meetings and all material accepted by the panel during the meetings will be included in the public docket, unless protected from disclosure. Each person interested in purchasing a copy of a transcript should contact the court reporter directly. Information on how to purchase a transcript will be available at the meetings.

Submitting Comments

If you submit a comment, please include the docket number for this notice of intent (DOT-OST-2015-0246), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online, by mail, by hand delivery, or by fax. Please use only one of these methods. DOT recommends that you include your name and a mailing address, an email address, or a phone number with your comments so that DOT can contact you if there are questions regarding your submission. All comments and material received in the docket during this comment period will be given consideration and become part of the record in this rulemaking proceeding. We will consider to the extent practicable all comments and material received in the docket after the comment period ends.

You may view comments on this notice of intent, as well as any documents mentioned in this preamble as being available in the docket at http://www.regulations.gov. After entering the docket number, click the link to “Open Docket Folder” and choose the document to review. If you do not have access to the Internet, you may view the docket online by visiting the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., E.T., Monday through Friday, except Federal holidays.

All nomination materials should be submitted electronically via email to [email protected]. Any person needing accessibility accommodations should contact Livaughn Chapman, Chief, Aviation Civil Rights Compliance Branch, Office of Aviation Enforcement and Proceedings, at (202) 366-9342.

In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

On December 7, 2015, the Department published a notice in the Federal Register announcing its intent to consider a Reg-Neg on six issues—(1) inflight entertainment accessibility; (2) supplemental medical oxygen; (3) service animals; (4) accessible lavatories on single-aisle aircraft; (5) seating accommodations; and (6) carrier reporting of disability service requests.1 On January 5, 2016, the Department subsequently announced an extension of the 30-day comment period to January 21, 2016.2 At the close of the comment period, we had received nearly 70 comments. To date, we have received close to 90 comments. The Department also announced that we had hired a neutral convener, Mr. Richard Parker, a professor of law at the University of Connecticut School of Law, to speak with representatives from among the organizational interests mentioned above about the feasibility of conducting a Reg-Neg on these six issues. Mr. Parker conducted interviews with 46 different stakeholders representing these interests and prepared a convening report to DOT on the feasibility of conducting the negotiated rulemaking under consideration. The convening report is available in the rulemaking docket at DOT-OST-2015-0246. Based on the convening report, the comments received on the December notice, and on the statutory factors in the Negotiated Rulemaking Act (5 U.S.C. 563), DOT decided that it would be in the public interest to establish a negotiated rulemaking committee (5 U.S.C. 564) with a narrower scope. Chief among the statutory factors we considered in our decision was whether a Committee could be assembled that would fairly represent all affected interests, negotiate in good faith, and offer a reasonable likelihood of reaching a consensus on the issues. We determined that the following three issues were the most suitable for the Reg-Neg: (1) Whether to require accessible inflight entertainment (IFE) and strengthen accessibility requirements for other in-flight communications; (2) whether to require an accessible lavatory on single-aisle new aircraft over a certain size; and (3) whether to amend the definition of “service animals” that may accompany passengers with a disability on a flight. The Department intends to address the remaining issues (supplemental medical oxygen, seating accommodations, and carrier reporting of disability service requests) through other actions.

In selecting these three issues for the Reg-Neg, the Department considered the impact of the issues on all the affected stakeholders and the likelihood of the Committee reaching agreement on recommendations to the Department. Concerns expressed across interest groups about service animals on aircraft suggested that stakeholders would be motivated to come to agreement on their recommendations. While the differences among stakeholders on IFE accessibility were greater, there were other indications that consensus recommendations may be achievable and that Committee deliberations might furnish highly relevant and useful information and insight to guide Departmental rulemaking deliberations in any event. For example, new technologies and methods for providing IFE have created more accessible onboard entertainment and communications options at lower cost than ever before. Although lavatory accessibility on single aisle aircraft is perhaps the longest standing and the most controversial of the issues considered for the Reg-Neg, we believe that there are significant advantages to including it. The Reg-Neg process will serve to educate all the parties about the state of the art in lavatory accessibility and allow stakeholders to identify regulatory options and share information on their costs and benefits. We believe these stakeholder discussions will enhance the possibility of reaching agreement on proposals to recommend to the Department, and in furnishing useful information to guide the Department's rulemaking if consensus is not reached. For the above reasons, we believe that the scope of the rulemaking should focus on these issues.

The Department acknowledges the views and concerns of all the participants in the convening process and is committed to addressing the issues of supplemental medical oxygen, seating accommodations, and carrier reporting of disability service requests as appropriate in subsequent rulemaking or other actions.

The Secretary of Transportation has approved a charter to govern the activities of the ACCESS Advisory Committee in accordance with the Federal Advisory Committee Act (FACA), 5 U.S.C. App. 2. In accordance with section 14 of FACA, the charter provides for the ACCESS Advisory Committee to remain in existence for two years after the filing date unless sooner terminated or renewed. However, the Department intends to complete the Reg-Neg for the proposed rule in 2016 and to publish a Notice of Proposed Rulemaking (NPRM) in 2017.

This notice of intent requests nominations for members of the Committee to ensure a wide range of member candidates and a balanced committee. The Secretary of Transportation will appoint approximately 25 Committee members, including a representative of DOT, who will each serve until the stated objectives of the Committee have been accomplished (i.e., the Committee submits its recommendation to the Secretary). The Committee is expected to meet every month from May to October 2016. Members should be senior level officials who can commit their organizations and who either are experts on accessibility with respect to the topics of interest to their organizations or who have access to such experts.

The Department will choose the Committee members based on four main criteria: (1) Representativeness (does the applicant represent a significant stakeholder group that will be substantially affected by the final rule); (2) expertise (does the applicant bring essential knowledge, expertise and/or experience regarding accessibility and the topic area(s) of interest that will enrich the discussion of the available options and their respective costs and benefits); (3) balance (does the slate of selected applicants comprise a balanced array of representative and expert stakeholders); and (4) willingness to participate fully (is the applicant able and willing to attend the listed meetings and associated working group conference calls, bring in other experts from the applicant's organization as needed and relevant, bargain in good faith, and generally contribute constructively to a rigorous policy development process).

Subject to change based on information received in response to this notice of intent, DOT proposes for public comment the following list of stakeholder categories to be members of the Committee:

We believe that the aforementioned stakeholder categories represent the interests significantly affected by this rulemaking. Organizations from each stakeholder category may nominate a candidate for Committee membership from their own organization, or jointly nominate a candidate to represent their collective interests. The list is not presented as a complete or exclusive list of stakeholder categories from which Committee members will be selected. The list merely indicates the stakeholder categories that DOT tentatively has identified as representing significantly affected interests in the proposed rule to enhance requirements for accessibility in air transportation. All individuals or organizations who wish to be selected to serve on the Committee should submit an application, regardless of whether their stakeholder category appears on the above list. If anyone believes their interests would not be adequately represented by one or more of these categories, they should document that assertion in their comment and/or their application for membership on the Committee. DOT requests comments and suggestions regarding its tentative list of significantly affected stakeholder categories from which potential members of the Committee may be selected.

Individuals applying for membership should keep in mind that Committee members will be selected to represent not only the interest of that individual's own organization but rather the collective stakeholder interests of organizations in the same stakeholder category. For example, an individual from a large U.S. airline selected to serve on the Committee would represent not only its airline but all large U.S. airlines. As such, the individual would be expected to consult with other large airlines in bringing issues to the table and making decisions on proposals before the Committee.

Working groups may be formed to address the specific ACCESS Advisory Committee issues. These working groups will include Committee members but may also include experts or representatives who are not Committee members. Such working groups will report back to the ACCESS Advisory Committee. The experience of past Reg-Negs has been that working groups play a vital role in the policy development process and deliberations. They provide both Committee Members and non-Members an important opportunity for meaningful participation and interaction in identifying and weighing options and alternatives. The Department's Office of Aviation Enforcement and Proceedings will provide appropriate funding, logistics, administrative, and technical support for the Committee and its working groups. DOT subject matter experts, attorneys, and economists will also provide support to the Committee and work groups. A Web site for Committee members, working group members, and the public to access online general information, meeting announcements, agendas, and minutes, as well as Committee and working group work products will be established at https://www.transportation.gov/airconsumer/accesscommittee.

At this time, we anticipate that the ACCESS Advisory Committee will have six two-day meetings in Washington DC. We propose to hold the meetings on the following dates: First meeting, May 17-18; second meeting, June 14-15; third meeting, July 11-12; fourth meeting, August 16-17; fifth meeting, September 22-23, and the sixth and final meeting, October 13-14. Individuals interested in serving on the Committee should plan to attend each of these meetings in person. When appropriate, designees will be permitted.

Process and Deadline for Submitting Nominations: Organizations and/or persons who believe they meet the criteria listed above are invited to apply for membership on the ACCESS Advisory Committee to represent the stakeholder interests of their organizational category with respect to the proposed issues. Organizational applicants should indicate both the stakeholder category they propose to represent and the individual from their organization applying to serve on the Committee; describe the responsibilities and qualifications of that person; and describe the qualifications of any alternates or professional colleagues who will be assisting the principal representative in the process.

Qualified individuals can self-nominate or be nominated by any stakeholder or stakeholder organization. To be considered for the ACCESS Advisory Committee, nominators should submit the following information:

(1) Name, title, and relevant contact information (including phone and email address) and a description of the issues addressed in this rulemaking that such individual is qualified to address, and the interests such a person shall represent;

(2) A letter of support from a company, union, trade association, or non-profit organization on letterhead containing a brief description why the nominee is qualified and should be considered for membership to the extent the nominee proposes to represent parties with interest in this proceeding;

(3) A written commitment that the applicant or nominee shall actively participate in good faith in the development of the rule under consideration;

(4) Short biography of nominee including professional and academic credentials;

(5) An affirmative statement that the nominee meets all Committee eligibility requirements; and

(6) If applicable, the reason(s) that the parties identified in this notice of intent as affected interests and stakeholders do not adequately represent the interest of the person submitting the application or nomination.

All individuals representing a stakeholder interest who wish to serve on the Reg-Neg Committee should apply for membership by supplying the information listed above. Please do not send company, trade association, or organization brochures or any other information. Materials submitted should total two single-spaced pages or less. Should more information be needed, DOT staff will contact the nominee, obtain information from the nominee's past affiliations, or obtain information from publicly available sources, such as the Internet. Nominations may be emailed to [email protected]. Nominations must be received by April 21, 2016.

Nominees selected for appointment to the Committee will be notified of appointment by email. Nominations are open to all individuals without regard to race, color, religion, sex, national origin, age, mental or physical handicap, marital status, or sexual orientation. To ensure that recommendations to the Secretary take into account the needs of the diverse groups served by DOT, membership shall include, to the extent practicable, individuals with demonstrated ability to represent persons with disabilities, minorities, and women. The Department will file any comments it receives on this notice of intent in docket DOT-OST-2015-0246. Notice to the public will be published in the Federal Register at least 15 days prior to each plenary meeting of the ACCESS Advisory Committee and members of the public will be invited to attend.

Issued under the authority of delegation in 49 CFR 1.27.

Invitation to Comment: We invite you to submit comments regarding this notice. To ensure that your comments have maximum effect in developing the notice of final priority, we urge you to identify clearly the specific section of the proposed priority that each comment addresses.

We invite you to assist us in complying with the specific requirements of Executive Orders 12866 and 13563 and their overall requirement of reducing regulatory burden that might result from this proposed priority. Please let us know of any further ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the program.

Specific Issues Open for Comment:

In addition to your general comments and recommended clarifications, we seek input on the proposed design of the Experiential Learning Model Demonstration Center for Novice Interpreters and Baccalaureate Degree ASL-English Interpretation Programs (Center) and expectations for implementation. We are particularly interested in your feedback on the following questions:

• Are the proposed required project activities appropriate? Are there any additional project activities beyond those included in the proposed priority that should be considered? For example, are there any specific activities that may be strongly associated with long-term success for ASL-English interpreters that we have not included? If so, please specify what additional activities should be required and why.

• Under the Training Activities section of the proposed priority, we proposed a team of individuals to work with novice interpreters. Are the proposed roles for interpreter advisors and trained mentors clear and appropriate? Should the roles and responsibilities of the interpreter advisor and mentor be changed or combined? In your experience, how might qualified interpreters work with novice interpreters differently than trained mentors? Should these roles be more or less prescriptive than what we have outlined in the proposed priority?

• In the proposed priority, the Center is expected to plan and design the curriculum, develop training modules, and implement a pilot experiential learning program within the first two years of the grant period. Is this timeline reasonable? If not, what timeline should be required for these expected project deliverables?

• In addition to national certification, such as, for example, the Registry of Interpreters for the Deaf (RID) National Interpreter Certification (NIC) tests, what measures for assessing the improvement in a novice interpreter's skills should be required?

• How many cohorts should be required to complete the experiential learning program within the five-year project period? Should the Department require a certain number of novice interpreters per cohort, and, if so, how many?

• Beyond requiring a logic model and a project evaluation, are there any unique or additional strategies to ensure that the program evaluation framework is infused throughout the planning, designing, and implementation of the experiential learning curriculum that the Department should include? If so, please specify.

During and after the comment period, you may inspect all public comments about this proposed priority by accessing Regulations.gov. You may also inspect the comments in room 5062, 550 12th Street SW., PCP, Washington, DC 20202-5076, between the hours of 8:30 a.m. and 4:00 p.m., Washington, DC time, Monday through Friday of each week except Federal holidays. Please contact the person listed under FOR FURTHER INFORMATION CONTACT.

Assistance to Individuals with Disabilities in Reviewing the Rulemaking Record: On request, we will provide an appropriate accommodation or auxiliary aid to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for this notice. If you want to schedule an appointment for this type of accommodation or auxiliary aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

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

Program Authority: 29 U.S.C. 772(a) and (f).

Applicable Program Regulations: 34 CFR part 396.

Proposed Priority:

This notice contains one proposed priority.

Experiential Learning Model Demonstration Center for Novice Interpreters and Baccalaureate Degree ASL-English Interpretation Programs.

Background:

Over the last 20 years, the fields of interpreting and interpreter training have changed significantly in response to the evolving needs of deaf 1 children and adults in the United States, which include deaf consumers of the Vocational Rehabilitation (VR) system. The need for interpreting services continues to exceed the available supply of qualified interpreters.

Interpreters must be qualified to work with both individuals with a range of linguistic competencies from a variety of cultural backgrounds and individuals with disabilities. For example, the first language of many deaf individuals is either spoken English or a foreign spoken language, and their second language is ASL. This is, in part, a result of advances in medical treatments, such as an increase in the early detection and intervention of hearing loss in newborns and an increase in the use of cochlear implants. In addition, deaf individuals who have co-occurring disabilities (including co-occurring disabilities that affect speech and language skills, upper extremity motor coordination, and cognition) likely require specialized supports to experience linguistic and communication access to the general environment. Further still, there are an increasing number of deaf individuals from minority and immigrant communities who have unique characteristics related to culture, language, family structure, income and socioeconomic background, and refugee experience, as well as complex and diverse communication needs (Cogen and Cokely). These shifts in how deaf individuals acquire and use language make the task of interpreting more difficult.

In addition, expanding requirements in video relay interpreting and video remote interpreting, the establishment of new “national” standards and credentials for interpreters to work in specific settings (e.g., interpreting in mental health and legal settings), and the development of State-specific licensure, certification, registration, or other requirements (e.g., background and criminal checks to work in certain facilities) all have put a strain on the availability of qualified interpreters.

Finally, interpreters need additional education, training, and experience in order to meet certification standards. For example, in July 2012, a precondition was added for candidates sitting for RID National Interpreter Certification Test requiring them to have, at a minimum, a baccalaureate degree in any field or major, or a demonstrated educational equivalency, before being permitted to take the examination.

In 2014, RID awarded 280 new credentials, and of those, 186 represented the NIC. RID reported an 87 percent pass rate for the knowledge exam but only a 26 percent pass rate for the performance exam. This problem is exacerbated by the length of time between graduating from an ASL-English Interpretation program and achieving national certification. On average, the length of time is 19-24 months (Cogen and Cokely, 2015). This could be longer if a candidate does not initially pass the NIC exam, due to a mandatory six-month waiting period before a candidate is eligible to retest.

Many graduates find work within six months to one year of graduation, but in most cases, these interpreting assignments are too complex and are therefore inappropriate for their skill levels. These situations provide little or no opportunities for support and professional growth. Additional education, training, and experience are needed for novice interpreters to bridge this graduation-to-credential gap and to gain sufficient skills to interpret effectively.

In sum, the pool of qualified interpreters is insufficient to meet the needs of deaf consumers in the United States. To address this problem, the Assistant Secretary proposes a priority to establish a model demonstration center to better prepare novice interpreters to become nationally certified sign language interpreters.

Interpreters must also be able to understand and communicate proficiently using technical vocabulary and highly specialized discourse in a variety of complex subject matters in both English and ASL. Training, even for experienced interpreters, in specialized settings is needed, and for this reason, we are publishing a notice of proposed priority focusing on interpreter training in specialized areas elsewhere in this issue of the Federal Register.

References:

Proposed Priority:

The purpose of this priority is to fund a cooperative agreement for the establishment of a model demonstration center (Center) to: (1) Develop an experiential learning program that could be implemented through baccalaureate degree ASL-English programs or through partner organizations, such as community-based organizations, advocacy organizations, or commissions for the Deaf or deaf-blind that work with baccalaureate degree ASL-English programs to provide work experiences and mentoring; (2) pilot the experiential learning program in three baccalaureate degree ASL-English programs or partner organizations and evaluate the results; and (3) disseminate practices that are promising or supported by evidence, examples, and lessons learned.

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

(a) Increase the number of certified interpreters.

(b) Reduce the average length of time it takes for novice interpreters to become nationally certified after graduating from baccalaureate degree ASL-English interpretation programs; and

(c) Increase the average number of hours that novice interpreters, through the experiential learning program, interact with and learn from the local deaf community.

To meet the requirements of this priority, the Center must, at a minimum, conduct the following activities:

(a) The applicant must establish a consortium of training and technical assistance (TA) providers or use an existing network of providers to design and implement a model experiential learning program. An eligible consortium must be comprised of a designated lead entity that operates a baccalaureate degree ASL-English interpretation program that is recognized and accredited by CCIE; and

(b) Members of the consortium must be staffed by or have access to experienced and certified interpreters, interpreter educators, and trained mentors with capability in providing feedback and guidance to novice interpreters, and in serving as language models; and who are geographically dispersed across the country, including the territories, or are able to provide training, TA, and mentoring remotely to broad sections of the country.

(a) In years one and two, design and implement an experiential learning program that is based upon promising and best practices or modules in the preparation of novice interpreters to become certified interpreters. The program design must, at a minimum:

(1) Ensure that all activities are offered at no-cost to participants during the program.

(2) Include a team comprised of native language users, qualified interpreters, and trained mentors to partner with novice interpreters during and after successful completion of the experiential learning program. Roles for team members must include but are not limited to:

(i) Native language users who will serve as language models;

(ii) Qualified interpreters who will act in an advisory role by observing, providing feedback, and discussing the novice interpreter's ability to accurately interpret spoken English into ASL and ASL into spoken English in a variety of situations for a range of consumers; and

(iii) Provide mentoring to novice interpreters, as needed. This may include one-on-one instruction to address specific areas identified by the advisor as needing further practice, as well as offering tools, resources, and guidance to novice interpreters to prepare them for potential challenges they may encounter as they grow and advance in the profession. One-on-one instruction may address, but is not limited to, meaning transfer (e.g., accurately providing an equivalent message and/or appropriately handling register), ethical behavior, meeting the consumer's linguistic preference, managing the flow of information (e.g., pace, density, turn-taking), and other related aspects of the interpreting task.

(3) Provide multiple learning opportunities, such as an internship with a community program, mentoring, and intensive site-specific work. Intensive site-specific work may task a novice interpreter, under close direction from the advisor interpreter, with providing interpreting services to deaf individuals employed at a work site, or to deaf students taking courses at college or enrolled in an apprenticeship program. Other learning modalities may be proposed and must include adequate justification.

(4) Emphasize innovative instructional delivery methods, such as distance learning or block scheduling (i.e., a type of academic scheduling that offers students fewer classes per day for longer periods of time) that would allow novice interpreters to more easily participate in the program (i.e., participants who need to work while in the program, have child care or elder care considerations, or live in geographically isolated areas);

(5) Provide experiential learning that engages novice interpreters with different learning styles;

(6) Provide interpreting experiences with a variety of deaf consumers who have different linguistic and communication needs and preferences, and are located in different settings, including VR settings (e.g., VR counseling, assessments, job-related services, training, pre-employment transition services, transition services, post-employment services, etc.), American Job Centers, and other relevant workforce partner locations;

(7) Require novice interpreters to observe, discuss, and reflect on the work of the advisor interpreter;

(8) Require novice interpreters to interpret in increasingly more complex and demanding situations. The advisor interpreter must provide written and oral feedback that includes strengths and areas of improvement, as well as a discussion with the novice interpreter about interpretation options, ethical behavior, and how best to meet the communication needs of a particular consumer; and

(b) Pilot the experiential learning program in a single site by year two and expand to additional sites beginning in year three. Applicants must:

(1) Identify at least three existing baccalaureate degree ASL-English interpretation programs to serve as the pilot sites. The baccalaureate programs must use a curriculum design that is based upon current best practices in the ASL-English Interpreter Education profession;

(2) Identify cohorts for each pilot site and provide a plan to ensure that at least one cohort is completed in each pilot site prior to the end of the project period. The cohorts must comprise graduates from baccalaureate degree ASL-English interpretation programs who are preparing for, or have not passed, the NIC knowledge and performance exams and who intend to work as interpreters. Applicants may determine the number of cohorts for each pilot site as well as the number of participants in each cohort;

(3) Establish additional criteria for selection in the program. This may include, but is not limited to, submission of an application, relevant assessments, interviews with prospective participants, and recommendations from faculty at baccalaureate degree ASL-English interpretation programs;

(c) Conduct a formative and summative evaluation. At a minimum, this must include:

(1) An assessment of participant outcomes from each cohort that includes, at a minimum, level of knowledge and practical skill levels using pre- and post-assessments; feedback from novice interpreters, from interpreter advisors, including written feedback from observed interpreting situations, from deaf consumers, from trained mentors, including written feedback from mentoring sessions, and from others, as appropriate;

(2) Clear and specific measureable outcomes that include, but are not limited to:

(i) Improvement in specific linguistic competencies, as identified by the applicant, in English and ASL;

(ii) Improvement in specific competencies, as identified by the applicant, in ASL-English interpretation;

(iii) Outcomes in achieving national certification; and

(iv) The length of time for novice interpreters to become nationally certified sign language interpreters after participating in this project compared to the national average of 19-24 months.

Conduct TA and dissemination activities that must include:

(a) Preparing and broadly disseminating TA materials related to practices that are promising or supported by evidence and successful strategies for working with novice interpreters;

(b) Establishing and maintaining a state-of-the-art information technology (IT) platform sufficient to support Webinars, teleconferences, video conferences, and other virtual methods of dissemination of information and TA.

(c) Developing and maintaining a state-of-the-art archiving and dissemination system that—

(1) Provides a central location for later use of TA products, including curricula, audiovisual materials, Webinars, examples of practices that are promising or supported by evidence, and any other relevant TA products; and

(2) Is open and available to the public.

(d) Provides a minimum of two Webinars or video conferences over the course of the project to describe and disseminate information to the field about results, challenges, solutions, and practices that are promising or supported by evidence.

(a) Establish an advisory committee. To effectively implement the Training Activities section of this priority, the applicant must establish an advisory committee that meets at least semi-annually. The advisory committee must include representation from all affected stakeholder groups (i.e., interpreters, interpreter training programs, deaf individuals, and VR agencies) and may include other relevant groups. The advisory committee will advise on the strategies for establishing sites to pilot the experiential learning program, the approaches to the experiential learning program, modifications to experiential learning activities, TA, sustainability planning, evaluating the effectiveness of the program, as well as other relevant areas as determined by the consortium.

(b) Establish one or more communities of practice 2 that focus on project activities in this priority and that act as vehicles for communication and exchange of information among participants in the experiential learning program, as well as other relevant stakeholders;

(c) Communicate, collaborate, and coordinate, on an ongoing basis, with other relevant Department-funded projects, as applicable; and

(d) Maintain ongoing communication with the RSA project officer and other RSA staff as required.

To be funded under this priority, applicants must meet the application requirements in this priority. RSA encourages innovative approaches to meet the following requirements:

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

(1) Demonstrate knowledge of English/ASL competencies that novice interpreters must possess in order to enter and to complete an experiential learning program and, at the end of the program, to successfully obtain national certification;

(2) Demonstrate knowledge of practices that are promising or supported by evidence in training novice interpreters; and

(3) Demonstrate knowledge of practices that are promising or supported by evidence in providing experiential learning.

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

(1) Ensure equal access and treatment for members of groups that have historically been underrepresented based on race, color, national origin, gender, age, or disability in accessing postsecondary education and training.

(2) Identify the needs of intended recipients of training; and

(3) Ensure that project activities and products meet the needs of the intended recipients by creating materials in formats and languages that are accessible;

(4) Achieve its goals, objectives, and intended outcomes. To meet this requirement, the applicant must identify and provide—

(i) Measurable intended project outcomes;

(ii) Evidence of an existing Memorandum of Understanding or a Letter of Intent between the Center and proposed training and TA providers to establish a consortium that includes a description of each proposed partner's anticipated commitment of financial or in-kind resources (if any), how each proposed provider's current and proposed activities align with those of the proposed project, how each proposed provider will be held accountable under the proposed structure, and evidence to demonstrate a working relationship between the applicant and its proposed partners and key stakeholders and other relevant groups; and

(iii) A plan for communicating, collaborating, and coordinating with an advisory committee; key staff in State VR agencies, such as State Coordinators for the Deaf; State and local partner programs; Registry of Interpreters for the Deaf, Inc.; RSA partners, such as the Council of State Administrators of Vocational Rehabilitation, the National Council of State Agencies for the Blind; and relevant programs within the Office of Special Education and Rehabilitative Services (OSERS).

(3) Use a conceptual framework to design experiential learning activities, describing any underlying concepts, assumptions, expectations, beliefs, or theories, as well as the presumed relationships or linkages among these variables and any empirical support for this framework.

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

(i) How the current research about adult learning principles and implementation science will inform the proposed TA; and

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

(5) Develop products and provide services that are of high quality and sufficient intensity and duration to achieve the intended outcomes of the proposed project. To address this requirement, the applicant must describe its proposed activities to identify or develop the knowledge base for practices that are promising or supported by evidence in experiential learning for novice interpreters;

(6) Develop products and implement services to maximize the project's efficiency. To address this requirement, the applicant must describe—

(i) How the proposed project will use technology to achieve the intended project outcomes; and

(ii) With whom the proposed project will collaborate and the intended outcomes of this collaboration.

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

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

(2) Measures of progress in implementation, including the extent to which the project's activities and products have reached their target populations; intended outcomes or results of the project's activities in order to evaluate those activities; and how well the goals and objectives of the proposed project, as described in its logic model,3 have been met;

(3) How the evaluation plan will be implemented and revised, as needed, during the project. The applicant must designate at least one individual with sufficient dedicated time, experience in evaluation, and knowledge of the project to support the design and implementation of the evaluation. Tasks may include, but are not limited to, coordinating with the advisory committee and RSA to revise the logic model to provide for a more comprehensive measurement of implementation and outcomes, to reflect any changes or clarifications to the logic model discussed at the kick-off meeting, and to revise the evaluation design and instrumentation proposed in the grant application consistent with the logic model (e.g., developing quantitative or qualitative data collections that permit both the collection of progress data and the assessment of project outcomes);

(4) The standards and targets for determining effectiveness;

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

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

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

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

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

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

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

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

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

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

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

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

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

(4) The proposed project will benefit from a diversity of perspectives, including the advisory committee, as well as other relevant groups in its development and operation.

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

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

(2) Include, in Appendix A, a Memorandum of Understanding or a Letter of Intent between the Center and the proposed training and TA providers;

(3) Include, in Appendix A, a conceptual framework for the project;

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

(5) Include, in the budget, attendance at the following:

(i) A one and one-half day kick-off meeting in Washington, DC, after receipt of the award;

(ii) An annual planning meeting in Washington, DC, with the RSA project officer and other relevant RSA staff during each subsequent year of the project period; and

(iii) A one-day intensive review meeting in Washington, DC, during the third quarter of the third year of the project period.

Types of Priorities:

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

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

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

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

Final priority: We will announce the final priority in a notice in the Federal Register. We will determine the final priority after considering responses to this notice and other information available to the Department. This notice does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.

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

These proposed priorities contain information collection requirements that are approved by OMB under the National Interpreter Education program 1820-0018; this proposed regulation does not affect the currently approved data collection.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Through this priority, experiential learning and TA will be provided to novice interpreters in order for them to achieve national certification. These activities will help interpreters to more effectively meet the communication needs of individuals who are deaf or hard of hearing and individuals who are Deaf-Blind. The training ultimately will improve the quality of VR services and the competitive integrated employment outcomes achieved by individuals with disabilities. This priority would promote the efficient and effective use of Federal funds.

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

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

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

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

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

Under sections 1008, 2002, 4004, and 4010 of the Resource Conservation and Recovery Act of 1976 (RCRA) as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA), 42 U.S.C. 6901 et seq., Congress required EPA to establish revised minimum federal criteria for MSWLFs, including landfill location restrictions, operating standards, design standards, and requirements for ground water monitoring, corrective action, closure and post-closure care, and financial assurance. Under RCRA section 4005, states are to develop permit programs for facilities that may receive household hazardous waste or waste from conditionally exempt small quantity generators of hazardous waste, and EPA is to determine whether the state's program is adequate to ensure that facilities will comply with the revised federal criteria.

The MSWLF criteria are in the Code of Federal Regulations at 40 CFR part 258. These regulations are prescriptive, self-implementing and apply directly to owners and operators of MSWLFs. Many of these criteria include a flexible performance standard as an alternative to the prescriptive, self-implementing regulation. The flexible standard is not self-implementing, and requires approval by the Director of an EPA-approved state MSWLF permitting program. However, EPA's approval of a state program generally does not extend to Indian Country because states generally do not have authority over Indian Country. For this reason, owners and operators of MSWLF units located in Indian Country cannot take advantage of the flexibilities available to those facilities that are within the jurisdiction of an EPA-approved state program. However, the EPA has the authority under sections 2002, 4004, and 4010 of RCRA to promulgate site-specific rules to enable such owners and operators to use the flexible standards. See Yankton Sioux Tribe v. EPA, 950 F. Supp. 1471 (D.S.D. 1996); Backcountry Against Dumps v. EPA, 100 F.3d 147 (D.C. Cir. 1996). EPA refers to such rules as “Site Specific Flexibility Determinations” and has developed draft guidance for owners and operators on preparing a request for such a site-specific rule, entitled “Site-Specific Flexibility Requests for Municipal Solid Waste Landfills in Indian Country Draft Guidance,” EPA530-R-97-016, August 1997) (Draft Guidance).

The Picacho Landfill is located on Quechan tribal lands on the Fort Yuma Indian Reservation approximately four miles north-northeast of the community of Winterhaven, in Imperial County, California. The Picacho Landfill is a commercial MSWLF operated by Imperial County from 1977 to the present. The landfill site is approximately 12.5 acres.

In January 2006, the Tribe requested that EPA provide comments on the County's closure plan. Between 2006 and 2011, EPA worked with the Tribe, the Bureau of Indian Affairs (BIA) and the County to develop and reach agreement on the closure plan and SSFRs. During this time, EPA also reviewed the SSFRs to determine whether they met technical and regulatory requirements. On October 27, 2010, Imperial County submitted its Picacho Final Closure/Post‐Closure Maintenance Plan. EPA provided a final round of comments on February 10, 2011, which Imperial County incorporated as an addendum. On April 30, 2012, the Tribe approved the Picacho Landfill Final Closure/Postclosure Maintenance Plan as amended, and, pursuant to EPA's Draft Guidance, the Tribe forwarded to EPA two SSFRs that had been submitted by Imperial County to close and monitor the Picacho Landfill. The requests seek EPA approval to use an alternative final cover meeting the performance requirements of 40 CFR 258.60(a), and to modify the prescribed list of detection-monitoring parameters provided in 40 CFR 258.54(a)(1) and (2) for ongoing monitoring.

EPA is basing its tentative determination to approve the site-specific flexibility request on the Tribe's approval, dated April 30, 2012, EPA's independent review of the Picacho Landfill Final Closure/Postclosure Maintenance Plan as amended, and the associated SSFRs.

The regulations require the installation of a final cover system specified in 40 CFR 258.60(a), which consists of an infiltration layer with a minimum of 18 inches of compacted clay with a permeability of 1 × 10− 5 cm/sec, covered by an erosion layer with a minimum six inches of topsoil. Imperial County seeks approval for an alternative final cover designed to satisfy the performance criteria specified in 40 CFR 258.60(b); Imperial County proposes to replace this with an alternative cover which would consist of two and a half feet of native soil to control infiltration covered by six inches of a soil gravel mixture to control erosion.

EPA is basing its tentative determination on a number of factors, including: (1) Research showing that prescriptive, self-implementing requirements for final covers, comprised of low permeability compacted clay, do not perform well in the arid west. The clay dries out and cracks, which allows increased infiltration along the cracks; (2) Research showing that in arid environments thick soil covers comprised of native soil can perform as well or better than the prescriptive cover; and (3) Imperial County's analysis demonstrates, based on site-specific climatic conditions and soil properties, that the proposed alternative soil final cover will achieve equivalent reduction in infiltration as the prescriptive cover design and that the proposed erosion layer provides equivalent protection from wind and water erosion. This analysis is provided in Appendix D and Appendix D-1 of the Picacho Landfill Final Closure/Postclosure Maintenance Plan dated October 27, 2010 and amended on February 20, 2011.

The regulations require post-closure monitoring of 15 heavy metals, listed in 40 CFR part 258, Appendix I. Imperial County, proposes to replace these, with the exception of arsenic, with the alternative inorganic indicator parameters chloride, nitrate as nitrogen, sulfate, and total dissolved solids.

EPA's tentative determination is based on the fact that the County has performed over 15 years of semi-annual groundwater monitoring at the site, and during that time arsenic was the only heavy metal detected at a value that slightly exceeded the federal maximum contaminant level (MCL), a standard used for drinking water.

In order to comply with the National Historic Preservation Act, 54 U.S.C. 100101 et seq., Imperial County Department of Public Works will coordinate with the Tribe to arrange for a qualified Native American monitor to be present during any work. If buried or previously unidentified resources are located during project activities, all work within the vicinity of the find will cease, and the provisions pursuant to 36 CFR 800.13(b) will be implemented. If, during the course of the Landfill closure activities, previously undocumented archaeological material or human remains are encountered, all work shall cease in the immediate area and a qualified archaeologist shall be retained to evaluate the significance of the find and recommend further management actions.

Though no known threatened or endangered species or their habitat exist on the site, in order to ensure compliance with the Endangered Species Act, 16 U.S.C. 1536 et seq., a preconstruction survey will be conducted prior to cover installation to ensure no threatened or endangered species are present. In particular, the survey will look for the presence of desert tortoises, which may occur in Imperial County. Should desert tortoises or other threatened or endangered species be encountered in the survey, or at any time during the closure of the Picacho Landfill, the County shall contact the USFWS to develop avoidance measures to ensure that impacts to the species are minimized. Following closure and vegetation restoration activities, the project site may become suitable for threatened and endangered species. This would be a beneficial effect.

Under Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), this rule is not of general applicability and therefore is not a regulatory action subject to review by the Office of Management and Budget (OMB).

This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) because it applies to a particular facility only.

Because this rule is of particular applicability relating to a particular facility, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), or to sections 202, 204, and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because this rule will affect only a particular facility, it will not significantly or uniquely affect small governments, as specified in section 203 of UMRA.

Because this rule will affect only a particular facility, this proposed rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, “Federalism,” (64 FR 43255, August 10, 1999). Thus, Executive Order 13132 does not apply to this rule.

This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. The basis for this belief is EPA's conservative analysis of the potential risks posed by SRPMIC's proposal and the controls and standards set forth in the application.

This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.

As required by section three of Executive Order 12988, “Civil Justice Reform,” (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments,” (65 FR 67249, November 9, 2000), calls for EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” See also “EPA Policy for the Administration of Environmental Programs on Indian Reservations,” (November 8, 1984) and “EPA Policy on Consultation and Coordination with Indian Tribes,” (May 4, 2011). EPA consulted with the Tribe throughout Imperial County's development of its closure and monitoring plans for the Picacho Landfill.

EPA specifically solicits any additional comment on this tentative determination from tribal officials of the Quechan Indian Tribe.

For the reasons stated in the preamble, 40 CFR part 258, Criteria for Municipal Solid Waste Landfills, is proposed to be amended as follows:

Table of Contents I. Background A. What are CERCLA and SARA? B. What is the NCP? C. What is the National Priorities List (NPL)? D. How are sites listed on the NPL? E. What happens to sites on the NPL? F. Does the NPL define the boundaries of sites? G. How are sites removed from the NPL? H. May the EPA delete portions of sites from the NPL as they are cleaned up? I. What is the Construction Completion List (CCL)? J. What is the Sitewide Ready for Anticipated Use measure? K. What is state/tribal correspondence concerning NPL listing? II. Public Review/Public Comment A. May I review the documents relevant to this proposed rule? B. How do I access the documents? C. What documents are available for public review at the EPA Headquarters docket? D. What documents are available for public review at the EPA regional dockets? E. How do I submit my comments? F. What happens to my comments? G. What should I consider when preparing my comments? H. May I submit comments after the public comment period is over? I. May I view public comments submitted by others? J. May I submit comments regarding sites not currently proposed to the NPL? III. Contents of This Proposed Rule A. Proposed Additions to the NPL B. Withdrawal of Site From Proposal to the NPL IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act (PRA) C. Regulatory Flexibility Act (RFA) D. Unfunded Mandates Reform Act (UMRA) E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act (NTTAA) J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations I. Background A. What are CERCLA and SARA?

In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601-9675 (“CERCLA” or “the Act”), in response to the dangers of uncontrolled releases or threatened releases of hazardous substances, and releases or substantial threats of releases into the environment of any pollutant or contaminant that may present an imminent or substantial danger to the public health or welfare. CERCLA was amended on October 17, 1986, by the Superfund Amendments and Reauthorization Act (“SARA”), Public Law 99-499, 100 Stat. 1613 et seq.

To implement CERCLA, the EPA promulgated the revised National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”), 40 CFR part 300, on July 16, 1982 (47 FR 31180), pursuant to CERCLA section 105 and Executive Order 12316 (46 FR 42237, August 20, 1981). The NCP sets guidelines and procedures for responding to releases and threatened releases of hazardous substances or releases or substantial threats of releases into the environment of any pollutant or contaminant that may present an imminent or substantial danger to the public health or welfare. The EPA has revised the NCP on several occasions. The most recent comprehensive revision was on March 8, 1990 (55 FR 8666).

As required under section 105(a)(8)(A) of CERCLA, the NCP also includes “criteria for determining priorities among releases or threatened releases throughout the United States for the purpose of taking remedial action and, to the extent practicable taking into account the potential urgency of such action, for the purpose of taking removal action.” “Removal” actions are defined broadly and include a wide range of actions taken to study, clean up, prevent or otherwise address releases and threatened releases of hazardous substances, pollutants or contaminants (42 U.S.C. 9601(23)).

The NPL is a list of national priorities among the known or threatened releases of hazardous substances, pollutants or contaminants throughout the United States. The list, which is appendix B of the NCP (40 CFR part 300), was required under section 105(a)(8)(B) of CERCLA, as amended. Section 105(a)(8)(B) defines the NPL as a list of “releases” and the highest priority “facilities” and requires that the NPL be revised at least annually. The NPL is intended primarily to guide the EPA in determining which sites warrant further investigation to assess the nature and extent of public health and environmental risks associated with a release of hazardous substances, pollutants or contaminants. The NPL is only of limited significance, however, as it does not assign liability to any party or to the owner of any specific property. Also, placing a site on the NPL does not mean that any remedial or removal action necessarily need be taken.

For purposes of listing, the NPL includes two sections, one of sites that are generally evaluated and cleaned up by the EPA (the “General Superfund section”), and one of sites that are owned or operated by other federal agencies (the “Federal Facilities section”). With respect to sites in the Federal Facilities section, these sites are generally being addressed by other federal agencies. Under Executive Order 12580 (52 FR 2923, January 29, 1987) and CERCLA section 120, each federal agency is responsible for carrying out most response actions at facilities under its own jurisdiction, custody or control, although the EPA is responsible for preparing a Hazard Ranking System (“HRS”) score and determining whether the facility is placed on the NPL.

There are three mechanisms for placing sites on the NPL for possible remedial action (see 40 CFR 300.425(c) of the NCP):

(1) A site may be included on the NPL if it scores sufficiently high on the HRS, which the EPA promulgated as appendix A of the NCP (40 CFR part 300). The HRS serves as a screening tool to evaluate the relative potential of uncontrolled hazardous substances, pollutants or contaminants to pose a threat to human health or the environment. On December 14, 1990 (55 FR 51532), the EPA promulgated revisions to the HRS partly in response to CERCLA section 105(c), added by SARA. The revised HRS evaluates four pathways: Ground water, surface water, soil exposure and air. As a matter of agency policy, those sites that score 28.50 or greater on the HRS are eligible for the NPL.

(2) Pursuant to 42 U.S.C. 9605(a)(8)(B), each state may designate a single site as its top priority to be listed on the NPL, without any HRS score. This provision of CERCLA requires that, to the extent practicable, the NPL include one facility designated by each state as the greatest danger to public health, welfare or the environment among known facilities in the state. This mechanism for listing is set out in the NCP at 40 CFR 300.425(c)(2).

(3) The third mechanism for listing, included in the NCP at 40 CFR 300.425(c)(3), allows certain sites to be listed without any HRS score, if all of the following conditions are met:

• The Agency for Toxic Substances and Disease Registry (ATSDR) of the U.S. Public Health Service has issued a health advisory that recommends dissociation of individuals from the release.

• The EPA determines that the release poses a significant threat to public health.

• The EPA anticipates that it will be more cost-effective to use its remedial authority than to use its removal authority to respond to the release.

The EPA promulgated an original NPL of 406 sites on September 8, 1983 (48 FR 40658) and generally has updated it at least annually.

A site may undergo remedial action financed by the Trust Fund established under CERCLA (commonly referred to as the “Superfund”) only after it is placed on the NPL, as provided in the NCP at 40 CFR 300.425(b)(1). (“Remedial actions” are those “consistent with permanent remedy, taken instead of or in addition to removal actions. * * *” 42 U.S.C. 9601(24).) However, under 40 CFR 300.425(b)(2) placing a site on the NPL “does not imply that monies will be expended.” The EPA may pursue other appropriate authorities to respond to the releases, including enforcement action under CERCLA and other laws.

The NPL does not describe releases in precise geographical terms; it would be neither feasible nor consistent with the limited purpose of the NPL (to identify releases that are priorities for further evaluation), for it to do so. Indeed, the precise nature and extent of the site are typically not known at the time of listing.

Although a CERCLA “facility” is broadly defined to include any area where a hazardous substance has “come to be located” (CERCLA section 101(9)), the listing process itself is not intended to define or reflect the boundaries of such facilities or releases. Of course, HRS data (if the HRS is used to list a site) upon which the NPL placement was based will, to some extent, describe the release(s) at issue. That is, the NPL site would include all releases evaluated as part of that HRS analysis.

When a site is listed, the approach generally used to describe the relevant release(s) is to delineate a geographical area (usually the area within an installation or plant boundaries) and identify the site by reference to that area. However, the NPL site is not necessarily coextensive with the boundaries of the installation or plant, and the boundaries of the installation or plant are not necessarily the “boundaries” of the site. Rather, the site consists of all contaminated areas within the area used to identify the site, as well as any other location where that contamination has come to be located, or from where that contamination came.

In other words, while geographic terms are often used to designate the site (e.g., the “Jones Co. Plant site”) in terms of the property owned by a particular party, the site, properly understood, is not limited to that property (e.g., it may extend beyond the property due to contaminant migration), and conversely may not occupy the full extent of the property (e.g., where there are uncontaminated parts of the identified property, they may not be, strictly speaking, part of the “site”). The “site” is thus neither equal to, nor confined by, the boundaries of any specific property that may give the site its name, and the name itself should not be read to imply that this site is coextensive with the entire area within the property boundary of the installation or plant. In addition, the site name is merely used to help identify the geographic location of the contamination, and is not meant to constitute any determination of liability at a site. For example, the name “Jones Co. Plant site,” does not imply that the Jones Company is responsible for the contamination located on the plant site.

The EPA regulations provide that the remedial investigation (“RI”) “is a process undertaken . . . to determine the nature and extent of the problem presented by the release” as more information is developed on site contamination, and which is generally performed in an interactive fashion with the feasibility Study (“FS”) (40 CFR 300.5). During the RI/FS process, the release may be found to be larger or smaller than was originally thought, as more is learned about the source(s) and the migration of the contamination. However, the HRS inquiry focuses on an evaluation of the threat posed and therefore the boundaries of the release need not be exactly defined. Moreover, it generally is impossible to discover the full extent of where the contamination “has come to be located” before all necessary studies and remedial work are completed at a site. Indeed, the known boundaries of the contamination can be expected to change over time. Thus, in most cases, it may be impossible to describe the boundaries of a release with absolute certainty.

Further, as noted previously, NPL listing does not assign liability to any party or to the owner of any specific property. Thus, if a party does not believe it is liable for releases on discrete parcels of property, it can submit supporting information to the agency at any time after it receives notice it is a potentially responsible party.

For these reasons, the NPL need not be amended as further research reveals more information about the location of the contamination or release.

The EPA may delete sites from the NPL where no further response is appropriate under Superfund, as explained in the NCP at 40 CFR 300.425(e). This section also provides that the EPA shall consult with states on proposed deletions and shall consider whether any of the following criteria have been met:

(i) Responsible parties or other persons have implemented all appropriate response actions required;

(ii) All appropriate Superfund-financed response has been implemented and no further response action is required; or

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

In November 1995, the EPA initiated a policy to delete portions of NPL sites where cleanup is complete (60 FR 55465, November 1, 1995). Total site cleanup may take many years, while portions of the site may have been cleaned up and made available for productive use.

The EPA also has developed an NPL Construction Completion List (“CCL”) to simplify its system of categorizing sites and to better communicate the successful completion of cleanup activities (58 FR 12142, March 2, 1993). Inclusion of a site on the CCL has no legal significance.

Sites qualify for the CCL when: (1) Any necessary physical construction is complete, whether or not final cleanup levels or other requirements have been achieved; (2) the EPA has determined that the response action should be limited to measures that do not involve construction (e.g., institutional controls); or (3) the site qualifies for deletion from the NPL. For the most up-to-date information on the CCL, see the EPA's Internet site at https://www.epa.gov/superfund/about-superfund-cleanup-process#tab-6.

The Sitewide Ready for Anticipated Use measure (formerly called Sitewide Ready-for-Reuse) represents important Superfund accomplishments and the measure reflects the high priority the EPA places on considering anticipated future land use as part of the remedy selection process. See Guidance for Implementing the Sitewide Ready-for-Reuse Measure, May 24, 2006, OSWER 9365.0-36. This measure applies to final and deleted sites where construction is complete, all cleanup goals have been achieved, and all institutional or other controls are in place. The EPA has been successful on many occasions in carrying out remedial actions that ensure protectiveness of human health and the environment for current and future land uses, in a manner that allows contaminated properties to be restored to environmental and economic vitality. For further information, please go to https://www.epa.gov/superfund/about-superfund-cleanup-process#tab-9.

In order to maintain close coordination with states and tribes in the NPL listing decision process, the EPA's policy is to determine the position of the states and tribes regarding sites that the EPA is considering for listing. This consultation process is outlined in two memoranda that can be found at the following Web site: https://www.epa.gov/superfund/statetribal-correspondence-concerning-npl-site-listing.

The EPA is improving the transparency of the process by which state and tribal input is solicited. The EPA is using the Web and where appropriate more structured state and tribal correspondence that (1) explains the concerns at the site and the EPA's rationale for proceeding; (2) requests an explanation of how the state intends to address the site if placement on the NPL is not favored; and (3) emphasizes the transparent nature of the process by informing states that information on their responses will be publicly available.

A model letter and correspondence from this point forward between the EPA and states and tribes where applicable, is available on the EPA's Web site at https://www.epa.gov/superfund/statetribal-correspondence-concerning-npl-site-listing.

Yes, documents that form the basis for the EPA's evaluation and scoring of the sites in this proposed rule are contained in public dockets located both at the EPA Headquarters in Washington, DC, and in the regional offices. These documents are also available by electronic access at http://www.regulations.gov (see instructions in the ADDRESSES section above).

You may view the documents, by appointment only, in the Headquarters or the regional dockets after the publication of this proposed rule. The hours of operation for the Headquarters docket are from 8:30 a.m. to 4:30 p.m., Monday through Friday excluding federal holidays. Please contact the regional dockets for hours.

The following is the contact information for the EPA Headquarters Docket: Docket Coordinator, Headquarters, U.S. Environmental Protection Agency, CERCLA Docket Office, 1301 Constitution Avenue NW., William Jefferson Clinton Building West, Room 3334, Washington, DC 20004; 202/566-0276. (Please note this is a visiting address only. Mail comments to the EPA Headquarters as detailed at the beginning of this preamble.)

The contact information for the regional dockets is as follows:

• Holly Inglis, Region 1 (CT, ME, MA, NH, RI, VT), U.S. EPA, Superfund Records and Information Center, 5 Post Office Square, Suite 100, Boston, MA 02109-3912; 617/918-1413.

• Ildefonso Acosta, Region 2 (NJ, NY, PR, VI), U.S. EPA, 290 Broadway, New York, NY 10007-1866; 212/637-4344.

• Lorie Baker (ASRC), Region 3 (DE, DC, MD, PA, VA, WV), U.S. EPA, Library, 1650 Arch Street, Mailcode 3HS12, Philadelphia, PA 19103; 215/814-3355.

• Jennifer Wendel, Region 4 (AL, FL, GA, KY, MS, NC, SC, TN), U.S. EPA, 61 Forsyth Street, SW., Mailcode 9T25, Atlanta, GA 30303; 404/562-8799.

• Todd Quesada, Region 5 (IL, IN, MI, MN, OH, WI), U.S. EPA Superfund Division Librarian/SFD Records Manager SRC-7J, Metcalfe Federal Building, 77 West Jackson Boulevard, Chicago, IL 60604; 312/886-4465.

• Brenda Cook, Region 6 (AR, LA, NM, OK, TX), U.S. EPA, 1445 Ross Avenue, Suite 1200, Mailcode 6SFTS, Dallas, TX 75202-2733; 214/665-7436.

• Preston Law, Region 7 (IA, KS, MO, NE), U.S. EPA, 11201 Renner Blvd., Mailcode SUPRERNB, Lenexa, KS 66219; 913/551-7097.

• Sabrina Forrest, Region 8 (CO, MT, ND, SD, UT, WY), U.S. EPA, 1595 Wynkoop Street, Mailcode 8EPR-B, Denver, CO 80202-1129; 303/312-6484.

• Sharon Murray, Region 9 (AZ, CA, HI, NV, AS, GU, MP), U.S. EPA, 75 Hawthorne Street, Mailcode SFD 6-1, San Francisco, CA 94105; 415/947-4250.

• Ken Marcy, Region 10 (AK, ID, OR, WA), U.S. EPA, 1200 6th Avenue, Mailcode ECL-112, Seattle, WA 98101; 206/463-1349.

You may also request copies from the EPA Headquarters or the regional dockets. An informal request, rather than a formal written request under the Freedom of Information Act, should be the ordinary procedure for obtaining copies of any of these documents. Please note that due to the difficulty of reproducing oversized maps, oversized maps may be viewed only in-person; since the EPA dockets are not equipped to both copy and mail out such maps or scan them and send them out electronically.

You may use the docket at http://www.regulations.gov to access documents in the Headquarters docket (see instructions included in the ADDRESSES section). Please note that there are differences between the Headquarters docket and the regional dockets and those differences are outlined in this preamble, Sections II.C and D.

The Headquarters docket for this proposed rule contains the following for the sites proposed in this rule: HRS score sheets; documentation records describing the information used to compute the score; information for any sites affected by particular statutory requirements or the EPA listing policies; and a list of documents referenced in the documentation record.

The regional dockets for this proposed rule contain all of the information in the Headquarters docket plus the actual reference documents containing the data principally relied upon and cited by the EPA in calculating or evaluating the HRS score for the sites. These reference documents are available only in the regional dockets.

Comments must be submitted to the EPA Headquarters as detailed at the beginning of this preamble in the ADDRESSES section. Please note that the mailing addresses differ according to method of delivery. There are two different addresses that depend on whether comments are sent by express mail or by postal mail.

The EPA considers all comments received during the comment period. Significant comments are typically addressed in a support document that the EPA will publish concurrently with the Federal Register document if, and when, the site is listed on the NPL.

Comments that include complex or voluminous reports, or materials prepared for purposes other than HRS scoring, should point out the specific information that the EPA should consider and how it affects individual HRS factor values or other listing criteria (Northside Sanitary Landfill v. Thomas, 849 F.2d 1516 (D.C. Cir. 1988)). The EPA will not address voluminous comments that are not referenced to the HRS or other listing criteria. The EPA will not address comments unless they indicate which component of the HRS documentation record or what particular point in the EPA's stated eligibility criteria is at issue.

Generally, the EPA will not respond to late comments. The EPA can guarantee only that it will consider those comments postmarked by the close of the formal comment period. The EPA has a policy of generally not delaying a final listing decision solely to accommodate consideration of late comments.

During the comment period, comments are placed in the Headquarters docket and are available to the public on an “as received” basis. A complete set of comments will be available for viewing in the regional dockets approximately one week after the formal comment period closes.

All public comments, whether submitted electronically or in paper form, will be made available for public viewing in the electronic public docket at http://www.regulations.gov as the EPA receives them and without change, unless the comment contains copyrighted material, confidential business information (CBI) or other information whose disclosure is restricted by statute. Once in the public dockets system, select “search,” then key in the appropriate docket ID number.

In certain instances, interested parties have written to the EPA concerning sites that were not at that time proposed to the NPL. If those sites are later proposed to the NPL, parties should review their earlier concerns and, if still appropriate, resubmit those concerns for consideration during the formal comment period. Site-specific correspondence received prior to the period of formal proposal and comment will not generally be included in the docket.

In this proposed rule, the EPA is proposing to add eight sites to the NPL, all to the General Superfund section. All of the sites in this proposed rulemaking are being proposed based on HRS scores of 28.50 or above.

The sites are presented in the table below.

The EPA is withdrawing its previous proposal to add the Rickenbacker Air National Guard Base site in Lockbourne, Ohio to the NPL because all appropriate cleanup actions have been taken at the site in accordance with its reuse as an airport. The U.S. Air Force will continue to provide funding to the Ohio Environmental Protection Agency under its Defense-State Memorandum of Agreement (DSMOA) to provide cleanup oversight and stewardship of institutional controls in accordance with state law. The proposed rule can be found at 59 FR 2568 (January 18, 1994). Refer to the Docket ID Number EPA-HQ-SFUND-1994-0002 for supporting documentation regarding this action.

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

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

This action does not impose an information collection burden under the PRA. This rule does not contain any information collection requirements that require approval of the OMB.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This rule listing sites on the NPL does not impose any obligations on any group, including small entities. This rule also does not establish standards or requirements that any small entity must meet, and imposes no direct costs on any small entity. Whether an entity, small or otherwise, is liable for response costs for a release of hazardous substances depends on whether that entity is liable under CERCLA 107(a). Any such liability exists regardless of whether the site is listed on the NPL through this rulemaking.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local or tribal governments or the private sector. Listing a site on the NPL does not itself impose any costs. Listing does not mean that the EPA necessarily will undertake remedial action. Nor does listing require any action by a private party, state, local or tribal governments or determine liability for response costs. Costs that arise out of site responses result from future site-specific decisions regarding what actions to take, not directly from the act of placing a site on the NPL.

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

This action does not have tribal implications as specified in Executive Order 13175. Listing a site on the NPL does not impose any costs on a tribe or require a tribe to take remedial action. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because this action itself is procedural in nature (adds sites to a list) and does not, in and of itself, provide protection from environmental health and safety risks. Separate future regulatory actions are required for mitigation of environmental health and safety risks.

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

This rulemaking does not involve technical standards.

The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations because it does not affect the level of protection provided to human health or the environment. As discussed in Section I.C. of the preamble to this action, the NPL is a list of national priorities. The NPL is intended primarily to guide the EPA in determining which sites warrant further investigation to assess the nature and extent of public health and environmental risks associated with a release of hazardous substances, pollutants or contaminants. The NPL is of only limited significance as it does not assign liability to any party. Also, placing a site on the NPL does not mean that any remedial or removal action necessarily need be taken.

Contents I. Background II. Statutory Authority III. Public Participation IV. Consultation and Regulation Development V. Section-by-Section Discussion of the SNPRM VI. Regulatory Impact Analysis VII. Tribal Consultation Statement I. Background Adoption and Foster Care Automated Reporting System (AFCARS)

Section 479 of the Social Security Act (the Act) requires that ACF regulate a national data collection system that provides comprehensive demographic and case-specific information on all children who are in foster care or adopted with title IV-E agency involvement (42 U.S.C. 679). Historically, the broad underlying legislative directive has always been the establishment and administration of a system for “the collection of data with respect to adoption and foster care in the United States.” Such data collection system is the Adoption and Foster Care Automated Reporting System (AFCARS).

The AFCARS statute with regard to data collection systems requires the following: (1) The data collection system developed and implemented shall avoid unnecessary diversion of resources from adoption and foster care agencies; (2) the data collection system shall assure that any data that is collected is reliable and consistent over time and among jurisdictions through the use of uniform definitions and methodologies; (3) the data collection system shall provide: Comprehensive national information with respect to the demographic characteristics of adoptive and foster children and their biological and adoptive foster parents; the status of the foster care population, the number and characteristics of children place in and removed from foster care; children adopted or for whom adoptions have been terminated; children placed in foster care outside the state which has placement and care responsibility; the extent and nature of assistance provided by federal, state, and local adoption and foster care programs; the characteristics of the children with respect to whom such assistance is provided; and the annual number of children in foster care who are identified as sex trafficking victims including those who were victims before entering foster care; and those who were victims while in foster care; and (4) the data collection system will utilize appropriate requirements and incentives to ensure that the system functions reliably throughout the United States.

ACF issued the AFCARS NPRM (80 FR 7132, hereafter referred to as the February 2015 AFCARS NPRM) to amend the AFCARS regulations at 45 CFR 1355.40 and the appendices to part 1355. In it, ACF proposed to modify the requirements for title IV-E agencies to collect and report data to ACF on children in out-of-home care and who were adopted or in a legal guardianship with a title IV-E subsidized adoption or guardianship agreement. At the time the February 2015 AFCARS NPRM was issued, ACF concluded that it did not have enforcement authority regarding ICWA and, therefore, was not able to make the requested changes or additions to the AFCARS data elements regarding ICWA.

However, in the time since publication of the February 2015 AFCARS NPRM, ACF legal counsel re-examined the issue and determined it is within ACF's existing authority to collect state-level ICWA-related data on American Indian and Alaska Native (AI/AN) children in child welfare systems pursuant to section 479 of the Social Security Act. Such determination was informed by comments received on the February 2015 AFCARS NPRM as well as an extensive re-evaluation of the scope of ACF's statutory and regulatory authority.

In 1970, President Nixon declared that termination, the then-current federal policy to terminate Indian tribal governments, sell tribal land, and move AI/AN peoples from ancestral lands to assimilate them into `American' society, was wrong and should be replaced by Indian self-determination which recognized the inherent retained right of Indian nations to govern themselves. From that time, the federal government began implementing new policies of Indian self-determination under which tribal sovereignty and self-governance were fostered, allowing tribes to operate programs once solely administered by the federal government. It also increased federal support and benefits available to tribes to strengthen capacity and self-sufficiency.

Against this backdrop, the Indian Child Welfare Act (ICWA) was enacted in 1978 to address concerns over the consequences to Indian children, Indian families, and Indian tribes of child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes. See 25 U.S.C. 1901 et seq. ICWA has been characterized as embodying the “gold standard” for child welfare policy and practice in the United States and establishes minimum federal jurisdictional, procedural, and substantive standards intended to achieve the purposes of protecting the rights of Indian children to live with their families, to stabilize and foster continued tribal existence, and to facilitate permanency for children, families, and tribes.

However, ACF has never collected ICWA-related data. Using the data elements proposed in the SNPRM, ACF proposes to collect ICWA-related data on AI/AN children in child welfare systems for several uses in the public interest including: To assess the current state of foster care and adoption of Indian children under the Act, to develop future national policies concerning ACF programs that affect Indian children under the Act, and to meet federal trust obligations under established federal policies.

ICWA was enacted by Congress in response to alarming numbers of AI/AN children being removed from their families by public and private child welfare agencies, most often being placed in non-Indian homes far from their tribal communities. Congress found that, “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children.” (25 U.S.C. 1901 (3)) Accordingly, through ICWA, Congress declared the policy of the United States is to protect the best interests of Indian children, to promote the stability and security of Indian tribes and families by establishing minimum Federal standards for the removal of Indian children from their families, and to place such children in foster or adoptive homes that reflect the unique values of Indian cultures. Finally, Congress calls for providing assistance to Indian tribes in the operation of child and family service programs. (25 U.S.C. 1902) ICWA was enacted to protect American Indian families and to give tribes a role in making child welfare decisions for AI/AN children. AI/AN children are subject to ICWA when they are unmarried persons under the age of 18 and are either (a) a member of an Indian tribe or (b) are eligible for membership in an Indian tribe and are the biological child of a member of an Indian tribe. ICWA expressly requires, among other things, that: (1) A tribe is notified when the state places an “Indian child” in foster care or seeks to terminate parental rights on behalf of such a child, (2) a tribe is given an opportunity to intervene in any state proceeding for foster care placement and termination of parental rights to a child subject to ICWA, and (3) that a preference be given to placing the Indian child with extended family or tribal families.

AFCARS is designed to collect uniform, reliable information from title IV-B and title IV-E agencies on children who are under the agencies' responsibility for placement, care, or supervision. AFCARS was established to provide data that would assist in policy development and program management. Although ICWA was passed more than 30 years ago, it is unclear how well state agencies and courts have implemented ICWA's requirements into practice. Even in states with large AI/AN populations, there may be confusion regarding how and when to apply the law, including providing notice to tribes and making active efforts to prevent removal and reunite children with their Indian families as required under ICWA. This is further complicated by the fact that there is no comprehensive national data on the status of AI/AN children for whom ICWA applies at any stage in the adoption or foster care system. AFCARS data can bridge this gap.

Additional AFCARS data elements are proposed to enhance the type and quality of information title IV-E agencies report to ACF. ACF's proposals, embodied in this SNPRM, are motivated by the Administration's vision of healthy, resilient, and thriving Indian children and families as well as the continued vitality and integrity of Indian tribes. More specifically, the proposals reflected in this SNPRM manifest Department-wide priorities to affirmatively protect the best interests of Indian children and to promote the stability and security of Indian tribes, families, and children.

ACF proposes to collect data elements in AFCARS related to ICWA's statutory standards for removal, foster care placement, and adoption proceedings. More specifically, through this SNPRM, ACF will improve the AFCARS data collection system to provide more comprehensive demographic and case-specific information on all children, including children subject to ICWA, who are in foster care or adopted with title IV-E agency involvement. Additionally, ACF intends to use the data to:

1. Address the unique needs of AI/AN children in foster care or adoption, and their families.

In 2005, the Government Accountability Office (GAO) issued a report titled “Indian Child Welfare Act: Existing Information on Implementation Issues Could Be Used to Target Guidance and Assistance to States” (GAO-05-290). In addition to noting that no national data on children subject to ICWA was available, GAO asserts that the extent to which states and tribes work together to implement ICWA and title IV-E/IV-B requirements affects outcomes for Indian children in state foster care systems. The report also discusses how the Adoption and Safe Families Act (Pub. L. 105-89) influences placement decisions and outcomes for Indian children, noting the following: “Decisions regarding the placement of children subject to ICWA as they enter and leave foster care can be influenced by how long it takes to determine whether a child is subject to the law, the availability of American Indian foster and adoptive homes, and the level of cooperation between states and tribes. According to several child welfare officials, these factors, which are unique to American Indian children, can play an important role in placement decisions, including the characteristics of the foster home in which the child will be placed, the number of placements a child will have, and the duration of the stay.” (GAO-05-290, p.3). The proposed ICWA data will help address the unique needs of Indian children in foster care or adoption and their families by clarifying how the ICWA requirements and how title IV-E/IV-B requirements affect placement of Indian children.

2. Assess the current state of adoption and foster care programs and relevant trends that affect AI/AN families.

American Indian and Alaska Native children are over-represented in child welfare systems at higher rates than any other racial or ethnic group. In 2013, American Indian children were over-represented among children in foster care by a factor of 2.4, compared to their proportion of the population. From 2000 to 2013, the degree of over-representation of AI/AN children substantially increased from 1.5 to 2.4, and the degree of disproportionality varies widely by state (National Council of Juvenile and Family Court Judges, 2015). At this time, there is very limited data available to help understand the reasons for the varying degrees of disproportionality. Proposed ICWA-related AFCARS data elements will shed light on the relationship between implementing ICWA requirements and outcomes for AI/AN children. In addition, the proposed data elements will provide additional information to help identify the real or perceived barriers encountered by states in identifying AI/AN children in their child welfare systems. Finally, proposed ICWA-related AFCARS data elements will provide currently unavailable information that will help to assess the extent to which the fidelity of ICWA implementation influences permanent placements for Indian children and the length of stay in out-of-home care. The proposed ICWA data will also help to inform efforts to compare program practices, processes, or outcomes between states and over the course of time, which would allow the Children's Bureau to identify trends and highlight and build upon strengths and best practices.

3. Improve training and technical assistance to help states comply with title IV-E, and title IV-B of the Social Security Act.

Through the Children's Bureau, ACF provides state title IV-E agencies with technical assistance to help agencies implement federal requirements and improve their child welfare programs (as authorized by section 435 and 476 of the Social Security Act). Between federal fiscal year (FFY) 2010 and FFY 2014, ACF received 31 requests for tailored consultation from state agencies and title IV-B tribes (separately or in collaboration) for assistance with examining or supporting ICWA implementation. In response to these requests, ACF-supported technical assistance providers delivered more than 3,700 hours of direct, tailored consultation to state agencies and tribes related to ICWA.

In FFY 2015, 24 state title IV-E agencies participated in discussions with ACF and its technical assistance providers about their potential areas of need for capacity building and improvement. One third of these agencies identified themselves as having ICWA implementation related needs for technical assistance. Data related to ICWA will assist ACF to improve training content, target subject areas, and identify geographies in which training will be helpful.

4. Develop future national policies concerning its programs.

Additional proposed ICWA-related data will allow ACF and the Children's Bureau to more effectively plan, coordinate, and lead AI/AN programming across ACF operations, with other Departments such as the Bureau of Indian Affairs (BIA) in the Department of the Interior, the Department of Justice (DOJ), and throughout the federal government. By collecting additional data, the federal government will also have a more complete understanding of how state agencies interact with Indian children and families as well as how many children subject to ICWA come to the attention of state child welfare agencies nationwide. This additional data will help align performance measures, build an evidence base that informs policy and practice, and better ensure that federal funds are being directed in a way that delivers significantly better results for AI/AN families. This critical role aligns with the research, evaluation, and technical assistance responsibilities of the Children's Bureau.

5. Inform and expand partnerships across federal agencies that invest in Indian families and that promote resilient, thriving tribal communities through several initiatives.

AFCARS data on the wellbeing of AI/AN children will help multiple federal agencies identify needs and gaps, expand best practices, and shape new policy and technical assistance. Several of the current interagency initiatives that will benefit include:

• Generation Indigenous. On December 3, 2014, President Obama launched Generation Indigenous (Gen-I), “an initiative that takes a comprehensive, culturally appropriate approach to help improve the lives of, and opportunities for, Native youth.” On July 9, 2015, the Executive Office of the President, Office of Management and Budget, issued Executive Memo M-15-17 identifying Native youth budget priorities including “services that keep families together. These could be family assistance services, home improvement programs, alternatives to incarceration, and employment support services. Agencies should focus on programs that support the capacity building and programmatic support necessary to implement ICWA.”

• The Department of Justice Defending Childhood Initiative and the Task Force on American Indian and Alaska Native Children Exposed to Violence. The Task Force report recommended that ACF, BIA, DOJ, and tribes develop a modernized unified data-collection system designed to collect ICWA-related AFCARS data on all AI/AN children who are placed into foster care by their agency.

• HHS Secretary's Tribal Advisory Committee (STAC). In 2014, the STAC specifically identified improved federal data collection on ICWA as a priority need. In early 2015, the STAC identified AFCARS as a vehicle for ICWA data elements. The STAC expressed their view that ACF has a critical role in collecting important data, promoting effective tribal/state collaborations, increasing state capacity to comply with ICWA, and reversing the inequities and disproportionate representation and poor outcomes for children that can occur when ICWA is not followed. In order to assist the Administration in implementing ICWA and protecting AI/AN children and families, the STAC requested enhanced “collection of data elements related to key ICWA requirements in individual ICWA cases and greater oversight of the title IV-B requirement for states to consult with tribes on measures to comply with ICWA (STAC follow-up letter to the Secretary, June, 30, 2015, pp 9-10).” http://www.hhs.gov/about/agencies/iea/tribal-affairs/about-stac/index.html#.

• Interagency ICWA Working Group Projects, including the Bureau of Indian Affairs initiative to update state guidance on ICWA and promulgate ICWA regulations. The BIA Bureau of Indian Affairs updated the Guidelines for State Courts and Agencies in Indian Child Custody Proceedings (80 FR 10146, issued February 25, 2015, hereafter referred to as the Guidelines) and has issued proposed regulations for State Courts and Agencies in Indian Child Custody Proceedings (proposed at 80 FR 14880, issued March 20, 2015) to help ensure Indian children are not removed from their communities, cultures, and extended families in conflict with ICWA's express mandates.

Consistent with the Administration's focus on Indian children, the Department of the Interior, DOJ, and HHS engaged in extensive interagency collaboration to promote compliance with ICWA and agreed to continue to collaborate. This work involved collaborating on ICWA-related regulations, including the BIA regulations and this SNPRM.

6. Implement Tribal sovereignty principles and Federal trust responsibilities.

Improving AFCARS to inform ACF and other federal agencies is consistent with ACF's implementation of government-to-government principles of engagement with AI/AN tribes and respect for our trust responsibilities. ACF's understanding of fundamental principles of tribal sovereignty is reflected in both the Department's and ACF's Tribal Consultation Policies which state:

These principles are also reflected in ICWA through Congressional recognition of “the special relationship between the United States and the Indian tribes and their members and the Federal responsibility to Indian people.” (25 U.S.C. 1901)

ACF announced its intent to publish a SNPRM in a Federal Register document issued on April 2, 2015 (80 FR 17713). Section 479 of the Social Security Act contains some express limits on the authority of ACF to collect data including: Data collected under AFCARS must avoid an unnecessary diversion of resources from agencies responsible for adoption and foster care (section 479(c)(1) of the Act) and must assure that any data that is collected is reliable and consistent over time and among jurisdictions through the use of uniform definitions and methodologies (section 479(c)(2) of the Act). With respect to the requirement in section 479(c)(1) of the Act, ACF tailored the proposed data elements to collect only the most essential information regarding Indian children in foster care and children who have been adopted with state title IV-E agency involvement. Most data elements will only be required for children who are determined to be Indian children as defined in ICWA. Furthermore, the statutory authority under section 479 of the Act is limited to data with respect to adoption and foster care. ACF is not proposing to require tribal title IV-E agencies to collect and report ICWA-related data elements in proposed paragraph (i) because ICWA does not apply to placements by Indian tribes. The data elements in § 1355.43(i) are subject to the same compliance and penalty requirements in §§ 1355.45 and 1355.46, respectively, proposed in the February 2015 AFCARS NPRM (80 FR 7187-7192 and 7220-7221).

Sections 479 and 474(f) of the Act provide HHS the authority to require that title IV-E agencies maintain a data collection system which provides comprehensive national information related to adopted and foster children and requires that the Secretary of Health and Human Services regulate a national data collection system to provide comprehensive case level information and impose penalties for failure to submit AFCARS data under certain circumstances. Section 1102 of the Act instructs the Secretary to promulgate regulations necessary for the effective administration of the functions for which she is responsible under the Act.

ACF invites the public to comment on all aspects of the ICWA-related data elements proposed in this SNPRM. In addition, ACF specifically invites comment on which, if any, of the proposed data elements the state title IV-E agencies currently collect. ACF will review and consider all comments that are germane and received during the comment period on this SNPRM as well as those previously submitted in response to the February 2015 AFCARS NPRM, and issue one final rule on AFCARS.

To inform the development of the ICWA-related data elements proposed in this SNPRM, ACF reviewed public comments received in response to the February 2015 AFCARS NPRM, held tribal and state consultation and listening sessions, and consulted with federal agency experts, as outlined below.

1. Consideration of comments on the February 2015 AFCARS NPRM that addresses ICWA-related data elements.

ACF received approximately 45 comments that proposed/recommended including new data elements in AFCARS related to ICWA. Twenty-five of the commenters were tribes or tribal organizations, four were state child welfare departments, and the remaining were public interest organizations, academics/universities, and individuals. Of the 45 comments, 18 commenters submitted the same or similar form letter that recommended additional data elements providing information about the applicability of ICWA for children in out-of-home care and proposed revisions to the data elements proposed in the February 2015 AFCARS NPRM to capture ICWA-related data. The commenters recommended approximately 62 new or revised data elements that addressed the following: Identification of Indian children and their family structure; tribal notification and intervention in state court proceedings; the relationship of the foster parents and other providers to the Indian child; decisions to place an Indian child in out-of-home care (including data on active efforts and continued custody); whether a placement was licensed by an Indian tribe; whether the placement preferences in ICWA were followed and both the voluntary and involuntary termination of parental rights. ACF did not receive specific suggestions from the four state child welfare agencies on which ICWA-related data elements to include in AFCARS.

2. Tribal consultation session.

The Children's Bureau held a tribal consultation via conference call on May 1, 2015, that was co-facilitated by the Children's Bureau's (CB) Associate Commissioner and the Chairperson of the ACF Tribal Advisory Committee, who also serves as the Vice Chair of the Jamestown S'Klallam Tribal Council. The CB conducted the session to obtain input from tribal leaders on proposed AFCARS data elements related to ICWA. Comments were solicited during the call to determine essential data elements that title IV-E agencies should report to AFCARS including, but not limited to: Whether the requirements of ICWA were applied to a child; notice for child welfare proceedings; active efforts to prevent removal or to reunify the Indian child with the child's biological or adoptive parents or Indian custodian; placement preferences under ICWA; and terminations of parental rights for an Indian child. Tribal representatives did not provide specific suggestions on the call but noted during the call that they would provide formal comments on the SNPRM when it was issued.

3. Solicited input from members of the National Association of Public Child Welfare Administrators (NAPCWA).

The NAPCWA, an affiliate of the American Public Human Services Association (APHSA) hosted a conference call with state members of NAPCWA (i.e., representatives of state child welfare agencies) and the Children's Bureau on April 27, 2015. The purpose of the call was to obtain input from state members on what data state title IV-E agencies currently collect regarding ICWA and what they believed were the most important information title IV-E agencies should report in AFCARS related to ICWA. Representatives from 13 states participated in the conference call and stated that some of their states currently collect information in their information system related to Indian children, such as tribal membership, tribal notification, and tribal enrollment status. They noted that some of the information with regard to ICWA, such as placement preferences and active efforts, are contained in case files, case notes, or other narratives, and not currently captured within their information systems, and noted issues with extraction of such data for AFCARS reporting. They also indicated that their information systems would need to be changed and upgraded to report ICWA-related data in AFCARS and that new processes would need to be developed to collect and extract the requested information. They noted that they would need to train workers to accurately collect the data. They indicated that additional funding is necessary for costs associated with data collection. Participating state representatives also expressed concern about adding data elements that would require information from state courts, unlike other AFCARS data elements which are available within the title IV-E agency's information system. Given that state title IV-E agencies and courts do not typically exchange data, workers may need to gather and enter state court information manually.

4. Input from federal agency experts regarding ICWA.

In December 2014, at the White House Tribal Nations conference, Attorney General Holder announced an initiative to promote compliance with ICWA. This initiative included partnering with the Departments of Health and Human Services and the Interior to ensure all tools available to the federal government are used to promote compliance with ICWA. Federal Departments have a strong interest in collecting data elements related to ICWA. To further interagency collaboration in this area, DOI, DOJ, and HHS have engaged in extensive discussions focused on ICWA, including the sharing of agencies' expertise for the development of ICWA-related regulations, including AFCARS.

As part of on-going intra- and inter-agency collaboration, ACF consulted with federal experts on what data exists, or not, and its utility in understanding the well-being of Indian children, youth, and families. ACF also consulted with federal partners on the ICWA statutory requirements in 25 U.S.C. 1901 et seq., DOI's Guidelines, and Notice of Proposed Rulemaking to implement ICWA Regulations for State Courts and Agencies in Indian Child Custody Proceedings (80 FR 14880, issued March 20, 2015).

After considering all of the aforementioned input, ACF proposes the addition of paragraph (i) to § 1355.43 (as proposed in the February 2015 AFCARS NPRM). Section 479 of the Act permits broader data collection in order to establish a true national data collection system that provides comprehensive demographic and case-specific information on all children who are in foster care and adopted with title IV-E agency involvement, to assess the current state of adoption and foster care programs in general, as well as to develop future national policies concerning these programs. Collecting data on Indian children, including ICWA-related data, is within the authority of section 479 because it is in line with the statutory goal of assessing the status of children in foster care. ACF is exercising its authority to propose a limited new set of ICWA-related data because section 479(a) authorizes “the collection of data with respect to adoption and foster care in the United States” and Indian children are children living within the United States and are those intended to benefit from both ICWA and titles IV-B and IV-E. The supplemental proposed rule includes data relevant to AI/AN children that supports ACF in assessing the current state of the well-being of Indian children as well as state implementation of title IV-E and IV-B. ACF proposes to use the collected data to make data-informed assessments; and to develop future policies concerning tribal-state consultation, ICWA implementation, and training and technical assistance to support states in the implementation of title IV-B and title IV-E programs.

ACF will analyze all pertinent comments to this SNPRM along with prior comments received on the February 2015 AFCARS NPRM and issue one final rule on AFCARS in which the ICWA-related data elements will be included. ACF understands from consultation and the regulatory development process that some of the information sought in this SNPRM for inclusion in AFCARS might be contained in agency case files. However, a number of the proposed data elements seek information related to court findings and this represents a shift toward increased reporting on the activity of the court in AFCARS. In this SNPRM, ACF proposes that state title IV-E agencies report information believed to be contained in court orders that the state title IV-E agency would have ready access to or would typically be contained within the state title IV-E agency case files. ACF is seeking input from state title IV-E agencies on whether they would be readily able to report the information in AFCARS for the data elements that relate to court activities and if there would be difficulties in doing so. We encourage agencies to describe the nature of the issues they would face, and possible approaches to addressing these concerns in light of the importance of having this information.

In paragraph (i), ACF proposes to require that state title IV-E agencies collect and report certain ICWA-related information on children in the AFCARS out-of-home care reporting population. ACF does not require state title IV-E agencies to report the data elements proposed in paragraph (i) for an Indian child who remains under the tribe's responsibility, placement, and care but for which the state provides IV-E foster care maintenance payments pursuant to a state-tribal agreement as described in section 472(a)(2)(B)(ii) of the Act. This is because the state's agreement with the tribe is to provide title IV-E foster care maintenance payments to a child under the tribe's placement and care responsibility. Additionally, tribal title IV-E agencies are not required to collect and report the data elements proposed in paragraph (i). The data elements in § 1355.43(i) are subject to the same compliance and penalty requirements in §§ 1355.45 and 1355.46, respectively, proposed in the February 2015 AFCARS NPRM (80 FR 7187-7192 and 7220-7221).

In paragraph (i)(1), ACF proposes to require that unless otherwise specified, the following terms have the same meaning as in ICWA, at 25 U.S.C. 1903: Child custody proceeding, extended family member, Indian, Indian child, Indian child's tribe, Indian custodian, Indian organization, Indian tribe, parent, reservation, and tribal court. It is important to note that the term “Indian child” in this section does not refer to a racial classification, but rather is defined by ICWA as a child who is either a member of an Indian tribe, or is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. Each term is listed in the regulatory language below with the corresponding ICWA statutory citation.

In paragraph (i)(2), ACF proposes to require that for all children in the out-of-home care reporting population per § 1355.41(a), the state title IV-E agency must complete the data elements in paragraphs (i)(3) through (5).

In paragraph (i)(3), ACF proposes to require that the state title IV-E agency report whether the state title IV-E agency inquired about pertinent information on a child's status as an “Indian child” under ICWA. This includes: Reporting whether the child is a member of or eligible for membership in an Indian tribe; the child's biological or adoptive parents are members of an Indian tribe; inquiring about the child's status as an “Indian child” with the child, his/her biological or adoptive parents (if not deceased), and the child's Indian custodian (if the child has one); ascertaining whether the domicile or residence of the child, parent, or the Indian custodian is known by the agency, or is shown to be, on an Indian reservation.

This data will provide information on whether state title IV-E agencies and state courts are evaluating whether the child meets the definition of “Indian child” under ICWA. These are threshold questions indicating whether the state title IV-E agency knows or has “reason to know” that a child is an Indian child and thus is subject to the protections under ICWA. Without inquiry, many Indian children are not identified, thereby denying children, parents, and Indian tribes procedural and substantive protections under ICWA. These data elements represent the minimum that a state title IV-E agency should be collecting to determine whether the child is an Indian child under ICWA. Such elements will help establish demographics necessary in identifying ICWA cases that involve parents who are tribal members or that involve an Indian custodian. Proactively identifying Indian children will improve the AFCARS data on AI/AN child foster care cases, adoption through the title IV-E agencies, as well as provide a base for understanding the percentage of AI/AN cases to which ICWA applies. More accurate data will help ACF better understand the scope of ICWA's impact in AI/AN child foster care cases and state systems, help identify where the application of ICWA may need reinforcement, and help inform ACF technical assistance to state title IV-E agencies.

In paragraph (i)(4), ACF proposes to require that the state title IV-E agency indicate whether it knows or has reason to know that the child is an Indian child under ICWA. If so, the state title IV-E agency must indicate the date that the state title IV-E agency discovered information that indicates that the child is or may be an Indian child and identify all federally recognized Indian tribes identified that may potentially be the Indian child's tribe(s).

In paragraph (i)(5), ACF proposes that the state title IV-E agency must indicate whether a court order indicates that a court found that ICWA applies, the date of the finding, and the name of the Indian tribe if listed on the court order.

If the state title IV-E agency responds with “yes” to the data elements in paragraphs (i)(4) or (5), then the agency must complete the remaining applicable paragraphs (i)(6) through (29) of this section, which includes information on: Transfers to tribal court; notification of child custody proceedings; active efforts to prevent removal and to reunify with the Indian family; foster care and adoptive placement preferences; and termination of parental rights.

Because not all AI/AN children meet the definition of “Indian child” under ICWA, these data elements are critical to identify the national number of AI/AN child foster care cases to which ICWA applies. Data elements related to whether ICWA applies are essential because application of ICWA triggers procedural and substantive protections. The date the agency received information as to whether the child is an Indian child under ICWA is essential to understanding the time-lapse between knowing that a child is an Indian child and tribal notification. A long time-lapse can indicate a delay in the application of the ICWA protections. Additionally, identifying Indian tribes that may potentially be the Indian child's tribe will help tribes, states, and the federal government direct resources into developing relationships that will streamline the process of identifying Indian children.

In paragraphs (i)(6) and (7), ACF proposes to require that the state title IV-E agency report certain information on whether a case was transferred from state court to tribal court, in accordance with 25 U.S.C. 1911(b). In paragraphs (i)(6), ACF proposes to require that the state title IV-E agency report whether a court order indicates that the Indian child's parent, Indian custodian, or Indian child's tribe requested, orally on the record or in writing, that the state court transfer the case to the tribal court of the Indian child's tribe, in accordance with 25 U.S.C. 1911(b), at any point during the report period. In paragraph (i)(7), if the state court denied the request to transfer the case to tribal court, ACF proposes to require that the state title IV-E agency report whether there is a court order that indicates the reason(s) why the case was not transferred to the tribal court. If a court order exists, justification for denying a transfer must be indicated from among a list of three options, as outlined in ICWA statute: (1) Either of the parents objected to transferring the case to the tribal court; or (2) the tribal court declined the transfer to the tribal court; or (3) the state court found good cause not to transfer the case to the tribal court.

The data in this section will provide an understanding of how many children in foster care with ICWA protections are or are not transferred to the Indian child's tribe and an understanding of the reasons why a state court did not transfer the case. Additionally, ACYF-CB-PI-14-03 (issued March 5, 2014) requires, among other things, that states develop, in consultation with tribes, measures to determine whether tribes are able to effectively intervene and, where appropriate, transfer proceedings to tribal jurisdiction. One focus of the Child and Family Services Reviews conducted by the Children's Bureau is the importance of preserving a child's cultural connections. This data will aid in understanding how a state may preserve a child's connection to his/her tribe. In addition, transfer data will aid in identifying capacity needs and issues in tribal child welfare systems that may prevent tribes from taking jurisdiction. Transfer data will help identify opportunities to build relationships between states and tribes. The data will also indicate whether additional tribal court resources are needed to improve transfer rates, or additional training for state courts is required regarding appropriate “good cause” exceptions to transfer.

In paragraphs (i)(8) through (10), ACF proposes to require that the state title IV-E agency report certain information about legal notice to the Indian child's parent, Indian custodian, and Indian child's tribe regarding the child custody proceeding as defined in ICWA. ACF proposes to require that the state title IV-E agency report: Whether the Indian child's biological or adoptive parent or Indian custodian were given proper legal notice of the child custody proceeding more than 10 days prior to the first child custody proceeding in accordance with 25 U.S.C. 1912(a); whether the Indian child's tribe (if known) was given proper legal notice of the child custody proceedings more than 10 days prior to the first child custody proceeding; which Indian tribe(s) were sent notice of the child custody proceeding; and whether the state title IV-E agency replied with additional information that the Indian child's tribe(s) requested, if such a request was made.

State child welfare agencies may have this information in their case files, regardless whether the notice was sent by the agency or the court. Notice to the Indian child's parents, Indian custodian, and tribe about child custody proceedings, as defined in ICWA, and the timing of the notice is an essential procedural protection provided by ICWA. ICWA requires that the party seeking foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe of the pending proceedings, including notice of their right of intervention and that no foster care placement or termination of parental rights proceeding shall be held until at least ten days after notice is received (25 U.S.C. 1912(a)). Notifying individuals and tribes of their rights and requirements in every child custody proceeding is critical to meaningful access to and participation in adjudications. Further, improper notice is a common basis for an appeal under ICWA, resulting in failure of process and unnecessary costs and delay. The data reported in this section will provide an understanding of how legal notice and adherence to the timeframes in ICWA may impact an Indian child's case. The data will also help identify technology, capacity, and training needs for meeting legal notice requirements, as well as opportunities for technical assistance and relationship-building between states and tribes.

In paragraphs (i)(11) through (13), ACF proposes to require that the state title IV-E agency report whether and when the state title IV-E agency began to make active efforts to prevent the breakup of the Indian family prior to the child's most recent out-of-home care episode, whether the court found in a court order that the state title IV-E agency made active efforts to prevent the breakup of the Indian family, and that these efforts were unsuccessful, and what active efforts the state title IV-E agency made to prevent the breakup of the Indian family (see 25 U.S.C. 1912(d)).

Providing active efforts to prevent the breakup of Indian families is a key component of the ICWA protections (25 U.S.C. 1912(d)). Under ICWA, any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child must demonstrate to the court that active efforts have been made to provide remedial services and rehabilitative programs designed to avoid the need to remove the Indian child, or terminate parental rights. Thus, state title IV-E agencies are required to identify and offer programs and services to prevent the breakup of Indian families which includes services to maintain and reunite an Indian child with his or her family and to promote the stability and security of the Indian family. Where such efforts are meaningful and effective, exits from child welfare systems increase and a reduction in disproportionality in state child welfare systems logically follows.

Proposed ICWA-related AFCARS data regarding active efforts will provide a better understanding of the status of Indian children in foster care, how these efforts may impact an Indian child's case, and the role of the courts in making findings. The data will also help identify service needs and efficacy; capacity needs; the need for training and technical assistance; and opportunities to build relationships between states and tribes.

In paragraph (i)(14), ACF proposes to require that the state title IV-E agency report whether the state court found by clear and convincing evidence, in a court order, that continued custody of the Indian child by the parent or Indian custodian was likely to result in serious emotional or physical damage to the Indian child in accordance with 25 U.S.C. 1912(e); and whether the court finding indicates that the state court's finding was supported by the testimony of a qualified expert witness in accordance with 25 U.S.C. 1912(e).

This is an important protection under ICWA for Indian children given that the standard for removal of an Indian child is established by ICWA and may be different than in non-ICWA foster care cases. In ICWA, Congress created minimum federal standards for removal to prevent the continued breakup of Indian families. ICWA's legislative history reflects clear Congressional intent: “It is clear then that the Indian child welfare crisis is of massive proportions and that Indian families face vastly greater risks of involuntary separation than are typical of our society as a whole.” (H. Rep. 95-1386 (July 24, 1978)). The proposed ICWA-related AFCARS data element will provide data on the extent to which Indian children are removed in a manner that conforms to ICWA's statutory standard, informs ACF about the frequency of and evidentiary standards applied to removals of Indian children, helps identify needs for training and technical assistance related to ICWA statutory standards, and highlights substantive opportunities for building and improving relationships between states and tribes.

In paragraphs (i)(15) through (18), ACF proposes to require that state title IV-E agencies report certain information on the foster care and pre-adoptive placement of Indian children, specifically, the placement of such children in the least restrictive setting that most approximates a family within reasonable proximity to his or her home in accordance with preferences established in ICWA at 25 U.S.C. 1915(b), or preferences established by tribal resolution 25. U.S.C. 1915(c).

In paragraph (i)(15), the state title IV-E agency must indicate which foster care and pre-adoptive placements from a list of five are available to accept placement of the Indian child. The five placements options are: A member of the Indian child's extended family; a foster home licensed, approved, or specified by the Indian child's tribe; an Indian foster home licensed or approved by an authorized non-Indian licensing authority; an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child's needs; and a placement that complies with the order of preference for foster care or pre-adoptive placements established by an Indian child's tribe, in accordance with 25 U.S.C. 1915(c).

In paragraph (i)(16), the state title IV-E agency must indicate whether the Indian child's current placement as of the end of the report period meets the placement preferences of ICWA at 25 U.S.C. 1915(b) by indicating with whom the Indian child is placed from a list of six response options. The placements are: A member of the Indian child's extended family; a foster home licensed, approved, or specified by the Indian child's tribe; an Indian foster home licensed or approved by an authorized non-Indian licensing authority; an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child's needs; a placement that complies with the order of preference for foster care or pre-adoptive placements established by an Indian child's tribe, in accordance with 25 U.S.C. 1915(c); or none.

In paragraph (i)(17), the state title IV-E agency must indicate whether the state court made a finding of good cause, on a court order, to place the Indian child with someone who is not listed in the placement preferences of ICWA in 25 U.S.C. 1915(b) or the placement preferences of the Indian child's tribe, if the placement preferences for foster care and pre-adoptive placements were not followed. In paragraph (i)(18), the state title IV-E agency must indicate the state court's basis for the finding of good cause, as indicated on the court order, from a list of five response options: Request of the biological parents; request of the Indian child; the unavailability of a suitable placement that meets the placement preferences in ICWA at 25 U.S.C. 1915; the extraordinary physical or emotional needs of the Indian child; or other.

The requirements around placement preferences in ICWA are a key piece of the protections mandated by ICWA. Placement preferences serve to protect the best interests of Indian children and promote the stability and security of families and Indian tribes by keeping Indian children with their extended families or in Indian foster homes and communities. The placement preferences in ICWA are congruent with the title IV-E plan requirement in section 471(a)(19) of the Act regarding preference to an adult relative over a non-related caregiver when determining the placement for a child. Data from the National Survey of Child and Adolescent Well-Being indicates that opportunities for kinship placements vary widely by age for AI/AN children when compared to other children of the same age. New AFCARS data will help to adequately assess the current status of kinship placements as well as to help identify a national plan for meeting permanency goals through kinship placements.

Factors unique to Indian children, including the availability of American Indian foster homes, influence decisions about the placement of Indian children. These factors include the characteristics of the foster home, the number of placements a child will have, and the duration of the stay (GAO-05-290, p.3). The information from these data elements will allow ACF to distinguish between ICWA cases in which there was no available ICWA-preferred placement and those cases where an available ICWA-preferred placement was not used despite its availability. The data will help to identify trends or problems that may require enhanced recruitment of potential Indian foster homes or relative placements. This information will help to identify the training and technical assistance needs of states to support recruitment and support foster families to meet the unique cultural, social, extracurricular, and linguistic needs of Indian children. Reporting information on good cause will help agencies better understand why the ICWA placement preferences are not followed. In addition, such information will aid in targeting training and resources needed to assist states in improving Indian child outcomes.

In paragraphs (i)(19) through (24), ACF proposes to require that the state title IV-E agency report information regarding voluntary and involuntary terminations of parental rights (TPR), which include tribal customary adoptions. The information includes: Whether the rights of the Indian child's parents or Indian custodian were involuntarily or voluntarily terminated; whether, prior to ordering an involuntary termination of parental rights, the state court found beyond a reasonable doubt, in a court order, that continued custody of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the Indian child in accordance with 25 U.S.C. 1912(f); whether the state court indicates that its finding was supported by the testimony of a qualified expert witness in accordance with 25 U.S.C. 1912(f); and if the TPR was voluntary, whether there is a court order that indicates that the voluntary consent to termination for the biological or adoptive mother and biological or adoptive father or Indian custodian was made in writing and recorded in the presence of a judge of a court of competent jurisdiction and accompanied by the presiding judge's certificate that the terms and consequences of the consent were fully explained in detail and were fully understood by the parent or Indian custodian in accordance with 25 U.S.C. 1913.

Distinguishing between involuntary and voluntary terminations of parental rights is important in ICWA given specific protections that must be provided in each context (25 U.S.C. 1912(e), (f) and 25 U.S.C. 1913). In addition, termination standards are important protections for Indian children under ICWA given that Congress specifically created minimum federal standards for removal of an Indian child to prevent the breakup of Indian families and to promote the stability and security of families and Indian tribes by preserving the child's links to their parents and to the tribe through the child's parent(s). Further, a TPR may affect a child's ability to be a full member of his/her tribe, preventing the child from accessing services and benefits available to tribal members. Whether the Indian child's parents' rights were terminated in a manner that conforms to the statutory standard informs ACF as to when an Indian child's parental rights are terminated, helps identify the need for training and technical assistance to meet statutory standards, and highlights substantive opportunities for building relationships between states and tribes.

In paragraphs (i)(25) through (29), ACF proposes to require that the state title IV-E agency report certain information on adoptive placement preferences, which are requirements in ICWA at 25 U.S.C. 1915(a), if the Indian child exited foster care to adoption per § 1355.43(g).

In paragraph (i)(25), the state title IV-E agency must indicate whether the child exited foster care to adoption per § 1355.43(g). This is a driver question for this section; if the state title IV-E agency indicates “yes,” then the agency must complete the elements in this section; if the state title IV-E agency indicates “no,” then the agency must skip the elements in this section.

In paragraph (i)(26), the state title IV-E agency must indicate which adoptive placements from a list of four were willing to accept placement of the Indian child. Adoption placements preferences are found in ICWA at 25 U.S.C. 1915(a) as follows: A member of the Indian child's extended family; other members of the Indian child's tribe; other Indian families; or a placement that complies with the order of preference for adoptive placements established by an Indian child's tribe, in accordance with 25 U.S.C. 1915(c).

In paragraph (i)(27), the state title IV-E agency must indicate whether the placement reported in § 1355.43(h) meets the placement preferences of ICWA in 25 U.S.C. 1915(a) by indicating with whom the Indian child is placed from a list of five response options. The placements preferences are: A member of the Indian child's extended family; other members of the Indian child's tribe; other Indian families; or a placement that complies with the order of preference for adoptive placements established by an Indian child's tribe, in accordance with 25 U.S.C. 1915(c); or none.

In paragraph (i)(28), the state title IV-E agency must indicate whether the state court made a finding of good cause, in a court order, to place the Indian child with someone who is not listed in the placement preferences of ICWA in 25 U.S.C. 1915(a) or the placement preferences of the Indian child's tribe, if the placement preferences for adoptive placements were not followed. In paragraph (i)(29), the state title IV-E agency must indicate the state court's basis for the finding of good cause, as indicated in the court order, from a list of five response options: Request of the biological parents; request of the Indian child; the unavailability of a suitable placement that meets the placement preferences in ICWA at 25 U.S.C. 1915; the extraordinary physical or emotional needs of the Indian child; or other.

The requirements for adoption placement preferences in ICWA are a key piece of the protections provided under ICWA. Placement preferences serve the policies of protecting the best interests of Indian children and promoting the stability and security of families and Indian tribes by keeping adopted Indian children with their extended families, tribes or communities. These data elements will help provide greater understanding on how best to support Indian children in cases where adoption is the outcome. The data are important to assist in identifying trends or problems that may require enhanced recruitment of potential Indian adoptive homes or relative placements. The information from these data elements will allow ACF to distinguish between ICWA cases in which there was no available ICWA-placement and those cases where an available ICWA-placement was not used. The data will help assess the current status of kinship guardianship placements as well as to help identify a national plan for meeting permanency goals through kinship guardianship. This information will help to identify the scope of resources for training and technical assistance needed for states to recruit and support adoptive families to meet the unique cultural, social, and enrichment activity needs of Indian children. Reporting information on good cause to not follow ICWA adoption placement preferences will help to understand why the ICWA placement preferences are not followed, and will aid in identifying targeted training and resource needs to assist states in improving Indian child outcomes.

Executive Order (E.O.) 12866 requires that regulations be drafted to ensure that they are consistent with the priorities and principles set forth in the E.O. The Department has determined that this proposed rule is consistent with these priorities and principles. In particular, ACF has determined that a regulation is the best and most cost effective way to implement the statutory mandate for a data collection system regarding children in foster care and those that are adopted and support other statutory obligations to provide oversight of child welfare programs. ACF consulted with the Office of Management and Budget (OMB) and determined that this proposed rule does meet the criteria for a significant regulatory action under E.O. 12866. Thus, it was subject to OMB review.

ACF determined that the costs to title IV-E agencies as a result of this rule will not be significant. Federal reimbursement under title IV-E will be available for a portion of the costs that title IV-E agencies will incur as a result of the revisions proposed in this rule, depending on each agency's cost allocation plan, information system, and other factors.

Alternatives Considered:

1. ACF considered not collecting certain ICWA-related data in AFCARS. Not including ICWA-related data elements in AFCARS, or including too few data elements, may exclude Indian children and families from the additional benefit of improving AFCARS data.

2. ACF considered whether other existing data sets could yield similar information. ACF determined that AFCARS is the only comprehensive case-level data set on the incidence and experiences of children who are in foster care and/or adoption or guardianship with the involvement of the state or tribal title IV-E agency.

3. Previously, ACF considered whether to permit title IV-E agencies to sample and report information on a representative population of children. Such an alternative is unacceptable given the significant limitations associated with using a sampling approach for collecting data, including data on AI/AN children who are in foster care, adoption, and guardianship programs. Under a sampling approach, ACF would be unable to report reliable data responsive to the Annual Outcomes Report to Congress, the Report to Congress on the Social and Economic Conditions of Native Americans, and Adoption Incentives. Second, when using a sample, small population subgroups (e.g., children who spend very long periods in foster care or children who are adopted or run away) might occur so rarely in the data such that analysis on these subgroups would not be meaningful. Sampling error with respect to AI/AN populations is already a well-established issue affecting the validity and meaningfulness of large national surveys like the American Community Survey. It is a well-established that, historically, quantitative and qualitative data on AI/AN populations, including children, has been incomplete and unreliable resulting in such populations being among the most under-counted populations groups in the United States.

4. In each of 18 states, there were fewer than 10 Indian children in foster care according to FY 2013 AFCARS data. For states that have few Indian children in foster care, ACF considered alternatives to collecting ICWA-related data through AFCARS, such as providing an exemption from reporting, or an alternative submission process or that would be less burdensome. While ACF recognizes collecting the proposed ICWA-related data may be burdensome for states with few Indian children in foster care, the alternative approaches are not feasible due to:

• The statutory requirement that AFCARS data be comprehensive. Section 479(c)(3) requires that AFCARS provide “comprehensive national information.” Exempting some states from reporting the proposed ICWA-related data elements is not consistent with this statutory mandate, and would render it difficult to use this data for development of national policies for Indian children.

• The statutory requirement for assessing penalties on AFCARS data. Section 474(f) of the Act penalizes the title IV-E agency for non-compliance based on the total amount expended by the state for administration of foster care activities. The statute provides for mandatory penalties, therefore, we are not authorized to permit some states to be subject to a penalty and not others. In addition, allowing states an alternate submission process would complicate and/or prevent the assessment of penalties as proposed in the February 9, 2015 NPRM in proposed § 1355.46, including penalties for failure to submit data files free of cross-file errors, missing, invalid, or internally inconsistent data, or tardy transactions for each data element of applicable records.

• State agencies that elect to have a SACWIS provide some of the proposed ICWA-related data elements as part of the system requirements will already have systems designed to capture some ICWA-related data.

The Secretary certifies, under 5 U.S.C. 605(b), as enacted by the Regulatory Flexibility Act (Pub. L. 96-354), that this rule will not result in a significant impact on a substantial number of small entities. This proposed rule does not affect small entities because it is applicable only to state title IV-E agencies.

The Unfunded Mandates Reform Act (Pub. L. 104-4) requires agencies to prepare an assessment of anticipated costs and benefits before proposing any rule that may result in an annual expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation). That threshold level is currently approximately $146 million. This proposed rule does not impose any mandates on state, local, or tribal governments, or the private sector that will result in an annual expenditure of $100 million or more.

This regulation is not a major rule as defined in 5 U.S.C. 8.

Section 654 of the Treasury and General Government Appropriations Act of 2000 (Pub. L. 106-58) requires federal agencies to determine whether a proposed policy or regulation may affect family well-being. If the agency's determination is affirmative, then the agency must prepare an impact assessment addressing seven criteria specified in the law. These proposed regulations will not have an impact on family well-being as defined in the law.

Executive Order (E.O.) 13132 requires that federal agencies consult with state and local government officials in the development of regulatory policies with Federalism implications. Consistent with E.O. 13132, the Department specifically solicits comments from state and local government officials on this proposed rule.

Under the Paperwork Reduction Act (44 U.S.C. 35, as amended) (PRA), all Departments are required to submit to OMB for review and approval any reporting or recordkeeping requirements inherent in a proposed or final rule. Information collection for AFCARS is currently authorized under OMB number 0970-0422. This supplemental notice of proposed rulemaking contains new information collection requirements in proposed § 1355.43, the out-of-home care data file that the Department has submitted to OMB for its review. This SNPRM proposes to require state title IV-E agencies to collect and report ICWA-related data elements in the AFCARS out-of-home care data file. PRA rules require that ACF estimate the total burden created by this SNPRM regardless of what information is already available.

Comments to the February 2015 AFCARS NPRM: ACF understands from comments on the February 2015 AFCARS NPRM that National Association of Public Child Welfare Administrators (NAPCWA) and the states felt that our burden estimates were low for determining the costs to implement the proposed data elements in AFCARS NPRM. However, very few states provided estimates on the burden hours or actual costs to implement the AFCARS NPRM. The comments were primarily about technical or programmer costs to modify the information system to extract the proposed data elements. This did not include the work associated with child welfare agency workers gathering information or being trained in data entry. The estimates received to modify a state information system to extract the proposed AFCARS NPRM data elements (approximately 100) ranged from 2,000 hours to 20,000 hours. Although ACF appreciates that these states provided this information on hourly and cost burden estimates, ACF received too few estimates to assist in calculating the state costs for information systems and other burden associated with this SNPRM. Therefore, ACF provides estimates using the best available information.

ACF estimates the annual reporting and record keeping burden hours of this SNPRM to be 192,285 hours. ACF estimates a one-time burden associated with this SNPRM to be 85,072 hours. The 52 respondents comprise 52 state title IV-E agencies. The following are estimates.

In estimating the burden, ACF included both one-time burden estimates and annual burden estimates:

Annual burden: The annual burden to the state title IV-E agency includes activities such as: Searching data sources and gathering information, entering the information, extracting the information for AFCARS reporting, and transmitting the information to ACF.

One time burden: The one-time burden for this SNPRM, includes activities to: Develop or modify procedures and systems to collect, validate, and verify the information, adjust existing ways to comply with AFCARS requirements, and train personnel on the new AFCARS requirements of this SNPRM.

In developing the burden estimate, ACF made several assumptions about the data in state child welfare information systems. First, ACF assumed that state title IV-E agencies may have access to most of the information for proposed data elements. ACF anticipated the information for these data elements are contained in the state title IV-E agency's paper or electronic case files. ACF estimated that some of the data elements would only be in paper case files or narrative fields, thus not readily able to be extracted for AFCARS reporting, and would require revisions to the electronic case file so that the information can be extracted for AFCARS reporting. Some of these data elements concern collecting information on court findings and other activities taking place during court processes.

ACF proposes for state title IV-E agencies to report information in court orders that the state title IV-E agency would have ready access to or would typically be in the state title IV-E agency's case files. ACF is seeking state feedback as to whether the state agency has these readily available in their agency paper files or electronic files. These are:

• A court order indicating that the child's parent or Indian custodian or the Indian child's tribe requested orally on the record or in writing that the state court transfer the case to the tribal court of the Indian child's tribe, in accordance with 25 U.S.C. 1911(b), and, where applicable, the reason(s) why the case was not transferred.

• A court order indicating the court found by clear and convincing evidence, in a court order, that continued custody of the Indian child by the parent or Indian custodian was likely to result in serious emotional or physical damage to the Indian child in accordance with 25 U.S.C. 1912(e).

• A court order indicating that the court made a finding of good cause, and the basis, if the placement preferences for foster care were not followed, to place the Indian child with someone who is not listed in the placement preferences of ICWA in 25 U.S.C. 1915(b) or the placement preferences of the Indian child's tribe in accordance with 25 U.S.C. 1915(c); and

• If the placement preferences for adoption were not followed, a court finding of good cause, and the basis, on a court order, to place the Indian child with someone who is not listed in the placement preferences of ICWA in 25 U.S.C. 1915(a) or the placement preferences of the Indian child's tribe.

Second, in order to determine the number of cases for which state title IV-E agencies will have to report the ICWA-related data elements, ACF estimated the out-of-home care reporting population using the most recent FY 2014 AFCARS data available submitted by state title IV-E agencies: 415,129 children were in foster care on September 30, 2014 and 264,746 children entered foster care during FY 2014. The state title IV-E agency will be required to report approximately 3 data elements for all children who are in the out-of-home care reporting population and approximately 24 data elements on children to whom the ICWA-related data elements apply.

To estimate the number of children to whom the ICWA-related data elements apply, ACF used as a proxy those children whose race was reported as “American Indian or Alaska Native” in the most recent FY 2014 AFCARS data available. While not every child of this reported race category will be covered under ICWA, it is likely that the state title IV-E agency will have to explore whether these children may be Indian children as defined in ICWA. Thus, 5,960 children who entered foster care during FY 2014 were reported as American Indian or Alaska Native.

Third, ACF assumed that there will be one-time costs to implement the requirements of this SNPRM and annual costs to collect, input, and report the information. The annual costs involve searching data, gathering the information that meet the requirements of this SNPRM, entering the information, and extracting and submitting the information for AFCARS reporting. The one-time costs mostly involve modifying procedures and systems to collect, validate and verify information, adjusting existing ways to comply with AFCARS; and training personnel on the new AFCARS requirements of this SNPRM.

Fourth, ACF assumed that the one-time burden is similar to how long it would take to make revisions to a SACWIS to be able to meet the requirements of the SNPRM. Currently, 36 states have an operational SACWIS. ACF understands that 24 states opted to collect at least a minimal amount of ICWA-related information per the SACWIS Assessment Review Guide, but also recognize that most state title IV-E agencies will require some revisions to meet the requirements of this SNPRM. As more states build SACWIS, ACF anticipates it will lead to more efficiency in reporting and less cost and burden to the state agencies.

Finally, after reviewing the 2014 Bureau of Labor Statistics data to help determine the costs of the SNPRM, ACF assumed that there will be a mix of staff working to meet both the one-time and annual requirements of this SNPRM with the job role of Management Analyst (13-1111) with a mean hourly wage estimate of $43.68 and those with the job role of Social and Community Service Managers (11-9151) with a mean hourly wage estimate of $32.56. Thus, ACF averaged the two wages to come to an average labor rate of $38.12. In order to ensure we took into account overhead costs associated with these labor costs, ACF doubled this rate.

Annual Recordkeeping and Reporting Burden Estimate: ACF estimated the annual recordkeeping and reporting burden by multiplying the time spent on the recordkeeping and reporting activities described below by the number of children in foster care to arrive at the total recordkeeping hours. These estimates represent the work associated with the state title IV-E agency searching data sources and gathering information, entering the information, extracting the information for AFCARS reporting, and transmitting the information to ACF. These estimates are based on our assumptions, described above, on how much of the information proposed in this SNPRM state title IV-E agencies currently have in their electronic or paper case files or information system or have ready access to, while taking into account that some of the elements may require more effort to gather the information if it is not readily accessible.

• Gathering the information for and entering the ICWA-related data elements that apply to all children who enter foster care on average will take approximately 132,373 annual burden hours. (0.5 hours × 264,746 children who entered foster care = 132,373 annual burden hours for all children in the out-of-home care reporting population)

• Gathering the information for and entering the ICWA-related data elements that apply to children in foster care who are covered by ICWA, on average will take 59,600 annual burden hours. (10 hours × 5,960 children who enter foster care with a race reported as American Indian or Alaska Native = 59,600 annual burden hours for children in the out-of-home care reporting population who are covered by ICWA). ACF estimated that it would take a state title IV-E agency on average 10 hours annually to gather and input the ICWA-related data elements that apply to children in foster care who are covered by ICWA. ACF estimated this by assuming that a state title IV-E agency would be gathering and inputting information for approximately 14 of the proposed data elements for an average foster care episode, if the child is not transferred and there is no TPR or adoption. In cases where the child is transferred, ACF estimated that the burden would decrease because the agency would have fewer data elements to complete and the burden would increase in cases where there is a TPR and the child is adopted because there would be more data elements that the agency would have to complete.

• Extracting and submitting the information to ACF for AFCARS reporting on average will take 6 annual burden hours per state title IV-E agency. Nationally, the hour burden for all 52 state title IV-E agencies would be 312 (6 hours × 52 states = 312). ACF took into account the number of data elements proposed in this SNPRM when estimating the reporting burden.

ACF added the bullets above and estimate the number of annual recordkeeping and reporting burden hours that workers will spend on ICWA-related AFCARS requirements in the out-of-home care reporting population annually will be 192,285 hours (132,373 + 59,600 + 312 = 192,285). Dividing this annual figure by the 52 state title IV-E agencies, ACF arrived at approximately 3,698 average burden hours per respondent per year for the ICWA-related information in the AFCARS out-of-home care data file. (192,285 ÷ 52 title IV-E agencies = 3,697.79 average burden hours per respondent per year.)

One-Time Burden Estimate: ACF estimated the one-time burden by adding up the time spent on the activities described below and multiplying it by the 52 state title IV-E agencies to arrive at the one-time burden hours. The one-time burden estimates represent the work associated with the activities described below. As stated above, ACF came to these estimates by using average estimates for revising a SACWIS, which is the best information available. It is also important to note that states will have the option of updating their systems in a streamlined manner since ACF plans to issue the final rules for new AFCARS regulations and for child welfare information systems.

• Modifying procedures and systems (including developing or acquiring technology) to collect, validate, verify, process, and report the information to ACF on average will take approximately 130 burden hours.

• Adjustments to the existing ways to comply with AFCARS, developing technology and systems to collect and process data on average will take approximately 200 burden hours.

• The administrative tasks associated with training personnel on the new AFCARS requirements of this SNPRM which include reviewing instructions, including training development and manuals on average will take approximately 30 burden hours.

• Training personnel on the new AFCARS requirements of this SNPRM on average will take approximately 1,276 burden hours. ACF arrived at this estimate by dividing the number of children in foster care on September 30, 2014 (415,129) by an estimated average caseload of 25 cases per worker to arrive at an estimate of 16,605 workers to be trained. ACF divided this number (16,605) by 52 to account for average workers per state title IV-E agency, and arrived at 319 workers. ACF multiplied the workers (319) by the number of estimated hours to complete training (4 hours) to arrive at 1,276 burden hours to train personnel per state title IV-E agency on the new AFCARS requirements. ACF added the burden hours above (1,636 hours) and multiplied by 52 state title IV-E agencies, which results in a one-time burden of 85,072 hours (1,636 × 52 = 85,072 one-time burden hours).

ACF used a total cost and burden hour estimates to provide additional detail on projected average cost for each state title IV-E agency implementing the changes described in this SNPRM. Once the burden hours were determined, ACF developed an estimate of the associated cost for state title IV-E agencies to conduct these activities, as applicable. Based on our assumptions above, ACF used an average labor rate of $38.12 and doubled this rate to account for overhead costs ($76.24). Based on these rates, ACF estimated the cost for one-time burden to be $6,485,889.28 (85,072 one-time hours × $76.24 hourly cost/overhead = $6,485,889.28) and ACF estimated the cost for annual burden to be $14,659,808.40 (192,285 annual hours × $76.24 hourly cost = $14,659,808.40). Dividing these costs by 52 state title IV-E agencies, ACF estimated the average cost per state title IV-E agency to be $124,728.64 one-time and $281,919.39 annually. Federal reimbursement under title IV-E will be available for a portion of the costs that title IV-E agencies will incur as a result of the revisions proposed in this rule, depending on each agency's cost allocation plan, information system, and other factors.

Under the provisions of the Endangered Species Act, as amended (ESA or Act), based on new information and information overlooked in the development of our July 6, 2012 (77 FR 40222), proposed rule (“2012 Proposed Rule”), we are: (1) Revising the location of what we consider to be the boundary between the two subspecies of A. macao; (2) providing additional information on the species in northeast Costa Rica, southeast Nicaragua, and Panama, and reevaluating the status of A. m. cyanoptera; (3) providing additional information on the northern DPS of A. m. macao, reevaluating the status of this DPS, and revising our proposed listing of this DPS from endangered status to threatened status; (4) adding a proposal to treat the southern DPS of A. m. macao and subspecies crosses (A. m. macao and A. m. cyanoptera) as threatened based on similarity of appearance to A. m. cyanoptera and to the northern DPS of A. m. macao; and (5) adding a proposed rule pursuant to section 4(d) of the Act to define the prohibitions and exceptions that apply to scarlet macaws listed as threatened.

Our intent is to use the best available scientific and commercial data as the foundation for all endangered and threatened species classification decisions. Further, we want any final rule resulting from this proposal to be as effective as possible. Therefore, we invite range countries, tribal and governmental agencies, the scientific community, industry, and other interested parties to submit comments regarding our 2012 Proposed Rule and the changes we present in this revised proposed rule. Comments should be as specific as possible.

Before issuing a final rule to implement this proposed action, we will take into account all comments and any additional information we receive. Comments previously submitted will be considered and do not need to be resubmitted. Such communications may lead to a final rule that differs from our proposal. For example, new information provided may lead to a threatened status instead of an endangered status, an endangered status instead of a threatened status, or we may determine the entity may not warrant listing based on new information. Additionally, new information may lead to revisions to the proposed 4(d) rule and/or our proposed similarity of appearance finding. All comments, including commenters' names and addresses, if provided to us, will become part of the administrative record.

You may submit your comments and materials concerning our changes to the proposed rule by one of the methods listed in ADDRESSES. Comments must be submitted to http://www.regulations.gov before 11:59 p.m. (Eastern Time) on the date specified in DATES.

We will post your entire comment—including your personal identifying information—on http://www.regulations.gov. If you provide personal identifying information in your comment, 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.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours at the U.S. Fish and Wildlife Service, Headquarters Office (see FOR FURTHER INFORMATION CONTACT).

We intend that any final actions resulting from this revised proposed rule will be based on the best scientific and commercial data available. Therefore, we request comments or information from other concerned governmental agencies, the scientific community, or any other interested parties concerning this revised proposed rule. We particularly seek clarifying information concerning:

(1) New information on taxonomy, distribution, habitat selection and trends, diet, and population abundance and trends specific to the northern DPS of A. m. macao and the northwest Columbia population.

(2) Information on the effects of habitat loss and changing land uses on the distribution and abundance of this species in northwest Colombia.

(3) Additional information pertaining to the northwest Colombia population, including any information on whether this population constitutes an SPR of the northern DPS of A. m. macao.

Additionally, we invite range countries, tribal and governmental agencies, the scientific community, industry, and other interested parties to submit comments regarding the revisions to our 2012 Proposed Rule as follows:

(4) Revision of the status of the northern DPS of Ara macao macao from endangered to threatened;

(5) Addition of the proposed similarity of appearance listing of the for the southern DPS of A. m. macao and subspecies crosses (A. m. macao and A. m. cyanoptera);

(6) Our 2012 Proposed Rule pursuant to section 4(d) of the Act that define the prohibitions and exceptions that apply to scarlet macaws listed as threatened and, unless a permit for otherwise prohibited activities is obtained under 50 CFR 17.52, to scarlet macaw subspecies crosses and the southern DPS of A. m. macao treated as threatened under the similarity-of-appearance provisions of the Act.

Please include sufficient information with your submission (such as full references) to allow us to verify any scientific or commercial information you include. Submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination. Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”

During the public comment period for our 2012 Proposed Rule, we received several requests from the public for extension of the comment period. For this reason, and because we are amending our 2012 Proposed Rule, we are reopening the comment period on this proposed rule for 60 days.

During the public comment period, several commenters requested that the Service list the captive populations of the scarlet macaw in the United States by either (1) listing them as a distinct population segment (DPS), or (2) assigning them a separate listing status. In similar situations involving the agency's response to petitions to list all chimpanzees as endangered under the Endangered Species Act of 1973, as amended (Act or ESA) (78 FR 35201, June 12, 2013) and to delist U.S. Captive Populations of the Scimitar-horned Oryx, Dama Gazelle, and Addax (78 FR 33790, June 5, 2013), we have considered the appropriateness of assigning captive-held animals a separate legal status from their wild counterparts on the basis of their captive state, including through designation as a DPS. For the same reasons stated in those previous actions, we find that it would not be appropriate to differentiate the legal status of captive-held animals of scarlet macaw from those in the wild. We find that the ESA does not allow for captive-held animals to be assigned separate legal status from their wild counterparts on the basis of their captive state, including through designation as a DPS. In analyzing threats to a species, we focus our analyses on threats acting upon wild specimens, generally those within the native range of the species, because the goal of the Act is survival and recovery of endangered and threatened species and the ecosystems on which they depend. For more information, see our 12-month findings on a petition to delist three antelope species (78 FR 33790; June 5, 2013) and a petition to list chimpanzees (78 FR 35201; June 12, 2013).

During the public comment period of the 2012 Proposed Rule, several commenters requested we propose a rule under section 4(d) of the Act addressing interstate commerce of scarlet macaws. See Proposed 4(d) Rule below.

On July 6, 2012, we published in the Federal Register a combined 12-month finding and proposed rule on a petition to list the scarlet macaw as threatened or endangered under the Act (77 FR 40222). In that proposed rule, we proposed listing the northern subspecies of scarlet macaw, Ara macao cyanoptera, found in Mexico, Guatemala, Honduras, and Nicaragua, as endangered. We identified two DPSs of the southern subspecies: the northern DPS of A. m. macao, found in Costa Rica, Panama, and northern Columbia, and the southern DPS of A. m. macao, found in southern Columbia, Venezuela, Guyana, Suriname, French Guyana, Brazil, Ecuador, Peru, and Bolivia. We proposed listing the northern DPS of A. m. macao as endangered, and determined that listing the southern DPS of A. m. macao as endangered or threatened was not warranted. The 2012 Proposed Rule had a 60-day comment period, ending September 4, 2012. We received no requests for a public hearing on the 2012 Proposed Rule; therefore, no public hearings were held.

Based on new information, some received from peer reviewers, we are proposing to make five substantive changes to our 2012 Proposed Rule. Specifically, we are: (1) Revising the location of what we consider to be the boundary between the northern subspecies, A. m. cyanoptera, and the northern DPS of the southern subspecies, A. m. macao; (2) providing additional information on A. m. cyanoptera in northeast Costa Rica, southeast Nicaragua, and Panama, and reevaluating the status of the subspecies; (3) providing additional information on the northern DPS of A. m. macao, reevaluating the status of this DPS, and revising our proposed listing of this DPS from endangered status to threatened status; (4) adding a proposal to treat the southern DPS of A. m. macao and subspecies crosses (A. m. cyanoptera and A. m. macao) as threatened based on similarity of appearance to A. m. cyanoptera and to the northern DPS of A. m. macao; and (5) adding a proposal under section 4(d) of the Act to define activities that are necessary and advisable for the conservation of scarlet macaws listed as threatened and crosses of the two scarlet macaw subspecies. See Figure 1, below, for a visual representation of these revisions. In this document, we focus our discussion on information we received that could potentially change our status determination for one or more of the entities evaluated in our proposed rule. For additional information on the biology and status of scarlet macaws, see our July 6, 2012, 12-month finding and proposed rule (77 FR 40222). In our final rule, we will address other comments and information, such as information we received that supports or clarifies information contained in our 2012 Proposed Rule.

In analyzing the status of the scarlet macaw, we consider to what extent, if any, captive individuals contribute to the viability of the species within its native range in the wild. Many scarlet macaws are held as pets or captive bred for the pet trade. It has been suggested that scarlet macaws captive-bred for the pet trade contribute to the conservation of the species in the wild by reducing demand on wild populations for pets and, therefore, the number of individuals poached from the wild (Fischer 2004, entire). However, the effect of legal wildlife trade on market demand and wild populations is a complex phenomenon influenced by a variety of factors (Bulte and Damania 2005, entire; Fischer 2004, entire) and we are not aware of any evidence indicating that scarlet macaws captive-bred for the pet trade currently benefit wild populations.

It has also been suggested that pet scarlet macaws and scarlet macaws captive-bred for the pet trade provide a safety net for the species by potentially providing a source of birds for reintroduction to the wild. However, pet scarlet macaws are poor candidates for re-introduction programs because those bred for the pet trade are bred with little regard for genetics and include an unknown number of subspecies crosses (Schmidt 2013, pp. 74-75), pets socialized with humans fail to act appropriately with wild individuals when released, and individuals held as pets may pose a disease risk to wild populations (Brightsmith et al 2005, p. 471). We are not aware of any evidence indicating that release of pet or pet-trade scarlet macaws benefit wild populations. For additional information regarding our evaluation of reintroduction efforts, see Reintroduction Efforts (under Additional Information on Subspecies A. m. cyanoptera and Additional Information on the Northern DPS of A. m. macao, below).

As indicated above, we are not aware of any information indicating that scarlet macaws held as pets or captive-bred for the pet trade contribute to the conservation of the species in the wild. Therefore, we do not consider them further in our assessment of species status, except when assigning status to subspecies crosses (see 7. Adding a proposal to treat the Southern DPS of A. m. macao and Interspecific Crosses as Threatened Based on Similarity of Appearance).

In our 2012 Proposed Rule, we considered the boundary of the subspecies A. m. cyanoptera and A. m. macao to be the general border region of Costa Rica and Nicaragua, based on information from Wiedenfeld (1994, entire) and Schmidt and Amato (2008, pp. 135-138). Brightsmith (2012, http://www.regulations.gov: Docket number FWS-R9-ES-2012-0039 #0066) provided additional information on scarlet macaws in northeast Costa Rica, but stated that it was unknown whether these birds belong to the subspecies A. m. cyanoptera or A. m. macao. However, Schmidt (2013, entire) provides new range-wide genetic information on the species. Consequently, we reexamined information on the distribution of the two scarlet macaw subspecies.

As indicated in our proposed rule, morphological evidence presented by Wiedenfeld (1994, entire) suggests southern Nicaragua and northern Costa Rica represent a transition zone between scarlet macaw subspecies. However, according to Schmidt (2013, p. 52), distribution of mitochondrial DNA haplotypes shows a general pattern of geographic segregation rather than co-occurrence; cyanoptera and macao lineages segregate at the central highlands of Costa Rica and patterns within the mitochondrial data argue against hybridization between the subspecies. Based on an evaluation of the specimens analyzed by Wiedenfeld, Schmidt (2013, pp. 55-56) indicates that although Wiedenfeld observed a cline in morphological traits across scarlet macaw populations in lower Central America, limited and potentially biased sampling may have exaggerated the degree of phenotypic differentiation Wiedenfeld observed.

In addition to a pattern of geographic separation on the mainland, Schmidt (2013, pp. 69-73) found that genetic results from Isla Coiba (off the Pacific coast of Panama) are inconsistent with the broader phylogeographic patterns of diversity in the species. Four of five specimens from Isla Coiba carry a mitochondrial DNA haplotype characteristic of A. m. cyanoptera, whereas only one carries the expected haplogroup characteristic of A. m. macao. Schmidt discusses possible reasons for this inconsistency including the possibility that the origin of the four specimens were mislabeled or that Isla Coiba represents a biogeographic anomaly. According to Schmidt, one of the aberrant cyanoptera specimens (collected by Witmore) should be considered reliable and Schmidt's genetic results suggest the other three aberrant cyanoptera specimens (collected by Batty) were collected from the same location as the Witmore specimen. Based on an assessment by Olson (2008, in Schmidt 2013, pp. 71-72) of the collection trips made by Batty in the Veragua Archipelago, Schmidt concludes that the specimen carrying the A. macao macao haplotype likely originated on mainland Panama. Thus, Schmidt's results suggest that Isla Coiba represents a biogeographic anomaly, i.e. that scarlet macaws on the island carry a cyanoptera haplotype rather than the expected macao haplotype.

Schmidt (2013) represents the only spatial analysis of scarlet macaw genetic variation across the historical geographic range of the species, and we consider Schmidt to be the best available information on subspecies range. Based on the results of Schmidt, the mainland Central America boundary between A. m. cyanoptera and A. m. macao, is the central mountain range of Costa Rica, with A. m. cyanoptera found on the Atlantic (eastern) slope of the country and A. m. macao on the Pacific (western) slope. In addition, scarlet macaws on Isla Coiba are likely to be the subspecies A. m. cyanoptera. Therefore, in the absence of new information indicating otherwise, for the purposes of this rule, we now consider scarlet macaws in Mexico, Guatemala, Nicaragua, Honduras, the eastern (Caribbean) slope of Costa Rica, and Isla Coiba, Panama to be A. m. cyanoptera. Consequently, we consider new information provided on scarlet macaws in northeast Costa Rica and on Isla Coiba to pertain to the subspecies A. m. cyanoptera. Consistent with the mainland boundary revision, we consider birds on the western slope of Costa Rica and southward through the remainder of the species' range to be A. m. macao.

In sum, in this revised proposed rule, we revise what we consider to be the boundary between the two subspecies of scarlet macaw, from the previously proposed boundary in the general border region of Costa Rica and Nicaragua, to the revised boundary of the central highlands of Costa Rica (See Figure 2, below, for a visual representation of the revised proposed boundary between the two subspecies), with an anomalous population of A. m. cyanoptera on Isla Coiba.

In our 2012 Proposed Rule, we determined that listing the whole southern subspecies, A. m. macao, was not warranted under the ESA. As a result of this finding, we then considered whether any population segment within the subspecies constituted a DPS based on our 1996 DPS policy (see 61 FR 4722-4725, February 7, 1996). In our proposed rule, we determined that two population segments of A. m. macao met our definitions of a DPS (See Northern DPS of A. m. macao: Distinct Population Segment, and Southern DPS of A. m. macao: Distinct Population Segment, below): A. m. macao north and west of the Andes (scarlet macaws in Costa Rica, Panama, and northwest Colombia), and A. m. macao south and east of the Andes (scarlet macaws in southeast Colombia and the remainder of the species' range in South America). During the public comment period, we received no additional information regarding our conclusion that the Andes represented the boundary between the two population segments or our conclusions that they were valid DPSs based on our DPS policy. Further, the results of Schmidt (2013, pp. 61-62) reaffirm genetic segregation of the two DPSs at the Andes. Therefore, the boundary between the two A. m. macao DPSs, and the range of the southern DPS, remains unchanged from that described in our 2012 Proposed Rule (See Figure 1 for a visual representation of the border between the northern and southern DPS of A. m. macao).

In this revised proposed rule, we reaffirm our previous DPS determinations. Although the area considered to be the northern DPS of A. m. macao has changed slightly due to the exclusion of northeast Costa Rica and Isla Coiba (Panama) from the DPS, on re-examination of our July 6, 2012 DPS analysis, we conclude that our previous analysis remains valid despite the slight boundary change because (1) both DPSs are discrete as a result of genetic and geographic separation at the Andes, and (2) both DPSs are also significant, because the loss of either would result in a significant gap in the subspecies' range as described in the DPS analysis in our proposed rule. Therefore, both are valid DPSs based on our DPS policy.

We received additional information from a peer reviewer and obtained additional information from literature on scarlet macaws in the eastern border region of Costa Rica and Nicaragua. The eastern border between the two countries follows the Rio San Juan (San Juan River), which separates southeast Nicaragua and northeast Costa Rica. Below we summarize additional information on scarlet macaws in this region.

Anecdotal evidence on scarlet macaws in northeast Costa Rica obtained during several years of research on great green macaws (Ara ambigua) indicates that scarlet macaws in this region are increasing in number (Monge et al. 2012, p. 6, citing Chassot and Monge 2004, and Penard et al. in prep; Brightsmith 2012, http://www.regulations.gov: Docket number FWS-R9-ES-012-0039 #0066). In 2004, Chassot and Monge (2004, pp. 12-13) reported several groups of scarlet macaws in the Rio San Carlos area close to the eastern border with Nicaragua, in what is now designated as Maquenque National Wildlife Refuge (Refugio Nacional de Vida Silvestre mixto Maquenque). These included three groups numbering 18, 12, and 8 individuals. One of these groups was observed flying from Nicaragua over the Rio San Juan into Costa Rica, indicating the population's range includes forest on both sides of the border. According to Chassot and Monge (2004, pp. 12-13), many observations of scarlet macaws had been made during previous years of research on the great green macaw in this region, but never of as large a number of individuals.

In our 2012 Proposed Rule, we reported an estimate of 48-54 scarlet macaws in Maquenque National Wildlife Refuge in northeast Costa Rica based on McReynolds (2011 in litt.) citing Penard et al. (2008). However, according to a peer reviewer, this estimate is incorrect. The peer reviewer states that, as a result of the study's methodology, a population estimate cannot be obtained from the data. The peer reviewer indicates that, during the study in question, researchers detected 30 groups of scarlet macaws and only 12 groups of great green macaws in 733 kilometers (km) (455 miles) of transects, with as many as 16 different individual scarlet macaws seen on a single transect. The peer reviewer suggests that, given that transect studies are poor at detecting rare species and A. macao detections outnumbered those of A. ambigua in the heart of the latter species' Costa Rican range, the population of A. macao in this region may number well over 100 birds. The peer reviewer also states that multiple groups of three or four, likely representing adults with juveniles, were detected. Finally, the peer reviewer indicates that the species has recently expanded its range southward to La Selva Biological Station (approximately 35-40 km (15-18 miles) south of the Rio San Juan). According to the peer reviewer, the species was absent from the Station since it was established in the 1960s (D. McClearn and others as reported to Brightsmith, in Brightsmith 2012, http://www.regulations.gov: Docket number FWS-R9-ES-2012-0039 #0066), but has been observed breeding on adjacent land since the mid-2000s.

During the 2009 macaw breeding season, Monge et al. (2012, entire) conducted an intensive search for scarlet macaw nests in northeast Costa Rica and southeast Nicaragua as part of a larger study to quantify and characterize nests of both scarlet macaw and great green macaw. Monge et al. (2012, p. 9) found 6 scarlet macaw nests (5 in Costa Rica, 1 in Nicaragua).

Information pertaining to the scarlet macaw in relation to the five factors provided in section 4(a)(1) of the Act is discussed below. In considering what factors might constitute threats, we must look beyond the mere exposure of the species to the factor to determine whether the species responds to the factor in a way that causes actual impacts to the species. If there is exposure to a factor, but no response, or only a positive response, that factor is not a threat. If there is exposure and the species responds negatively, the factor may be a threat and we then attempt to determine if that factor rises to the level of a threat, meaning that it may drive or contribute to the risk of extinction of the species such that the species warrants listing as an endangered or threatened species as those terms are defined by the Act. This does not necessarily require empirical proof of a threat. The combination of exposure and some corroborating evidence of how the species is likely impacted could suffice. The mere identification of factors that could impact a species negatively is not sufficient to compel a finding that listing is appropriate; we require evidence that these factors are operative threats that act on the species to the point that the species meets the definition of an endangered or threatened species under the Act.

As indicated in our 2012 Proposed Rule, one of the main threats to neotropical parrot species is loss of forest habitat. In northeast Costa Rica, Landsat TM satellite images from 1987, 1998, and 2005 showed a fragmented landscape with remnants of natural ecosystems. The annual rate of total deforestation was 0.88 percent for the 1987-1998 period and 0.73 percent for the 1998-2005 period, even considering recovery of secondary forest (Chassot et al. 2010, p. 37); this equates to a 15 percent decrease in total forest habitat from 1987 to 2005. More recently, Fagan et al. (2013, unpaginated) tracked agricultural expansion from 1986 to 2011 in the region and found a small net gain in forest cover overall after Costa Rica enacted a ban on forest clearing in 1996. However, scarlet macaws require substantial nesting cavities for reproduction; these types of cavities are most often located in older, larger trees which are found mostly in mature forested habitats. The authors found that the rate of mature forest loss decreased from 2.2 percent pre-ban to 1.2 percent post-ban. Although the ban seems to have successfully contributed towards reducing the loss of mature forest, the expansion of cropland into areas outside of mature forest, specifically into pastures and secondary forests, have decreased the reforestation rates. Ultimately, this reduces the total amount of forest habitat available to the species (Fagan et al. 2013, unpaginated).

Deforestation is also ongoing in southeast Nicaragua. Southeast Nicaragua comprises the IMBR and its buffer zone. The reserve covers 306,980 ha (758,560 acres) (Chassot & Monge 2012, p. 63) and is one of Nicaragua's best preserved forested areas (Ravnborg et al. 2006, p. 2). However, the reserve is threatened by the growing human population in or around the reserve, a result of the continuous arrival of families from other parts of the country into the region in search of cheap land (Ravnborg 2010, pp. 12-13; Ravnborg et al. 2006, pp. 4-5). Ravnborg (2010, p. 10) reports that between 1998 and 2005 the population increased more than 100 percent (from 9,717 to 19,864 individuals) in the municipality of El Castillo, which is composed entirely of IMBR buffer zone and core area. According to Fundacion del Rio and the International Union for Conservation of Nature (IUCN) (2011, p. 12), the municipality has an annual population growth rate of 3.9 percent. The expansion of African palm plantations, pasture lands, human settlements, and logging have contributed to an estimated 60 percent deforestation of the buffer zones surrounding IMBP and these activities are expanding in the reserve (Fundacion del Rio & IUCN 2011, pp. 7-8; Ravnborg 2010, pp. 12-13; Nygren 2010, pp. 193-194; Ravnborg et al. 2006, p. 2). Thus, despite the existence of this protected area, deforestation continues to occur and is a serious threat to biodiversity in this region (Fundacion del Rio 2012a, pp. 2-3; Fundacion del Rio 2012b, pp. 2-3; Fundacion del Rio & IUCN 2011, pp. 34, 37, 73-74; Chassot et al. 2006, p. 84).

Forest conservation efforts are ongoing in the Costa Rica-Nicaragua border region, particularly within Costa Rica's 60,000-hectare (148,263-ac) San Juan-La Selva Biological Corridor (Chassot & Monge 2012, entire). Although these efforts have resulted in lower deforestation rates within the Corridor (Chassot & Monge 2012, p. 67, citing Chassot et al. 2010a), both primary and regrowth forest within the Corridor and within the larger border region of northeast Costa Rica and southeast Nicaragua continue to be threatened by timber extraction, and agricultural expansion (Fagan et al. 2013, unpaginated; Chassot & Monge 2012, p. 63; Chassot & Monge 2011, p. 1; Chassot et al. 2009, p. 9).

As indicated in our 2012 Proposed Rule, another main threat to neotropical parrot species, in general, is capture for the pet trade. Little information exists on the level of poaching of scarlet macaws in this region. However, poaching is recognized as a significant threat to the species in Nicaragua (77 FR 40235, July 6, 2012). In Nicaragua, capture of parrots for the pet trade is described as common, with scarlet macaws one of the most preferred species (77 FR 40235, July 6, 2012), and scarlet macaws are identified as one of the species most affected by illegal trafficking along the Rio San Juan (Castellón 2008, p. 27). In Costa Rica, poaching is known to occur at both of the other two populations in the country and is believed to be occurring at an unsustainable level in the Área de Conservación del Pacífico Central (Central Pacific Conservation Area (ACOPAC)) (77 FR 40235-40236, July 6, 2012). Therefore, it is reasonable to conclude that poaching of scarlet macaws occurs in the population on the eastern border between these two countries, though the extent is unknown.

In our 2012 Proposed Rule, we determined ongoing threats to the Isla Coiba, Panama population to be deforestation, poaching, and small population size in combination with other threats. We were not aware of any regulatory mechanisms addressing these threats; therefore, we concluded that the existing regulatory mechanisms were inadequate to protect the species. Based on comments from a peer reviewer, we obtained additional information on this population from additional experts and literature sources. Below we summarize this information.

In our 2012 Proposed Rule, we indicated that there were an estimated 100 scarlet macaws on Isla Coiba (Keller and Schmitt 2008). This estimate is based upon information obtained by Keller and Schmitt during discussions with biologists that worked on Coiba (Keller 2012, in litt.). McReynolds estimated fewer than 200 scarlet macaws in Panama (77 FR 40227, July 6, 2012), with most of these on Isla Coiba. Angehr (2012, in litt.), in response to our inquiry regarding the reasonableness of Coiba estimates, indicates that 100-200 is a reasonable estimate for the number of scarlet macaws on Coiba. He further states that there is no reason to believe the population is currently declining.

In our 2012 Proposed Rule, we indicated that some level of deforestation was occurring on Isla Coiba as a result of trampling and erosion caused by feral cattle (77 FR 40231, July 6, 2012). New information indicates that cattle on Coiba may be inhibiting the regrowth of former pasture to secondary forest, but are probably not having a significant impact on the larger forest trees on which A. m. macao depends (Angehr 2012, in litt.). Therefore, it is unlikely that cattle are currently a threat to the forest resources on which scarlet macaws depend on the island. As indicated in our proposed rule, cattle on Coiba are increasing in number and causing at least some level of deforestation and soil erosion via trampling. As a result, in the absence of natural or anthropogenic control measures, it is possible that, with increasing numbers, the feral cattle on Isla Coiba may move beyond current pasture areas into established forest and become a threat to scarlet macaw habitat at some time in the future. However, we are unaware of any information that indicates whether or when, and to what extent, such an outcome might occur.

In our 2012 Proposed Rule, we indicated that Coiba National Park and its Special Zone of Marine Protection was inscribed on the World Heritage List as of 2005. In the 2014 Mission Report by the World Heritage Committee and IUCN, the Committee makes note to acknowledge that the Country of Panama has a strategy and is making progress in the removal of livestock from the property. The report indicates that the country has made a commitment to have all livestock removed by the end of 2014 (Douvere & Herrera 2014, unpaginated). However, we are not aware of any information indicating that the removal of cattle has occurred.

In our 2012 Proposed Rule, we indicated that poaching likely occurs at some level in Panama and that, because the current population is extremely small and isolated, even low levels of poaching would likely have a negative effect on the species in Panama. According to Angehr (2012) and Keller (2012), Panama's Autoridad Nacional del Ambiente (National Environmental Authority) maintains a ranger station on the north end of the island, but patrols elsewhere on the island are probably limited. Keller (2012) indicates that A. macao primarily occurs on the south end of the island and that poaching “is a strong possibility.” However, Angehr (2012) indicates that, while macaws may occasionally be illegally captured on the island, he is not aware that such take is currently a major threat.

Additional information indicates that a recent program in Mexico is working to establish a viable population of A. m. cyanoptera for recovery purposes in Palenque, Mexico, by releasing captive-bred scarlet macaws into the wild (Estrada 2014, entire). Releases of captive scarlet macaws could potentially aid in recolonization of the macaw population's original range, to the extent that the habitat within that range remains suitable. Conversely, releases of captive scarlet macaws could potentially pose a threat to wild populations by exposing wild birds to diseases for which wild populations have no resistance, invoking behavioral changes in wild macaws that negatively affect their survival, or compromising the genetic integrity of wild populations (Dear et al. 2010, p. 20; Schmidt 2013, pp. 74-75; also see IUCN 2013, pp. 15-17). In response to an increasing number of reintroduction projects involving various species worldwide, the IUCN Species Survival Commission published guidelines for reintroductions to help ensure that reintroduction efforts achieve intended conservation benefits and do not cause adverse side-effects of greater impact (IUCN/SSC 2013, entire; IUCN/SSC 1998, entire). Additionally, White et al. (2012, entire) make recommendations specific to parrot reintroductions. According to Estrada (2014, p. 345), the program in Palenque, Mexico was designed to align as closely as possible to the IUCN guidelines and the recommendations made by White et al. So far, the program shows promise for establishing a viable population of A. m. cyanoptera—96 scarlet macaws were released between April 2013 and June 2014 with a 91% survival rate as of May 2015. In addition, 9 nesting events and successful use of wild foods by released birds have been observed. However, while this program shows promise for reintroduction efforts towards the establishment of viable populations in the future, it is currently uncertain as to whether this captive-release program has resulted in conservation benefits to the species at present (IUCN/SSC 2013, entire; IUCN/SSC 1998, entire).

In our 2012 Proposed Rule, we determined that A. m. cyanoptera is in danger of extinction based on threats to the subspecies in Mexico, Guatemala, Belize, Honduras, and Nicaragua. We indicated that A. m. cyanoptera occurs in only a few small, isolated populations, and that deforestation and forest degradation, capture for the pet trade, and small population size in combination with the cumulative effects of other threats pose significant threats to A. m. cyanoptera throughout the subspecies' range in these countries such that A. m. cyanoptera is in danger of extinction. We determined that the existing regulatory mechanisms were not adequate to remove or reduce these threats. In the 2012 Proposed Rule, we identified four primary populations in this region, one each in southeast Mexico, northern Guatemala, and southwest Belize (hereafter collectively referred to as the Maya Forest region), and one in the Mosquitia region of Honduras and Nicaragua. As a result of new information we received and obtained on scarlet macaws in the eastern border region of Costa Rica and Nicaragua, and our subsequent revision of the border between the two subspecies of scarlet macaw such that we now consider the birds in this border region and on Isla Coiba to be A. m. cyanoptera, we now reevaluate the status of A. m. cyanoptera.

Threats acting on A. m. cyanoptera throughout most of the subspecies' range (Mexico, Guatemala, Honduras, Belize, and Nicaragua) are severe and immediate (77 FR 40229-40242, July 6, 2012). While anecdotal observations suggest the population in the eastern border region of Costa Rica and Nicaragua has increased in recent years and the population on Isla Coiba is currently stable, both populations appear to be isolated and the regions in which they occur represent an extremely small fraction of the subspecies' current range. In addition, deforestation in the region in which the Costa Rica-Nicaragua border population occurs is ongoing. Although scarlet macaws are tolerant of some level of habitat fragmentation or modification, provided sufficient large trees remain for nesting and feeding requirements, several studies indicate the species occurs in disturbed or secondary forest at lower densities (for a summary of these studies, see 77 FR 40224, 40225, July 6, 2012). Thus, it is reasonable to conclude that the extent of increase in the population in this region will likely be limited due to past and ongoing deforestation in the region. Further, while the population on Isla Coiba is not currently being negatively impacted by loss of habitat and may or may not be negatively impacted by poaching, the population is very small and isolated (Ridgely 1981, p. 253; McReynolds 2011, in litt.). As indicated in our 2012 Proposed Rule, small, isolated populations are vulnerable to extinction due to a variety of factors, including loss of genetic variability, inbreeding depression, and demographic and environmental stochasticity (77 FR 40239-40240, July 6, 2012; Gilpin & Soule 1986, entire).

Subspecies estimates for each of the A. m. cyanoptera populations are included in Table 1.

As discussed in our 2012 Proposed Rule, we conclude that the low numbers of this subspecies throughout its range, the extreme fragmentation of its habitat and population throughout its range, and the substantial threats acting on this subspecies throughout its range place this subspecies in danger of extinction. Therefore, we reaffirm our July 6, 2012, finding (77 FR 40222) that A. m. cyanoptera is in danger of extinction in its entirety.

In our 2012 Proposed Rule, we determined the northern DPS of A. m. macao to be in danger of extinction (endangered). We based our determination of the status of this DPS on the status of the birds in Panama and Costa Rica due to the lack of information on the species in northwest Colombia. We determined ongoing threats to what we then considered the three remaining known populations of A. m. macao within the DPS (those at ACOPAC, Costa Rica; Area de Conservación de Osa (Osa Conservation Area) (ACOSA), Costa Rica; and Isla Coiba, Panama) to be poaching, and small population size in combination with other threats (ACOPAC, ACOSA, and Isla Coiba). We determined that the existing regulatory mechanisms were not adequate to remove or reduce these threats. We also determined deforestation to be a threat to the species on Isla Coiba, Panama. We received two peer reviews of our proposal. Although one peer reviewer agreed with our determination, the other questioned our determination to list the northern DPS of A. m. macao as endangered, and also provided additional information on the species. We also obtained additional information on scarlet macaw status and threats in this DPS from additional experts and literature sources. As indicated above, based on new information, we revised the area of this DPS such that scarlet macaws in the Isla Coiba population of Panama are no longer considered part of this DPS. Below we summarize the additional information on what we now consider the northern DPS of A. m. macao, as explained in Revising the Border Between A. m. cyanoptera and A. m. macao, above.

The Central Pacific Costa Rica (ACOPAC) population numbers approximately 450 birds. According to a peer reviewer, the population at ACOPAC has been variably increasing and declining but is not in drastic decline according to the work by Vaughan et al. (2005). As indicated in our 2012 Proposed Rule, Vaughan (2005, p. 127) describes an increase in the previously declining ACOPAC population after implementation of intensive anti-poaching efforts in 1995 and 1996, but also indicates that neither these efforts nor the increasing trend of the macaw population was sustained. Rather, counts of macaws remained almost constant from 1996 to 2003. As indicated in our 2012 Proposed Rule, poaching of wildlife is reported to occur in the area and scarlet macaws are susceptible to overharvest due to their demographic traits and naturally low rate of reproduction (77 FR 40235-40236, July 6, 2012). However, Vaughan indicates that the population was stable even with the level of poaching during that time. As a result, we specifically request information on the current trend of the ACOPAC scarlet macaw population.

We received two pieces of anecdotal information on the South Pacific Costa Rica (ACOSA) scarlet macaw population. One peer reviewer states that land owners along the south Pacific coast have informed him that scarlet macaws are being seen more commonly north of the Osa Peninsula, and it seems as though the species may be spreading north through this region. In addition, one commenter states that dozens can be seen on a daily basis on his property at the north end of the Gulfo Dulce, where 10 years ago, none existed.

In our 2012 Proposed Rule, we stated that, “In ACOSA, Dear et al. (2010, p. 10) indicate that 85 percent of residents interviewed in 2005 believed scarlet macaws were more abundant than 5 years prior, which suggests this population may be increasing.” However, as pointed out by a peer reviewer, we failed to consider this study in our finding. For the purposes of reevaluating our July 6, 2012, finding on this DPS, we provide additional information from Dear et al. (2010, entire) below.

In 2005, Dear et al. conducted interviews with 105 residents, representing 30 areas within ACOSA. Based on answers to a series of questions, scarlet macaws were found to occur throughout the Osa Peninsula, with the northern limit of the population occurring outside the peninsula in Playa Piñuelas. The southern mainland limit was Chacarita (about 15 km (roughly 9 miles) north of Golfito), in ACOSA. Estimates of the population's size ranged from 800 to 1,200 individuals, and interviewees generally believed that the numbers were increasing. Of 105 interviews, 89 (85%) believed that scarlet macaws were more abundant than 5 years prior, 12 interviewees (11%) considered the population had remained stable, and 4 (4%) thought there were fewer scarlet macaws. Dear et al. (2010, pp. 17, 20) state that both (1) the ACOSA population has increased and (2) that the population “is currently stable with the distribution thought to be increasing.”

Dear et al. (2010, p. 19) states that although it is believed that poaching still exists in the region, results suggest incidence of chick poaching has decreased. Approximately half (48%) of those interviewed by Dear et al. believed that macaws were still being poached in ACOSA, and the others stated the activity did not currently occur (52%). Additionally, 43 percent of the interviewees mentioned that less poaching activity is occurring now than before, and none said the activity had increased. Based on interviews and information from park guards, Dear et al. estimate 25-50 chicks are poached each year. Dear et al. also state that, although results suggest incidence of chick poaching has decreased, the activity still occurs.

Hilty and Brown (1986, p. 200) describe the range of scarlet macaw in northwest Colombia as the northern lowlands from eastern Cartagena to the low Magdalena Valley, southward to southeast Córdoba, and the middle Magdalena Valley southwest of Santander. The range in northwest Colombia includes the tropical zone of the Caribbean region, and the inter-Andean valleys, the largest of which are the Magdalena and Cuaca River valleys (Salaman et al. 2009, p. 21).

We are not aware of any estimates of the numbers of scarlet macaws in northwest Colombia. The species is reported as probably close to extinction in the Magdalena Valley, Cuaca Valley, and north (Donegan 2013, in litt.; Ellery 2013, in litt.; McMullen 2010, p. 60). The species is reported to occur in the more remote and inaccessible western part of the region, but its status in this area is not clear. A 2009 scientific expedition in the Manso River Forest and Tigre River floodplain forest within Parque Nacional Natural Paramillo (PNN Paramillo), reported scarlet macaws as present. A 2004 study of the perceptions and uses of wild fauna by the Embera-Katios (Katios) indigenous communities in the San Jorge River Valley within the buffer zone of PNN Paramillo, reported that the Katios categorized the species as abundant (Racero et al. 2008, p. 124). However, the authors note that these indigenous communities recognize only 25 species of birds (Racero et al. 2008, p. 127), that the richness of the avifauna in this area is likely greater, and that they (the authors) did not verify the identification of scarlet macaws in the study area. As a result, given that the study site is also within the range of the red and green macaw (Ara chloropterus), which is similar in appearance to the scarlet macaw (Iñigo-Elias 2010, unpaginated), some portion of the macaws characterized as abundant by the Katios could have been red and green macaws.

Scarlet macaws in northwest Colombia are believed to be affected primarily by habitat loss, and to a lesser extent trade (Donegan 2013, in litt.). Loss of forest habitat in northwest Colombia has been extensive over the past several decades. The Magdalena and Caribbean regions have approximately only 7 percent and 23 percent (respectively) of their land area in original vegetation, with the remainder converted primarily to grazing land (79% and 68%, respectively) (Etter et al. 2006, p. 376). The Magdalena region lost 40 percent of its forest cover between 1970 and 1990, and an additional 15 percent between 1990 and 1996 (Restrepo & Syvitski 2006, pp. 69, 72). Within the Caribbean region, Miller et al. (2004) reports that PNN Paramillo (460,000 ha (1,136,680 ac)), Santuario de Fauna y Flora Los Colorados (Los Colorados Fauna and Flora Sanctuary) (1,000 ha (2,500 ac)), and Reserva Forestal de Montes de Maria (Montes Maria Forest Reserve) (7,460 ha (18,500 ac)) have lost 42, 71, and 70 percent of their forest, respectively, since they were created in the late 1970s and early 1980s.

Deforestation is ongoing in northwest Colombia (Colombia Gold Report 2012, pp. 1-2; Ortega & Lagos 2011, pp. 81-82). A few large tracts of forest remain within the range of the scarlet macaw in this region, and all are deforestation hotspots (Ortega & Lagos 2011, p. 82; Salaman et al. 2009, p. 21). Forest loss in the region is due primarily to conversion of land to pasture and agriculture, but also mining, illicit crops, and logging (Ortega & Lagos 2011, pp. 85-86). Further, resource management in Colombia is highly decentralized, and governmental institutions responsible for oversight appear to be inconsistent throughout the country (Blaser et al. 2011, pp. 292-293). The International Tropical Timber Organization considers the Colombian forestry sector to be lacking in law enforcement and on-the-ground control of forest resources, with no specific standards for large-scale forestry production, no forestry concession policies, and a lack of transparency in the application of the various laws regulating wildlife and their habitats (Blaser et al. 2011, pp. 292-298). Consequently, there is currently no effective vehicle for overall coordination of species management for multijurisdictional species such as macaws. Therefore, we conclude that deforestation is a significant threat to the species in this region.

Regarding trade, parrots and macaws in the buffer zone of PNN Paramillo are often captured by settlers for the regional illegal markets (Racero 2008, pp. 127-128). We are unaware of any other information indicating that capture of scarlet macaws for the pet trade may be a threat to the species in northwest Colombia.

According to Dear et al. (2010, pp. 15-17), three scarlet macaw captive-release programs are located on the mainland coast of Southern Pacific Costa Rica, 15 to 20 km (9 to 12 miles) across the Gulf (Golfo Dulce) from the Osa Peninsula and its wild population of scarlet macaws. These include Santuario Silvestre de Osa (SSO) and Zoo Ave, which release birds in the Golfito area, and Amogos de las Aves, which releases birds at Punta Banco (Dear et al. 2010, pp. 15, 17; Forbes 2005, p. 97). SSO receives macaws confiscated from poachers in the area, and releases them in the area surrounding the sanctuary. The others receive macaws from all parts of Costa Rica and normally release only offspring of these confiscated birds, though Zoo Ave released five confiscated macaws. Macaws from the 3 facilities began to be released in 1997 and totaled 77 birds—9 released in Punta Banco and 68 in the Golfito area (Dear et al. 2010, p. 16). According to Dear et al. (2010, p. 16), of the 77 released birds, 67 are still alive.

The range of birds released at Punta Banco has grown to reach 84 square km (32 square miles) (Dear et al. 2010, p. 17, citing Forbes 2005). According to Dear et al. 2010, (p. 19), the destiny of scarlet macaws released in the Golfito area is unknown, but wild and reintroduced populations could be mixing. They further indicate that reintroduction programs could be either an advantage or disadvantage for the natural population (see Additional Information on Subspecies A. m. cyanoptera—Reintroduction Efforts). According to the authors, releases could potentially aid in recolonization of the macaw population's original range, to the extent that the habitat within that range remains suitable. However, if wild and released macaws are in contact, diseases could be passed to the wild population that may have no resistance to these diseases. Further, macaws accustomed to humans could invoke behavioral changes in native scarlet macaws. For instance, scarlet macaws allowing humans to approach closely could facilitate the capture of adults.

We are not aware of any information indicating that these three captive-release programs adhere to the IUCN Species Survival Commission guidelines for re-introductions, published by IUCN to help ensure that re-introduction efforts achieve intended conservation benefits and do not cause adverse side-effects of greater impact (IUCN/SSC 2013, entire; IUCN/SSC 1998, entire). Nor are we aware that these reintroduction programs adhere to recommendations of White et al. (2012, entire) for the reintroduction of parrots. Therefore, because we are unaware of information indicating that these captive-release programs are contributing to either the recovery or endangerment of the DPS, we do not consider these programs or the birds in these programs to be consequential in evaluating the status of this DPS.

In our 2012 Proposed Rule, we determined the northern DPS of A. m. macao to be in danger of extinction (“endangered”). We based our determination of status of this DPS on the status of the birds in Panama (on Isla Coiba) and Costa Rica (in ACOPAC and ACOSA) due to the lack of information on the species in northwest Colombia. We determined ongoing threats to the three remaining populations in Costa Rica and Panama to be: deforestation (Isla Coiba), poaching, and small population size in combination with other threats. We found that the existing regulatory mechanisms were inadequate in addressing these threats.

Based on our revision of the border between A. m. cyanoptera and A. m. macao, the northern DPS of A. m. macao no longer includes the scarlet macaw population on Isla Coiba. The DPS consists of two known viable scarlet macaw populations in Costa Rica, an unknown number of birds in northwest Colombia, an isolated group of 10-25 birds in Palo Verde in northwest Costa Rica (Dear et al. 2010, p. 8), and a few groups of captive-released birds in a few locations within the Costa Rica portion of the DPS (Dear et al. 2010, p. 8; Forbes 2005, entire; Brightsmith et al. 2005, entire). As indicated in our 2012 Proposed Rule, the Palo Verde group is extremely small, and we are unaware of any information suggesting that this group represents a self-sustaining, viable population.

As indicated in our 2012 Proposed Rule and this revised proposed rule, A. m. macao has been extirpated from mainland Panama and much of its former range in Costa Rica, and the species has been all but extirpated from large areas of northwest Colombia. Its remaining distribution is highly fragmented, consisting of two isolated populations (ACOPAC and ACOSA) and an unknown number of birds isolated in northwest Colombia.

The ACOPAC scarlet macaw population numbers approximately 450 birds. As indicated above and in our 2012 Proposed Rule, poaching of wildlife is reported to occur in this area. Scarlet macaws are one of the most susceptible species to poaching due to the species' slow rate of reproduction. However, the population was holding steady even with the amount of poaching occurring during that time (Vaughan 2005, p. 127). This apparent stability of the population indicates that poaching may not currently be major threats to this population. However, we specifically seek additional information on the status of this population.

The most recent estimate of the ACOSA population, based on interviews with community members, is about 800-1,200 birds. Although the majority of residents interviewed indicated that there appeared to be more macaws in the year 2005 than in the 5 years previous (the year 2000), these results are based on perceptions of scarlet macaw abundance at two points in time over a limited time period (2000 versus 2005). Thus, although scarlet macaws appeared to be more abundant in 2005 than in 2000, whether this conclusion reflects an increasing population trend is unknown. For this reason, we consider the results of Dear et al. to indicate that the ACOSA scarlet macaw population is currently stable and that the distribution is increasing (Dear et al. 2010, p. 20). Although poaching of scarlet macaw chicks is known to occur in the region, the apparent stability of the population suggests poaching is not currently having a negative impact.

The number of scarlet macaws in northwest Colombia is unknown, but habitat loss has caused the decline of the species there, such that the species has been all but extirpated from large areas in the region. Much of northwest Colombia has been deforested. Large tracts of forest remain, for instance, in the areas of Serrania de San Lucas and PNN Paramillo. However, deforestation in the region is expected to continue. According to Gonzales et al. (2011, p. 45), the Caribbean region of northwest Colombia showed the highest projected rate of change of forest cover for the year 2030 of all regions evaluated. Because deforestation has resulted in the near extirpation of the species from large areas of northwest Colombia and deforestation is projected to continue within the species' range in this region, it is reasonable to conclude that deforestation is a significant threat to the species in northwest Colombia. Table 2 includes the most recent estimated population densities for the northern DPS of A. m. macao.

The Act defines “endangered” as “any species which is in danger of extinction throughout all or a significant portion of its range” and “threatened” as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” In our 2012 Proposed Rule, we determined the northern DPS of A. m. macao to be in danger of extinction (“endangered”). However, new information indicates that the ACOPAC population is currently stable, and that the ACOSA population—the largest of the DPS— is currently stable or possibly increasing. New information indicates that poaching does not currently act as a threat on these two populations. Therefore, as the two largest populations within the DPS are currently stable, it is reasonable to conclude that the northern DPS of A. m. macao is not currently in danger of extinction. The best available information indicates that the population in northwest Colombia faces significant ongoing threats and may be potentially extirpated from Colombia. If this population is lost, the DPS would contain only two scarlet macaw populations. However, although no current population estimates are available for northwest Colombia, this region is reported to have large tracts of forest suitable for supporting a population which may provide sufficient resiliency and redundancy for the DPS. If, during the public comment period, we receive additional information on the northern DPS of scarlet macaw (A. m. macao) and/or on the northwest Colombia population indicating that listing the DPS rangewide is not warranted, then we may consider whether the Colombia population constitutes a significant portion of the range (SPR) of the DPS and would, at that time, determine whether the DPS warrants a threatened or endangered status. We encourage the public to provide us with any additional information pertaining to this population, including any information on whether this population constitutes an SPR of the DPS. Although the ACOPAC and ACOSA populations are considered stable, both are small and isolated, and their range represents only a portion of the range of the DPS. Therefore, although the two largest populations currently appear to be stable and may be increasing, we find that the best available information indicates that current threats to scarlet macaws in northwest Colombia (deforestation), and the small and isolated status of the ACOPAC and ACOSA populations, place this DPS in danger of extinction in the foreseeable future. Therefore, we revise our July 6, 2012, proposal of listing the northern DPS of the A. m. macao from “endangered” to “threatened” in accordance with the definitions of each as they pertain to the Act.

In our 2012 Proposed Rule, we determined that the scarlet macaws (A. m. macao) south and east of the Andes (northern South America), constituted a valid DPS of the subspecies A. m. macao pursuant to our 1996 DPS Policy (77 FR 40222, 40242, July 6, 2012) (See Revising the Border Between Subspecies and Reaffirming DPSs: Reaffirming A. m. macao DPSs above). Additionally, we determined that listing the southern DPS of A. m. macao throughout its range was not warranted. During the public comment period, we received no additional information indicating that threats on this DPS have elevated to the point that it would warrant an endangered or threatened listing.

However, in our 2012 Proposed Rule, we discussed a potential listing of the southern DPS of A. m. macao and subspecies crossings based on the similarity of appearance provisions of the Act and requested information regarding scarlet macaw morphological differences that may provide a mechanism for distinguishing between the listed entities and the non-listed entities. During the public comment period, we received additional information supporting a similarity of appearance listing for the southern DPS of A. m. macao and scarlet macaw subspecies crossing (crosses between A. m. cyanoptera and A. m. macao).

Section 4(e) of the Act authorizes the treatment of a species, subspecies, or distinct population segment as endangered or threatened if: “(a) such species so closely resembles in appearance, at the point in question, a species which has been listed pursuant to such section that enforcement personnel would have substantial difficulty in attempting to differentiate between the listed and unlisted species; (b) the effect of this substantial difficulty is an additional threat to an endangered or threatened species; and (c) such treatment of an unlisted species will substantially facilitate the enforcement and further the policy of this Act.” All applicable prohibitions and exceptions for species treated as threatened under section 4(e) of the Act due to similarity of appearance to a threatened or endangered species will be set forth in a rule proposed under section 4(d) of the Act.

In our 2012 Proposed Rule, we requested information regarding scarlet macaw morphological differences that may provide a mechanism for distinguishing between the listed entities and the non-listed entities. During the public comment period, we received information on several factors which make differentiating between scarlet macaw listable entities difficult. First, the scarlet macaw subspecies, Ara macao macao and Ara macao cyanoptera, primarily differ in the coloration of their wing coverts (a type of feather) and wing size. However, these differences are not always apparent, especially in birds from the middle of the species' range (which may include crosses between A. m. cyanoptera and A. m. macao), making it difficult or impossible to visually differentiate between subspecies (Schmitt 2011 pers. comm.; Weidenfeld 1994, pp. 99-100). According to information received from the Service's Forensics Laboratory, many scarlet macaw remains submitted for examination by Office of Law Enforcement special agents and wildlife inspectors do not consist of intact carcasses; rather, evidence is usually in the form of partial remains, detached feathers, and artwork incorporating their feathers. Therefore, identification of subspecies and/or the geographic origin of these birds arehighly improbable without genetic analysis, which would add considerable difficulties and cost for law enforcement. Second, we are not aware of any information indicating that distinguishing morphological differences between the northern and southern DPS of A. m. macao would allow for visual identification of the origin of a bird of this subspecies. Lastly, many commenters noted that aviculturists have bred the species without regard for taxa, resulting in crosses of the two subspecies (A. m. cyanoptera and A. m. macao) that maintain a combination of characteristics of either parent, being present in trade (Wiedenfeld 1994, p. 103). As a result, the similarity of appearance between the unlisted southern DPS of A. m. macao and subspecies crosses to the listed northern DPS of A. m. macao and A. m . cyanoptera may result in the ability to pass off a protected specimen as the unlisted DPS or unlisted subspecies cross and poses an additional threat to the Northern DPS and A.m. cyanoptera. Therefore, we consider this difficulty in discerning the unlisted DPS and unlisted subspecies crosses from the listed Northern DPS and A.m. cyanoptera as an additional threat to the listed entities.

Thus, this close resemblance between the listed entities and the unlisted entities makes differentiating the scarlet macaw entities proposed for listing (the subspecies A. m. cyanoptera and the northern DPS of the subspecies A. m. macao) from those that are not proposed for listing (individuals of the southern DPS of A. m. macao and subspecies crossings (A. m. cyanoptera and A. m. macao)) difficult for law enforcement, making it difficult for law enforcement to enforce and further the provisions and policies of the Act.

We determine that treating the southern DPS of A. m. macao and subspecies crosses (A. m. cyanoptera and A. m. macao) under the 4(e) similarity of appearance provisions under the Act will substantially facilitate law enforcement actions to protect and conserve scarlet macaws. If the southern DPS of A. m. macao or subspecies crosses (A. m. cyanoptera and A. m. macao) were not listed, importers/exporters could inadvertently or purposefully misrepresent a specimen of A. m. cyanoptera or the northern DPS of A. m. macao as a specimen of the unlisted entity, creating a loophole in enforcing the Act's protections for listed species of scarlet macaw. The listing will facilitate Federal and state law-enforcement efforts to curtail unauthorized import and trade in A. m. cyanoptera or the northern DPS of A. m. macao. Extending the prohibitions of the Act to the similar entities through this listing of those entities due to similarity of appearance under section 4(e) of the Act and providing applicable prohibitions and exceptions in a rule issued under section 4(d) of the Act will provide greater protection to A. m. cyanoptera and the northern DPS of A. m. macao. Additionally, although the 4(e) provisions of the Act do not contain criteria as to whether a species listed under the similarity of appearance provisions should be treated as endangered or threatened, we find that treating the southern DPS of A. m. macao and subspecies crosses (A. m. cyanoptera and A. m. macao) as threatened is appropriate because the 4(d) rule, for the reasons mentioned in our necessary and advisable finding, provides adequate protection for these entities. For these reasons, we are proposing to treat the southern DPS of A. m. macao and subspecies crosses (A. m. cyanoptera and A. m. macao) as threatened due to the similarity of appearance to A. m. cyanoptera and the northern DPS of A. m. macao, pursuant to section 4(e) of the Act.

For the reasons discussed above, we propose to treat the southern DPS of A. m. macao and subspecies crosses (A. m. cyanoptera and A. m. macao) as threatened due to similarity of appearance to the endangered A. m. cyanoptera and the threatened northern DPS of A. m. macao, pursuant to section 4(e) of the Act.

The ESA provides measures to prevent the loss of species and their habitats. Section 4 of the Act sets forth the procedures for adding species to the Lists of Endangered and Threatened Wildlife and Plants, and section 4(d) authorizes the Secretary of the Interior (Secretary) to extend to threatened species the prohibitions provided for endangered species under section 9 of the Act. Our implementing regulations for threatened wildlife, found at title 50 of the Code of Federal Regulations (CFR) in § 17.31, incorporate the ESA section 9 prohibitions for endangered wildlife, except when a species-specific rule under section 4(d) of the Act is promulgated. For threatened species, section 4(d) of the Act gives the Service discretion to specify the prohibitions and any exceptions to those prohibitions that are appropriate for the species, as well as include provisions that are necessary and advisable to provide for the conservation of the species. A rule issued under section 4(d) of the Act allows us to include provisions that are tailored to the specific conservation needs of that threatened species and which may be more or less restrictive than the general provisions at 50 CFR 17.31.

We are proposing a 4(d) rule that would apply to the southern subspecies of scarlet macaw (A. m. macao) and to crosses of the two scarlet macaw subspecies, A. m. macao and A. m. cyanoptera. We are including subspecies crosses in this rule because aviculturists have bred the species without regard to their taxa, resulting in crosses of the two subspecies being present in trade (Wiedenfeld 1994, p. 103). If the proposed 4(d) rule is adopted, all prohibitions of 50 CFR 17.31 will apply to A. m. macao and subspecies crosses of A. m. macao and A. m. cyanoptera, except that import and export of certain A. m. macao and scarlet macaw subspecies crosses into and from the United States and certain acts in interstate commerce will be allowed without a permit under the Act, as explained below. For activities otherwise prohibited under the 4(d) rule involving specimens of the southern DPS of the scarlet macaw and scarlet macaw subspecies crosses, such activities would require authorization pursuant to the similarity-of-appearance permit regulations at 50 CFR 17.52. If an applicant is unable to meet the issuance criteria for a similarity-of-appearance permit and demonstrate that the scarlet macaw in question is a subspecific cross or originated from the Southern DPS of the A.m. macao, authorization for an otherwise prohibited activity would need to be obtained under the general permit provisions for threatened species found at 50 CFR 17.32. For activities otherwise prohibited under the 4(d) rule involving specimen of the northern DPS of the scarlet macaw (A. m. macao), such activities would require authorization pursuant to the general permit provisions for threatened species found at 50 CFR 17.32.

The proposed 4(d) rule will apply to all commercial and noncommercial international shipments of live and dead southern subspecies of scarlet macaws and subspecific crosses of A. m. macao and A. m. cyanoptera and their parts and products, including the import and export of personal pets and research samples. In most instances, the proposed rule will adopt the existing conservation regulatory requirements of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the Wild Bird Conservation Act (WBCA) as the appropriate regulatory provisions for the import and export of certain scarlet macaws. The import into the United States and export from the United States of birds taken from the wild after the date this species is listed under the Act; conducting an activity that could take or incidentally take scarlet macaws; and certain activities in foreign commerce would require a permit under the Act. Permits may be issued to carry out otherwise prohibited activities involving endangered and threatened wildlife species under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22 for endangered species and § 17.32 for threatened species. With regard to endangered wildlife, a permit may be issued for the following purposes: for scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities. For threatened species, a permit may be issued for the same activities, as well as zoological exhibition, education, and special purposes consistent with the Act. Although the general permit provisions for threatened species are found at 50 CFR 17.32, the Service issues permits for otherwise prohibited activities involving endangered or threatened species treated as threatened due to similarity of appearance under the regulatory criteria at 50 CFR 17.52.

However, this proposed 4(d) rule would allow a person to import or export either: (1) A specimen held in captivity prior to the date this species is listed under the Act; or (2) a captive-bred specimen, without a permit issued under the Act, provided the export is authorized under CITES and the import is authorized under CITES and the WBCA. If a specimen was taken from the wild and held in captivity prior to the date this species is listed under the Act, the importer or exporter will need to provide documentation to support that status, such as a copy of the original CITES permit indicating when the bird was removed from the wild or museum specimen reports. For captive-bred birds, the importer would need to provide either a valid CITES export/re-export document issued by a foreign CITES Management Authority that indicates that the specimen was captive-bred by using a source code on the face of the permit of either “C,” “D,” or “F.” For exporters of captive-bred birds, a signed and dated statement from the breeder of the bird, along with documentation on the source of their breeding stock, would document the captive-bred status of U.S. birds.

The proposed 4(d) rule will apply to birds captive-bred in the United States and abroad. The terms “captive-bred” and “captivity”' used in this proposed rule are defined in the regulations at 50 CFR 17.3 and refer to wildlife produced in a controlled environment that is intensively manipulated by man from parents that mated or otherwise transferred gametes in captivity. Although the proposed 4(d) rule requires a permit under the Act to “take” (including harm and harass) a scarlet macaw, “take” does not include generally accepted animal-husbandry practices, breeding procedures, or provisions of veterinary care for confining, tranquilizing, or anesthetizing, when such practices, procedures, or provisions are not likely to result in injury to the wildlife when applied to captive wildlife.

We assessed the conservation needs of the scarlet macaw in light of the broad protections provided to the species under CITES and the WBCA. The scarlet macaw is listed in Appendix I of CITES, a treaty that contributes to the conservation of the species by monitoring international trade and ensuring that trade in Appendix-I species is not detrimental to the survival of the species. The purpose of the WBCA is to promote the conservation of exotic birds and to ensure that imports of exotic birds into the United States do not harm them. The best available data indicate that the current threat to the scarlet macaw stems mainly from illegal trade in the domestic markets of Central and South America (Weston and Memon 2009, pp. 77-80, citing several sources; Shanee 2012, pp. 4-9). Thus, the general prohibitions on import and export contained in 50 CFR 17.31, which extend only within the jurisdiction of the United States, would not regulate such activities. Accordingly we find that the import and export requirements of the proposed 4(d) rule provide the necessary and advisable conservation measures for this species.

Under the proposed 4(d) rule, a person may deliver, receive, carry, transport, or ship A. m. macao and scarlet macaw subspecies crosses in interstate commerce in the course of a commercial activity, or sell or offer to sell in interstate commerce A. m. macao and scarlet macaw subspecies crosses without a permit under the Act. At the same time, the prohibitions on take under 50 CFR 17.31 would apply under this proposed rule, and any interstate commerce activities that could incidentally take A. m. macao and scarlet macaw subspecies crosses or otherwise prohibited acts in foreign commerce would require a permit under the Act. We have no information to suggest that current interstate commerce activities are associated with threats to the scarlet macaw or would negatively affect any efforts aimed at the recovery of wild populations of the species. Therefore, because interstate commerce within the United States has not been found to threaten the scarlet macaw, the species is otherwise protected in the course of interstate commercial activities under the take provisions and foreign commerce provisions contained in 50 CFR 17.31, and international trade of this species is regulated under CITES, we find this proposed rule contains all the prohibitions and authorizations necessary and advisable for the conservation of the scarlet macaw.

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: (1) Be logically organized; (2) Use the active voice to address readers directly; (3) Use clear language rather than jargon; (4) Be divided into short sections and sentences; and (5) 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 ADDRESSES. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us page numbers and the names 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.

This proposed rule does not contain any new collections of information that require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act. This rulemaking will not impose new recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. 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.

We have determined that we do not need to prepare an environmental assessment, as defined under the authority of the National Environmental Policy Act of 1969, in connection with regulations adopted under section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

A complete list of all references cited in this proposed rule is available on the Internet at http://www.regulations.gov or by contacting the office listed in FOR FURTHER INFORMATION CONTACT.

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

The primary author of this revised proposed rule is the staff of the Branch of Foreign Species, Endangered Species Program, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Room 420, Arlington, VA 22203 (see FOR FURTHER INFORMATION CONTACT).

Accordingly, we propose to further amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as proposed to be amended on July 6, 2012, at 77 FR 40222, as set forth below:

Background

The New England Fishery Management Council manages the small-mesh multispecies fishery primarily through a series of exemptions from the Northeast Multispecies Fishery Management Plan (FMP). The small-mesh multispecies fishery is composed of five stocks of three species of hakes (northern and southern silver hake, northern and southern red hake, and offshore hake). It is managed separately from the other stocks of groundfish such as cod, haddock, and flounders, primarily because the fishery uses small mesh and modified nets that do not generally result in the catch of these other stocks. Amendment 19 to the Northeast Multispecies FMP (April 4, 2013; 78 FR 20260) established a process and framework for setting the small-mesh multispecies catch specifications, as well as set the specifications for the 2012-2014 fishing years. On May 28, 2015, specifications for the 2015-2017 fishing years were published (80 FR 30379), based on stock assessment updates using data through the spring 2014 survey. These specifications were based on an update to the previously accepted stock assessment, using data through the 2014 Federal spring trawl survey. A stock assessment update was completed in 2015, using data through the 2015 spring survey. The 2015 update indicates that the northern red hake stock is increasing in biomass, while the southern stock is decreasing.

The purpose of this action is to modify the northern and southern red hake specifications for the 2016 and 2017 fishing years. The New England Fishery Management Council recommended these changes in response to its review of the most recent stock assessment update. A large year-class of northern red hake was identified in the 2013 Federal survey data. Because those fish were small at the time the 2015-2017 specifications were set, the impact to the specifications was minimal; however, the potential for a large increase in biomass during the middle of the specifications period was likely. The Council requested an update to the stock assessment in 2015 to monitor this year class and to adjust the specifications, if warranted.

As expected, the 2015 stock assessment update showed an increase in the northern red hake stock. The update also showed a decrease in the southern red hake stock; however, the reasons for the decline in the southern stock area are unclear.

In response to these changes, this rule proposes to increase the northern red hake and to decrease the southern red hake 2016 and 2017 annual catch limits and total allowable landings limits (Table 1), consistent with the stock assessment update and the Council's recommendation. The increase to the northern stock specifications will allow the fishery to benefit from this increase in biomass, as well as avoiding unnecessary discards by ensuring the possession limit is not reduced sooner than needed, while not substantially changing the already low risk of overfishing. The decrease in the southern stock specifications is necessary to reduce the risk of overfishing, even though recent landings are approximately 20 percent below the proposed revised specifications (Table 2).

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the Assistant Administrator has determined that this proposed rule is consistent with the Northeast Multispecies FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

This action is exempt from review under E.O. 12866 because this action contains no implementing regulations.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The Council conducted an evaluation of the potential socioeconomic impacts of the proposed measures in conjunction with a supplemental information report. These analyses identified 1,007 unique fishing entities, 990 of which are considered small under current business standards, in the Greater Atlantic Region that could be affected by the proposed change. However, only 167 federally permitted vessels, all of which qualify as small entities under the Small Business Administration's small business standards, are expected to participate in the small-mesh fishery in the next two years. The proposed measures would modify the total allowable landings and catch limits consistent with recent scientific information. Under the proposed measures, the northern red hake stock catch limits increase, while the southern red hake stock catch limits decrease. A slight positive impact from the northern red hake stock may occur; however, red hake is generally not the target species for a given small-mesh fishing trip. Its value is much lower than silver hake (i.e., whiting), herring, and squid, which are the primary target species for vessels using small mesh. In addition, the southern red hake landings in recent years are below the proposed reduced landings limit, which is not expected to be constraining. Therefore, the economic impacts of this action are expected to be minimal. Although a large number of small entities may be affected, the effect will be neither negative nor significant.

As a result, an initial regulatory flexibility analysis is not required and none has been prepared.

There are no new reporting or recordkeeping requirements contained in any of the alternatives considered for this action.