Federal Register Vol. 82, No.7,

Background on Regional Innovation Program History

In recent years, concerns about America's global competitiveness led to calls for the Federal Government to more actively foster innovation and better coordinate Federal support for scientific and technological research and development, technology transfer, and commercialization. In particular, without Federal support, local communities struggled to effectively support the development of regional innovation clusters (defined below), which research has shown to be a significant catalyst of economic development. At the same time, regional innovation was hampered by limited access to the capital necessary to implement the innovative manufacturing technologies required to compete in the twenty-first century global economy.

In response to these concerns and with a desire to maintain America's role as a leader in innovation, Congress enacted section 27 of Stevenson-Wydler (“section 27” or “Regional Innovation Program”) as part of the America Creating Opportunities to Meaningfully Promote Excellence in Technology, Education, and Science Reauthorization Act of 2010, Public Law 111-358 (Jan. 4, 2011) (“COMPETES Act”). As originally enacted by Congress, section 27 authorized the Secretary of Commerce (“Secretary”) to “establish a regional innovation program to encourage and support the development of regional innovation strategies, including regional innovation clusters and science and research parks.” In 2014, Congress enacted legislation that narrowed the scope of the Regional Innovation Program. See Public Law 113-235 (Dec. 16, 2014). This legislative change is discussed more fully below. The Regional Innovation Program now encompasses two complementary sub-programs: The Regional Innovation Strategies Program (“RIS Program”) set forth in section 27(b) of the Act, and the Regional Innovation Research and Information Program (“RIRI Program”) set forth in section 27(c) of the Act.

Given EDA's leadership in and support of innovation and entrepreneurship as key elements of a robust economy, the Secretary turned to EDA to develop and implement the Regional Innovation Program. Established under the Public Works and Economic Development Act of 1965, as amended (42 U.S.C. 3121 et seq.) (“PWEDA”), EDA leads the Federal economic development agenda by promoting innovation and competitiveness, preparing American regions for growth and success in the worldwide economy. EDA makes investments to facilitate job creation for U.S. workers, increase private-sector investment, promote American innovation, and accelerate long-term sustainable economic growth. EDA's regulations, codified at 13 CFR parts 300 through 315, provide the framework through which the Agency administers its economic development assistance programs.

Through the RIS Program (section 27(b) of Stevenson-Wydler), the core of the Regional Innovation Program, EDA competitively awards grants to eligible applicants for activities related to the formation and development of regional innovation clusters. 15 U.S.C. 3722(b). Stevenson-Wydler defines a regional innovation cluster as “a geographically bounded network of similar, synergistic, or complementary entities that—(A) are engaged in or with a particular industry sector and its related sectors; (B) have active channels for business transactions and communication; (C) share specialized infrastructure, labor markets, and services; and (D) leverage the region's unique competitive strengths to stimulate innovation and create jobs.” 15 U.S.C. 3722(f)(1).

The RIRI Program (section 27(c) of Stevenson-Wydler) is designed to formulate and disseminate best practices for regional innovation strategies, provide technical assistance for the development and implementation of regional innovation strategies, support the development of metrics to evaluate regional innovation strategies, collect and publicize data on regional innovation cluster activity in the United States, and fund competitive research grants to support the goals of the RIRI Program.

This Final Rule (hereafter “Rule”) focuses on the RIS Program because EDA has not yet implemented the RIRI Program. However, these regulations—and, in particular, the definition sections—are structured to incorporate the RIRI Program into a future subpart C of part 312 of title 13 of the Code of Federal Regulations once EDA implements the RIRI Program.

EDA's economic development assistance programs under PWEDA and the RIS Program seek to increase economic growth and resilience, enhance prosperity, and improve quality of life, but they approach the goal from different angles, as reflected in the enabling statutes and regulations. For example, the focus of PWEDA's core programs is increasing employment and private investment in economically distressed regions. Funding generally is limited to regions that meet chronic high unemployment or low per capita income criteria, and grant rates increase with the level of economic distress up to a maximum of 100 percent in limited circumstances. Conversely, the RIS Program focuses on encouraging scientific and technological innovation and collaboration; it thus provides funding to a broader range of entities and does not require applicants to demonstrate economic distress. Moreover, it also is capped at a 50 percent grant rate.

In addition to awarding grants under the RIS and RIRI Programs, EDA anticipates conducting at a future date COMPETES Act prize competitions that support the goals and objectives of the Regional Innovation Program. See 15 U.S.C. 3719.

EDA publicly launched the RIS Program in September 2014 when it announced the first round of competitions for funding under the Program. The announcement of a Federal Funding Opportunity (“FFO”) identified three separate competitions for a total of $15 million in Federal funding: The i6 Challenge, Science and Research Park Development Grants, and Seed Fund Support (“SFS”) Grants (formerly known as Cluster Grants for Seed Capital Funds). The i6 Challenge, first launched in 2010 as part of the multi-agency Startup America Initiative, is designed to support the creation of programs for innovation and entrepreneurship—specifically, the development, creation, or expansion of proof-of-concept and commercialization programs that increase the development of innovations, ideas, intellectual property, and research into viable companies. Science and Research Park Development Grants supported feasibility and planning studies to create innovation hubs for driving the results of applied research and development to the commercial marketplace by supporting the entire product or process lifecycle from idea generation to business creation. SFS Grants support activities related to the feasibility, planning, formation, launch, or expansion of cluster-based seed capital funds to assist innovation-based startups with high growth potential. After considering 241 applications, in early 2015, EDA awarded 17 i6 Grants, 12 Science and Research Park Development Grants, and 9 SFS Grants to applicants throughout EDA's six regions.

In 2014, Congress amended the Regional Innovation Program in section 705 of the Revitalize American Manufacturing and Innovation Act of 2014, Public Law 113-235 (Dec. 16, 2014) (“RAMI”). Under RAMI, Congress eliminated the provisions authorizing Science and Research Park Development Grants and Loan Guarantees for Science Park Infrastructure but did maintain eligibility for such parks to apply for RIS Program awards. Accordingly, when EDA announced a second round of RIS Program competitions in August 2015, it included $10 million in Federal funding for i6 Challenge Grants and SFS Grants, and no longer had a separate Science and Research Park Development Grant competition. In addition, consistent with changes made by Congress in RAMI to section 27(b)(7) of the Act, EDA implemented a targeted outreach program to ensure that public and private sector entities in rural communities were aware of the opportunity. After considering 168 applications for funding, EDA awarded 17 i6 Grants and 8 SFS Grants in early 2016.

A third round of competitions for $15 million in funding for i6 Challenge Grants and SFS Grants was completed in November 2016. After considering 215 applications for funding, EDA awarded 27 i6 Grants and 8 SFS Grants.

With EDA's RIS Program funding, successful applicants have undertaken transformative projects such as the development of a hardware entrepreneurship ecosystem, expansion of a seed capital fund focused on commercializing water technology, and investigation of the feasibility of constructing a test track for connected and autonomous vehicles. Grant recipients are required to provide semi-annual reports, using EDA-developed metrics that are consistent across grantees, that EDA uses to evaluate the impact of the RIS Program.

Administration and management of the Regional Innovation Program is an EDA-wide responsibility. The Regional Innovation Program (including the RIS Program) is broadly overseen by the Office of Innovation and Entrepreneurship (“OIE”), which was established by the Secretary pursuant to section 25 of the Act. 15 U.S.C. 3720. Housed within EDA, OIE works to foster a more innovative U.S. economy focused on turning new ideas and inventions into products and technologies that spur job growth and competitiveness while promoting economic development through innovation and entrepreneurship. In addition, EDA's Deputy Assistant Secretary for Regional Affairs has served as the Grants Officer for RIS Program awards, with day-to-day administration of these awards being handled by the Agency's regional offices.

Because of the significant differences in EDA's authority under PWEDA and Stevenson-Wydler, there is a need for a standalone regulatory framework for the Regional Innovation Program. This Rule creates such a framework. From the outset, the Rule makes it clear that the Regional Innovation Program is made up of two sub-programs, the RIS and RIRI Programs, administered by EDA. While focusing on the RIS Program given that EDA has not yet implemented the RIRI Program, the Rule is designed to accommodate future implementation of the RIRI Program by defining terms applicable to the RIRI Program and reserving a subpart for future implementing regulations.

The Rule establishes definitions applicable to the Regional Innovation Program generally and a set of terms specific to the RIS Program. In addition, the Rule describes the purpose and scope of the RIS Program and delineates the eligible recipients, eligible program activities, investment rate, matching share, application components, application evaluation and selection criteria, and general terms and conditions applicable to the RIS Program.

On September 21, 2016 EDA published an NPRM in the Federal Register (81 FR 64805) requesting public comments on EDA's proposed regulations for the Regional Innovation Program. The public comment period closed on November 21, 2016. EDA received two public comments in response to the NPRM. One comment was non-germane. The other, from a nonprofit organization, was generally supportive of the Rule while raising five specific issues, which are addressed below. EDA is also making one technical correction to Section 312.12, unrelated to the substantive comment, that is discussed in more detail below.

The commenter advocates for removing several items from the list of “Eligible project activities” under Section 312.7—namely, the purchase of equipment (312.7(a)(9) of the NPRM), construction (312.7(a)(10) of the NPRM), and other activities approved by the Assistant Secretary (312.7(a)(11) of the NPRM). It suggests eliminating equipment and construction funding to avoid compromising the core value and unique nature of the RIS Program, or, in the alternative, it recommends permitting the purchase of equipment with matching share but not Federal funds. It similarly expresses concern that Section 312.7(a)(11) “could be used to expand the program beyond the legislation's intent.”

While EDA disagrees with the commenter's position that these activities should be ineligible, EDA does acknowledge that some clarification of eligible activities will be helpful in overcoming any misperceptions that these regulations somehow dilute the essence of the RIS Program or conflict with Congressional intent. In response to the comment on equipment and construction, EDA is combining Sections 312.7(a)(9) and (10) into a new Section 312.7(a)(9) to make clear that construction activities may be funded only as ancillary activities necessary to permit the installation of equipment. The Rule further removes ambiguity by expressly providing in new Section 312.7(a)(9) that the purchase of equipment and its installation are allowable only if necessary to support another eligible activity. Accordingly, projects involving only the purchase and/or installation of equipment will not be funded, keeping the core purposes of the RIS Program intact. EDA is also modifying a cross-reference in Section 312.7(b)(3), part of the list of ineligible activities, to account for the consolidation of these sections.

Likewise, EDA is adding language to new Section 312.7(a)(10) (312.7(a)(11) in the NPRM) to address the commenter's concern that this provision has the potential to extend the RIS Program beyond what Congress intended. Stevenson-Wydler clearly affords the Assistant Secretary (through delegation from the Secretary) broad discretion to add to the inventory of activities already authorized by the statute by stating that “[g]rants awarded under this subsection may be used for activities determined appropriate by the Secretary” and then identifying a non-exhaustive list of some permissible activities. See 15 U.S.C. 3722(b)(2). However, EDA recognizes that the Assistant Secretary's discretion is appropriately limited by the statutorily established purpose of the RIS Program (“to encourage and support the development of regional innovation strategies, including regional innovation clusters”, see 15 U.S.C. 3722(a)). To emphasize this point, EDA is modifying new Section 312.7(a)(10) by adding the phrase “consistent with section 27(b) of Stevenson-Wydler” to the end of the paragraph.

Referencing the NPRM preamble, the commenter agrees with EDA's position that Stevenson-Wydler does not permit the use of RIS Program funds or matching share for equity investments. However, the commenter takes issue with EDA's statement that early-stage companies can access other relevant Federal sources of investment capital, arguing that a Federally-funded seed fund program does not exist but is needed and would increase innovation and entrepreneurial activity.

While EDA appreciates the commenter's advocacy for Federal programs that would directly provide investment capital, the commenter's argument does not implicate the regulatory provision itself. For this reason, as well as the commenter's acknowledgment that the provision is consistent with Stevenson-Wydler, no change is being made in this Rule regarding the prohibition on the use of RIS Program funds for equity investments.

The commenter also conveys its views on two aspects of Section 312.10. First, it suggests that the application components outlined in Section 312.10 “will help ensure applicants apply a broad strategic framework to their cluster activities” but nevertheless should not be scoring criteria for the RIS Program. Second, the commenter states that the nature of the workforce information requested in Section 312.10(e) is unclear and recommends replacing EDA's proposed Section 312.10(e) with “the extent to which the regional innovation cluster is likely to improve the training or employment opportunities of the regional workforce”.

Regarding the commenter's first suggestion on scoring, section 27(b) of Stevenson-Wydler contains a list of required application components for the RIS Program and Section 312.10 simply mirrors this statutory scheme. See 15 U.S.C. 3722(b)(4)(B). As a result, all RIS Program applications must as a threshold matter address these required components to be complete. As the commenter itself implies, the components are not merely “technical” requirements but are instead clearly substantive, merits-based elements that are intended to be part of EDA's evaluation of the applicant's competitiveness relative to other applicants.

The commenter's second suggested modification is unduly narrow, focusing this selection factor exclusively on how the regional innovation cluster will improve workforce training or employment opportunities while overlooking the statute's explicitly broad and potentially multi-dimensional emphasis on the capacity of cluster participants to access or contribute to a well-trained workforce. Put another way, Section 312.10(e) parallels the statutory language, providing unambiguous flexibility to the applicant to demonstrate the extent and nature of the project's connection to and support of a well-trained workforce, of which training and employment opportunities may be a part. See 15 U.S.C. 3722(b)(4)(B)(iv).

In light of the above, the Rule leaves Section 312.10 unchanged from the NPRM.

The commenter also suggests that stronger national-level coordination of the RIS Program could provide greater value in terms of increased opportunities “to share best practices in seed fund and cluster development across awardees and the innovation community as a whole.”

EDA has no plans at this time to significantly change how it administers and manages the Regional Innovation Program. Although the Agency comprises a Washington, DC headquarters (“HQ”) office and six regional offices, there is a unified EDA that leverages the strengths and skills of all of its geographically-dispersed staff. As explained above, the Regional Innovation Program is managed and overseen by OIE, based out of HQ. The day-to-day administration of RIS Program grants is handled by the regional offices, in close coordination with OIE. This integrated approach effectively balances resource allocation with program execution by providing a coordinated and responsive national agenda. At the same time, this puts grant administration in the hands of those who are the Agency's day-to-day grants experts and offers the program's diverse stakeholders valuable points of contact in the field. No change is being made to the regulations, as proposed, in response to the commenter's recommendation.

Finally, the commenter seeks additional clarity on the Agency's statement in the NPRM's preamble that EDA may in the future conduct prize competitions that support the goals and objectives of the Regional Innovation Program. The commenter notes that it strongly believes that the current scale and structure of the RIS Program awards is integral to the value of the program and should not change “unless the program scales toward its original conception as a $100 million program.” The commenter can, however, foresee a positive role for prize competitions if the Agency were to use remaining portions of the fiscal year's available funding on smaller projects that support regional innovation clusters.

EDA agrees with the commenter that the RIS Program is primarily a grant-making initiative. To allay any concerns, the Agency reiterates that it does not anticipate making any immediate and significant changes to the program's current funding model. The Agency, however, is exploring the use of prize competitions at some point as a complementary tool to respond to evolving regional innovation cluster needs and support the overall objectives of the Regional Innovation Program, particularly as it works to develop the RIRI Program. No change to the proposed regulations is necessitated by this issue raised by the commenter.

Unrelated to the substantive comment received, EDA is making one technical correction in this Rule. In Section 312.12, EDA is adding 13 CFR 302.17, dealing with conflicts of interest, to the list of PWEDA general terms and conditions that do not apply to the RIS Program. The conflict of interest provision contained in 13 CFR 302.17 is specific to the requirements of PWEDA and thus is inapplicable to the RIS Program, which is instead based on the statutory requirements of Stevenson-Wydler.

Prior notice and opportunity for public comment are not required for rules concerning public property, loans, grants, benefits, and contracts. 5 U.S.C. 553(a)(2). Because prior notice and an opportunity for public comment are not required pursuant to 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are inapplicable. Therefore, a regulatory flexibility analysis has not been prepared.

This Rule was drafted in accordance with Executive Orders 12866 and 13563. It was reviewed by the Office of Management and Budget (“OMB”), which found that the Rule will be a “significant regulatory action” as defined by Executive Orders 12866 and 13563.

This Rule is not major under the Congressional Review Act (5 U.S.C. 801 et seq.).

Executive Order 13132 requires agencies to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in Executive Order 13132 to include regulations that 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.” It has been determined that this Rule does not contain policies that have federalism implications.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (“PRA”) requires that a Federal agency consider the impact of paperwork and other information collection burdens imposed on the public and, under the provisions of PRA section 3507(d), obtain approval from OMB for each collection of information it conducts, sponsors, or requires through regulations. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the PRA unless that collection displays a currently valid OMB Control Number. The Rule does not include a new information collection requirement and will, thus, use the previously approved Standard Form 424 family of forms to collect information relevant to the grant applications.

The following table provides a complete list of the collections of information (and corresponding OMB Control Numbers) set forth in this Rule. These collections of information are necessary for the proper performance and functions of EDA.

For the reasons set forth in the preamble, EDA amends title 13, chapter III of the Code of Federal Regulations by adding part 312 to read as follows:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747-400, 747-400D, 747-400F, 747SR, and 747SP series airplanes. The NPRM published in the Federal Register on July 28, 2016 (81 FR 49572) (“the NPRM”). The NPRM was prompted by an evaluation by the DAH indicating that the nose wheel well is subject to WFD. The NPRM proposed to require modification of the nose wheel body structure; a detailed inspection of the nose wheel body structure for any cracking; a surface HFEC or an open hole HFEC inspection of the vertical beam outer chord and web for any cracking; and all applicable related investigative actions including repetitive inspections, and other specified and corrective actions. We are issuing this AD to detect and correct fatigue cracking in the nose wheel well structure; such cracking could adversely affect the structural integrity of the airplane.

We gave the public the opportunity to participate in developing this AD. We have considered the comments received. Boeing and United Airlines supported the NPRM.

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

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

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

Since the NPRM was issued, we have updated the AD with Boeing's new contact information.

We reviewed Boeing Alert Service Bulletin 747-53A2887, dated December 2, 2015. The service information describes procedures for modification of the nose wheel body structure; a detailed inspection of the nose wheel body structure for any cracking; a web surface HFEC and an open hole HFEC inspection of the vertical beam outer chord for any cracking; and repair. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 107 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 787-8 airplanes. The NPRM published in the Federal Register on May 11, 2016 (81 FR 29206) (“the NPRM”). The NPRM was prompted by reports indicating that certain wing side-of-body upper stringer fittings have been installed with faying surface mismatch beyond the allowed machining tolerance. The NPRM proposed to require inspection of certain stringer fittings for faying surface mismatch common to the side-of-body rib chord, replacement if necessary, and replacement of the clearance fit fasteners common to the side-of-body fittings and upper side-of-body rib chord with tapered sleeve bolts. We are issuing this AD to prevent an unacceptable reduction of the fatigue life in the upper side-of-body rib chord. Associated fatigue cracks can reduce the structural capability of the upper side-of-body t-chord to a point where it cannot sustain limit load, which could adversely affect the structural integrity of the airplane.

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

United Airlines (UA) and All Nippon Airways (ANA) asked that we revise the NPRM to reference Boeing Alert Service Bulletin B787-81205-SB570018-00, Issue 002, because Boeing Alert Service Bulletin B787-81205-SB570018-00, Issue 001, dated July 1, 2015, is currently being revised by Boeing. UA and ANA added that by including the revised service information for accomplishing the specified actions, requests for alternative methods of compliance (AMOCs) will be reduced.

We do not agree because the revised service information is not yet released. In an AD, we cannot refer to service information that does not exist because doing so violates Office of the Federal Register (OFR) regulations for approval of materials incorporated by reference in rules. To allow operators to use service information issued after publication of an AD, either we must supersede the AD to reference specific service information, or operators must request approval to use the new service information as an AMOC for the AD under the provisions of paragraph (j) of this AD. We consider addressing the unsafe condition as soon as possible a necessity. We might consider issuing a global AMOC if revised service information is approved. We have not changed this AD in this regard.

Boeing asked that we clarify that the proposed AD was prompted by reports indicating that the wing side-of-body stringer fittings that were installed with a faying surface mismatch beyond allowed tolerances were the upper stringer fittings.

We agree that clarification of the language describing what prompted the AD is necessary. We have changed the SUMMARY section of this final rule, as well as paragraph (e) of this AD, to include “upper” before “stringer fittings.”

Boeing asked that we clarify the Discussion section of the NPRM, which stated that the faying surface mismatch produces a gouge. Boeing requested that we revise this wording to indicate that a gouge produced from a faying surface mismatch is a possibility, not a certainty.

We do not agree that the description in the Discussion section of the NPRM is inaccurate, because excessive cutter mismatch will produce a gouge in the mating surface eventually. In addition, the Discussion section of NPRMs is not fully repeated in final rules. Therefore, we have not changed this AD in this regard.

Boeing asked that we clarify the description of the corrective actions in the “Related Service Information under 1 CFR part 51” section of the NPRM by distinguishing certain conditions associated with the various corrective actions.

We agree that clarification of the language is necessary. The “Related Service Information under 1 CFR part 51” section in an AD simply describes the various actions in the service information; it does not describe the detailed requirements with specific corrective actions for specific inspection findings. Therefore, we have changed that section in this final rule to simply list the different actions provided in Boeing Alert Service Bulletin B787-81205-SB570018-00, Issue 001, dated July 1, 2015.

Boeing asked that the word “other” be removed from the “FAA's Determination” section of the NPRM, which specifies that the unsafe condition “is likely to exist or develop in other products of the same type design.” Boeing stated that the unsafe condition resulted from a quality escapement applicable to specific line numbers, and therefore is not likely to develop in other products of the same type design (i.e., the entire 787-8 fleet).

We do not agree to remove the word “other” from the specified sentence. In 14 CFR 39.5, which defines the reason for issuing ADs, it states that an AD addresses “a product” when the unsafe condition is likely to exist or develop in “other products” of the same type design. The product addressed by an AD refers to the airplane(s) associated with the incident or specific findings that prompted the AD. In this case, the “other products” extends to Model 787-8 airplanes that are identified in paragraph (c) of this AD—that is, airplanes identified in Boeing Alert Service Bulletin B787-81205-SB570018-00, Issue 001, dated July 1, 2015—not the entire fleet. We have not changed this AD in this regard.

Boeing asked that we change the compliance time wording in paragraph (g) of the proposed AD for clarification by referring to Boeing Alert Service Bulletin B787-81205-SB570018-00, Issue 001, dated July 1, 2015, instead of specifying the actual compliance time.

We do not agree with the request. Paragraph (g) of the proposed AD (which is retained in this final rule) provides the compliance time (before the accumulation of 18,000 total flight cycles, or within 13 years after the effective date of this AD, whichever occurs first) because the Accomplishment Instructions of the service information do not provide a compliance time for the inspection. We have not changed this AD regarding this issue.

Boeing asked that we clarify the description of the inspections specified in paragraphs (g)(1), (g)(2), and (g)(3) of the proposed AD as follows: (1) Do a detailed inspection for a machine mismatch condition of the stringer 1 fitting faying surface; (2) Do a detailed inspection of the faying surface of the aluminum T-chord common to stringer 1 fitting for fretting damage; and (3) Do an eddy current inspection for cracking of the fastener holes common to stringer fittings 1 and 5 through 11. Boeing stated that this will more closely match the information and sequence of the inspections specified in the referenced service information.

We agree with the commenter's request to clarify the inspection language specified in paragraphs (g)(1), (g)(2), and (g)(3) of this AD, for the reasons provided. We have clarified those paragraphs accordingly.

Boeing asked that we revise paragraph (h) of the proposed AD to clarify the corrective actions. The commenter defined four corrective actions (which are also defined in the service information).

We agree with the commenter's request in part. We do not agree to clarify the corrective actions because the actions described by the commenter are for the inspections required by paragraph (g) of this AD, and are clearly specified in Boeing Alert Service Bulletin B787-81205-SB570018-00, Issue 001, dated July 1, 2015. Those corrective actions are identified in paragraph (g) of this AD as, simply, “corrective actions,” and are further defined by reference to Boeing Alert Service Bulletin B787-81205-SB570018-00, Issue 001, dated July 1, 2015. However, we do agree to change the title of paragraph (h) of this AD to specify “Modification, Inspection, and Repair” to encompass the requirements specified in paragraph (h) of this AD.

To ensure that all provisions within the RC steps for contacting Boeing are captured, Boeing requested that we revise paragraph (i) of the proposed AD to refer to repair of the “applicable condition” instead of just “cracking.”

We do not agree with the commenter's request. Boeing Alert Service Bulletin B787-81205-SB570018-00, Issue 001, dated July 1, 2015, specifies contacting Boeing if there is a crack; corrective actions for other discrepancies are provided within the service information.

Boeing also asked that we add the following exception in paragraph (i) of the proposed AD:

We do not agree to include the compliance time exception. As explained previously, the compliance times in this AD are defined using specific times instead of referring to the service information. Therefore, there are no exceptions to the service information regarding the compliance times in this AD. We have not changed this AD regarding this issue.

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

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

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

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

We reviewed Boeing Alert Service Bulletin B787-81205-SB570018-00, Issue 001, dated July 1, 2015. The service information describes procedures for inspection of the left and right hand side stringer 1 fittings for faying surface mismatch common to the side-of-body rib chord, replacement of the stringer 1 fitting, and removal and replacement of the clearance fit fasteners common to the side-of-body fittings and upper side-of-body rib chord with tapered sleeve bolts from stringer 5 to stringer 11. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

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

We estimate the following costs to comply with this AD:

We estimate the following costs to do any necessary corrective action for fretting damage or cutter mismatch based on the results of the inspection. We have no way of determining the number of aircraft that might need these corrective actions:

We have received no definitive data that enables us to provide cost estimates for the crack repair specified in this AD.

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

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

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

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

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

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

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

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

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus Defense and Space S.A. Model CN-235, CN-235-100, CN-235-200, and CN-235-300 airplanes. The NPRM published in the Federal Register on September 29, 2016 (81 FR 66872). The NPRM was prompted by reports of cracks in certain areas of the rear fuselage. The NPRM proposed to require repetitive borescope and detailed visual inspections of the rear fuselage lateral beam and its external area, and repair if necessary. We are issuing this AD to address the unsafe condition on these products.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued Airworthiness Directive 2016-0064, dated April 4, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Defense and Space S.A. Model CN-235, CN-235-100, CN-235-200, and CN-235-300 airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9113.

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

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

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

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

We reviewed Airbus Defense and Space Alert Operators Transmission (AOT), AOT-CN235-53-0002, Revision 1, dated September 17, 2015. This service information describes repetitive borescope and detailed visual inspection requirements for the rear fuselage lateral beam and its external area. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 13 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

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

Comments Invited

This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments before it becomes effective. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2013-1015; Directorate Identifier 2013-NE-37-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

On February 27, 2014, we issued AD 2014-05-25, Amendment 39-17798 (79 FR 15665, March 21, 2014), “AD 2014-05-25,” for all RR RB211-Trent 970-84, RB211-Trent 970B-84, RB211-Trent 972-84, RB211-Trent 972B-84, RB211-Trent 977-84, RB211-Trent 977B-84, and RB211-Trent 980-84 turbofan engines. AD 2014-05-25 required inspections of the LPT exhaust case and support assembly or TBH to detect cracks or damage. AD 2014-05-25 resulted from an RR structural re-analysis indicating that the TBH may not retain full limit load capability in all fail-safe conditions. We issued AD 2014-05-25 to prevent failure of the TBH, resulting in damage to the engine and to the airplane.

Since we issued AD 2014-05-25, RR has analyzed inspection results and determined that the existing inspections need to be modified. Also since we issued AD 2014-05-25, the European Aviation Safety Agency (EASA) has issued AD 2016-0193, dated September 30, 2016, which modifies the inspection schedule for the affected engines and adds an optional terminating action.

RR has issued Alert Non-Modification Service Bulletin (NMSB) RB.211-72-AG971, Revision 2, dated May 5, 2016; Alert NMSB RB.211-72-AH154, Revision 5, dated May 5, 2016; Alert NMSB RB.211-72-AJ101, dated May 5, 2016; and Service Bulletin (SB) RB.211-72-J055, dated March 22, 2016. RR Alert NMSB RB.211-72-AG971 describes procedures for on-wing or in-shop inspection of the TBH mount lug run-outs. RR Alert NMSB RB.211-72-AH154 describes procedures for an on-wing or in-shop inspection of a pre-mod 72-J024 TBH. RR Alert NMSB RB.211-72-AJ101 describes procedures for on-wing or in-shop inspection of a post-mod 72-J024 TBH. RR SB RB.211-72-J055 describes procedures for modifying the engine by introducing a revised TBH. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

RR has also issued Technical Variance (TV) No. 124801, Issue 2, dated July 4, 2012; TV No. 124851, Issue 2, dated July 4, 2012; Repeater TV No. 132043, Issue 1, dated March 25, 2013; and Repeater TV No. 132217, Issue 5, dated May 23, 2013. RR TV No. 124801 and RR TV No. 124851 provide details on the fluorescent penetrant inspection of the TBH mount lug run-outs. RR Repeater TV No. 132043 includes details of the inspection of the mount lug forging LE areas. RR Repeater TV No. 132217 makes the removal and installation of the exhaust nozzle and forward and aft exhaust plugs optional tasks.

We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This AD modifies the inspection schedule for the affected engines and adds an optional terminating action.

No domestic operators use this product. Therefore, we find that notice and opportunity for prior public comment are unnecessary and that good cause exists for making this amendment effective in less than 30 days.

We estimate that this AD affects 0 engines installed on airplanes of U.S. registry. We estimate the following costs to comply with this AD:

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

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

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

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

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

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

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

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

Accordingly, under the authority delegated to me by the Administrator, the FAA amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

I. Executive Summary

The Federal Aviation Administration (FAA) Extension, Safety, and Security Act of 2016 (Pub. L. 114-190) (FESSA) was enacted on July 15, 2016. Section 2307 of FESSA, Medical Certification of Certain Small Aircraft Pilots, directed the FAA to “issue or revise regulations to ensure that an individual may operate as pilot in command of a covered aircraft” without having to undergo the medical certification process under 14 CFR part 67 if the pilot and aircraft meet certain prescribed conditions as outlined in FESSA. The FAA is amending parts 61 and 91 and creating a new part 68 to conform to this legislation.

This final rule implements, without interpretation, the requirements of section 2307 of FESSA. This rule reiterates the provisions of section 2307 of FESSA and describes how the FAA is implementing those provisions.

The FAA's authority to issue rules on aviation safety is found in Title 49 of the United States Code (49 U.S.C.). Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This final rule is promulgated under the authority described in Subtitle VII, Part A, Subpart iii, section 44701, General Requirements; section 44702, Issuance of Certificates; and section 44703, Airman Certificates. Under these sections, the FAA is charged with prescribing regulations and minimum standards for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. The FAA is also authorized to issue certificates, including airman certificates and medical certificates, to qualified individuals. This rule is within the scope of that authority.

This rule is further promulgated under section 2307 of Public Law 114-190, the FAA Extension, Safety and Security Act of 2016. Section 2307, Medical Certification of Certain Small Aircraft Pilots, provides the requirements and terms of this rule.

The Administrative Procedure Act (5 U.S.C. 553(b)(3)(B)) requires an agency to conduct notice and comment rulemaking except when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. The FAA finds that notice and the opportunity to comment are unnecessary and contrary to the public interest in this action because the FAA has simply adopted the statutory language without interpretation and is implementing that language directly into the regulations. The FAA further finds that delaying implementation of this rule to allow for notice and comment would be contrary to the public interest as to do so would delay the new privileges Congress sought to provide.

In general, a person may serve as a required pilot flightcrew member of an aircraft only if that person holds the appropriate medical certificate.1 14 CFR 61.3(c)(1). There are a few exceptions to this requirement, such as for pilots flying gliders, balloons, and/or light-sport aircraft. 14 CFR 61.3(c)(2).

A medical certificate provides validation that a person meets FAA medical certification requirements. Title 14, Code of Federal Regulations (14 CFR) part 67 provides for the issuance of three classes of medical certificates—first-, second-, and third-class medical certificates.2 At minimum, a third-class medical certificate is required for operations requiring a private pilot certificate, a recreational pilot certificate, a flight instructor certificate (when acting as pilot in command or serving as a required flight crewmember in operations other than glider or balloon), or a student pilot certificate. An applicant who is found to meet the appropriate medical standards,3 based on a medical examination and an evaluation of the applicant's history and condition, is entitled to a medical certificate without restriction or limitation.

A person obtains a medical certificate by completing an online application (FAA form 8500-8, Application for Medical Certificate) using the FAA's medical certificate application tool, MedXPress, on the FAA Web site and undergoing a physical examination with an FAA-designated Aviation Medical Examiner (AME). The majority of applicants are issued an unrestricted medical certificate by an AME. An AME may defer an applicant to the FAA for further review (which may include further examination by a specialist physician) when there is information indicating the existence or potential of an adverse medical finding that may warrant further FAA medical evaluation and oversight. Title 14 CFR 61.23 specifies the duration of validity for unrestricted medical certificates based on the applicant's age on the date of examination. For third-class medical certificates, certificates for airmen under age 40 are valid for 5 years and for airmen age 40 and over are valid for 2 years.

Section 2307, Medical Certification of Certain Small Aircraft Pilots, provides that, within 180 days of enactment of Public Law 114-190, the FAA Extension, Safety and Security Act of 2016, the Administrator of the FAA shall issue or revise regulations to ensure that an individual may operate as pilot in command of a covered aircraft if certain provisions stipulated in section 2307 of FESSA are met. Those provisions, discussed further below, include requirements for the person to:

• Possess a valid driver's license;

• Have held a medical certificate at any time after July 15, 2006;

• Have not had the most recently held medical certificate revoked, suspended, or withdrawn;

• Have not had the most recent application for airman medical certification completed and denied;

• Have taken a medical education course within the past 24 calendar months;

• Have completed a comprehensive medical examination within the past 48 months;

• Be under the care of a physician for certain medical conditions;

• Have been found eligible for special issuance of a medical certificate for certain specified mental health, neurological, or cardiovascular conditions;

• Consent to a National Driver Register check;

• Fly only certain small aircraft, at a limited altitude and speed, and only within the United States;

• Not fly for compensation or hire.

The FAA notes that the use of this rule by any eligible pilot is voluntary. Persons may elect to use this rule or may continue to operate using any valid FAA medical certificate.4 The FAA recognizes that a pilot who holds a medical certificate may choose to exercise this rule and not to exercise the privileges of his or her medical certificate. Even though a pilot chooses not to exercise the privileges of the medical certificate for a particular operation, the FAA retains the authority to pursue enforcement action to suspend or revoke that medical certificate where there is evidence that the pilot does not meet the FAA's medical certification standards. 49 U.S.C. 44709(a).

Section 2307(a)(1) through (7) contains several requirements the pilot must meet in order to act as pilot-in-command (PIC) of a covered aircraft. The FAA is implementing those requirements by revising § 61.23(c)(1) and by adding new § 61.23(c)(3).5 The following sections discuss the pilot requirements of section 2307 and the FAA's implementation of those requirements in more detail.

Section 2307(a) states that an “individual” may operate as PIC of a covered aircraft in accordance with the requirements of FESSA. Thus, the privileges of this rule are not limited to persons holding a private pilot certificate; it also applies to persons exercising student pilot, recreational pilot, and private pilot privileges and to persons exercising flight instructor privileges when acting as PIC.6 Accordingly, §§ 61.3 and 61.23 indicate that persons exercising the privileges of these certificates may act as PIC of an operation conducted under the conditions and limitations set forth in § 61.113.7 However, persons exercising privileges of a student pilot or recreational pilot certificate must continue to operate consistent with the limitations on their certificate.8 The FAA is therefore adding new §§ 61.89(d) and 61.101(k) to make clear that while individuals exercising the privileges of a student pilot or recreational pilot certificates may operate under § 61.113(i), they must comply with the limitations in §§ 61.89 and 61.101, as applicable, when those limitations conflict with § 61.113(i). Individuals holding a private pilot certificate issued on the basis of a foreign pilot license under § 61.75 may also operate under this rule, provided they meet the requirements of §§ 61.23(c)(3) and 61.113(i). However, an individual who is applying for a U.S. private pilot certificate under § 61.75 is still required to hold a medical certificate issued under part 67 or a medical license issued by the country that issued the person's foreign pilot license.9 Section 2307 does not apply to persons exercising privileges of a commercial pilot certificate or an airline transport pilot certificate because section 2307 prohibits operations for compensation or hire.10 Persons exercising privileges of a commercial pilot or ATP certificate must continue to hold a first or second class medical certificate in accordance with § 61.23(a)(1) and (2).

Section 2307(a)(1) of FESSA requires that, to be eligible to act as PIC without a medical certificate, an individual possess a valid driver's license issued by a State, territory, or possession of the United States and comply with all medical requirements or restrictions associated with that license. As with other FAA regulations, the FAA interprets “valid driver's license” to mean a current and valid U.S. driver's license. Each State will determine what, if any, medical requirements or restrictions are necessary and associated with each driver's license issued.

The FAA is implementing section 2307(a)(1) by revising § 61.23(c)(1) and by adding new § 61.23(c)(3). The FAA is adding paragraphs (v) and (vi) to § 61.23(c)(1) to require a person exercising a student pilot certificate, recreational pilot certificate, private pilot certificate, or flight instructor certificate (while acting as the pilot in command or as a required flight crewmember) to hold and possess either a medical certificate or a driver's license issued by a State, territory, or possession of the U.S. when operating under this rule. Additionally, the FAA is adding new § 61.23(c)(3) to require a person using a U.S. driver's license to meet the requirements of § 61.23(c)(1) while operating under section 2307 of FESSA to comply with all medical requirements or restrictions associated with his or her U.S. driver's license.

The FAA notes that, while some pilots use an official passport as a valid form of photo identification under § 61.3(a)(2), it does not meet the requirements of section 2307(a)(1) of FESSA. All pilots, including pilots who were issued U.S. private pilot certificates in accordance with § 61.75, must hold a U.S. driver's license to operate under this rule. An international driver's license or any driver's license issued by a country or territory other than the United States does not suffice to meet this requirement.

Individuals who do not have a medical certificate and whose driver's license has been revoked or rescinded for any reason are not eligible to use this rule, unless and until the driver's license is reinstated. Any restrictions on a driver's license (e.g., corrective lenses, prosthetic aids required, daylight driving only) also apply under this rule.

Since FESSA requires the individual to possess a driver's license, pilots are required to have the driver's license in their personal possession when operating using this rule.

Section 2307(a)(2) of FESSA requires that the individual (1) hold a medical certificate issued by the FAA on the date of enactment of Public Law 114-190, (2) have held a medical certificate at any point during the 10-year period preceding the date of enactment, or (3) obtain a medical certificate after the date of enactment. Because Public Law 114-190 was signed into law on July 15, 2016,11 the FAA calculates the 10-year period preceding the date of enactment as beginning on July 15, 2006. Thus, at any point after July 14, 2006, a person must have held a medical certificate issued under part 67. The FAA is implementing this requirement in § 61.23(c)(3)(i)(B).

Consistent with section 2307(a)(3) of FESSA, the medical certificate required under § 61.23(c)(3)(i)(B) may have been a first-, second-, or third-class medical certificate, including a medical certificate issued under an authorization for special issuance (“special issuance medical certificate”).

A person who has not held a medical certificate at any point after July 14, 2006, must obtain a medical certificate issued under part 67. After that medical certificate expires, that person may use, or continue to use, the alternative pilot physical examination and education requirements, provided that person meets the other conditions and limitations.

For individuals relying on an already expired certificate, a person should use the date that his or her most recent medical certificate expired to determine whether it meets the 10-year period look-back described in FESSA. Special-issuance medical certificates are always time-limited and will explicitly state the date when the certificate expires or is no longer valid. Therefore, any special-issuance medical certificate with an expiration date on or after July 15, 2006, would meet the 10-year look-back requirement.

Unrestricted (“regular issuance”) medical certificates do not list a specific expiration date. Therefore, persons with an unrestricted FAA medical certificate should refer to the “Date of Examination” displayed on the certificate, and then use § 61.23(d) to determine when it expired for operations requiring a third-class medical certificate.12 The expiration date is based on a person's age on the date of the examination as calculated from his or her date of birth (i.e., “under age 40” vs. “age 40 and over”). For example, a person born on January 2, 1963 would be “under age 40” if the date of examination was January 1, 2003, but would be “age 40 and over” if the examination occurred one day later on January 2, 2003. The FAA advises individuals to carefully review § 61.23(d), which specifies the duration of medical certificates.13

Persons age 40 or over on the date of their examination would meet the 10-year period described in FESSA if their examination was on or after July 15, 2004. This date is based on the two-year validity period for third class medical certificates issued to persons age 40 or over. Persons under age 40 on the date of their examination would meet the 10-year period described in FESSA if their examination was on or after July 15, 2003. This date is based on the three-year validity period for third class medical certificates issued to persons under 40 years of age that was in effect prior to 2008.14

Individuals operating under this rule are not required to carry or possess the expired medical certificate when operating under this rule.

Section 2307(a)(3) of FESSA requires that the most recent medical certificate issued by the FAA to the individual: (1) Indicates whether the certificate isfirst-, second-, or third-class; (2) may include authorization for special issuance; (3) may be expired; (4) cannot have been revoked or suspended; and (5) cannot have been withdrawn.

The requirement that the medical certificate indicate whether the certificate is first-, second-, or third-class is captured in § 61.23(c)(3)(i)(B), which requires the medical certificate to have been issued under part 67.15 The FAA is implementing the remaining requirements of section 2307(a)(3) in § 61.23(c)(3)(ii) and (iii). Accordingly, § 61.23(c)(3)(ii) now states that the most recently issued medical certificate: (1) May include an authorization for special issuance; (2) may be expired; and (3) cannot have been suspended, revoked, or withdrawn.

Thus, the most recently issued medical certificate, which the person must have held at any point after July 14, 2006, may have been a special issuance medical certificate and may be expired. However, it may not have been suspended or revoked, or in the case of an authorization for a special issuance (i.e., a restricted medical certificate), it may not have been withdrawn. Unrestricted medical certificates can be suspended or revoked if the certificate holder does not meet the medical standards of part 67 or as the result of noncompliance with other regulatory requirements. The FAA may also suspend or revoke a medical certificate on the basis of a reexamination of that certificate under section 44709 of Title 49 of the United States Code.

Section 2307 of FESSA states that the medical certificate “cannot have been revoked or suspended.” Accordingly, if a person's most recently issued medical certificate has been suspended or revoked, the person must apply for and be issued a new medical certificate prior to using the privileges afforded under this rule. This holds true even if the medical certificate was suspended and reinstated because FESSA expressly states that the certificate “cannot have been . . . suspended.” 16 Therefore, if a person's last medical certificate was under suspension at any point in time that medical certificate cannot be used for relief under this rule.

Further, if the person's medical certificate expired while under suspension, the person must apply for and be issued a new medical certificate to use the privileges of this rule. This requirement is based on the language in FESSA stating that the certificate “cannot have been suspended.” The fact that the certificate expired while under suspension does not change the fact that it was suspended (for purposes of exercising relief under this rule).

Finally, § 2307 requires that the most recently issued medical certificate “cannot have been withdrawn.” The FAA notes that unrestricted medical certificates may be denied, suspended, or revoked and authorizations for special issuances (i.e., restricted medical certificates) may be denied or withdrawn. Accordingly, the requirement that the most recently issued authorization for special issuance cannot have been withdrawn is implemented in § 61.23(c)(3)(iii).

Section 2307(a)(4) of FESSA requires that the most recent application for airman medical certification submitted to the FAA by the individual cannot have been completed and denied. The FAA is implementing this requirement in § 61.23(c)(3)(iv).

Consistent with the Guide for Aviation Medical Examiners and online information on the Aerospace Medical Certification Subsystem (AMCS), the FAA considers an application to be completed once the AME imports the individual's MedXPress application data into AMCS.17 If an individual submits a MedXpress application but the information is never imported into AMCS by an AME (e.g., the individual never makes an appointment or does not show up for the appointment), then the un-imported application would not be completed and, as such, the FAA would have no basis to make a denial or other certification action.18 Therefore, any un-imported application would not be subject to the portion of section 2307 relating to “completed and denied” applications, and the individual would look to the most recent application where the FAA either issued or denied a medical certificate in order to determine eligibility under this rule.

After importing a MedXPress application into AMCS, the AME may take one of three actions on the completed application. The AME may: (1) Issue a medical certificate; (2) defer issuance to the FAA; or (3) deny the issuance of a medical certificate. Guidance to AMEs makes clear that once the AME has imported the individual's application in MedXpress, the AME is required to transmit the application to the FAA,19 regardless of whether (a) the applicant leaves the AME office in the middle of the examination, (b) all elements of the AME's examination have been accomplished, or (c) the applicant does/does not provide all additional information required by the AME or the FAA.20 Whenever an AME defers an examination, the FAA makes a determination on that application (denial or issuance).

An individual's application is considered completed and denied and that individual is unable to use the privileges of this rule when:

(1) An AME denies an application immediately after completing the examination and the FAA does not reverse that decision.

(2) The FAA denies the application after the applicant has been deferred by the AME.

(3) A denied application remains under judicial appeal (e.g., to the National Transportation Safety Board), since no valid medical certificate has been issued.

Additionally, if a person held a medical certificate within the 10-year period preceding July 15, 2016, but subsequently submitted a new application that was completed and denied, that person could not revert to the previous medical certificate meeting the 10-year look back requirement. That person would need to re-apply and be issued a new medical certificate to use the privileges of this rule.

Section 2307(a)(5) of FESSA requires the individual to have completed a medical education course during the 24 calendar months before acting as pilot in command of a covered aircraft and demonstrate proof of completion of the course. The FAA notes that section 2307(c) prescribes the medical education course requirements, which are implemented in new part 68 and discussed in section VI of this preamble.

Section 61.23(c)(3)(i)(C) implements the requirement to have completed the medical education course during the 24 calendar months before acting as PIC of an operation under § 61.113(i).21 The term “24 calendar months” as used throughout 14 CFR means “24 unit months,” and “unit months” is defined as beginning on the first of the month and ending on the last day of the month.22 Thus, a pilot has from the beginning of the 24th calendar month before the month in which he or she wants to act as PIC of an operation under § 61.113(i) to complete the medical education course. For example, if a pilot wants to act as PIC of an operation under § 61.113(i) on August 19, 2019, that pilot must have, since August 1, 2017, completed the medical education course.

The Federal Civil Penalties Inflation Adjustment Act of 1990, Public Law 101-410 (the 1990 Act), as amended by the Debt Collection Improvement Act of 1996, Public Law 104-134 (the 1996 Act), required the head of each agency to adjust its CMPs for inflation no later than October 23, 1996 and required agencies to make adjustments at least once every four years thereafter. The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Section 701 of Public Law 114-74 (the 2015 Act) further amended the 1990 Act by requiring agencies to adjust CMPs, if necessary, pursuant to a “catch-up” adjustment methodology prescribed by the 2015 Act, which mandated that the catch-up adjustment take effect no later than August 1, 2016. Additionally, the 2015 Act required agencies to make annual adjustments to their respective CMPs in accordance with guidance issued by the Office of Management and Budget (OMB).

Based on these statutes, the Department of State (the Department) published a final rule on June 8, 2016, to implement the “catch-up” provisions (“June 2016 final rule”). See 81 FR 36791.

On December 16, 2016, OMB notified agencies that the annual cost-of-living adjustment multiplier for 2017, based on the Consumer Price Index, is 1.01636. Additional information may be found in OMB Memorandum M-17-11, which can be found at https://www.whitehouse.gov/sites/default/files/omb/memoranda/2017/m-17-11_0.pdf. This final rule amends Department CMPs for fiscal year 2017.

Within the Department of State (Title 22, Code of Federal Regulations), this rule affects four areas:

(1) Part 35, which implements the Program Fraud Civil Remedies Act of 1986 (PFCRA), codified at 31 U.S.C. 3801-3812;

(2) Part 103, which implements the Chemical Weapons Convention Implementation Act of 1998 (CWC Act);

(3) Part 127, which implements the penalty provisions of sections 38(e), 39A(c), and 40(k) of the Arms Export Control Act (AECA) (22 U.S.C. 2778(e), 2779a(c), 2780(k)); and

(4) Part 138, which implements Section 319 of Public Law 101-121, codified at 31 U.S.C. 1352, and prohibits recipients of federal contracts, grants, and loans from using appropriated funds for lobbying the Executive or Legislative Branches of the federal government in connection with a specific contract.

The PFRCA, enacted in 1986, authorizes agencies, with approval from the Department of Justice, to pursue individuals or firms for false claims. According to the June 2016 final rule, the maximum liability under the PFRCA is $10,781, up to a maximum of $323,442. Applying the 2016 multiplier (1.01636) provided by OMB, the new maximum liabilities are as follows: $10,957, up to a maximum of $328,734.

The CWC Act provided domestic implementation of the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction. The penalty provisions of the CWC Act are codified at 22 U.S.C. 6761. Based on the June 2016 final rule, a person violating 22 U.S.C. 6761(a)(1)(A), Prohibited acts relating to inspections, is subject to a civil penalty of an amount not to exceed $36,256 for each such violation. A person violating 22 U.S.C. 6761(a)(1)(B), Recordkeeping violations, is subject to a civil penalty in an amount not to exceed $7, 251 for each such violation.

Applying the 2016 multiplier (1.01636), the new maximum amounts are as follows: Prohibited acts related to inspections, $36,849; for Recordkeeping violations, $7,370.

The Assistant Secretary of State for Political-Military Affairs is responsible for the imposition of CMPs under the International Traffic in Arms Regulations (ITAR), which is administered by the Directorate of Defense Trade Controls (DDTC).

(1) AECA section 38(e):

According to the June 2016 final rule, the new maximum penalty under 22 U.S.C. 2778(e), or Section 38(e) of the AECA, is $1,094,010 per violation. Applying the 2016 multiplier (1.01636), the new maximum penalty is $1,111,908.

(2) AECA section 39A(c):

According to the June 2016 final rule, the new maximum adjusted penalty for 22 U.S.C. 2779a(c), or Section 39A(c) of the AECA, is $795,445 per violation. Applying the 2016 multiplier (1.01636), the new maximum penalty is $808,458.

(3) AECA section 40(k):

According to the June 2016 final rule, the maximum penalty for 22 U.S.C. 2780(k), or Section 40(k) of the AECA, is $946,805 per violation. Applying the 2016 multiplier (1.01636), the new maximum penalty is $962,295.

Section 319 of Public Law 101-121, codified at 31 U.S.C. 1352, provides penalties for recipients of federal contracts, grants, and loans who use appropriated funds to lobby the Executive or Legislative Branches of the federal government in connection with a specific contract, grant, or loan. Any person who violates that prohibition is subject to a civil penalty. The statute also requires each person who requests or receives a federal contract, grant, cooperative agreement, loan, or a federal commitment to insure or guarantee a loan, to disclose any lobbying; there is a penalty for failure to disclose.

The June 2016 final rule raised the maximum penalties for both improper expenditures and failure to disclose, to not less than $18,936 and not more than $189,361. Applying the 2016 multiplier (1.01636), the new maximum penalty under 31 U.S.C. 1352 is: not less than $19,246, and not more than $192,459.

The revised CMP amounts will go into effect on the date this rule is published. All violations for which CMPs are assessed on or after the effective date of this rule, regardless of whether the violation occurred before the effective date, will be assessed at the adjusted penalty level.

The 2015 Act directed agencies to undertake an annual review of CMPs using a formula prescribed by the statute. Annual adjustments to CMPs are made in accordance with the guidance issued by OMB. As in this rulemaking, the Department of State will publish notification of annual inflation adjustments to CMPs in the Federal Register no later than January 15 of each year, with the adjusted amount taking effect immediately upon publication.

The Department of State is publishing this rule using the “good cause” exception to the Administrative Procedure Act (5 U.S.C. 553(b)), as the Department has determined that public comment on this rulemaking would be impractical, unnecessary, or contrary to the public interest. This rulemaking is mandatory; it implements Public Law 114-74.

Because this rulemaking is exempt from Section 553 of the Administrative Procedures Act, a Regulatory Flexibility Analysis is not required.

This rule does not involve a mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule has been found not to be a major rule within the meaning of the Small Business Regulatory Enforcement Fairness Act of 1996.

This amendment will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this amendment does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement.

The Department believes that benefits of the rulemaking outweigh any costs, and there are no feasible alternatives to this rulemaking. It is the Department's position that this rulemaking is not an economically significant rule under the criteria of Executive Order 12866, and is consistent with the provisions of Executive Order 13563.

The Department of State has reviewed the proposed amendment in light of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

The Department of State has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not preempt tribal law. Accordingly, Executive Order 13175 does not apply to this rulemaking.

This rulemaking does not impose or revise any information collections subject to 44 U.S.C. Chapter 35.

For the reasons set forth above, 22 CFR parts 35, 103, 127, and 138 are amended as follows:

In FR Doc. 2016-31397 appearing on page 654 in the Federal Register of Tuesday, January 3, 2017, the following correction is made:

1. On page 654, in the first column, in DATES:, “Effective date: This final rule will be applicable on March 6, 2017.” is corrected to read “Effective date: This final rule will be effective March 6, 2017.”

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

The background for this action is discussed in detail in our proposal at 81 FR 74739 (October 27, 2016). In that document we proposed to approve five Texas SIP revisions that pertain to particulate matter and outdoor burning regulations. We did not receive comments regarding our proposal.

We are approving the Texas SIP revisions dated from 1989, 2004, 2006 and 2014. Specifically, we are approving the August 21, 1989, and June 9, 2006, submittals that repealed Rule 105.2 of the Texas Administrative Code (TAC) (subsequently renumbered as 30 TAC Section 111.155 and repealed). We are also approving the July 18, 2006, submittal that revises 30 TAC Section 111.203. We are also approving the November 15, 2004, and July 18, 2006, submittals that revise 30 TAC Section 111.209. We are also approving the March 3, 2014, submittal that revises 30 TAC Section 111.211.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 13, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

I. General Information A. Legal Authority for the Final Rule B. Purpose of the Final Rule C. What vessels are regulated by the final rule? D. What is the geographic scope of the final rule? E. Rulemaking Process F. Summary of Public Outreach and Consultation With Federal Agencies, States, Territories, and Tribes G. Supporting Documentation II. UNDS Performance Standards Development A. Nature of the Discharge B. Environmental Effects C. Cost, Practicability, and Operational Impacts D. Applicable U.S. and International Law E. Definitions III. UNDS Performance Standards A. Aqueous Film-Forming Foam B. Chain Locker Effluent C. Distillation and Reverse Osmosis Brine D. Elevator Pit Effluent E. Gas Turbine Water Wash F. Non-Oily Machinery Wastewater G. Photographic Laboratory Drains H. Seawater Cooling Overboard Discharge I. Seawater Piping Biofouling Prevention J. Small Boat Engine Wet Exhaust K. Welldeck Discharges IV. Additional Information in the Final Rule V. Key Changes and Improvements Since the Proposed Rule A. Public Comment B. Endangered Species Act (ESA) Consultation C. Coastal Zone Management Act (CZMA) Consistency Determination D. Development of Performance Standards in Batches E. Revisions to Definitions and Standards VI. Related Acts of Congress and Executive Orders A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act 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. Coastal Zone Management Act H. Executive Order 13045: Protection of Children from Environmental Health and Safety Risks I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use J. National Technology Transfer and Advancement Act K. Endangered Species Act L. Executive Order 13112: Invasive Species M. Executive Order 13089: Coral Reef Protection N. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations O. Congressional Review Act I. General Information A. Legal Authority for the Final Rule

The EPA and DoD promulgate this rule under the authority of Clean Water Act (CWA) section 312 (33 U.S.C. 1322). Section 325 of the National Defense Authorization Act of 1996 (“NDAA”), entitled “Discharges from Vessels of the Armed Forces” (Pub. L. 104-106, 110 Stat. 254), amended CWA section 312, to require the Administrator of the U.S. Environmental Protection Agency (Administrator) and the Secretary of Defense of the U.S. Department of Defense (Secretary) to develop uniform national standards to control certain discharges incidental to the normal operation of a vessel of the Armed Forces. The term Uniform National Discharge Standards, or UNDS, is used in this preamble to refer to the provisions in CWA section 312(a)(12) through (14) and (n) (33 U.S.C. 1322(a)(12) through (14) and (n)).

UNDS are intended to enhance the operational flexibility of vessels of the Armed Forces domestically and internationally, stimulate the development of innovative vessel pollution control technology, and advance the development of environmentally sound ships. Section 312(n)(3)(A) of the CWA requires the EPA and DoD to promulgate uniform national discharge standards for certain discharges incidental to the normal operation of a vessel of the Armed Forces (CWA section 312(a)(12)), unless the Secretary finds that compliance with UNDS would not be in the national security interests of the United States (CWA section 312(n)(1)).

This rule amends title 40 Code of Federal Regulations (CFR) part 1700 to establish discharge performance standards for 11 discharges incidental to the normal operation of a vessel of the Armed Forces from among the 25 discharges for which the EPA and DoD previously determined (64 FR 25126, May 10, 1999) that it is reasonable and practicable to require a marine pollution control device (MPCD). The 11 discharges addressed by this rule are the following: Aqueous film-forming foam; chain locker effluent; distillation and reverse osmosis brine; elevator pit effluent; gas turbine water wash; non-oily machinery wastewater; photographic laboratory drains; seawater cooling overboard discharge; seawater piping biofouling prevention; small boat engine wet exhaust; and welldeck discharges.

These discharge performance standards do not become enforceable until after promulgation of a final rule, as well as promulgation of regulations by DoD under CWA section 312(n)(5)(C) to govern the design, construction, installation, and use of a MPCD.

UNDS do not apply to the following discharges from vessels of the Armed Forces: Overboard discharges of rubbish, trash, garbage, or other such materials; sewage; air emissions resulting from the operation of a vessel propulsion system, motor-driven equipment, or incinerator; or discharges that require permitting under the National Pollutant Discharge Elimination System (NPDES) program, including operational discharges and other discharges that are not incidental to the normal operation of a vessel of the Armed Forces.

The final rule applies to vessels of the Armed Forces. For the purposes of the rulemaking, the term “vessel of the Armed Forces” is defined at CWA section 312(a)(14). “Vessel of the Armed Forces” means any vessel owned or operated by the U.S. Department of Defense (i.e., U.S. Navy, Military Sealift Command, U.S. Marine Corps, U.S. Army, and U.S. Air Force), other than a time- or voyage-chartered vessel, as well as any U.S. Coast Guard vessel designated by the Secretary of the Department in which the U.S. Coast Guard is operating. The preceding list is not intended to be exhaustive, but rather provides a guide for the reader regarding the vessels of the Armed Forces to be regulated by the final rule. The final rule does not apply to commercial vessels; private vessels; vessels owned or operated by state, local, or tribal governments; vessels under the jurisdiction of the U.S. Army Corps of Engineers; certain vessels under the jurisdiction of the U.S. Department of Transportation; vessels preserved as memorials and museums; vessels under construction; vessels in drydock; amphibious vehicles; and, as noted above, time- or voyage-chartered vessels. For answers to questions regarding the applicability of this action to a particular vessel, consult one of the contacts listed in the FOR FURTHER INFORMATION CONTACT section.

This rule is applicable to discharges from a vessel of the Armed Forces operating in the navigable waters of the United States, territorial seas, and the contiguous zone (CWA section 1322(n)(8)(A)). The rule applies in both fresh and marine waters and can include bodies of water such as rivers, lakes, and oceans. Together, the preamble refers to these waters as “waters subject to UNDS.”

Sections 502(7), 502(8), and 502(9) of the CWA define the term “navigable waters,” “territorial seas,” and “contiguous zone,” respectively. The term “navigable waters” means waters of the United States including the territorial seas, where the United States includes the states, the District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and the Trust Territories of the Pacific Islands. The term “territorial seas” means the belt of seas that generally extends three miles seaward from the line of ordinary low water along the portion of the coast in direct contact with the open sea and the line marking the seaward limit of inland waters. The term “contiguous zone” means the entire zone established or to be established by the United States under Article 24 of the Convention of the Territorial Sea and the Contiguous Zone. Generally, the contiguous zone extends seaward for the next nine miles (i.e., from three to 12 miles from the U.S. coastline). The final rule is not applicable seaward of the contiguous zone.

The UNDS rulemaking is a joint rulemaking between the EPA and DoD and is under development in three phases. The first two phases reflect joint rulemaking between the EPA and DoD; the third phase is a DoD-only rule.

The EPA and DoD promulgated the Phase I regulations on May 10, 1999 (64 FR 25126), and these existing regulations are codified at 40 CFR part 1700. During Phase I, the EPA and DoD identified the discharges incidental to the normal operation of a vessel of the Armed Forces for which it is reasonable and practicable to require control with a MPCD to mitigate potential adverse impacts on the marine environment (CWA section 312(n)(2)), as well as those discharges for which it is not. Section 312(a)(13) of the CWA defines a MPCD as any equipment or management practice, for installation or use on a vessel of the Armed Forces, that is designed to receive, retain, treat, control, or discharge a discharge incidental to the normal operation of a vessel; and determined by the Administrator and the Secretary to be the most effective equipment or management practice to reduce the environmental impacts of the discharge consistent with the considerations set forth by UNDS.

During Phase I, the EPA and DoD identified the following 25 discharges as requiring control with a MPCD: Aqueous film-forming foam; catapult water brake tank and post-launch retraction exhaust; chain locker effluent; clean ballast; compensated fuel ballast; controllable pitch propeller hydraulic fluid; deck runoff; dirty ballast; distillation and reverse osmosis brine; elevator pit effluent; firemain systems; gas turbine water wash; graywater; hull coating leachate; motor gasoline and compensating discharge; non-oily machinery wastewater; photographic laboratory drains; seawater cooling overboard discharge; seawater piping biofouling prevention; small boat engine wet exhaust; sonar dome discharge; submarine bilgewater; surface vessel bilgewater/oil-water separator effluent; underwater ship husbandry; and welldeck discharges (40 CFR 1700.4).

During Phase I, the EPA and DoD identified the following 14 discharges as not requiring control with a MPCD: Boiler blowdown; catapult wet accumulator discharge; cathodic protection; freshwater layup; mine countermeasures equipment lubrication; portable damage control drain pump discharge; portable damage control drain pump wet exhaust; refrigeration/air conditioning condensate; rudder bearing lubrication; steam condensate; stern tube seals and underwater bearing lubrication; submarine acoustic countermeasures launcher discharge; submarine emergency diesel engine wet exhaust; and submarine outboard equipment grease and external hydraulics.

As of the effective date of the Phase I rule (June 9, 1999), neither states nor political subdivisions of states may adopt or enforce any state or local statutes or regulations with respect to the 14 discharges that were identified as not requiring control, except to establish no-discharge zones (CWA sections 312(n)(6)(A) and 312(n)(7)). However, section 312(n)(5)(D) of the CWA authorizes a Governor of any state to submit a petition to the EPA and DoD and requesting the re-evaluation of a prior determination that a MPCD is required for a particular discharge (40 CFR 1700.4) or that a MPCD is not required for a particular discharge (40 CFR 1700.5), if there is significant new information not considered previously, that could reasonably result in a change to the determination (CWA section 312(n)(5)(D) and 40 CFR 1700.11).

Section 312(n)(3) of the CWA provides for Phase II and requires the EPA and DoD to develop federal discharge performance standards for each of the 25 discharges identified in Phase I as requiring control. In doing so, the EPA and DoD are required to consult with the Department in which the U.S. Coast Guard is operating, the Secretary of Commerce, interested states, the Secretary of State, and other interested federal agencies. In promulgating Phase II discharge performance standards, CWA section 312(n)(2)(B) directs the EPA and DoD to consider seven factors: The nature of the discharge; the environmental effects of the discharge; the practicability of using the MPCD; the effect that installation or use of the MPCD would have on the operation or the operational capability of the vessel; applicable U.S. law; applicable international standards; and the economic costs of installation and use of the MPCD. Section 312(n)(3)(C) of the CWA further provides that the EPA and DoD may establish discharge standards that (1) distinguish among classes, types, and sizes of vessels; (2) distinguish between new and existing vessels; and (3) provide for a waiver of applicability of standards as necessary or appropriate to a particular class, type, age, or size of vessel.

The EPA and DoD developed a process to establish the Phase II discharge performance standards in three batches (three separate rulemakings). The first batch of discharge performance standards was proposed on February 3, 2014 (79 FR 6117) and addressed 11 of the 25 discharges identified as requiring control (64 FR 25126). A notice of proposed rulemaking for the second batch of discharge performance standards was published on October 7, 2016 (81 FR 69753) and addressed 11 additional discharges identified as requiring control (64 FR 25126). The third batch of discharge performance standards that will address the remaining three discharges will be proposed in a separate rule.

In developing the Phase II discharge performance standards, the EPA and DoD reference the 2013 NPDES Vessel General Permit and the 2014 NPDES Small Vessel General Permit (hereinafter referred to collectively as the NPDES VGPs) as the baseline for each comparable discharge incidental to the normal operation of a vessel of the Armed Forces (78 FR 21938, April 12, 2013 and 79 FR 53702, September 10, 2014). The NPDES VGPs provide for CWA authorization of discharges incidental to the normal operation of non-military and non-recreational vessels extending to the outer reach of the three-mile territorial sea as defined in CWA section 502(8). The NPDES VGPs include effluent limits that are based on both the technology available to treat pollutants (i.e., technology-based effluent limitations), and limits that would be protective of the designated uses of the receiving waters (i.e., water quality-based effluent limits), including both non-numeric and numeric limitations. Additional information on NPDES permitting can be found on-line at http://www.epa.gov/npdes/.

Using the NPDES VGPs as a baseline for developing the performance standards for discharges incidental to the normal operation of a vessel of the Armed Forces allowed the EPA and DoD to maximize the use of the EPA's scientific and technical work developed to support the NPDES VGPs. The NPDES VGPs technology-based and water quality-based effluent limitations were then adapted, as appropriate, for the relevant discharges from vessels of the Armed Forces.

Phase III of UNDS requires DoD, in consultation with the EPA and the Secretary of the Department in which the U.S. Coast Guard is operating, within one year of finalization of the Phase II standards, to promulgate regulations governing the design, construction, installation, and use of MPCDs necessary to meet the discharge performance standards. DoD will implement the Phase III regulations under the authority of the Secretary as a DoD publication. The Phase III regulations will be publicly released and are expected to be made available on the Defense Technical Information Center Web site: http://www.dtic.mil/whs/directives/. Similar to Phase II, Phase III will be promulgated in three batches.

Following the effective date of regulations under Phase III, it will be unlawful for a vessel of the Armed Forces to operate within waters subject to UNDS if the vessel is not equipped with a MPCD that meets the Phase II standards (CWA section 312 (n)(7)). It also will be unlawful for a vessel of the Armed Forces to discharge a regulated UNDS discharge into an UNDS no-discharge zone (i.e., waters where a prohibition on a discharge has been established) (CWA section 312(n)(8)). Any person in violation of this requirement shall be liable to a civil penalty of not more than $5,000 for each violation (CWA section 312(j)). The Secretary of the Department in which the U.S. Coast Guard is operating shall enforce these provisions and may utilize law enforcement officers, EPA personnel and facilities, other federal agencies, or the states to carry out these provisions. States may also enforce these provisions (CWA section 312(k) and (n)(9)).

In addition, as of the effective date of the Phase III regulations, neither a state nor political subdivision a of state may adopt or enforce any state or local statute or regulation with respect to discharges identified as requiring control, except to establish no-discharge zones (CWA section 312(n)(6)). CWA section 312(n)(7) provides for the establishment of no-discharge zones either (1) by state prohibition after application and a determination by the EPA, or (2) directly by EPA prohibition. The Phase I UNDS regulations established the criteria and procedures for establishing UNDS no-discharge zones (40 CFR 1700.9 and 40 CFR 1700.10).

If a state determines that the protection and enhancement of the quality of some or all of its waters require greater environmental protection, the state may prohibit one or more discharges incidental to the normal operation of a vessel of the Armed Forces, whether treated or not, into those waters (40 CFR 1700.9). A state prohibition does not apply until after the Administrator determines that (1) the protection and enhancement of the quality of the specified waters within the state require a prohibition of the discharge into the waters; (2) adequate facilities for the safe and sanitary removal of the discharge incidental to the normal operation of a vessel are reasonably available for the waters to which the prohibition would apply; and (3) the prohibition will not have the effect of discriminating against a vessel of the Armed Forces by reason of the ownership or operation by the federal government, or the military function, of the vessel (40 CFR 1700.9(b)(2)).

Alternatively, a state may request that the EPA prohibit, by regulation, the discharge of one or more discharges incidental to the normal operation of a vessel of the Armed Forces, whether treated or not, into specified waters within a state (40 CFR 1700.10). In this case, the EPA would make a determination that the protection and enhancement of the quality of the specified waters requires a prohibition of the discharge. As with the application of a state prohibition described above, the Administrator would need to determine that (1) the protection and enhancement of the quality of the specified waters within the state require a prohibition of the discharge into the waters; (2) adequate facilities for the safe and sanitary removal of the discharge incidental to the normal operation of a vessel are reasonably available for the waters to which the prohibition would apply; and (3) the prohibition will not have the effect of discriminating against a vessel of the Armed Forces by reason of the ownership or operation by the federal government, or the military function, of the vessel (40 CFR 1700.9(b)(2)). The EPA may not, however, disapprove a state application for this latter type of prohibition for the sole reason that there are not adequate facilities for the safe and sanitary removal of such discharges (CWA section 312(n)(7)(B)(ii) and 40 CFR 1700.10(b)).

The statute also requires the EPA and DoD to review the determinations and standards every five years and, if necessary, to revise them based on significant new information. Specifically, CWA section 312(n)(5)(A) and (B) contain provisions for reviewing and modifying both of the following determinations: (1) Whether control should be required for a particular discharge, and (2) the substantive standard of performance for a discharge for which control is required. A Governor also may petition the Administrator and the Secretary to review a UNDS determination or standard if there is significant new information, not considered previously, that could reasonably result in a change to the determination or standard (CWA section 312(n)(5)(D) and 40 CFR 1700.11).

During the development of the rule, the EPA and DoD consulted with other federal agencies, states, and tribes regarding the reduction of adverse environmental impacts associated with discharges from vessels of the Armed Forces; development of innovative vessel pollution control technology; and advancement of environmentally sound vessels of the Armed Forces. In addition, the EPA and DoD reviewed comments on the NPDES VGPs.

This rule is supported by “Technical Development Document (TDD) Phase I Uniform National Discharge Standards (UNDS) for Vessels of the Armed Forces,” the UNDS Phase I rules, the “Final 2013 Vessel General Permit for Discharges Incidental to the Normal Operation of Vessels (VGP),” the “Vessel General Permit (VGP) Fact Sheet,” the “Final Small Vessel General Permit for Discharges Incidental to the Normal Operation of Vessels Less Than 79 Feet (sVGP),” the “Small Vessel General Permit (sVGP) Fact Sheet,” the “Economics and Benefits Analysis of the Final 2013 Vessel General Permit (VGP),” the “Economics and Benefits Analysis of the Final 2013 Small Vessel General Permit (sVGP),” the “February 2014 Uniform National Discharge Standards for Vessels of the Armed Forces—Phase II,” the “Report to Congress: Study of Discharges Incidental to Normal Operation of Commercial Fishing Vessels and Other Non-Recreational Vessels Less than 79 Feet,” the “Environmentally Acceptable Lubricants,” the “Biological Evaluation for the Uniform National Discharge Standards (UNDS) Program Phase II Batch One,” and the “National Consistency Determination: Uniform National Discharge Standards (UNDS) Program for Phase II Batch One Discharges.” These documents are available from the EPA Water Docket, Docket No. EPA-HQ-OW-2013-0469 (Email: [email protected]; Phone Number: (202) 566-2426; Mail: Water Docket, Mail Code: 2822-IT, 1200 Pennsylvania Avenue NW., Washington, DC 20460; or Online: http://www.regulations.gov). The NPDES VGPs background documents also are available online: https://www.epa.gov/npdes/vessels.

During the development of the discharge performance standards, the EPA and DoD analyzed the information from the Phase I of UNDS, considered the relevant language in the NPDES VGPs effluent limitations, and took into the consideration the seven statutory factors listed in CWA section 312(n)(2)(B). These seven statutory factors are: The nature of the discharge; the environmental effects of the discharge; the practicability of using the MPCD; the effect that installation or use of the MPCD would have on the operation or operational capability of the vessel; applicable U.S. law; applicable international standards; and the economic costs of the installation and use of the MPCD. The EPA and DoD determined that the NPDES VGPs effluent limitations, which include technology-based and water quality-based effluent limitations, provide a sound basis to serve as a baseline for developing the discharge performance standards for the 11 discharges in this rule. The subsections below outline the EPA and DoD's approach to considering the seven statutory factors listed in CWA section 312(n)(2)(B).

During Phase I, the EPA and DoD gathered information on the discharges incidental to the normal operation of a vessel of the Armed Forces and developed nature of the discharge reports. The nature of the discharge reports discuss how the discharge is generated, volumes and frequencies of the generated discharge, where the discharge occurs, and the constituents present in the discharge. In addition, the EPA and DoD reviewed relevant discharge information in the supporting documentation of the NPDES VGPs. The EPA and DoD briefly describe the nature of each of the 11 discharges below; however, the complete nature of the discharge reports can be found in Appendix A of the Technical Development Document—EPA 821-R-99-001.

Discharges incidental to the normal operation of a vessel of the Armed Forces have the potential to negatively impact the aquatic environment. The discharges contain a wide variety of constituents that have the potential to negatively impact aquatic species and habitats. These discharges can cause thermal pollution and can contain aquatic nuisance species (ANS), nutrients, bacteria and pathogens (e.g., E. coli and fecal coliforms), oil and grease, metals, most conventional pollutants (e.g., organic matter, bicarbonate, and suspended solids), and other toxic and non-conventional pollutants with toxic effects. While it is unlikely that these discharges would cause an acute or chronic exceedance of the EPA recommended water quality criteria across a large water body, these discharges have the potential to cause adverse environmental impacts on a more localized scale due to the end-of-pipe nature of the discharges. For each of the 11 discharges below, the EPA and DoD discuss the constituents of concern released into the environment and potential water quality impacts. The discharge performance standards will reduce the discharge of constituents of concern and mitigate the environmental risks to the receiving waters.

The universe of vessels of the Armed Forces affected by the rule encompasses more than 6,000 vessels distributed among the U.S. Navy, Military Sealift Command, U.S. Coast Guard, U.S. Army, U.S. Marine Corps, and U.S. Air Force. These vessels range in design and size from small boats with lengths of less than 20 feet for coastal operations, to aircraft carriers with lengths of over 1,000 feet for global operations. Approximately 80 percent of the vessels of the Armed Forces are less than 79 feet in length. Larger vessels (i.e., vessels with length greater than or equal to 79 feet) comprise 20 percent of the vessels of the Armed Forces. The EPA and DoD considered vessel class, type, and size when developing the discharge standards, as not all vessels of the Armed Forces have the same discharges. For more information on the various vessel classes, characteristics, and missions, see Appendix A.

The EPA and DoD assessed the relative costs, practicability, and operational impacts of the rule by comparing current operating conditions and practices of vessels of the Armed Forces with the anticipated operating conditions and practices that will be required to meet the discharge performance standards. The EPA and DoD determined that the discharge performance standards applicable to operating conditions and practices for the 11 discharges will only result in a marginal increase in performance costs, practicability, and operational impacts.

The EPA and DoD reviewed U.S. laws and international standards that would be relevant to discharges incidental to the normal operation of a vessel of the Armed Forces. A number of U.S. environmental laws include specific provisions for federal facilities and properties that may result in different environmental requirements for federal and non-federal entities. Similarly, many international treaties do not apply to vessels of the Armed Forces either because vessels of the Armed Forces are entitled to sovereign immunity under international law or because any particular treaty may apply different approaches to the adoption of appropriate environmental control measures consistent with the objects and purposes of such treaties. The EPA and DoD incorporated any relevant information in the development of the discharge standards after reviewing the requirements of the following treaties and domestic implementing legislation, as well as other relevant and potentially applicable U.S. environmental laws: International Convention for the Prevention of Pollution from Ships (also referred to as MARPOL); International Convention on the Control of Harmful Anti-Fouling Systems on Ships; Act to Prevent Pollution from Ships; CWA section 311, as amended by the Oil Pollution Control Act of 1990; CWA section 402 and the National Pollutant Discharge Elimination System Vessel General Permit and small Vessel General Permit; Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA); Hazardous Materials Transportation Act; Title X of the Coast Guard Authorization Act of 2010; National Marine Sanctuaries Act; Antiquities Act of 1906; Resource Conservation and Recovery Act; Toxic Substances Control Act; and the St. Lawrence Seaway Regulations.

The EPA and DoD added UNDS definitions to 40 CFR part 1700. Specifically, this rule defines the terms: Bioaccumulative; biodegradable; environmentally acceptable lubricants; federally-protected waters; hazardous material; minimally-toxic; not bioaccumulative; person in charge; toxic materials; and waters subject to UNDS.

This section describes the performance standards determined to be reasonable and practicable to mitigate the adverse impacts to the marine environment for the 11 discharges. In developing these standards, the EPA and DoD considered the information from Phase I of UNDS, the NPDES VGPs effluent limitations, and the seven statutory factors listed in CWA section 312(n)(2)(B). For more information on each discharge included in this rule, please see the Phase I Uniform National Discharge Standards for Vessels of the Armed Forces: Technical Development Document; EPA 821-R-99-001.

The 11 discharge performance standards described in each section below apply to vessels of the Armed Forces operating within waters subject to UNDS, except as otherwise expressly excluded in the “exceptions” in 40 CFR 1700.39. In addition, if two or more regulated discharge streams are combined prior to discharge, then the resulting discharge would need to meet the discharge performance standards applicable to each of the discharges that are being combined (40 CFR 1700.40). Furthermore, recordkeeping (40 CFR 1700.41) and non-compliance reporting (40 CFR 1700.42) apply generally to each discharge performance standard unless expressly provided in a particular discharge performance standard.

The EPA and DoD prohibit the discharge of AFFF (i.e., AFFF used during training, testing, or maintenance operations) for vessels that sail seaward of waters subject to UNDS at least once per month. For vessels that do not sail seaward of waters subject to UNDS at least once per month, discharges of fluorinated AFFF are prohibited and discharges of non-fluorinated or alternative foaming agent are prohibited in port or in or near federally-protected waters, and must occur as far from shore as possible.

The EPA and DoD require that all anchor chains from surface vessels (submarines are not subject to this requirement) must be carefully and thoroughly washed down (i.e., more than a cursory rinse) as they are being hauled out of the water to remove sediment and organisms. The EPA and DoD also require that all chain lockers must be cleaned periodically to eliminate accumulated sediments and any potential accompanying pollutants. The dates of all chain locker inspections must be recorded in the ship's log or other vessel recordkeeping documentation.

In addition, the EPA and DoD prohibit the rinsing or pumping out of chain lockers for vessels that sail seaward of waters subject to UNDS at least once per month. For vessels that do not sail seaward of waters subject to UNDS at least once per month, the rinsing or pumping out of chain lockers must occur as far from shore as possible and, if technically feasible, must not occur in federally-protected waters.

The EPA and DoD prohibit the discharge of the distillation and reverse osmosis brine and the discharge of reverse osmosis reject water if it comes in contact with machinery or industrial equipment (other than distillation or reverse osmosis machinery), toxic or hazardous materials, or wastes.

The EPA and DoD prohibit the direct discharge of elevator pit effluent. Notwithstanding the prohibition of direct discharges of elevator pit effluent, elevator pit effluent can be discharged when commingled with another discharge for the purposes of treatment prior to discharge; under no circumstances may oils, including oily mixtures, be discharged from that combined discharge in quantities that cause a film or sheen upon or discoloration of the surface of the water or adjoining shorelines, or cause a sludge or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines, or contain an oil content above 15 ppm as measured by EPA Method 1664a or other appropriate method for determination of oil content as accepted by the International Maritime Organization (IMO) (e.g., International Organization for Standardization (ISO) Method 9377) or U.S. Coast Guard, or are otherwise harmful to the public health or welfare of the United States.

The EPA and DoD prohibit the direct discharge of gas turbine water wash. To the greatest extent practicable, gas turbine water wash must be collected separately and disposed of onshore in accordance with any applicable solid waste and hazardous substance management and disposal requirements. Notwithstanding the prohibition of direct discharges of gas turbine water wash overboard, if gas turbine water wash is commingled with any other discharge for the purposes of treatment prior to discharge, then under no circumstances may oils, including oily mixtures, be discharged from that combined discharge in quantities that cause a film or sheen upon or discoloration of the surface of the water or adjoining shorelines, or cause a sludge or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines, or contain an oil content above 15 ppm as measured by EPA Method 1664a or other appropriate method for determination of oil content as accepted by the International Maritime Organization (IMO) (e.g., ISO Method 9377) or U.S. Coast Guard, or are otherwise harmful to the public health or welfare of the United States.

The EPA and DoD require that discharges of non-oily machinery wastewater must not contain any additives that are toxic or bioaccumulative in nature. In addition, under no circumstances may oils, including oily mixtures be discharged in quantities that cause a film or sheen upon or discoloration of the surface of the water or adjoining shorelines, or cause a sludge or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines, or contain an oil content above 15 ppm as measured by EPA Method 1664a or other appropriate method for determination of oil content as accepted by the International Maritime Organization (IMO) (e.g., ISO Method 9377) or U.S. Coast Guard, or otherwise are harmful to the public health or welfare of the United States.

The EPA and DoD prohibit the discharge of photographic laboratory drain effluent.

The EPA and DoD require that non-contact engine cooling water, hydraulic system cooling water, refrigeration cooling water, and other seawater cooling overboard discharges be minimized, to the greatest extent practicable, when the vessel is in port. In addition, the standard provides for the reduction in production and discharge of seawater cooling overboard by urging the use of shore power in port if: (1) Shore power is readily available; (2) shore-based power supply systems are capable of providing the needed electricity; and (3) the vessel is equipped to connect to shore-based power. Specifically, the EPA and DoD require that, for vessels that are less than 79 feet in length, fouling organisms must be removed from seawater piping on a regular basis and the discharge of such removed organisms is prohibited. For vessels that are greater than or equal to 79 feet in length, maintenance of all piping and seawater cooling systems must meet the requirements of 40 CFR 1700.32 (Seawater Piping Biofouling Prevention) and fouling organisms removed from seawater piping must not be discharged. Submarines have suction clearing procedures, which must be performed for vessel safety purposes; therefore, submarines are not required to meet these operational removal requirements.

The EPA and DoD require a performance standard for seawater piping biofouling prevention that minimizes, to the greatest extent practicable, the amount of biofouling chemicals (e.g., chlorine) used to keep fouling under control. Fouling organisms must be removed from seawater piping on a regular basis. Fouling organisms removed during a cleaning event are prohibited from being discharged. For all vessels, except submarines, the discharge of fouling organisms removed during cleanings is prohibited.

Lastly, this performance standard requires practices consistent with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7 U.S.C. 136 et seq.) registration requirements for chemicals used to control biofouling of seawater piping, and prohibits the discharge of pesticides or chemicals banned for use in the United States.

The EPA and DoD require that low sulfur or alternative fuels be used to the greatest extent practicable. In addition, the performance standard requires that, to the greatest extent practicable, four-stroke engines be used instead of two-stroke engines. Vessels using two-stroke engines are required to use environmentally acceptable lubricants (found in the definitions for this term at 40 CFR 1700.3) unless such use would be technologically infeasible. If technologically infeasible, the use and justification for the use of a non-environmentally acceptable lubricant must be recorded in the vessel recordkeeping documentation.

The EPA and DoD prohibit welldeck discharges containing graywater from smaller vessels. In addition, discharges containing washdown of gas turbine engines within nautical miles of the United States is prohibited and, to the greatest extent practicable, must be discharged seaward of waters subject to UNDS. Welldeck discharges from equipment and vehicle washdowns need to be free from garbage, and must not contain oil in quantities that cause a film or sheen upon or discoloration of the surface of the water or adjoining shorelines, or cause a sludge or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines, or contain an oil content above 15 ppm as measured by EPA Method 1664a or other appropriate method for determination of oil content as accepted by the International Maritime Organization (IMO) (e.g., ISO Method 9377) or U.S. Coast Guard, or otherwise are harmful to the public health or welfare of the United States.

This section provides an overview of the additional amendments for 40 CFR part 1700. These changes include an amendment to subsections referenced Effect (section 1700.2), a provision that authorizes certain discharges notwithstanding the performance standards in situations where vessel safety or lives are endangered (section 1700.39), a provision that requires combined discharge streams to meet the requirements applicable to all discharge streams that are combined (section 1700.40), a requirement for recordkeeping (section 1700.41), and a requirement to report instances of non-compliance with MPCD performance standards (section 1700.42).

The EPA and DoD amend the reference sections noted in the Effect Section 1700.2 (a) by amending “Federal standards of performance for each required Marine Pollution Control Device are listed in section 1700.14” to “Federal standards of performance for each required Marine Pollution Control Device are listed in sections 1700.14 through 1700.38. Federal standards of performance apply to all vessels, whether existing or new, and regardless of vessel class, type, or size, unless otherwise expressly provided in sections 1700.14 through 1700.38.”

As noted previously, the EPA and DoD are proposing the Phase II standards in three batches. For the purpose of proposing the remaining batches, this rule reserves the following sections for those future rulemaking actions:

The EPA and DoD add an “Exceptions” subsection at section 1700.39, which provides a place to identify certain excluded discharges from the scope of UNDS, notwithstanding the performance standards, in situations where vessel safety or lives are endangered. The section also identifies requirements for maintaining records of all discharge exceptions.

4. Section 1700.40 Commingling of Discharges

The EPA and DoD add a “Commingling of Discharges” subsection at section 1700.40. By adding this subsection, the EPA and DoD stipulate that if two or more regulated discharge streams are combined into one, the resulting discharge stream must meet the requirements applicable to all discharge streams that are combined prior to discharge unless otherwise specified by the specific discharge standard.

The EPA and DoD add a “Records” subsection at section 1700.41. By adding this subsection, the EPA and DoD include recordkeeping requirements that shall document all inspections, instances of non-compliance, and instances of an exception.

The EPA and DoD add a “Non-Compliance Reports” subsection at section 1700.42. By adding this subsection, the EPA and DoD include reporting requirements for any non-compliance with performance standards prescribed for this Part.

On February 3, 2014, the EPA and DoD published proposed discharge performance standards for the 11 discharges in Batch One. The proposed rule established a public comment period of 60 days that closed on April 4, 2014. The public had the option of submitting comments by email, mail, hand delivery, or electronically via the Federal eRulemaking Portal (www.regulations.gov). The public comments are available for public viewing in the docket under Docket No. EPA-HQ-OW-2013-0469.

The EPA and DoD consider the public comment period vital to creating a rule that is effective at meeting regulatory standards and also is readily understandable and useful to the public. The EPA and DoD received one comment on the proposed rule regarding some of the terms and definitions used in the UNDS Phase II Batch One Proposed Rule. The comment noted that the definitions used in the UNDS proposed rule were slightly different than the definitions used in the NPDES VGP and could potentially cause confusion in production and sales of certain goods, such as lubricants, that are widely used on both commercial vessels and vessels of the Armed Forces. The EPA and DoD agreed with the comment and incorporated changes to the following definitions in Section 1700.3 of this final rule:

• Aquatic Toxicity: The EPA and DoD define and use the term “minimally-toxic,” found in the final 2013 VGP, rather than the “non-toxic” terminology used in the UNDS Phase II Batch One proposed rule.

• Bioaccumulation: The proposed UNDS rule defines “bioaccumulative” as determined by test methods; this is not consistent with the “not bioaccumulative” definition used in the 2013 VGP for lubricants. The 2013 VGP does not require bioaccumulation testing of biodegradable portions of lubricants as, by definition, they will not persist and accumulate in the environment. This final rule revises the term “bioaccumulative” to be consistent with the final 2013 VGP.

• Biodegradability: In the proposed rule, the EPA and DoD proposed testing the biodegradability of mixtures. However, to increase consistency with the terms and definitions found in the final 2013 VGP, the EPA and DoD use the definition of biodegradability established in the final 2013 VGP in place of the definition presented in the UNDS Phase II Batch One proposed rule. The VGP does not require testing the biodegradability of mixtures.

Pursuant to Section 7(a)(2) of the Endangered Species Act (ESA) the EPA and DoD consulted the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), collectively “the Services.” The Biological Evaluation developed by the EPA and DoD concluded that the issuance of the Batch One final rule for the Uniform National Discharge Standards for Vessels of the Armed Forces—Phase II is not likely to adversely affect listed or proposed species or adversely modify designated or proposed critical habitat.

Pursuant to Section 307 of the CZMA, the EPA and DoD have determined that the performance standards are consistent to the maximum extent practicable with the enforceable policies of federally-approved coastal state and territory Coastal Management Plans (CMPs) for the coastal zones including state waters where discharges from vessels of the Armed Forces would be regulated by UNDS. Following proposal of the Uniform National Discharge Standards for Vessels of the Armed Forces—Phase II issued on February 3, 2014, the EPA and DoD provided 34 states and territories with the EPA and DoD's August 2016 “National Consistency Determination: Uniform National Discharge Standards (UNDS) Program for Phase II Batch One Discharges.”

The EPA and DoD are modifying the batch process. In the proposed rule, the EPA and DoD indicated that Phase II—the establishment of discharge performance standards—would be completed in two batches. The EPA and DoD have since determined to develop the discharge performance standards in three batches to allow for more time to collect and incorporate additional information into the development of the discharge performance standards.

The EPA and DoD are modifying the definitions and standards to make them more clear and concise, in addition to changes made due to the public and federal comments. The non-substantive changes made to the definitions and standards are intended to clarify, simplify, and/or improve understanding and readability of the discharge performance standards. There are no technical changes to the definitions or standards.

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 any new information collection burden, as the EPA and DoD have determined that Phase II of UNDS does not create any additional collection of information beyond that already mandated under the Phase I of UNDS. The Office of Management and Budget (OMB) has previously approved the information collection requirements contained in the existing regulations (40 CFR part 1700) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2040-0187. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9.

We 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 action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action implements mandates specifically and explicitly set forth in CWA section 312 without the exercise of any policy discretion by the EPA.

The EPA and DoD concluded that the rule, once finalized in Phase III, will have federalism implications. Once the discharge performance standards are promulgated in Phase III by DoD, adoption and enforcement of new or existing state or local regulations for the discharges will be preempted.

Accordingly, the EPA and DoD provide the following federalism summary impact statement. During Phase I of UNDS, the EPA and DoD conducted two rounds of consultation meetings (i.e., outreach briefings) to allow states and local officials to have meaningful and timely input into the development of the rulemaking. Twenty-two states accepted the offer to be briefed on UNDS and discuss state concerns. The EPA and DoD provided clarification on the technical aspects of the UNDS process, including preliminary discharge determinations and analytical information supporting decisions to control or not control discharges. State representatives were provided with discharge summaries containing the description, analysis, and preliminary determination of each of the 39 discharges from vessels of the Armed Forces—25 of which were determined to require control.

During Phase II, the EPA and DoD consulted again with state representatives early in the process of developing the regulation to allow them to have meaningful and timely input into the development of the discharge standards. On March 14, 2013, the EPA held a Federalism consultation briefing in Washington, DC, which was attended by representatives from the National Governors Association, the National Conference of State Legislatures, the National League of Cities, the National Association of Counties, the United States Conference of Mayors, the County Executives of America, the Environmental Council of States, the Association of Clean Water Administrators, two U.S. states and one U.S. territory, in order to obtain meaningful and timely input in the development of the proposed discharge standards. The EPA and DoD informed the state representatives that the two agencies planned to use the NPDES VGPs effluent limitations as a baseline for developing the discharge performance standards for the 25 discharges identified in Phase I as requiring control.

Pursuant to the terms of Executive Order 13132, as well as EPA policy for implementing it, a federalism summary impact statement is required to summarize not only the issues and concerns raised by state and local government commenters during the course of the rule's development, but also to describe how and the extent to which the agencies addressed those concerns. No formal, substantive comments were received from state and local government entities during the course of developing this action.

As required by section 8(a) of Executive Order 13132, the EPA included a certification from its Federalism Official stating that the EPA had met the Executive Order's requirements in a meaningful and timely manner. A copy of this certification is included in the public version of the official record for this final action.

This action does not have tribal implication as specified in Executive Order 13175. The UNDS rulemaking will not impact vessels operated by tribes because the rule only regulates discharges from vessels of the Armed Forces. However, tribes may be interested in this action because vessels of the Armed Forces, including U.S. Coast Guard vessels, may operate in or near tribal waters. The EPA hosted a National Teleconference on March 23, 2013, in order to obtain meaningful and timely input during the development of the discharge standards. The EPA and DoD informed the representatives that the two agencies planned to use the NPDES VGPs effluent limitations as a baseline for developing the discharge performance standards for the 25 discharges identified in Phase I as requiring control. During the Tribal consultation period, the EPA and DoD did not receive any substantive comments from the Indian Tribal Governments.

The Coastal Zone Management Act (CZMA) and its implementing regulations (15 CFR part 930) require that any Federal agency activity or Federally licensed or permitted activity occurring within (or outside but affecting) the coastal zone of a state with an approved Coastal Management Plan (CMP) be consistent with the enforceable policies of that approved program to the maximum extent practicable. According to the August 2016 “National Consistency Determination: Uniform National Discharge Standards (UNDS) Program for Phase II Batch One Discharges,” the EPA and DoD have determined that the performance standards are consistent to the maximum extent practicable with the enforceable policies of the 34 federally-approved state and territory CMPs.

This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA and DoD do not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. The 11 discharge standards are designed to control discharges incidental to the normal operation of a vessel of the Armed Forces that could adversely affect human health and the environment. The standards reduce the impacts to the receiving waters and any person using the receiving waters, regardless of age.

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

This action involves technical standards. The EPA and DoD propose to use ISO Method 9377—determination of hydrocarbon oil index. ISO Method 9377 is a voluntary consensus standard developed by an independent, non-governmental international organization.

Section 7(a)(2) of the Endangered Species Act (ESA) requires each Federal agency, in consultation with and with the assistance of the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), collectively “the Services,” to ensure that the actions they authorize, fund, or carry out are not likely to adversely affect the continued existence of any endangered or threatened species (referred to as “listed species”) or result in the destruction or adverse modification of their designated critical habitats.

The Services have published regulations implementing ESA section 7 at 50 CFR part 402. The regulations provide that a federal agency (such as the EPA and DoD) must consult with FWS, NMFS, or both if the agency determines that an activity authorized, funded, or carried out by the agency may affect listed species or critical habitat. The kinds of effects that trigger the consultation obligation could include, among other things, beneficial, detrimental, direct and indirect effects. The EPA and DoD commenced discussion with the Services in November 2014. The consultation process included multiple steps: Briefings with the Services on the contents of the rulemaking, discussions of the EPA and DoD's proposed outline and methodological approach, information exchanges and requests on current species lists, rulemaking schedule, and ultimately the submittal of a consultation package on October 11, 2016.

Executive Order 13112, entitled “Invasive Species” (64 FR 6183, February 8, 1999), requires each federal agency, whose actions may affect the status of invasive species, to identify such actions, and, subject to the availability of appropriations, use relevant programs and authorities to, among other things, prevent, detect, control, and monitor the introduction of invasive species. As defined by this Executive Order, “invasive species” means an alien species whose introduction causes, or is likely to cause, economic or environmental harm or harm to human health.

As part of the environmental effects analyses, the EPA and DoD considered the control of invasive species when developing the discharge performance standards for all 11 discharges (See Section II).

Executive Order 13089, entitled “Coral Reef Protection” (63 FR 32701, June 16, 1998), requires all federal agencies to identify actions that may affect U.S. coral reef ecosystems; utilize their programs and authorities to protect the conditions of such ecosystems; and to the extent permitted by law, ensure that any actions they authorize, fund, or carry out will not degrade the conditions of such ecosystems. These discharge standards are designed to control or eliminate the discharges incidental to the normal operation of vessels of the Armed Forces, ultimately minimizing the potential for causing adverse impacts to the marine environment including coral reefs.

The EPA and DoD believe that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The discharge performance standards only apply to vessels of the Armed Forces and ultimately increase environmental protection.

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

The Department of Health and Human Services published a final rule in the Federal Register on September 30, 2016 (81 FR 67438) that revised regulations for the Child Care and Development Fund (CCDF) program based on the Child Care and Development Block Grant Act of 2014. The final rule inadvertently included incorrect numbering of two paragraphs in 45 CFR 98.83(d)(1) regarding requirements for tribal CCDF programs. This document corrects the final regulations by revising this section.

Accordingly, 45 CFR part 98 is corrected by making the following correcting amendments:

Executive Summary

Why we need to publish a rule. Under the Endangered Species Act, a species may warrant protection through listing if it is endangered or threatened throughout all or a significant portion of its range. Listing a species as an endangered or threatened species can only be completed by issuing a rule. This rule will finalize the listing of the rusty patched bumble bee (Bombus affinis) as an endangered species.

The basis for our action. Under the Endangered Species Act, we can determine that a species is an endangered or threatened species based on any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence. While the exact cause of the species' decline is uncertain, the primary causes attributed to the decline include habitat loss and degradation, pathogens, pesticides, and small population dynamics.

Peer review and public comment. We sought comments on the species status assessment (SSA) from independent specialists to ensure that our analysis was based on scientifically sound data, assumptions, and analyses. We also invited these peer reviewers to comment on our listing proposal. We also considered all comments and information received during the public comment period.

An SSA team prepared an SSA for the rusty patched bumble bee. The SSA team was composed of U.S. Fish and Wildlife Service biologists, in consultation with other species experts. The SSA represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the rusty patched bumble bee. The SSA underwent independent peer review by 15 scientists with expertise in bumble bee biology, habitat management, and stressors (factors negatively affecting the species). We incorporated peer review suggestions into the SSA. The SSA and other materials relating to this final rule can be found on the Midwest Region Web site at http://www.fws.gov/midwest/Endangered/ or on http://www.regulations.gov.

Please refer to the proposed listing rule for the rusty patched bumble bee (81 FR 65324; September 22, 2016) for a detailed description of previous Federal actions concerning this species.

A thorough review of the taxonomy, life history, and ecology of the rusty patched bumble bee (Bombus affinis) is presented in the species status assessment report (Szymanski et al. 2016, Chapter 2; available at http://www.fws.gov/midwest/Endangered/ and at http://www.regulations.gov under Docket No. FWS-R3-ES-2015-0112). All bumble bees, including the rusty patched, belong to the genus Bombus (within the family Apidae) (Williams et al. 2008, p. 53).

The rusty patched bumble bee is a eusocial (highly social) organism forming colonies consisting of a single queen, female workers, and males. Colony sizes of the rusty patched bumble bee are considered large compared to other bumble bees, and healthy colonies may consist of up to 1,000 individual workers in a season (Macfarlane et al. 1994, pp. 3-4). Queens and workers differ slightly in size and coloration; queens are larger than workers (Plath 1922, p. 192, Mitchell 1962, p. 518). All rusty patched bumble bees have entirely black heads, but only workers and males have a rusty reddish patch centrally located on the abdomen.

The rusty patched bumble bee's annual cycle begins in early spring with colony initiation by solitary queens and progresses with the production of workers throughout the summer and ending with the production of reproductive individuals (males and potential queens) in mid- to late summer and early fall (Macfarlane et al. 1994, p. 4; Colla and Dumesh 2010, p. 45; Plath 1922, p. 192). The males and new queens (gynes, or reproductive females) disperse to mate, and the original founding queen, males, and workers die. The new queens go into diapause (a form of hibernation) over winter. The following spring, the queen, or foundress, searches for suitable nest sites and collects nectar and pollen from flowers to support the production of her eggs, which are fertilized by sperm she has stored since mating the previous fall. She is solely responsible for establishing the colony. As the workers hatch and the colony grows, they assume the responsibility of food collection, colony defense, and care of the young, while the foundress remains within the nest and continues to lay eggs. During later stages of colony development, in mid-July or August to September, the new queens and males hatch from eggs.

The rusty patched bumble bee has been observed and collected in a variety of habitats, including prairies, woodlands, marshes, agricultural landscapes, and residential parks and gardens (Colla and Packer 2008, p. 1381; Colla and Dumesh 2010, p. 46; USFWS rusty patched bumble bee unpublished geodatabase 2016). The species requires areas that support sufficient food (nectar and pollen from diverse and abundant flowers), undisturbed nesting sites in proximity to floral resources, and overwintering sites for hibernating queens (Goulson et al. 2015, p. 2; Potts et al. 2010, p. 349). Rusty patched bumble bees live in temperate climates, and are not likely to survive prolonged periods of high temperatures (over 35 °Celsius (C) (95 °F (F)) (Goulson 2016, pers. comm.).

Bumble bees are generalist foragers, meaning they gather pollen and nectar from a wide variety of flowering plants (Xerces 2013, pp. 27-28). The rusty patched bumble bee is one of the first bumble bees to emerge early in the spring and the last to go into hibernation, so to meet its nutritional needs, the species requires a constant and diverse supply of blooming flowers.

Rusty patched bumble bee nests are typically in abandoned rodent nests or other similar cavities (Plath 1922, pp. 190-191; Macfarlane et al. 1994, p. 4). Little is known about the overwintering habitats of rusty patched bumble bee foundress queens, but other species of Bombus typically form a chamber in soft soil, a few centimeters deep, and sometimes use compost or mole hills to overwinter (Goulson 2010, p. 11).

Prior to the mid- to late 1990s, the rusty patched bumble bee was widely distributed across areas of 31 States/Provinces: Connecticut, Delaware, District of Columbia, Georgia, Illinois, Indiana, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Ontario, Pennsylvania, Quebec, Rhode Island, South Carolina, South Dakota, Tennessee, Vermont, Virginia, West Virginia, and Wisconsin. Since 2000, the rusty patched bumble bee has been reported from 14 States/Provinces: Illinois, Indiana, Iowa, Maine, Maryland, Massachusetts, Minnesota, North Carolina, Ontario, Ohio, Pennsylvania, Tennessee, Virginia, and Wisconsin (figure 1).

The Act directs us to determine whether any species is an endangered species or a threatened species because of any factors affecting its continued existence. We completed a comprehensive assessment of the biological status of the rusty patched bumble bee, and prepared a report of the assessment, which provides a thorough account of the species' overall viability. We define viability as the ability of the species to persist over the long term and, conversely, to avoid extinction. In this section, we summarize the conclusions of that assessment, which can be accessed at Docket No. FWS-R3-ES-2015-0112 on http://www.regulations.gov and at http://www.fws.gov/midwest/Endangered/. The reader is directed to the Rusty Patched Bumble Bee (Bombus affinis) Species Status Assessment (SSA; Szymanski et al. 2016) for a detailed discussion of our evaluation of the biological status of the rusty patched bumble bee and the influences that may affect its continued existence.

To assess rusty patched bumble bee viability, we used the three conservation biology principles of resiliency, representation, and redundancy (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency supports the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years); representation supports the ability of the species to adapt over time to long-term changes in the environment (for example, climate changes); and redundancy supports the ability of the species to withstand catastrophic events (for example, droughts, hurricanes). In general, the more redundant, representative, and resilient a species is, the more likely it is to sustain populations over time, even under changing environmental conditions. Using these principles, we identified the species' ecological requirements for survival and reproduction at the individual, population, and species levels, and described the beneficial and risk factors influencing the species' viability.

We evaluated the change in resiliency, representation, and redundancy from the past until the present, and projected the anticipated future states of these conditions. To forecast the biological condition into the future, we devised plausible future scenarios by eliciting expert information on the primary stressors anticipated in the future to the rusty patched bumble bee: Pathogens, pesticides, habitat loss and degradation, effects of climate change, and small population dynamics. To assess resiliency, we evaluated the trend in rusty patched bumble bee occurrences (populations) over time. To forecast future abundance, we used a population model to project the number of populations expected to persist based on plausible future risk scenarios. To assess representation (as an indicator of adaptive capacity) of the rusty patched bumble bee, we evaluated the spatial extent of occurrences over time. That is, we tallied the number of counties, States, and ecoregions occupied by the species historically, currently, and projected into the future. Ecoregions are areas delineated to capture the variation (representation) in the species. We relied on unique climate conditions to delineate variations, and thus, used the Bailey Ecoregions (Bailey 1983, Bailey et al. 1994) and the equivalent Canadian Ecoregions (Ecological Stratification Working Group, 1996) in our analyses. To assess redundancy, we calculated the risk of ecoregion-wide extirpations given the past frequency of catastrophic drought events in each of the ecoregions.

Our analyses indicate that the resiliency, representation, and redundancy of the rusty patched bumble bee have all declined since the late 1990s and are projected to continue to decline over the next several decades. Historically, the species was abundant and widespread, with hundreds of populations across an expansive range, and was the fourth-ranked Bombus species in our relative abundance analysis. This information has also been reported by others.

Since the late 1990s, rusty patched bumble bee abundance and distribution has declined significantly. Historically, the rusty patched bumble bee has been documented from 926 populations; since 1999, the species has been observed at 103 populations, which represents an 88 percent decline from the number of populations documented prior to 2000). We assumed any population with at least one record (one individual rusty patched bumble bee seen) since 1999 is current, and thus, the overall health and status of these 103 current populations is uncertain. Indeed, many populations have not been reconfirmed since the early 2000s and may no longer persist. For example, no rusty patched bumble bees were observed at 41 (40 percent) of the current sites since 2010 and at 75 (73 percent) of the 103 sites since 2015. Furthermore, many of the current populations are documented by only a few individuals; 95 percent of the populations are documented by 5 or fewer individuals; the maximum number found at any site was 30. The number of individuals constituting a healthy colony is typically several hundred, and a healthy population typically contains tens to hundreds of colonies (Macfarlane et al. 1994, pp. 3-4).

Along with the loss of populations, a marked decrease in the range and distribution has occurred in recent times. As noted above, the rusty patched bumble bee was broadly distributed historically across the Eastern United States, upper Midwest, and southern Quebec and Ontario, an area comprising 15 ecoregions, 31 States/Provinces, and 394 U.S. counties and 38 county-equivalents in Canada. Since 2000, the species' distribution has declined across its range, with current records from 6 ecoregions, 14 States or Provinces, and 55 counties (figure 1); this represents an 87-percent loss of spatial extent (expressed as a loss of counties with the species) within the historical range. The losses in both the number of populations and spatial extent render the rusty patched bumble bee vulnerable to extinction even without further external stressors (e.g., habitat loss, insecticide exposure) acting upon the species.

Many of the existing populations, however, continue to face the effects of past and ongoing stressors, including pathogens, pesticides, habitat loss and degradation, small population dynamics, and effects of climate change. A brief summary of these primary stressors is presented below; for a full description of these stressors, refer to chapter 5 of the SSA report.

Pathogens—The precipitous decline of several bumble bee species (including the rusty patched) from the mid-1990s to the present was contemporaneous with the collapse in populations of commercially bred western bumble bees (B. occidentalis), raised primarily to pollinate greenhouse tomato and sweet pepper crops, beginning in the late 1980s (for example, Szabo et al. 2012, pp. 232-233). This collapse was attributed to the microsporidium (fungus) Nosema bombi. Around the same time, several North American wild bumble bee species also began to decline rapidly (Szabo et al. 2012, p. 232). The temporal congruence and speed of these declines led to the suggestion that they were caused by transmission or “spillover” of N. bombi from the commercial colonies to wild populations through shared foraging resources. Patterns of losses observed, however, cannot be completely explained by exposure to N. bombi. Several experts have surmised that N. bombi may not be the culpable (or only culpable) pathogen in the precipitous decline of certain wild bumble bees in North America (for example, Goulson 2016, pers. comm.; Strange and Tripodi 2016, pers. comm.), and the evidence for chronic pathogen spillover from commercial bumble bees as a main cause of decline remains debatable (see various arguments in Colla et al. 2006, entire; Szabo et al. 2012, entire; Manley et al. 2015, entire).

In addition to fungi such as N. bombi, other viruses, bacteria, and parasites are being investigated for their effects on bumble bees in North America, such as deformed wing virus, acute bee paralysis virus, and parasites such as Crithidia bombi and Apicystis bombi (for example, Szabo et al. 2012, p. 237; Manley et al. 2015, p. 2; Tripodi 2016, pers. comm.; Goulson et al. 2015, p. 3). Little is known about these diseases in bumble bees, and no studies specific to the rusty patched bumble bee have been conducted. Refer to Szymanski et al. (2016, pp. 40-43) for a brief summary of those that have the greatest potential to affect the rusty patched bumble bee.

Pesticides—A variety of pesticides are widely used in agricultural, urban, and even natural environments, and native bumble bees are simultaneously exposed to multiple pesticides, including insecticides, fungicides, and herbicides. The pesticides with greatest effects on bumble bees are insecticides and herbicides: Insecticides are specifically designed to directly kill insects, including bumble bees, and herbicides reduce available floral resources, thus indirectly affecting bumble bees. Although the overall toxicity of pesticides to rusty patched or other bumble bees is unknown, pesticides have been documented to have both lethal and sublethal effects (for example, reduced or no male production, reduced or no egg hatch, and reduced queen production and longevity) on bumble bees (for example, Gill et al. 2012, p. 107; Mommaerts et al. 2006, pp. 3-4; Fauser-Misslin et al. 2014, pp. 453-454).

Neonicotinoids are a class of insecticides used to target pests of agricultural crops, forests (for example, emerald ash borer), turf, gardens, and pets and have been strongly implicated as the cause of the decline of bees in general (European Food Safety Authority 2015, p. 4211; Pisa et al. 2015, p. 69; Goulson 2013, pp. 7-8), and specifically for rusty patched bumble bees, due to the contemporaneous introduction of neonicotinoid use and the precipitous decline of the species (Colla and Packer 2008, p. 10). The neonicotinoid imidacloprid became widely used in the United States starting in the early 1990s, and clothianidin and thiamethoxam entered the commercial market beginning in the early 2000s (Douglas and Tooker 2015, pp. 5091-5092). The use of neonicotinoids rapidly increased as seed-applied products were introduced in field crops, marking a shift toward large-scale, preemptive insecticide use. If current trends continue, Douglas and Tooker (2015, p. 5093) predict that neonicotinoid use will increase further, through application to more soybeans and other crop species.

Most studies examining the effect of neonicotinoids on bees have been conducted using the European honey bee (Apis mellifera) (Lundin et al. 2015, p. 7). Bumble bees, however, may be more vulnerable to pesticide exposure for several reasons: (1) They are more susceptible to pesticides applied early in the year, because for 1 month the entire bumble bee population depends on the success of the queens to forage and establish new colonies; (2) bumble bees forage earlier in the morning and later in the evening than honey bees, and thus are susceptible to pesticides applied in the early morning or evening to avoid effects to honey bees; (3) most bumble bees have smaller colonies than honey bees; thus, a single bumble bee worker is more important to the survival of the colony (Thompson and Hunt 1999, p. 155); (4) bumble bees nest underground, and thus are also exposed to pesticide residues in the soil (Arena and Sgolastra 2014, p. 333); and (5) bumble bee larvae consume large amounts of unprocessed pollen (as opposed to honey), and therefore are much more exposed to pesticide residues in the pollen (Arena and Sgolastra 2014, p. 333).

Habitat loss and degradation—The rusty patched bumble bee historically occupied native grasslands of the Northeast and upper Midwest; however, much of this landscape has now been lost or is fragmented. Estimates of native grassland losses since European settlement of North America are as high as 99.9 percent (Samson and Knofp 1994, p. 418). Habitat loss is commonly cited as a long-term contributor to bee declines through the 20th century, and may continue to contribute to current declines, at least for some species (Goulson et al. 2015, p. 2; Goulson et al. 2008; Potts et al. 2010, p. 348; Brown and Paxton 2009, pp. 411-412). However, the rusty patched bumble bee may not be as severely affected by habitat loss compared to habitat specialists, such as native prairie endemics, because it is not dependent on specific plant species, but can use a variety of floral resources. Still, loss or degradation of habitat has been shown to reduce both bee diversity and abundance (Potts et al. 2010, pp. 348-349). Large monocultures do not support the plant diversity needed to provide food resources throughout the rusty patched bumble bees' long foraging season, and small, isolated patches of habitat may not be sufficient to support healthy bee populations (Hatfield and LeBuhn 2007, pp. 154-156; Öckinger and Smith 2007, pp. 55-56).

Although habitat loss has established negative effects on bumble bees (Goulson et al. 2008; Williams and Osborne 2009, pp. 371-373), many researchers believe it is unlikely to be a main driver of the recent, widespread North American bee declines (Szabo et al. 2012; p. 236; Colla and Packer 2008, p. 1388; Cameron et al. 2011b, p. 665). However, the past effects of habitat loss and degradation may continue to have impacts on bumble bees that are stressed by other factors. If there is less food available or if the bumble bees must expend more energy and time to find food, they are less healthy overall, and thus less resilient to other stressors (for example, nutritional stress may decrease the ability to survive parasite infection (Brown et al. 2000, pp. 425-426) or cope with pesticides (Goulson et al. 2015, p. 5)). Furthermore, bumble bees may be more vulnerable to extinction than other animals because their colonies have long cycles, where reproductive individuals are primarily produced near the end of those cycles. Thus, even slight changes in resource availability could have significant cumulative effects on colony development and productivity (Colla and Packer 2008, p. 1380).

Small population dynamics—The social organization of bees has a large effect on their population biology and genetics (Pamilo and Crozier 1997, entire; Chapman and Bourke 2001, entire; Zayed 2009, entire). The rusty patched bumble bee is a eusocial bee species (cooperative brood care, overlapping generations within a colony of adults, and a division of labor into reproductive and nonreproductive groups), and a population is made up of colonies rather than individuals. Consequently, the effective population size (number of individuals in a population who contribute offspring to the next generation) is much smaller than the census population size (number of individuals in a population). Genetic effects of small population sizes depend on the effective population size (rather than the actual size), and for the rusty patched bumble bee the effective population sizes are inherently small due to the species' eusocial structure, haplodiploidy reproduction, and the associated “diploid male vortex.”

Like many insect species, the rusty patched bumble bee has haplodiploidy sex differentiation, in which haploid (having one set of chromosomes) males are produced from unfertilized eggs and diploid (containing two complete sets of chromosomes) females from fertilized eggs (Zayed 2009, p. 239). When females mate with related males (as is more likely to happen in small populations), however, half of the females' progeny will develop into diploid males instead of females. Having fewer females decreases the health of the colony, as males do not contribute food resources to the colony (Ellis et al. 2006, p. 4376). Additionally, diploid males are mostly unviable or, if viable and mate, produce unviable eggs or sterile daughters (Zayed 2009, p. 239 and references within), so those males that are produced are unable to contribute to next year's cohort. (See Szymanski et al. 2016, pp. 17-18 for a more detailed explanation of this life-history characteristic). This reproductive strategy (haplodiploidy) makes the rusty patched bumble bee particularly vulnerable to the effects of a small population size, as the species can experience a phenomenon called a “diploid male vortex,” where the proportion of nonviable males increases as abundance declines, thereby further reducing population size. Given this, due to the small sizes of the current populations, some populations may not persist and others are likely already quasi-extirpated (the level at which a population will go extinct, although it is not yet at zero individuals) (Szymanski et al. 2016, p. 66).

Effects of climate change—Global climate change is broadly accepted as one of the most significant risks to biodiversity worldwide; however, specific impacts of climate change on pollinators are not well understood. The changes in climate likely to have the greatest effects on bumble bees include: Increased drought, increased flooding, increased storm events, increased temperature and precipitations, early snow melt, late frost, and increased variability in temperatures and precipitation. These climate changes may lead to decreased resource availability (due to mismatches in temporal and spatial co-occurrences, such as availability of floral resources early in the flight period), decreased availability of nesting habitat (due to changes in rodent populations or increased flooding or storms), increased stress from overheating (due to higher temperatures), and increased pressures from pathogens and nonnative species, (Goulson et al. 2015, p. 4; Goulson 2016, pers. comm.; Kerr et al. 2015, pp. 178-179; Potts et al. 2010, p. 351; Cameron et al. 2011a, pp. 35-37; Williams and Osborne 2009, p. 371).

Synergistic effects—It is likely that several of the above summarized risk factors are acting synergistically or additively on the species, and the combination of multiple stressors is likely more harmful than a single stressor acting alone. Although the ultimate source of the decline is debated, the acute and widespread decline of rusty patched bumble bees is undisputable.

Beneficial factors—We are aware of only a few specific measures for bumble bee conservation at any of the current rusty patched bumble bee locations in the United States. In Canada, the species was listed as endangered on Schedule 1 of the Species at Risk Act in 2012, and a recovery strategy has been proposed (Environment and Climate Change Canada 2016, entire). However, we are aware of only nine current occurrences (three populations) in Canada. The rusty patched bumble bee is listed as State endangered in Vermont and Special Concern in Connecticut, Michigan, and Wisconsin. Of these 4 States, Wisconsin is the only State with current records (18 populations). Existing regulatory mechanisms that address threats to the species vary across the species' range; one such mechanism is the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), under which the U.S. Environmental Protection Agency (EPA) determines the ecological risk of all registered pesticides. Also, one way the Service works to ensure pesticides are used with the least amount of hazards to human and environmental health is through its pesticide consultations with the EPA. Since 2013, the Service and EPA, together with the National Marine Fisheries Service (NOAA-Fisheries), have been working collaboratively on the Act's section 7 consultation process. The agencies are currently working together to complete consultations on nine pesticides (carbaryl, chlorpyrifos, diazinon, malathion, methomyl, atrazine, simazine, propazine, and glyphosate), with biological opinions to be completed in December 2017, 2018, and 2022 for those chemicals.

A few organizations have or may soon start monitoring programs, such as Bumble Bee Watch (www.bumble beewatch.org), a collaborative citizen science effort to track North American bumble bees, and the Xerces Society. Also, the International Union of Concerned Scientists Conservation Breeding Specialist Group has developed general conservation guidelines for bumble bees (Hatfield et al. 2014b, pp. 11-16; Cameron et al. 2011a, entire). There is an increased awareness on pollinators in general, and thus efforts to conserve pollinators may have a fortuitous effect on the rusty patched bumble bee. An example of such efforts is the Ohio Pollinator Habitat Initiative, which is working to improve and create pollinator habitat and raise awareness of the importance of pollinators in Ohio (http://www.ophi.info/ (accessed December 14, 2016)). Actions such as planting appropriate flowers may contribute to pollinator conservation; however, there is a need to develop regionally appropriate, bumble bee-specific recommendations based on evidence of use (Goulson 2015, p. 6).

In summary, the magnitude of population losses and range contraction to date has greatly reduced the rusty patched bumble bee's ability to adapt to changing environmental conditions and to guard against further losses of adaptive diversity and potential extinction due to catastrophic events. In reality, the few populations persisting and the limited distribution of these populations have substantially reduced the ability of the rusty patched bumble bee to withstand environmental variation, catastrophic events, and changes in physical and biological conditions. Coupled with the increased risk of extirpation due to the interaction of reduced population size and its haplodiploidy reproductive strategy, the rusty patched bumble bee may lack the resiliency required to sustain populations into the future, even without further exposure to stressors.

In preparing this final rule, we reviewed and fully considered comments from the public and peer reviewers on the proposed rule. This final rule incorporates minor changes to our proposed listing based on the comments we received, as discussed below in Summary of Comments and Recommendations, and newly available occurrence data. These data allowed us to refine occurrence information, thus, the final numerical results are slightly different from those in the proposed rule.

We have reevaluated the viability of the rusty patched bumble bee in the SSA given this new information, and found that the probability of the species' persistence has not changed from the proposed rule. Specifically, in four of the ecoregions, the probability of extirpation exceeds 90 percent within 10 years, and extirpation in the remaining ecoregions is greater than 90 percent by year 30. The new information we received in response to the proposed rule did not change our determination that the rusty patched bumble bee is an endangered species, nor was it significant enough to warrant reopening the public comment period.

In the proposed rule published on September 22, 2016 (81 FR 65324), we requested that all interested parties submit written comments on the proposal by November 21, 2016. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. A newspaper notice inviting general public comment was published in USA Today on October 6, 2016. We did not receive any requests for a public hearing.

We reviewed all comments received in response to the proposed rule for substantive issues and new information. Over 70 commenters provided substantive information. Those commenters included members of the general public, local governments, nongovernmental organizations, State agencies, species experts, agricultural organizations, and industry. We did not receive comments from Federal agencies or Tribes.

We also received more than 100 individual comments supporting the proposed rule to list rusty patched bumble bee, and thousands (more than 90,000) of supportive comments submitted in form-letter format by members of Environment America, Environmental Action, Friends of the Earth, League of Conservation Voters, Sierra Club, and the Natural Resources Defense Council. Although comments simply expressing support or opposition to the proposed action do not affect the final determination, we appreciate knowing of the public's opinion regarding our action.

All substantive information provided during the comment period has either been incorporated directly into this final determination or addressed below. The new occurrence data we received was incorporated into our SSA analysis.

In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited review of the SSA report from 25 knowledgeable individuals with scientific expertise that included familiarity with the rusty patched bumble bee and its habitat, biological needs, and threats. We received responses from 15 of the peer reviewers.

We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding the rusty patched bumble bee. The peer reviewers generally concurred with our methods and conclusions and provided additional information, clarifications, and suggestions to improve the assessment. Peer reviewer comments are addressed in an appendix to the SSA, as appropriate; therefore, our proposal and this final rule were developed in consideration of peer reviewer comments.

(1) Comment: One State transportation agency recommended the Service review literature on bumble bee mortality from vehicle collisions prior to listing, particularly in regard to areas where suitable habitat and highway rights-of-way intersect. The commenting agency was concerned about undue constraints being placed on transportation agencies that may be responsible for implementing wildlife-friendly road crossings.

Our Response: To date, we have not found evidence that suggests vehicle collision is a threat to the rusty patched bumble bee. Through the recovery process, we will be conducting population-specific assessments to identify the stressors acting upon the populations. If vehicle collisions are found to be a problem for a specific population, the Service will work with the applicable county, State, or Federal agency to strategize on measures that could be used to reduce the mortality.

(2) Comment: A few State transportation and agriculture agencies and other commenters indicated that we should conduct additional population surveys prior to listing, because they believed additional populations would likely be found.

Our Response: The listing decision must be made using the best scientific and commercial data available at that time. In this case, we have access to rangewide, rusty patched bumble bee specific survey data from the late 1990s through 2016. Since we published the proposed listing rule, additional survey data have become available to us from large-scale bumble bee surveys in the States of Maine, Michigan, and Minnesota, as well as several smaller scale searches for the species, including citizen science surveys. These surveys were generally focused on prairies and grasslands with good-quality habitat for the species and, therefore, a good potential of hosting the species. However, as in the majority of previous surveys, the rusty patched bumble bee was not detected at most sites.

In 2016, no rusty patched bumble bees were found at the 50 sites surveyed in Michigan, and the species was detected at 15 of the approximately 120 locations surveyed in Minnesota. Maine initiated a statewide 5-year bumble bee atlas program in 2015 to better understand the status of the State's bumble bees through citizen science. The rusty patched bumble bee was not among approximately 4,500 submitted vouchers and photos from Maine in 2015, nor was it detected in the 2016 survey effort. Given the amount of sampling within the range of the rusty patched bumble bee, we find that the likelihood of discovering a significant number of new populations is low. Further, given the condition of the persisting populations and the stressors that those populations face, adding a small number of new populations does not change our endangered determination, since the additional populations likely face similar stressors.

(3) Comment: One State agency expressed an interest in converting more rights-of-way into pollinator habitat to benefit the rusty patched bumble bee and other species, but is concerned that, as these areas become suitable habitat for a listed species, projects in these locations may require section 7 consultations. The agency further stated that consultation concerns could be alleviated via a rule issued under the authority of section 4(d) of the Act, if evidence supports the species being listed as threatened, or by other methods such as assurances from the Service, Safe Harbor Agreements, or programmatic consultations. A few industry groups also requested that the Service develop a species-specific section 4(d) rule, if threatened status is warranted. Such a rule, they state, would help protect the species and allow ongoing conservation efforts. One commenter suggested that a threatened listing, as opposed to endangered, would be a more appropriate classification for this species.

Our Response: We appreciate the agency's interest in enhancing pollinator habitat. These plantings can offer foraging and breeding habitats for pollinators and may connect previously separated habitats and aid in species recovery. Although an increased workload for section 7 consultations may be associated with listing, section 4 of the Act requires the Service to determine whether any species is an endangered or threatened species because of any of the section 4(a)(1) factors. The Service will work with the consulting agency as expeditiously as possible to complete the section 7 consultation processes in a timely manner. Once a species is listed, we offer private or other non-Federal property owners voluntary Safe Harbor Agreements that can contribute to the recovery of species, Habitat Conservation Plans that facilitate private activities (e.g., grazing) while minimizing effects to species, funding through the Partners for Fish and Wildlife Program to help promote conservation actions, and grants to the States under section 6 of the Act.

We have determined that, based on the best scientific and commercial data available at the time of listing, the rusty patched bumble bee warrants listing as an endangered species. A complete discussion is provided in the Determination section of the preamble to this rule. Section 4(d) of the Act allows for development of rules for species listed as threatened. As this species is being listed as an endangered species, a section 4(d) rule cannot be promulgated.

(4) Comment: Several commenters stated that, because the rusty patched bumble bee has such a large historical range, overly burdensome regulations could be placed on a large geographic area. Specifically, one State transportation agency commented that, based on the available status information, the State would support listing with rules that would encourage conservation plan elements that allow State transportation agencies to plan highway roadside management without a large section 7 consultation burden. The agency further commented that it is willing to maintain roadsides that provide environmental benefits, as long as safety of the traveling public is not compromised and resources are available. Also, the agency wanted to ensure that the Service is aware of potential conflicts with other federally mandated practices related to roadside vegetation management.

Our Response: For federally listed species, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency enters into consultation with the Service regarding the degree of impact and measures available to avoid or minimize adverse effects. We look forward to working with the States and other agencies and organizations in developing ways to conserve the rusty patched bumble bee while streamlining consultation requirements. We may also issue permits to carry out otherwise prohibited activities involving endangered wildlife under certain circumstances. Regulations governing permits are codified in title 50 of the Code of Federal Regulations at 50 CFR 17.22. 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.

(5) Comment: One State agency was concerned that, although habitat loss and pesticide use may be less likely to be the causes of the decline than pathogens and the effects of climate change, habitat and pesticide use will be the only two factors addressed in the species' recovery plan. If the Service focuses on only those two threats, the commenter stated that recovery will be less efficient, and the listing will impact landowners and farmers to a greater degree than other members of the regulated community. The commenter believes that the Service should consider approaches to pollinators that address all of the relevant factors to truly protect and preserve the rusty patched bumble bee.

Our Response: Landowners deserve great credit for their land stewardship, and we want to continue to encourage those management practices that support bumble bees and other insect pollinators. The Service also strives to find ways to meet people's needs while protecting imperiled species. The Service is committed to working with private landowners, public land managers, conservation agencies, nongovernmental organizations, and the scientific community to conserve the rusty patched bumble bee. Determining why populations persist in some areas and not others will be a key question during recovery planning for this species. All primary stressors will be considered during recovery planning and implementation. More information about stressors acting on each remaining population will help inform effective and efficient recovery planning and recovery actions.

(6) Comment: One State transportation agency recommended that the Service more clearly define the phrase “where the rusty patched bumble bee is known to occur” in the discussion of activities that could result in take if performed in areas currently occupied by the species. The agency requested that the Service clarify what is considered as occupied habitat (historical range, current range, or specific known locations). The agency recommended limiting the definition of occupied habitat to current collection records, and limiting requirements for survey work to areas within and directly adjacent to currently known locations.

Our Response: The Service maintains a list of counties that are within the current range of the species on publicly accessible Web sites. We suggest that project proponents contact their State's U.S. Fish and Wildlife Service Ecological Services Field Office for specific information for their locality. The species is likely to be present only in areas with suitable habitat. Suitable habitats are described in the Background section of the preamble to this final listing rule. The phrase “known to occur” was inserted to clarify that the rusty patched bumble bee would have to be exposed to actions for those actions to cause take and that the bees would be exposed only if they occur in the area that would be affected by a particular action. That is, we want to avoid the interpretation that the general use of pesticides, for example, could be prohibited per the listing of the rusty patched bumble bee. However, the species will be protected under the Act in any area where it is found to occur.

(7) Comment: The Ohio Department of Transportation (DOT) recommended allowing specialists to start applying for collector's permits before the species is listed so that permitted surveyors are available as needed once the listing process is complete.

Our Response: The Service can include proposed species on section 10(a)(1)(a) permits and encourages the submission of permit applications as soon as possible.

(8) Comment: The Ohio DOT provided information about past conservation projects in Ohio that may benefit the rusty patched bumble bee, even though they were not specifically designed to conserve the species. Examples of existing conservation efforts that have been completed by the agency include protection of mitigation areas that are under conservation easement, development of procedures to limit moving certain rights-of-way, partnerships with the Ohio Pollinator Habitat Initiative, and pilot testing of pollinator plots within rights-of-way.

Our Response: We appreciate Ohio's interest and contribution to conservation and look forward to continuing a cooperative relationship with Ohio and other States as we proceed with recovery planning and implementation for the rusty patched bumble bee. Despite these beneficial measures, however, the status of the species remains dire.

(9) Comment: The Pennsylvania Department of Agriculture noted that one of the threats to the rusty patched bumble bee identified in the proposal is the spread of pathogens from commercial honey and bumble bees. The commenter stated that the Pennsylvania Department of Agriculture does not have the authority or the mandate to regulate or inspect bumble bee colonies that are reared for agricultural purposes. The commenter expressed concern over this lack of oversight if the spread of pathogens from captive to wild bees is going to be better understood and addressed.

Our Response: We appreciate this information and will consider it during the recovery planning process.

(10) Comment: Several State agencies and other commenters provided information regarding ongoing or planned pollinator conservation actions and plans that the Service should consider. One State agency commented that its government is in the process of developing a Pollinator Protection Plan intended to improve and protect the health of pollinators, while also protecting crops, property, and human health. The plan is a nonregulatory guidance document that provides voluntary measures for apiarists and pesticide applicators. Two other State agencies provided information regarding planned future conservation actions, specifically in the States of Ohio and North Dakota. These activities include seeking funding for population surveys, monitoring, and research, and developing pollinator strategy plans. Other commenters cited, for example, that the White House has developed several documents outlining measures to protect honey bees and other pollinators and that a number of other groups and companies are involved in voluntary efforts to support pollinator health. The commenters note that these efforts will contribute to conservation of the rusty patched bumble bee.

Our Response: We appreciate the pollinator conservation efforts our State partners and others are currently implementing and planning for the future. We look forward to working cooperatively on pollinator, and specifically rusty patched bumble bee, conservation. Despite these beneficial measures, however, the status of the species remains dire.

(11) Comment: Several State agencies and other organizations expressed their support for bumble bee and general pollinator conservation. The commenters conveyed their commitment and willingness to continue or initiate cooperative participation in habitat management and other conservation efforts. Some commenters mentioned beneficial actions they are able to fulfill, such as the following: (1) Creating and maintaining flowering plant habitat and overwintering sites by revegetating project areas with appropriate native seed mixes, (2) timing vegetation-related maintenance activities to minimize impacts to the rusty patched bumble bee and other pollinators, and (3) restricting pesticide and herbicide use at appropriate times of the year.

Our Response: The Service appreciates the commenters' support and interest in rusty patched bumble bee and other pollinator conservation efforts. We agree that the actions as described will contribute to the conservation of the rusty patched bumble bee and other pollinator species. We welcome the involvement of these agencies and organizations as stakeholders in recovery planning for the species. We will work with stakeholders through recovery planning to identify areas that would aid in recovery of this species and to determine the appropriate actions to take. The Service understands the importance of stakeholder participation and support in the recovery of the rusty patched bumble bee and will continue to work with all stakeholders to this end.

(12) Comment: One State agriculture agency questioned the relative role of habitat loss versus other stressors as the true cause of population declines. Specifically, the commenter indicated the Service contradicts the statement that the rusty patched bumble bee may find suitable habitat in agricultural cropping systems by then noting that the flowering period for most crops is too short to sustain their population.

Our Response: Our assessment determined that there is uncertainty about the relative role of the cause(s) of the population declines and range contraction since 1990. Based on the available information, we cannot narrow the primary driver down to a single cause, nor do we have reason to assume that bumble bee losses were due to uniform impacts across the range. Although listing the rusty patched bumble bee is based on population trends showing a severe decline over the past 2.5 decades with no evident prospect of a natural reversal, the individual and combined effects of the multiple possible causes of this decline cannot be ascertained based on available information. Further research into past and ongoing stressors on the species will be an essential component of any future conservation strategy for this species. Rusty patched bumble bees have been observed in agricultural landscapes, although such observances are declining with the decrease in diversity of floral resources in such areas.

(13) Comment: Two North Dakota State agencies commented that the range where the rusty patched bumble bee would be listed should not include North Dakota, nor should critical habitat be designated in the State, because the species has not been found there since 2000.

Our Response: The species receives the protections of the Act wherever found; thus, if the species does occur in North Dakota, it would be protected there. We will consider a range of recovery actions following listing, and will work with local and State partners to determine and implement actions in locations that will benefit the species.

(14) Comment: A few State natural resource agencies, several species experts, and numerous other public commenters concluded that endangered species protections would benefit the recovery of the rusty patched bumble bee and provided additional suggestions for future conservation actions. Some examples of suggested actions include: Creating new pollinator habitat; enhancing existing habitat, limiting, reducing, or eliminating pesticide use and exposure (in part through work with the EPA, U.S. Department of Agriculture, and other agencies); limiting novel disease exposure by regulating commercial bumble bee colony movement; incentivizing habitat improvement activities; increasing or enacting penalties for failure to comply with restrictions and regulations; requiring municipalities to set aside a proportion of undisturbed areas for pollinator use; protecting habitat; initiating captive-rearing programs; conducting additional population surveys; limiting mowing and herbicide spraying; addressing legal barriers (e.g., local weed ordinances) to planting and maintaining habitat with flowering plants; and conducting public outreach and education.

Our Response: There are potentially many pathways to achieving rusty patched bumble bee conservation, including many of the actions suggested by commenters. The most prudent course for recovering the rusty patched bumble bee will be developed in the ensuing years, with input from species experts, appropriate agency personnel, and the public.

(15) Comment: Several commenters questioned the validity of the data sets we used or the analytical methods of those data. Those commenters stated that the Service's assessment relied on incomplete or nontarget survey data and that the analysis had significant data gaps and uncertainties. Thus, those commenters questioned the species' decline as depicted in the SSA. Other commenters validated the Service's use of the best available science and a robust dataset. For example, one of the commenters (a scientist with bumble bee expertise) stated that the analyses and data are reliable and the SSA employs similar techniques as other status assessment tools (e.g., NatureServe rank calculator or IUCN ranking process). They also stated that the SSA analyses are consistent with internationally accepted quantitative methods for assessing extinction risk (Mace et al. 2008; IUCN 2012). Several species experts and State natural resource agencies commented that there is strong evidence suggesting that the species has experienced a severe decline and warrants protection.

Our Response: Our analysis of the species' status and the determination to list it as an endangered species is based on the best available information. We thoroughly searched the published literature and sought out unpublished information from bumble bee and other subject matter experts in the United States, Canada, England, and Germany, as well as information from all States within the historical range of the rusty patched bumble bee. The datasets on which we relied span more than 100 years and contain more than 94,000 bumble bee records from within the rusty patched bumble bee's range. Each record has been verified. Furthermore, although surveys were not targeted for any specific bumble bee, the rusty patched bumble bee was consistently and routinely observed prior to the late 1990s; since then, however, the observations have dropped off precipitously. In response to the decline, a concerted effort was put forth by several experts in the early 2000s to search for rusty patched bumble bees. Despite this increase in effort specifically targeting the rusty patched bumble bee, observations of the rusty patched bumble bee continued to drop. Further, to account for the lack of standardization in the annual survey interval, we grouped records into 10-year blocks to assess populations over time. Finally, although we agree that there are gaps in our knowledge of rusty patched bumble bee ecology, this information is not germane to determining whether the species warrants protection under the Act. These unknowns are important to devising a conservation strategy, and we will be working with partners to resolve many of these information gaps as we proceed with recovery.

(16) Comment: Several industry groups commented that there is no evidence in the SSA report, proposed rule, or elsewhere in the administrative record that the Service requested all available data from each of the States within the historical range of the rusty patched bumble bee or from the cooperative extensions of the USDA Natural Resources Conservation Service.

Our Response: In December of 2015, we requested data and reports from all of the 31 States within the known historical range of the species. We also invited them to attend a followup webinar regarding the SSA process and reminded them of the information request. Furthermore, we requested a review of the draft SSA report from numerous species experts and State natural resources agency staff (e.g., Department of Natural Resources or equivalent) within the range of the rusty patched bumble bee. During that review, we received responses from 15 species experts (as peer reviewers), and 6 State agencies provided us with additional data and information. We also used verified location data available from Bumble Bee Watch (www.bumblebeewatch.org), a collaborative project to gather baseline data about the distribution and abundance of North America's bumble bees. Thus, we requested available data from all State agencies, multiple species experts, and other organizations throughout the historical range of the species. Additionally, we requested comments and information from the public, other concerned governmental agencies, Native American tribes, the scientific community, industry, and any other interested party during the public comment period on the proposed rule. We considered all information that we received throughout the process in this final listing determination.

(17) Comment: A few commenters stated that the Service did not utilize the best available science and should revise the SSA and the proposed rule to ensure that it is based on the best available science. Further, two commenters requested that the proposed listing be withdrawn until a more complete and thorough evaluation is completed.

Our Response: In accordance with section 4 of the Act, we are required to make listing determinations on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards under the Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines (www.fws.gov/informationquality/), provide criteria and guidance and establish procedures to ensure that our decisions are based on the best scientific data available. They require us, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to make listing determinations.

Primary or original information sources are those that are closest to the subject being studied, as opposed to those that cite, comment on, or build upon primary sources. The Act and our regulations do not require us to use only peer-reviewed literature, but instead they require us to use the “best scientific and commercial data available” in listing determinations. We have relied on published articles, unpublished research, habitat modeling reports, digital data publicly available on the Internet, and the expertise of subject biologists to make our determination for the rusty patched bumble bee. Although many information sources were used, we acknowledge that data gaps for the species still exist; however, our analyses made the data gaps explicit and we utilized expert opinion to help bridge the data gaps.

Furthermore, in accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited peer review from knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occurs, and conservation biology principles. Additionally, we requested comments or information from other concerned governmental agencies, Native American Tribes, the scientific community, industry, and any other interested parties concerning the proposed rule. Comments and information we received helped inform this final rule.

(18) Comment: A few industry organizations commented that the existing administrative record does not support the proposed listing decision. One commenter further stated that, for the Service to find that a species is “endangered” or “in danger of extinction throughout all or a significant portion of its range,” it needs to show that the species is “currently on the brink of extinction in the wild.” They stated that, while the proposed rule suggests that the Service likely believes that the rusty patched bumble bee fits into the third and/or fourth category in the December 22, 2010, memo to the polar bear listing determination file, “Supplemental Explanation for the Legal Basis of the Department's May 15, 2008, Determination of Threatened Status for the Polar Bear,” signed by then Acting Director Dan Ashe (hereafter referred to as Polar Bear Memo), the administrative record shows that it fits into neither.

Our Response: The Service used the SSA framework to assess the biological status of the rusty patched bumble bee and describe the species' overall viability. See the Summary of Biological Status and Threats section of this rule for our analysis. As required by section 4(a)(1) of the Act, the Service determined whether the rusty patched bumble bee is an endangered or threatened species based on the five listing factors. The Service did not substitute the assessment of the species' overall viability for the standards and definitions in the Act, but used the SSA report to relate the species' biological status and threats to the five listing factors and definitions of “endangered” and “threatened” in the Act. A complete discussion of how the Service has applied these terms to the rusty patched bumble bee is provided in the Determination section of this final rule.

In assessing the status of the rusty patched bumble bee, we applied the general understanding of “in danger of extinction” discussed in the Polar Bear Memo. The Polar Bear Memo provides further guidance on the statutory difference between a threatened species and an endangered species and clarifies that if a species is in danger of extinction now, it is an endangered species. In contrast, if it is likely to become in danger of extinction in the foreseeable future, it is a threatened species. As detailed in the Determination section of this final rule, we conclude, based on our analysis of the best scientific and commercial information, that the rusty patched bumble bee is currently in danger of extinction throughout all or a significant portion of its range, and thus meets the Act's definition of an endangered species.

(19) Comment: One species expert commented that he has collected thousands of bumble bee specimens in the range of this species since 1999, but has not observed new rusty patched bumble bee populations in those targeted searches. One entomological organization noted that several of their members who have taken up the study of native pollinators within the last 5 years have never seen a rusty patched bumble bee in the wild. Additionally, two species experts (who also were peer reviewers of the SSA) and two private citizens, who have discussed the decline of this species with numerous other species experts, commented that there is strong evidence the species has disappeared from most of its former range; without legal protection, the scientific consensus is that this species is heading for imminent extinction. Another species expert stated that the rusty patched bumble bee was common throughout the upper Midwest in the early 1990s. The expert started systematic surveys at sites with relatively recent records (1990s) in 2007 but did not find any rusty patched bumble bees until 2010.

Our Response: We appreciate the commenters' confirmation of the data we have, which show a significant decline in rusty patched bumble bee occurrences.

(20) Comment: Several commenters asserted that the proposal fails to account for assumptions in the SSA report or the uncertainties underlying the projections, or that the proposal is premised on uncertainty rather than data. Some of those commenters stated that, although the SSA provides a list of 12 key assumptions made in the analysis, the Service did not acknowledge those assumptions in the proposed listing rule and does not evaluate how those assumptions could affect the conclusions. The commenters further added that limitations and uncertainties are prevalent throughout the SSA report and proposed listing rule, but are not acknowledged or accounted for in either.

Our Response: As stated in the SSA report, our analyses are predicated on multiple assumptions, which could lead to over- and underestimates of viability. In total, however, we find that our predictions overestimated viability of the species. Specifically, we conclude that 9 of the 12 key assumptions overestimated viability. It was unclear to us whether the remaining three assumptions were underestimated or overestimated. Therefore, even without these assumptions, we would have likely underestimated the future extinction risk of the rusty patched bumble bee. Peer reviewers also indicated that our analyses underestimated extinction risk. Although not explicitly stated in the rule, this potential underestimation of the extinction risk to the species would only strengthen our endangered determination.

(21) Comment: Industry groups commented on the Service's approach to modeling and analyses. One group commented the Service should revise the modeling and analysis to account for ongoing public and private efforts to conserve pollinators. The group further encouraged the Service to include additional model scenarios in the SSA addressing changes in habitat while including different disease risk scenarios.

Our Response: We evaluated both positive and negative influences acting upon the species currently and potentially into the future. We developed three scenarios that represent the most likely future scenario, a reasonable worse-case future scenario, and a better-case future scenario. These future scenarios were based on how the primary stressors might act on the populations into the future; all scenarios assumed the current conservation efforts would continue into the future. We could have devised additional future scenarios accounting for different disease and conservation efforts, but the scenarios developed represent a reasonable range of possible outcomes. As all three scenarios yielded similar population trajectories, we did not see a need to model additional scenarios.

(22) Comment: Several other industry groups commented on the inherent limitations and uncertainties associated with conservation biology and projections of species viability. The commenters referenced multiple sources in the publication, Endangered Species Act: Law, Policy, and Perspectives (Baur and Irvin, 2010) and explained that limitations and uncertainties are prevalent throughout the SSA Report and proposed listing, but are not acknowledged or accounted for in either.

Our Response: The Service recognizes inherent limitations and uncertainties in the field of conservation science. We considered the best scientific and commercial data available regarding the rusty patched bumble bee to evaluate its potential status under the Act (see our response to comment 15). In addition, the Service uses the SSA analytical framework to address uncertainties, and the report states multiple assumptions (see our response to comment 20). Modelers, species experts, and endangered species biologists work cooperatively to best match modelling goals and information needs. Further, our Policy on Information Standards under the Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines (www.fws.gov/informationquality/) provide criteria and guidance, and establish procedures to ensure that our decisions are based on the best scientific data available.

(23) Comment: Multiple commenters provided additional expert-verified rusty patched bumble bee observations that were not included in our original SSA analyses. In particular, commenters provided rusty patched bumble bee locations that were either verified by experts or submitted to the Bumble Bee Watch database after we conducted our analyses.

Our Response: We have incorporated the information into the Background section of the preamble to this final listing rule. After our original analysis was complete, a small number of additional expert-verified rusty patched bumble bee records were discovered on citizen science Web sites and/or were provided to us by species experts. Of the records provided to us during the comment period, we were not aware of eight additional rusty patched bumble bee records that were located in Wisconsin. All additional rusty patched bumble bee records were incorporated into our database and we re-ran the extinction risk analyses in the SSA; this information is considered in this final rule. The additional records received since our original analyses do not change our overall determination.

(24) Comment: Two commenters provided survey or museum data. In particular, these commenters provided some clarifications about the species in Maine and Virginia and stated that most museum records for this species are available from the Global Biodiversity Information Facility (GBIF) Web site.

Our Response: We have incorporated the commenters' clarifications into the Background section of the preamble to this final listing rule. We were already aware of the Maine, Virginia, and GBIF records and utilized those data in our SSA analyses.

(25) Comment: A few commenters claimed that there have been recent rusty patched bumble bee observations in Monroe County in West Virginia. They further stated that there may be suitable habitat for the species in Monroe, Summers, and Greenbrier counties in West Virginia.

Our Response: We followed up on this claim and determined that these observations have not been verified by experts. We have asked for further proof of the observations, such as a specimen or clear photographs, such that the species could be positively identified by experts, but have not received the requested information. We have taken note that there may be suitable habitat in additional locations.

(26) Comment: One group commented that the SSA does not support the claim that the rusty patched bumble bee is suffering from significant habitat loss and degradation. Specifically, the group asserted that the Service cannot reconcile the long-term habitat loss with the assertion that the declines in the rusty patched bumble bee populations began in the late 1990s or that the species is a habitat generalist, which would minimize habitat impacts.

Our Response: Although empirical data are currently unavailable regarding the level of habitat loss and degradation affecting the rusty patched bumble bee, we do know that habitat impacts have caused decline of other Bombus species (e.g., Goulson et al. 2015, p. 2; Goulson and Darvill 2008, pp. 193-194; Brown and Paxton 2009, pp. 411-412). This, in conjunction with the declines in distribution and relative abundance since the 1990s lead us to infer that habitat changes are, at the least, a contributing factor to the current precarious status of this species. Recognizing the uncertainty regarding the effects of habitat loss, we consulted with bumble bee experts with regard to the likely contribution of habitat impacts to the decline of this species. Although their conclusions varied, none of these experts stated that habitat loss and/or degradation played no role in the decline.

We agree that habitat impacts are not likely the sole cause of the rusty patched bumble bee declines; rather, as explained, we find there are a multitude of stressors acting on the species. We acknowledge, however, that habitat losses may have become more of a factor as the colonies have been compromised by other, seemingly new, exposures to specific insecticides and pathogens.

(27) Comment: One commenter stated that habitat loss and degradation as a factor of the rusty patched bumble bee decline is based on the assumption that the abundance of wildflowers has declined due to agricultural intensification, urban development, and increased fragmentation of natural landscapes, but it is not clear that persisting populations of the rusty patched bumble bee are associated with a particular habitat type, such as native prairie, that has undergone a precipitous decline. The commenter asserted that floral abundance has probably not declined greatly in the nonagricultural and relatively undeveloped Appalachian region where the rusty patched bumble bee has likely disappeared.

Our Response: We agree that habitat loss alone cannot explain the disappearance of the rusty patched bumble bee in regions where apparently suitable habitat conditions, including abundant wildflower resources, remain. It follows that multiple stressors, with habitat impacts being only one, have had different relative effects in different parts of the range. We hasten to add, however, that these are inferences based on the conjunction of increased use of pesticides, possible impacts from the pathogen N. bombi, and ongoing habitat changes with the drastic decline of the rusty patched bumble bee from the 1990s to present. More investigation needs to be done into the habitat requirements of this species to design effective and focused habitat conservation strategies.

(28) Comment: One group emphasized the importance of woodland habitats that provide early spring ephemeral flowers, which are important food sources for foundress rusty patched bumble bee queens during the time they are establishing colonies. As stated by the commenter, these woodland habitats are subject to a variety of threats including invasive plant and insect species, development, and overgrazing from the overpopulation of white-tailed deer.

Our Response: We agree that early spring floral resources are vital for colony establishment. Conservation strategies for meeting the essential habitat requirements for the rusty patched bumble bee will necessarily include local and microhabitat conditions that address its needs throughout its life cycle and at the population level.

(29) Comment: Several commenters expressed that the information the Service provided on pathogens and their role in the decline of the rusty patched bumble bee is well-supported by available literature and current research findings, whereas another commenter stated that the proposed rule does not cite any evidence that pathogens are affecting the species. That commenter indicated that the proposal states that experts have surmised that N. bombi may not be the culpable pathogen causing declines in the species.

Our Response: We acknowledged the uncertainty regarding the role of pathogens in the decline of the rusty patched bumble bee in the SSA report and the proposed rule. Our current understanding of this stressor on the species is largely extrapolated from studies and observations of pathogenic effects on other bumble bee species, as the rusty patched bumble bee is too depleted to provide needed sample sizes. Nonetheless, as several commenters noted and as pathogen experts have determined, there is considerable evidence of pathogens adversely affecting bumble bees. Although, for the most part, bumble bee species carry a large pathogen load with which they have co-evolved, the congruence between the decline of the rusty patched bumble bee and the collapse of the commercially bred western bumble bee (B. occidentalis), attributed by some researchers to the microsporidium Nosema bombi, led researchers to suspect that this pathogen was at least one agent of the decline. The experts we consulted during the course of the assessment agreed that transmission of one or more pathogens, whether N. bombi or not, is very likely to be at least a contributory, if not the primary, cause of the decline of the rusty patched bumble bee. Indeed, one eminent expert pointed out that the rapid and widespread decline of the species may be plausibly explained only by an epizootic event, even if the particular pathogen remains, to date, unknown.

(30) Comment: A commenter stated that the proposal asserts that a variety of pesticides are impacting the rusty patched bumble bee but provides no direct evidence. They further commented that specific data showing that neonicotinoids have affected the rusty patched bumble bee specifically are not cited, because, they assert, no studies have been performed to examine the asserted impacts of neonicotinoid use on the rusty patched bumble bees. The commenter stated that, absent such data, alleged impacts from pesticides do not support the proposed listing decision.

Our Response: We acknowledge that although other bumble bee species have been studied, we are not aware of any direct studies of the effects of pesticides on the rusty patched bumble bee. As with most species that have exhibited severe declines, potentially lethal studies (e.g., toxicity studies) on the species are no longer feasible, because not enough specimens are available for a scientifically meaningful study. We infer, however, that studies of the effects of pesticides on other bumble bee species will likely reflect their effects on the rusty patched bumble bee, because these species have similar life-history traits (e.g., generalist foragers collecting pollen from the same food sources). We used studies that documented impacts to other bumble bees as surrogates to estimate the impacts of various stressors on the rusty patched bumble bee. The pesticide discussions in the SSA focused on research that studied the effects of various chemicals on bumble bees (Bombus spp.), noting that much research has also been conducted on the European honey bees (Apis mellifera). Bumble bees may, in fact, be more vulnerable to pesticide exposure than European honey bees.

(31) Comment: Several commenters suggested that the Service use the U.S. Geological Survey (USGS) National Pesticide Synthesis data to illustrate trends such as the increasing application of neonicotinoids over time within the rusty patched bumble bee's range.

Our Response: We used USGS National Pesticide Synthesis data to help understand the annual regional trends of three neonicotinoids (imidacloprid, clothianidin, and thiamethoxam) within the historical range of the rusty patched bumble bee. We understand the limitations of the data: specifically, only county-level estimates were provided in the USGS dataset and extrapolation methods were used to estimate pesticide use for some counties. Therefore, we used these graphs simply to discern possible temporal correlations between bumble bee (and some species of butterfly) declines and neonicotinoid use. We acknowledged that the exact causes of the decline remain uncertain. In the SSA, we noted that we could have also evaluated the trends in use of numerous other chemicals, but focused only on the three commonly used neonicotinoids, as they represent a class of chemicals that have been implicated in the decline of bees. We will continue to review and evaluate the use of various chemicals and impacts on the rusty patched bumble bee during recovery planning.

(32) Comment: Two commenters provided recent research papers on risks to bees posed by pesticides that were not included in our analyses, including new studies on the effects of pesticides to bumble bees and other bees, research on the effects fungicides have on bees, studies about pesticide contamination of pollinator habitat, as well as correlational studies attempting to understand the effects of pesticides on pollinators at a timescale relevant to population-level processes.

Our Response: We appreciate the new information. Studies demonstrating lethal and sublethal effects of pesticides to bees and studies correlating pesticide use trends to pollinator population declines provide further evidence that pesticides likely contributed to the decline of the rusty patched bumble bee. We will continue to review the effects of pesticides during recovery planning and may use an adaptive management approach to recovery to refine actions related to pesticides.

(33) Comment: A commenter, citing Watts and Williamson (2015), stated that the persistent organochlorines, like Endosulfan and the highly toxic organophosphates, have been replaced by the neonicotinoids in several countries, trading one set of problems for another. The commenter noted that replacement of one suite of harmful chemicals with another perpetuates an endless cycle of replacing one chemical with another.

Our Response: We mention the potential risk of organophosphates to honey bees in our SSA and will consider reviewing the effects of organochlorines to bumble bees in greater detail during recovery planning for this species.

(34) Comment: One commenter requested that the Service review the pesticides used in mosquito control to see if they have resulted in bee declines, and, if so, ban their use.

Our Response: The issue of banning use of specific chemicals is outside the scope of this rulemaking. During the recovery planning process, we will work closely with contaminant specialists within and outside the government to investigate chemicals that may be causing population-level harm to the rusty patched bumble bee.

(35) Comment: Several commenters asserted that the analysis of the relationship between neonicotinoids and rusty patched bumble bee population declines relies on the assumption that the introduction of neonicotinoids coincided with a steep decline in rusty patched bumble bee populations. They suggest that the decline in rusty patched bumble bee populations preceded the widespread use of neonicotinoids in its range, and that the bees are persisting in places with widespread neonicotinoid use on corn and soybeans. The decline of the rusty patched bumble bee, the commenters conclude, began before the advent of the neonicotinoids, with the sharpest decline of the bee beginning in the 1990s and coinciding with the use of imidacloprid beginning in 1995, which had minimal use compared to imidacloprid usage beginning in 2000. Given the uncertainty about the relevance of the timing of neonicotinoids' introduction to rusty patched bumble bee population decline, the commenters question its emphasis in the SSA.

Our Response: The EPA approved the registration of imidacloprid in 1994, and it became widely used in the United States starting in the mid-1990s; clothianidin and thiamethoxam entered the market beginning in the early 2000s. According to the USGS National Synthesis database, beginning in 1995, imidacloprid was used in nearly every State with historical records of the rusty patched bumble bee, and use increased and spread in the following years. Although it is difficult to pinpoint exactly when the species' decline began, the data show that the precipitous declines of the rusty patched bumble bee manifested around 1995 and continued into the early 2000s. This time period coincides with increased neonicotinoid use.

It is difficult to determine how much of the species' decline is due to a single factor, including neonicotinoids, as there are a myriad of other stressors (e.g., pathogens, parasitoids, and diseases) acting upon the species, and all likely interacting synergistically. However, lethal and sublethal effects to bees have been documented for this class of chemicals, so it is reasonable to think that they likely are contributing to the decline. Furthermore, the additive and synergistic effects of exposure to multiple pesticides at multiple times may exacerbate the toxicity of exposure to any single pesticide, and thus, additional pesticides in combination with others may pose risks to bees as well.

(36) Comment: Several commenters stated that, by focusing on pesticides as a risk factor in the SSA, the Service appears to have ignored the advice of the experts they surveyed, who concluded that 31 percent of the rusty patched bumble bee decline was likely due to pathogens and 23 percent of the decline was likely due to habitat loss. Other stressors included pesticides (15 percent), climate change (15 percent), and small population dynamics (15 percent). Yet, in the SSA synopsis, pesticides are listed second among the top three stressors causing the decline of the species.

Our Response: The list of potential causative factors in the SSA synthesis was not ordered by relative importance; rather, it was listed alphabetically. According to expert input and literature review, we find that habitat loss and degradation, pathogens, pesticides, and small population dynamics are the primary contributing factors to the declines of the rusty patched bumble bee. Although the relative contribution of pesticides, pathogens, loss of habitat, small population size, and climate changes is not known, the prevailing data indicate that multiple threats are acting, most likely synergistically and additively, on the species. This combination of multiple threats is likely more harmful than a single threat acting alone.

(37) Comment: One commenter noted that the SSA does not cite field studies that found no adverse effects when bees are placed near treated crops and allowed to forage naturally. The commenter provided citations for four field studies with bumble bee colonies placed in or near bee-attractive crops grown from seeds treated with neonicotinoids, and which reported no adverse effects. They further stated that several published studies have reported adverse effects on developing bumble bee colonies that were exposed in confined settings to artificial diets spiked with various levels of neonicotinoids. The commenter also stated that the SSA does not mention that test levels or exposure scenarios in most of these studies have been criticized as unrealistically high.

Our Response: We reviewed over 100 published reports and papers regarding the effects of pesticides to bees, focusing primarily on bumble bee studies. Most of the laboratory studies that we reviewed reported at least one sublethal and/or lethal effect to bees, as did some of the field studies. We acknowledge that many studies that we reviewed were not conducted in the field, and we acknowledge that there are studies that did not find adverse effects. The totality of data, however, suggests some insecticides kill bumble bees and others cause sublethal effects. Further, researchers often also note the limitations of laboratory studies. For example, many lab studies that we reviewed were conducted over relatively short-term exposure durations (e.g., 4 to 28 days), which may not reflect realistic longer term exposures in the field. Additionally, although bees likely experience exposure to multiple chemicals in the field, most studies did not address the risk posed from the additive and synergistic effects of multiple exposures to multiple pesticides. Exposure to multiple pesticides over multiple time periods may exacerbate the toxicity of exposure to any single pesticide.

(38) Comment: Two commenters were concerned that the pesticide discussion fails to consider all of the information and expertise available from the government and private sources. For example, these commenters state that there is no reference to any of the EPA pesticide evaluation methods for bees, risk assessments for pesticide products, or discussions with scientists and risk managers in EPA's Office of Pesticide Programs, whose input should be essential in any science-based discussion of pesticide risks to pollinators. According to the commenters, this can lead to an emphasis on pesticides as a causal agent that may not be warranted. The commenters noted that the EPA is currently reviewing the risk of neonicotinoids to pollinators, and has released draft pollinator risk assessments for some of the compounds.

Our Response: The Service considered several documents that were not cited in the SSA. Although not cited in the SSA document, for example, the Service reviewed EPA's “Preliminary pollinator assessment to support the registration review of imidacloprid” (January 2016); this assessment evaluated the risk of imidacloprid to managed honey bees at both the individual and colony levels and concluded that imidacloprid can pose risks to honey bee health. Notably, the assessment did not evaluate risks to other bee or bumble bee species, nor did it evaluate the risk when imidacloprid is mixed with other chemicals, which is a more realistic field condition. We also reviewed the summary of EPA and Health Canada's “Re-evaluation of Imidacloprid—Preliminary Pollinator Assessment” (dated January 18, 2016 and available online at http://www.hc-sc.gc.ca/cps-spc/pest/part/consultations/_rev2016-05/rev2016-05-eng.php); this assessment indicated that the results of the available Tier II colony-level feeding studies with non-Apis bees (non-honey bee) suggested that bumble bees may be more sensitive to imidacloprid exposure than honey bees, and that measured pollen and nectar residues were often above the lowest dose where colony effects were detected in bumble bee feeding studies, suggesting a potential for risk to bumble bees. Lastly, we reviewed “Joint PMRA/USEPA Re-evaluation Update for the Pollinator Risk Assessment of the Neonicotinoid Insecticides”(January 6, 2016), which provided a timeline of anticipated milestones for EPA's pollinator assessments—only the imidacloprid assessment was anticipated to be in preliminary form before the Service needed to complete its proposed determination. Thus, although not cited in the SSA, we reviewed the pertinent literature that was available to us.

(39) Comment: Several commenters stated that the Service should analyze the potential effects of herbicides separately from insecticides and fungicides in the stressor analyses. As “pesticides” is used as a general term to describe insecticides, fungicides, and herbicides, the commenters note that the SSA analysis and supporting scientific studies are specific to the effects of neonicotinoids, a distinct class of insecticides. They assert that the Service did not provide enough discussion or justification for including herbicides, or pesticides in general, as a primary stressor for the rusty patched bumble bee.

Our Response: While the SSA evaluated neonicotinoids as potential stressors to the rusty patched bumble bee, we also acknowledged that numerous other chemicals have documented lethal and sublethal effects to bumble bees. Our discussion of herbicides in the SSA primarily focused on the use of herbicides in agricultural, urban, and natural landscapes and the likely consequential loss in flowering plants and, therefore, food availability for the rusty patched bumble bee.

(40) Comment: One group requested that the Service provide definitive and functional guidance addressing herbicide use specifically, as distinct from pesticide or insecticide use.

Our Response: Functional guidance addressing herbicide use methods goes beyond the scope of this final listing document and is more appropriate for recovery planning. We will consider developing management protocols for herbicide use during recovery planning for this species. In the interim, there are guidelines available from Xerces Society and other organizations engaged in pollinator conservation and management.

(41) Comment: Some industry groups asserted that the information on possible effects of climate change is too speculative to use in the analysis, as the potential effects identified in the assessment have not yet occurred, and the potential impact on the rusty patched bumble bee specifically remains unstudied and unknown. One commenter also expressed that, because the proposal does not project when such effects might occur, there is a “temporal disconnect that precludes relevance to any determination that the rusty patched bumble bee currently is `on the brink of extinction.' ” The commenters requested that the Service provide additional information on the species' climate change vulnerability assessment and relevant data to support the conclusion that climate change is one of the factors contributing to the proposed endangered status.

Our Response: Although we developed a potential future scenario in the SSA that included impacts from climate change, all the future scenarios contribute to our understanding of the risk to the species, and thus the decision to list the rusty patched bumble bee as an endangered species. The widespread, precipitous decline that has occurred to date has rendered the rusty patched bumble bee in danger of extinction. During the recovery planning process, however, we will investigate more closely the vulnerability of rusty patched bumble bee to the effects of climate change and the implications of this vulnerability.

(42) Comment: One commenter claimed that the Service's assertion that the small population size of the rusty patched bumble bee and the species' reproduction strategy make the species more susceptible to impacts from other factors is faulty, because that position assumes that the species' population size and range have dramatically decreased. The commenter contended that the proposal does not demonstrate such a decline with reliable data.

Our Response: Based on the best available data, we have determined that the rusty patched bumble bee has declined precipitously with remaining known populations documented by only a few individual bees. As explained in the SSA, a healthy population consists of multiple viable colonies, which are composed of hundreds of worker bumble bees. It is unknown what exact small population size would trigger a diploid extinction vortex phenomenon, but given the data, it is reasonable to conclude that the remaining populations are below sustainable levels, and, if they have not yet reached vortex levels, they will soon if declines are not arrested.

(43) Comment: Several commenters mentioned additional stressors or threats the Service did not evaluate in the assessment, including the role of natural predators, the role that managed pollinators play in spreading and amplifying diseases to bumble bees and the pathogenic effects those diseases can have on bumble bees, vehicle collisions, and invasive plant and animal species.

Our Response: Our analysis in the SSA focused on what we determined to be the primary stressors negatively affecting the rusty patched bumble bee: pathogens, pesticides, the effects of small population size, habitat loss and degradation, and the effects of climate change. Although we recognize there may be other factors negatively affecting the species, these factors are not likely as influential as those mentioned. We will, however, consider the role of additional stressors in our recovery planning efforts and the effects of such stressors on specific populations, as appropriate.

(44) Comment: One organization expressed concerns about how the Service defined the range of individual populations of the rusty patched bumble bee. Specifically, the Service assigns a 10-kilometer (km) range for colonies in the habitat needs discussion, but the comment notes that an individual rusty patched bumble bee range is less than 1 km (0.62 miles).

Our Response: We used a 10-km × 10-km area to delineate populations, not colonies. All records found within a 10-km × 10-km area were considered to be a single population, which is composed of multiple colonies. An individual bumble bee generally occupies an area less than 1 square km, but the populations, which are composed of multiple individual bees in multiple colonies, span across a larger range.

(45) Comment: One organization expressed concern that the Service did not incorporate growing season hardiness zones into the range estimates, especially since the species is active early and late in the growing season. They provide the example that there may be portions of a county with a shorter floral growing season than other parts of the same county.

Our Response: The range of the rusty patched bumble bee represents the broad-scale occurrence of the species and was derived by plotting all records of occurrence; that is, where individual bumble bees were recorded. The suitability of any given site is influenced by a myriad of factors, including providing sufficient quantity of floral resources for the entire active season. Whether a particular spot on the landscape provides this requirement was not assessed in the SSA; however, this assessment is not needed to determine the broad range of the species.

(46) Comment: A few commenters stated that rusty patched bumble bee populations appear to be persisting in the Midwest or areas of high agriculture, where pesticide use is prevalent.

Our Response: Rusty patched bumble bee populations still exist in the Midwest. Although we have not completed a thorough site-specific analysis, and although there are some survey biases to consider, we noticed that many of the remaining populations are within urban areas where they may not be exposed to the same level of pesticides as in the rural, agricultural areas. The extent of rusty patched bumble bee persistence in agricultural areas and the corollary impact of pesticides on the species will be investigated further during recovery planning.

(47) Comment: A few industry commenters stated that there are ongoing studies by USDA—Agricultural Research Service and others that will aid in addressing knowledge gaps and assist the Service in making an informed decision and complying with the Act's mandate to use the best available science. Many of these studies conclude in 2017.

Our Response: While we are pleased to hear of additional studies that may soon become available and assist us and our partners with a recovery plan for the species, we are required to make our listing determinations based on the best scientific and commercial data available at the time of our rulemaking. We searched the published and gray literature, and solicited peer review of our evaluation of the available data. These studies are not available for the rulemaking, but results will certainly be used in future recovery planning efforts.

(48) Comment: A few commenters noted that the EPA has a statutory role to determine the ecological risk of all registered pesticides under FIFRA. They referenced the EPA's comprehensive, regulatory process for registering pesticides.

Our Response: We recognize the work that EPA does to protect pollinators and acknowledge the statutory role that EPA has under FIFRA. The EPA uses honey bees in its pesticide risk assessments (EPA 2014, pp. 2 and 6); however, our SSA details why we conclude that bumble bees are likely more susceptible than are honey bees to pesticides. In fact, the EPA “acknowledges the uncertainty regarding the extent to which honey bees may be a reasonable surrogate for native insect pollinators” (EPA 2015, p. 2). However, we have added an acknowledgment of FIFRA as a regulatory mechanism in the final rule.

(49) Comment: One commenter stated that, “considering the wide-ranging and extensive impact to farmers attempting to use pesticides vital to sustaining crop production,” inconsistent recommendations from the Service and EPA could create an “impossible situation” for the agricultural community if they follow label restrictions according to one federal standard, but are then in potential violation of another federal standard for that same action.

Our Response: In this final rule, we provide some actions prohibited by section 9 of the Act and specifically use the phrase “where the species is known to occur.” We use this phrase to clarify that there is a geographical context to potential avenues of illegal take; that is, we want to avoid the interpretation that the general use of pesticides, for example, could be prohibited per the listing of the rusty patched bumble bee. More specifically, the rusty patched bumble bee would have to be exposed to particular actions for those actions to cause take, and the bee could only be exposed if it occurs in the project area. The Service can provide technical assistance to help determine whether the rusty patched bumble bee may be present in a specific area. If noxious weed control is needed where the rusty patched bumble bee is likely to be present, for example, the Service will work with landowners or land managers to identify techniques that avoid take or allow for it to occur legally.

(50) Comment: One utility company expressed concerns that, if the rusty patched bumble bee is listed, the requirements of two regulatory agencies will be in conflict; the North American Electric Reliability Corporation requires a utility to clear vegetation that interferes with transmission and distribution lines, and the Service would prevent a utility from doing so to protect a listed species and its habitat. The commenter suggests that, because of this potential conflict between two legal requirements, the Service should work with electric cooperatives to identify a means by which they are able to meet both obligations.

Our Response: Listing the rusty patched bumble bee as an endangered species does not prevent utilities or any other entity from complying with other laws. If such compliance will incidentally lead to take of rusty patched bumble bees, the project proponent is required to obtain the appropriate permit or exemption before implementing the action. Regulations governing permits are codified at 50 CFR 17.22. 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.

(51) Comment: One commenter noted that the major crops grown within the range of the rusty patched bumble bee that receive neonicotinoid treatment are corn and soybeans, and that use of neonicotinoids on these crops is mainly as a seed treatment, which limits potential exposure to bees.

Our Response: The Service is aware that many seed treatments are widely used for corn and soybean crops. The EPA's risk assessment process for evaluating soil applications and seed treatments is similar to its assessments for foliar applications, “except that risk from contact exposure is not evaluated” (EPA 2014 p. 10). The EPA states, “For soil application, it is generally assumed that exposure of honey bees from direct contact with the pesticide is minimal, given the nature of the application to bare soil, although exceptions may occur if applications are made with bee-attractive weeds present.” However, they noted that “Contact exposure of non-Apis bees (solitary and ground-nesting bees) may be significant with soil applications, although the extent of this potential exposure is uncertain. It is also noted that for seed treatments, exposure of bees to pesticides has been documented via drift of abraded seed coat dust when planting under certain conditions; however, there are multiple factors determining the extent to which dust-off occurs” (EPA 2014, p. 10). Because rusty patched bumble bee is a ground-nesting species and fertilized queens overwinter in the soil, they could be susceptible to additional exposure pathways that honey bees are not (e.g., neonicotinoids in the soil that have not yet been taken up by plants and thus cause an additional dermal exposure pathway). Therefore, it is reasonable to conclude that rusty patched bumble bees may be more exposed to insecticides used as seed treatments (because the chemical can move through the soils (e.g., Goulson 2013, pp. 979-980)) than are honey bees, which nest above ground.

(52) Comment: One commenter stated that, under section 4(b) of the Act, the Service is required to take “into account those [conservation] efforts, if any, being made by any State” before making a listing decision. Moreover, the Service's Policy for Evaluation of Conservation Efforts When Making Listing Decisions (PECE) requires the Service to consider conservation efforts, including conservation efforts that have not yet been implemented or demonstrated their effectiveness, so long as the Service is certain that the conservation effort will be implemented and, once implemented, will be effective. The commenters contended that failure to comply with PECE is grounds for vacating a final listing rule. Other commenters stated that the proposed rule does not sufficiently address the significant public and private efforts currently under way to address pollinator issues that will benefit the rusty patched bumble bee.

Our Response: In the Summary of Biological Status and Threats section of this final rule, we include consideration of conservation efforts by States and other beneficial factors that may be affecting the rusty patched bumble bee. The Service's PECE policy applies to formalized conservation efforts (i.e., conservation efforts identified in a conservation agreement, conservation plan, management plan, or similar document) that have not yet been implemented or those that have been implemented but have not yet demonstrated whether they are effective at the time of listing. We acknowledge that increased awareness of and conservation measures for pollinators in general may have fortuitous beneficial effects on rusty patched bumble bee. We are not aware of any formalized conservation efforts for any of the specific rusty patched bumble bee locations.

(53) Comment: One commenter supports creating environments where the rusty patched bumble bee can rebound while avoiding a regulatory framework that impedes responsible agricultural practices. They further noted that doing so would require cooperating agencies to receive adequate long-term Federal funding to promote habitat restoration or enhancements.

Our Response: The listing determination must be made solely on the biological status of the species. That said, the Service generally considers regulatory restrictions alone to be both insufficient and less preferred as a primary means of achieving the conservation of listed species. We seek to work collaboratively with other agencies and organizations (public and private), and with individual private landowners on proactive conservation efforts.

(54) Comment: One commenter, supporting the action to list the rusty patched bumble bee, urged the Service to work cooperatively with Canada on conservation efforts for this species.

Our Response: We appreciate the interest in bumble bee conservation and look forward to continuing our coordination with Canada as we begin recovery planning and implementation for the rusty patched bumble bee.

(55) Comment: One commenter stated that accurate identification of the rusty patched bumble bee in the field may be difficult, even for a trained specialist. Voucher specimens of sterile female workers or males may be essential to understand and study pollinator populations. As such, the possibility of accidental take of a listed insect should be considered and permitted. Another commenter stated that unauthorized handling or collecting of the species is not enforceable because, as the species is difficult to identify, the specimen would require handling when conducting surveys to verify that a prohibited violation had taken place.

Our Response: Under section 10 of the Act, the Service may permit limited take of listed species for scientific purposes or to enhance the propagation or survival of the species. The Service will consider incidental take for otherwise legal activities in our permitting (e.g., section 10 recovery permits) processes. Because the objectives of surveys may vary across the range of these species, we recommend contacting the Service's Ecological Services Field Office in your State to discuss the appropriate survey protocol to use for particular projects, habitat types, and geographic areas. To facilitate effective cooperation among agencies, organizations, and individuals interested in the distribution of the rusty patched bumble bee, the Service will consider maintaining a list of individuals who meet certain qualifications for conducting reliable identification for the target species.

(56) Comment: A commenter remarked that there are several other apparently declining species of bumble bee including yellow-banded bumble bee (B. terricola) and American bumble bee (B. pennsylvanicus) that need evaluation and monitoring.

Our Response: As part of its ongoing efforts to improve the effectiveness and implementation of the Act and provide the best possible conservation for our nation's imperiled wildlife, the Service has developed a National Listing Workplan (Workplan) for addressing listing and critical habitat decisions over the next 7 years. The yellow-banded bumble bee (B. terricola), for example, is in the Workplan schedule for evaluation under the Act.

(57) Comment: Several commenters asserted that the Act has failed to recover or delist 98 percent of all listed species, and that those that have been removed were due to extinction or data error. Therefore, they contend, listing the rusty patched bumble bee as an endangered species will have no positive impact on its recovery. The commenters feel that listing the rusty patched bumble bee as endangered may negatively impact current pollinator conservation efforts being undertaken across the country.

Our Response: The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. Protection under the Act has prevented the extinction of more than 98 percent of listed species. Once a species is listed as either endangered or threatened, the Act provides protections from unauthorized take and many tools and opportunities for funding to advance the conservation of such listed species. Further, receiving protections under the Act facilitates conservation planning and the development of conservation partnerships. The Act has been and continues to be extremely effective in preventing the extinction of species. The statement that the commenter made that “the Act has failed to recover or delist 98 percent of all listed species, and that those that have been removed were due to extinction or data error” is erroneous—there are notable exceptions to this statement where species have been removed due to successful recovery, such as the bald eagle and peregrine falcon.

The listing of a species does not obstruct the development of conservation agreements or partnerships to conserve the species. Once a species is listed as either endangered or threatened, the Act provides many tools to advance the conservation of listed species. Conservation of listed species in many parts of the United States depends on working partnerships with a wide variety of entities, including the voluntary cooperation of non-Federal landowners. Building partnerships and promoting cooperation of landowners are essential to understanding the status of species on non-Federal lands, and may be necessary to implement recovery actions such as reintroducing listed species, habitat restoration, and habitat protection.

(58) Comment: Several commenters stated that the Service should recognize current national attention on pollinators, and that these ongoing conservation efforts should allow a warranted but precluded listing because the wide array of conservation actions for other pollinators may lead to recovery of the rusty patched bumble bee.

Our Response: In making our determination as to whether the rusty patched bumble bee meets the Act's definition of an endangered or threatened species, we considered the current conservation measures available to the species (see Summary of Biological Status and Threats—Beneficial factors). The increased effort to conserve pollinators may have an incidental positive impact on the rusty patched bumble bee. However, we are not aware of specific conservation measures for bumble bees at any of the current rusty patched bumble bee locations in the United States. Although general pollinator conservation efforts can provide some benefits to the rusty patched bumble bee, bumble bees like this species have unique life-history characteristics and biological requirements that are not addressed by these general efforts. Because the rusty patched bumble bee has experienced such severe population declines throughout its range, there is a need to develop and implement regionally appropriate, bumble bee-specific recommendations to aid in recovery of the species.

(59) Comment: Numerous commenters expressed concern about the decline of pollinators and the need to prevent extinction of the rusty patched bumble bee to protect biodiversity and address pollinator declines. These commenters cited the value of bumble bees as important pollinators of wildflowers (and other wild plants) and as the chief pollinator of many economically important crops. Another commenter stated that, although they agreed that the rusty patched bumble bee is an important pollinator, there are still numerous other species, wind, and other methods that act as pollinators.

Our Response: Although these comments do not directly address information pertaining to the listing determination of the rusty patched bumble bee, we want to acknowledge their validity and importance. In the United States and globally, native bees are responsible for most pollination of plants that require insect pollination to produce fruits, seeds, and nuts. As such, they not only pollinate economically important crops, but provide the foundation of functioning ecosystems; pollination is required for plant reproduction, and plants are the base of the food chain. The plight of the rusty patched bumble bee is not an isolated occurrence, but a symptom of widespread decline of many insect pollinators. Measures to identify and address threats and prevent the extinction of the rusty patched bumble bee will help conserve other native pollinators. It is important to recognize that the rusty patched bumble bee occurs in very few locations. Measures to identify and address threats to pollinators is needed beyond the current occurrences of the rusty patched bumble bee—they are needed throughout the United States. It is true that there are other forms of pollination as mentioned (e.g., wind, other insect species, birds, and mammals). However, the Act requires us to determine whether listing is warranted based on whether a species meets the definitions of an endangered or threatened species because of any of the section 4(a)(1) factors, not on the basis of whether it fulfills a unique ecosystem function.

(60) Comment: Several commenters noted how the rusty patched bumble bee would benefit from listing under the Act. Those commenters noted such benefits as the following: (1) Protecting remaining populations from site-specific threats, (2) the bees' habitat will benefit from critical habitat designation, (3) developing a recovery plan, (4) Federal agencies will need to address threats to the species, (5) increased research into the causes of decline, (6) increased economic benefits to U.S. farmers who benefit from the ecosystem service of crop pollination by wild bees.

Our Response: As these commenters stated, there are many potential benefits to a species in being listed under the Act. For additional information, please refer to the Available Conservation Measures section of the preamble to this final rule.

(61) Comment: Several commenters requested that the Service act quickly in providing protection to the rusty patched bumble bee and asked if there is a way to expedite the listing process. Some of those commenters expressed concern that the Service might have not acted fast enough in protecting the rusty patched bumble bee, and that the ability to prevent the species' extinction may already be diminished. Other commenters, particularly those representing industry, requested that the Service extend the final listing decision deadline by 6 months or withdraw the proposed rule to provide additional time needed to evaluate the rusty patched bumble bee appropriately; consider new information and data provided in comments; collect and evaluate additional data; and consider results of ongoing studies that are anticipated to be completed in 2017.

Our Response: Given the precipitous decline and the few populations that remain, we are hopeful that, by affording the species protection now and working expeditiously with all partners, the rusty patched bumble bee will be saved from extinction. See our response to comment 15 for information about our use of the best available science.

We do not find substantial disagreement regarding the sufficiency or accuracy of the available scientific data relevant to this determination. Therefore, we are not extending the period for making a final determination for the purposes of soliciting additional data. However, we agree that results from ongoing studies would further our understanding and help us with recovery planning and implementation. We will consider further research needs in our recovery planning efforts.

(62) Comment: Several commenters agreed that critical habitat is not determinable at this time, contending that there is insufficient scientific understanding of the rusty patched bumble bee's biology, current occurrences and threats to allow the Service to identify the requisite physical and biological features necessary to designate critical habitat. Some commenters expressed concern that designating critical habitat may impact agriculture or other industries. Others commented that, if critical habitat is ultimately designated, only occupied habitat should be included. A comment from bumble bee experts provided information on physical and biological features and habitat types (including information on forage; nesting sites; overwintering sites; habitats that are protected from pesticides and disease) to consider when designating critical habitat.

Our Response: We will consider this information when we designate critical habitat for this species.

(63) Comment: Several commenters stated that the Service should acknowledge the benefits to the rusty patched bumble bee and other pollinators from habitat management.

Response: We agree that compatible habitat management is beneficial for rusty patched bumble bee conservation. Indeed, we will be working with conservation partners to implement good management practices for bumble bees as we work towards preventing the extinction, and working toward recovery, of this species.

(64) Comment: Some utility groups commented that specific activities should be excluded from activities that may result in “take.” The activities specifically requested to be excluded as “take” were the use of herbicides to maintain electronic transmission rights-of-way when applied in accordance with label requirements and seasonal recommendations, and utility infrastructure construction or rights-of-way maintenance practices. The commenters provided reasons why such activities would not lead to “take.” The commenters also sought acknowledgement that herbicide use to maintain utility rights-of-way is likely to benefit, rather than harm, pollinator insect species, including the rusty patched bumble bee.

Our Response: It is the policy of the Service to identify, to the extent known at the time a species is listed, specific activities that are unlikely to result in violation of section 9 of the Act. To the extent possible, we also strive to identify the activities that are likely to result in violation. Activities that may lead to take, even those having a net benefit, cannot be authorized without a section 10 permit or section 7 exemption. For certain activities, the Service will assist the public in determining whether they would constitute a prohibited act under section 9 of the Act.

We acknowledge that proper herbicide use can reduce invasive or unwanted plant species from rusty patched bumble bee habitat, but label restrictions alone may not be protective of the rusty patched bumble bee. For example, one common herbicide label allows a mixture with imidacloprid, which has documented sublethal and lethal effects to bees. It is unclear which populations could be affected by these activities, what the effects might be, and how the effects might be minimized. The Service can provide technical assistance to help determine whether the rusty patched bumble bee may be present in a project area. If noxious weed control is needed where the rusty patched bumble bee is likely to be present, for example, the Service will work with landowners or land managers to identify techniques that avoid take. As we work to conserve the rusty patched bumble bee, we will provide landowners and land managers with information to assist with understanding what activities are likely to cause take of the species and what actions may be implemented to conserve the species.

(65) Comment: A few commenters requested that the Service clarify what constitutes “unauthorized use” of biological control agents in the following statement, “The unauthorized release of biological control agents that attack any life stage of the rusty patched bumble bee, including the unauthorized use of herbicides, pesticides, or other chemicals in habitats in which the rusty patched bumble bee is known to occur is listed in the proposed rule as an activity that may result in a violation of section 9 of the Act.” Specifically, they request clarification as to whether this includes using or releasing registered pesticides in a manner consistent with its EPA-approved labeling instructions.

Our Response: We use the word “unauthorized” here to mean those activities that have not been permitted or exempted from the section 9 prohibitions due to their appropriate and full consideration under section 10 or section 7 of the Act.

(66) Comment: Several commenters noted that pathogens discussed in the proposal are also commonly found in honey bees and commercial bumble bees, and thus honey bees and commercial bumble bees could be seen as an unauthorized release of nonnative species under section 9 of the Act. The commenters expressed concern that restricted use of commercial bees would harm that industry.

Our Response: Our response to comment 65 clarifies the term “unauthorized” as used in this final listing rule. We recognize that honey bee and bumble bee species naturally carry high pathogen loads and that under normal circumstances this characteristic will not affect their fitness. In the case of any pathogen that is found to adversely affect listed species, we need to investigate the source of the pathogen and undertake actions to ameliorate its negative effects. If commercial bumble bees, or wild bees, are found to transmit pathogens that cause take of rusty patched bumble bees, the Service will work with the industry to identify and implement conservation measures that will support the survival or recovery of the species while being practicable from the industry's perspective. We emphasize, however, that under the Act, our concern is the continued existence of this endangered species.

(67) Comment: The unauthorized discharge of chemicals or fill material into any wetlands in which the rusty patched bumble bee is known to occur is listed in the proposed rule as an activity that may result in a violation of section 9 of the Act. A few commenters mentioned that they assume the reference to “fill material” in this phrase is a reference to the term as used in the Clean Water Act (CWA), which broadly includes soil, plants, and other biological material. They stated that, given this broad scope, it is unclear how “fill material” poses a risk to the rusty patched bumble bee.

Our Response: The commenter is correct that the reference to “fill material” is a reference to the term as used in the CWA. The unauthorized discharge of fill material in wetland areas utilized by the rusty patched bumble bee may result in habitat loss or destruction, for example through the loss of floral resources, which could lead to death or harm of rusty patched bumble bees.

(68) Comment: Several commenters expressed concerns that listing the rusty patched bumble bee may affect private property rights and restrict land use. For example, one commenter was concerned that listing would inhibit the use of Federal crop insurance, because recipients must allow government access to private land for bumble bee habitat restoration efforts. Others suggested that landowners who enhance their lands could become susceptible to restrictions or lawsuits from private special interest groups.

Our Response: Programs are available to private landowners for managing habitat for listed species, and permits can be obtained to protect private landowners from the take prohibition when such taking is incidental to, and not the purpose of, carrying out an otherwise lawful activity. In addition, presence of a listed species does not authorize government access to private lands. Private landowners may contact the U.S. Fish and Wildlife Ecological Services Field Office in their State to obtain information about these programs and permits.

(69) Comment: One commenter contends that consultations on actions affecting critical habitat cause delay and extra expenses to proposed projects. The commenter believes there is also a risk that landowners may unintentionally violate the regulations.

Our Response: The Service has determined that critical habitat is not determinable at this time. Section 7 of the Act requires Federal agencies to use their legal authorities to promote the conservation purposes of the Act and to consult with the Service to ensure that effects of actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of listed species. This added requirement may result in a delay in the project, but we will work as expeditiously as possible to complete the required section 7 consultation process in a timely manner. Furthermore, coordination with the Service early in the project development can help expedite the project and minimize the likelihood of delays.

(70) Comment: Several commenters expressed concern that listing this species may hinder research and conservation efforts for the rusty patched bumble bee rather than protect it and may hamper conservation of other native pollinators overall.

Our Response: Research that is conducted for the purpose of recovering a species is an activity that can be authorized under section 10 of the Act, normally referred to as a recovery permit, or can be conducted by certain State conservation agencies by virtue of their authority under section 6 of the Act. We will continue to support research important for recovery of the rusty patched bumble bee. Similarly, management efforts that support the species but may result in some level of take can be authorized through use of incidental take statements or permits. It is not the intent of the Service to hamper conservation of other natural resources through its efforts to recover listed species, and we strive to prevent undue impediments.

(71) Comment: One commenter expressed concern that listing the rusty patched bumble bee could restrict vital uses of pesticides that promote public health and safety, protect our nation's infrastructure, and create healthy homes and greenspaces.

Our Response: Although we are required to base listing determinations solely on the best available scientific and commercial data, we will continue to work with organizations and agencies in reviewing the effects of specific pesticides on bumble bees during recovery planning and in section 7 consultations for this species. In so doing, we will work closely with involved parties to craft effective recovery strategies that benefit the species without incurring unnecessary restrictions or risking public health and safety.

Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, we may list a species based on (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence. Listing actions may be warranted based on any of the above threat factors, singly or in combination.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the rusty patched bumble bee. Habitat loss and degradation from residential and commercial development and agricultural conversion occurred rangewide and resulted in fragmentation and isolation of the species from formerly contiguous native habitat. Habitat loss and degradation have resulted in the loss of the diverse floral resources needed throughout the rusty patched bumble bee's long feeding season, as well as loss of appropriate nesting and overwintering sites. Although much of the habitat conversion occurred in the past, the dramatic reduction and fragmentation of habitat have persistent and ongoing effects on the viability of populations; furthermore, conversion of native habitats to agriculture (i.e., monocultures) or other uses is still occurring today (Factor A).

The species' range (as measured by the number of counties occupied) has been reduced by 87 percent, and its current distribution is limited to just one to a few populations in each of 12 States and Ontario, with an 88-percent decrease in the number of populations known historically. Of the 103 known current populations, 96 percent have been documented by 5 or fewer individual bees; only 1 population has had more than 30 individuals observed in any given year. Drought frequency and increased duration of high temperatures are likely to increase due to climate change, further restricting floral resources, reducing foraging times, and fragmenting or eliminating populations (Factor E). Fungi such as N. bombi, parasites such as Crithidia bombi and Apicystis bombi, deformed wing virus, acute bee paralysis, and bacteria are all suspected causes of decline for the rusty patched bumble bee (Factor C).

Pesticide use, including the use of many insecticides that have known lethal and sublethal effects to bumble bees, is occurring at increasing levels rangewide (Factor E). Similarly, herbicide use occurs rangewide and can reduce available floral resources (Factor A). Additionally, the rusty patched bumble bee is not able to naturally recolonize unoccupied areas that are not connected by suitable dispersal habitat (Factors A and E).

The rusty patched bumble bee's reproductive strategy makes it particularly vulnerable to the effects of small population size. The species can experience a “diploid male vortex,” where the number of nonviable males increases as abundance declines, thereby further reducing population size (Factor E). There is virtually no redundancy of populations within each occupied ecoregion, further increasing the risk of loss of representation of existing genetic lineages and, ultimately, extinction.

These threats have already resulted in the extirpation of the rusty patched bumble bee throughout an estimated 87 percent of its range, and these threats are likely to continue or increase in severity. Although the relative contributions of pesticides, pathogens, loss of floral resources, and other threats to the species' past and continued decline are not known, the prevailing data indicate that threats are acting synergistically and additively and that the combination of multiple threats is likely more harmful than a single threat acting alone. Regardless of the sources of the decline, the last 16 years of population data are not indicative of healthy colonies or healthy populations. Thus, the species is vulnerable to extinction even without further external stressors acting upon the populations.

Existing regulatory mechanisms vary across the species' range. The rusty patched bumble bee is listed as State endangered in Vermont (which prohibits taking, possessing, or transporting) and as special concern (no legal protection) in Connecticut, Michigan, and Wisconsin, and is protected under Canada's Species at Risk Act. Although these and other regulatory mechanisms exist, they do not currently ameliorate threats to the rusty patched bumble bee, as evidenced by the species' rapid, ongoing decline.

The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.” We find that the rusty patched bumble bee is presently in danger of extinction throughout its entire range. Relative to its historical (pre-2000s) condition, the abundance of rusty patched bumble bees has declined precipitously over a short period of time.

Further adding to the species' imperilment, its reproductive strategy (haplodiploidy) renders it particularly sensitive to loss of genetic diversity, which is further exacerbated by decreasing population size (for example, diploid male vortex). The persisting colonies are few in number and continue to be affected by high-severity stressors, including pathogens, pesticides, habitat loss and degradation, effects of climate change, and small population dynamics, throughout all of the species' range. These stressors are acting synergistically and additively on the species, and the combination of multiple stressors is more harmful than a single stressor acting alone. Due to the above factors, the species does not have the adaptive capacity in its current state to withstand physical and biological changes in the environment presently or into the future, and optimistic modeling suggests that all but one of the ecoregions are predicted to be extirpated within 5 years (Szymanski et al. 2016, Table 7.3).

In conclusion, the species' spatial extent has been considerably reduced and the remaining populations are under threat from a variety of factors acting in combination to significantly reduce the overall viability of the species. The risk of extinction is currently high because the number of remaining populations is small, most of those populations are extremely small in size (all but 2 have 10 or fewer individuals), and the species' range is severely reduced. Therefore, on the basis of the best available scientific and commercial information, we are listing the rusty patched bumble bee as an endangered species in accordance with sections 3(6) and 4(a)(1) of the Act. We find that a threatened species status is not appropriate for the rusty patched bumble bee because (1) given its current condition, the species presently lacks the ability to withstand physical and biological changes in the environment; (2) based on the prediction that all but one ecoregion will be extinct within 5 years, the species presently has a high probability of extinction; and (3) even if the current stressors were to be reduced or eliminated, the species would still be at high risk of extinction based on small population size effects alone.

Under the Act and our implementing regulations, a species may warrant listing if it is endangered or threatened throughout all or a significant portion of its range. Because we have determined that the rusty patched bumble bee is endangered throughout all of its range, no portion of its range can be “significant” for purposes of the definitions of “endangered species” and “threatened species.” See the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37577; July 1, 2014).

Section 4(a)(3) of the Act, as amended, and implementing regulations in 50 CFR 424.12, require that, to the maximum extent prudent and determinable, we designate critical habitat at the time the species is determined to be an endangered or threatened species. Critical habitat is defined in section 3 of the Act as:

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

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

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

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

Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as: An area that may generally be delineated around species' occurrences, as determined by the Secretary (i.e., range). Such areas may include those areas used throughout all or part of the species' life cycle, even if not used on a regular basis (for example, migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals).

Conservation, as defined under section 3 of the Act, means to use, and the use of, all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Critical habitat designation does not allow the government or public to access private lands, nor does it require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the Federal agency would be required to consult under section 7(a)(2) of the Act, but even if consultation leads to a finding that the action would likely cause destruction or adverse modification of critical habitat, the resulting obligation of the Federal action agency and the landowner is not to restore or recover the species, but rather to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.

Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) that are essential to the conservation of the species and (2) that may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features, we focus on the specific features that support the life-history needs of the species, including but not limited to, water characteristics, soil type, geological features, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic, or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity. Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed if we determine that such areas are essential for the conservation of the species.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. For example, they require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when any of the following situations exist: (i) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or (ii) such designation of critical habitat would not be beneficial to the species. The regulations also provide that, in determining whether a designation of critical habitat would not be beneficial to the species, the factors that the Services may consider include but are not limited to: Whether the present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or whether any areas meet the definition of “critical habitat” (50 CFR 424.12(a)(1)(ii)).

We do not know of any imminent threat of take attributed to collection or vandalism for the rusty patched bumble bee. The available information does not indicate that identification and mapping of critical habitat is likely to initiate any threat of collection or vandalism for the bee. Therefore, in the absence of finding that the designation of critical habitat would increase threats to the species, if there are benefits to the species from a critical habitat designation, a finding that designation is prudent is warranted.

The potential benefits of designation may include: (1) Triggering consultation under section 7 of the Act, in new areas for actions in which there may be a Federal nexus where it would not otherwise occur because, for example, it is unoccupied; (2) focusing conservation activities on the most essential features and areas; (3) providing educational benefits to State or county governments or private entities; and (4) preventing people from causing inadvertent harm to the protected species. Because designation of critical habitat will not likely increase the degree of threat to the species and may provide some measure of benefit, designation of critical habitat may be prudent for the rusty patched bumble bee.

Our regulations (50 CFR 424.12(a)(2)) further state that critical habitat is not determinable when one or both of the following situations exists: (1) Information sufficient to perform required analysis of the impacts of the designation is lacking; or (2) the biological needs of the species are not sufficiently well known to permit identification of an area as critical habitat.

Delineation of critical habitat requires identification of the physical or biological features, within the geographical area occupied by the species, essential to the species' conservation. In considering whether features are essential to the conservation of the species, the Service may consider an appropriate quality, quantity, and spatial and temporal arrangement of habitat characteristics in the context of the life-history needs, condition, and status of the species. These characteristics include but are not limited to space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, or rearing (or development) of offspring; and habitats that are protected from disturbance. Information regarding the rusty patched bumble bee life-history needs is complex, and complete data are lacking for most of them. For example, little is known about the overwintering habitats of foundress queens; however, information is currently being collected that may provide important knowledge on this topic. Consequently, a careful assessment of the biological information is still ongoing, and we are still in the process of acquiring the information needed to perform that assessment. The information sufficient to perform a required analysis of the impacts of the designation is lacking, and therefore, we find designation of critical habitat to be not determinable at this time.

Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, Tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.

The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to address the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.

Recovery planning includes the development of a draft and final recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of when a species may be ready for downlisting or delisting, and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. When completed, the draft recovery plan and the final recovery plan will be available on our Web site (http://www.fws.gov/endangered), or from our Twin Cities Ecological Service Field Office (see FOR FURTHER INFORMATION CONTACT).

Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (for example, restoration of native vegetation), research, captive-propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands. Following publication of this final listing rule, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost-share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the States of Connecticut, Delaware, Georgia, Illinois, Indiana, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Vermont, Virginia, West Virginia, and Wisconsin are eligible for Federal funds to implement management actions that promote the protection or recovery of the rusty patched bumble bee. Information on our grant programs that are available to aid species recovery can be found at: http://www.fws.gov/grants.

Please let us know if you are interested in participating in recovery efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT).

Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is proposed or designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of any endangered or threatened species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.

Federal agency actions within the species' habitat that may require consultation as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands, for example, lands administered by the National Park Service, U.S. Fish and Wildlife Service, and U.S. Forest Service.

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered wildlife. The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 17.21, make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) endangered wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any listed species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to employees of the Service, the National Marine Fisheries Service, other Federal land management agencies, and State conservation agencies.

We may issue permits to carry out otherwise prohibited activities involving endangered wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22. 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. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

It is our policy, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a proposed listing on proposed and ongoing activities within the range of the species proposed for listing.

Based on the best available information, the following activities may potentially result in a violation of section 9 of the Act; this list is not comprehensive:

(1) Unauthorized handling or collecting of the species;

(2) The unauthorized release of biological control agents that attack any life stage of the rusty patched bumble bee, including the unauthorized use of herbicides, pesticides, or other chemicals in habitats in which the rusty patched bumble bee is known to occur;

(3) Unauthorized release of nonnative species or native species that carry pathogens, diseases, or fungi that are known or suspected to adversely affect rusty patched bumble bee where the species is known to occur;

(4) Unauthorized modification, removal, or destruction of the habitat (including vegetation and soils) in which the rusty patched bumble bee is known to occur; and

(5) Unauthorized discharge of chemicals or fill material into any wetlands in which the rusty patched bumble bee is known to occur.

Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Twin Cities Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act (42 U.S.C. 4321 et seq.), need not be prepared in connection with listing a species as an endangered or threatened species under the Endangered Species Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

A complete list of references cited in this rulemaking is available on the Internet at http://www.regulations.gov and upon request from the Twin Cities Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

The primary authors of this final rule are the staff members of the Twin Cities Ecological Services Field Office and the Region 3 Regional Office.

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

Atlantic HMS are managed under the dual authority of the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq., (Magnuson-Stevens Act) and the Atlantic Tunas Convention Act, 16 U.S.C. 971 et seq., (ATCA). The authority to issue regulations under the Magnuson-Stevens Act and ATCA has been delegated from the Secretary of Commerce to the NOAA Assistant Administrator for Fisheries (AA). On May 28, 1999, NMFS published in the Federal Register (64 FR 29090) regulations implementing the Fishery Management Plan (FMP) for Atlantic Tunas, Swordfish, and Sharks (1999 FMP). On October 2, 2006, NMFS published in the Federal Register (71 FR 58058) regulations implementing the 2006 Consolidated HMS FMP, which details the management measures for Atlantic HMS fisheries. The implementing regulations for Atlantic HMS are at 50 CFR part 635.

The regulations in 50 CFR 635.71 contain specific prohibitions, and those prohibitions contain or should contain regulatory cross-references specific to the regulatory requirements in other sections of 50 CFR part 635. The regulatory text in § 635.71 ensures that person(s) under United States jurisdiction are in compliance with the Federal rules promulgated under the Atlantic Tunas Convention Act and the Magnuson-Stevens Fishery Conservation and Management Act when fishing for Atlantic HMS. This technical amendment corrects the cross-references in the HMS regulations. It also simplifies regulatory text at § 635.71(b)(23) by removing unnecessary language.

The regulations at § 635.71(a)(9), (b)(21), (e)(9), and (e)(10) are missing a clarifying cross-reference. This final action adds a cross reference to those regulations.

Additionally, the regulations at § 635.71(a)(17), (a)(18), (a)(37), (a)(54), (a)(56), (a)(59), (b)(36), (b)(37), (b)(39), (b)(40), and (e)(17) contain one or more incorrect cross-references. This final action corrects those cross-references. Additionally, § 635.71(b)(23) has an incorrect cross reference, which this action corrects. This action would remove language referencing that incidental to recreational fishing for other species would be retained in accordance with § 635.23(b) and (c), and simplifies the regulatory text to more broadly refer to the provisions of § 635.23.

The Assistant Administrator for Fisheries has determined that this final rule is necessary for the conservation and management of U.S. fisheries and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act, the 2006 Consolidated Atlantic HMS FMP and its amendments, and ATCA.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment are unnecessary and contrary to the public interest. This final rule makes only corrective, non-substantive changes to add missing, or correct, cross-references to HMS regulations or, in one instance, to remove confusing, unnecessary language, and is solely administrative in nature. Therefore, public comment would serve no purpose and is unnecessary. Furthermore, it is in the public interest to correct or insert the cross-references as quickly as possible to more clearly articulate the regulatory requirements to the public. Any delay in implementation would result in the continuation of incorrect cross-references in the regulations at 50 CFR 635. It is in the best interest of both the public and law enforcement to effectively enforce the new changes on publication to ensure person(s) are justifiably operating within U.S. law. Thus, there is also good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date.

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

Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553, or any other law, and a proposed rule is not being published, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are inapplicable.

NMFS has determined that fishing activities conducted pursuant to this rule will not affect endangered and/or threatened species or critical habitat listed under the Endangered Species Act, or marine mammals protected by the Marine Mammal Protection Act, because the action will not result in any change or increase in fishing activity, and is solely administrative in nature.

For the reasons set out in the preamble, 50 CFR part 635 is amended as follows: