Federal Register Vol. 83, No.106,

I. Background

The Summer Food Service Program (SFSP) is authorized under Section 13 of the Richard B. Russell National School Lunch Act (NSLA), 42 U.S.C. 1761. The primary purpose of the Program is to provide free, nutritious meals to children in low-income areas during periods when schools are not in session. FNS has made strides to ensure that those in need have food to eat and to streamline Program operations. SFSP serves not only the neediest children, but also functions as an opportunity for local leaders and business owners to serve their community. Summer Meal Programs can be operated in a variety of settings and should focus on the needs of diverse communities. Because of this, the types of participating Program sponsors vary widely—from Federal agencies, to local governments, school districts, and small nonprofit community organizations.

This final rule codifies the nondiscretionary simplified cost accounting and reporting procedures established in the Consolidated Appropriations Act, 2008 (Pub. L. 110-161). These simplified cost accounting procedures were originally authorized in the Consolidated Appropriations Act of 2001 and were piloted in fourteen states from 2001-2004. Section 18(f) of the Child Nutrition and WIC Reauthorization Act of 2004 (Pub. L. 108-265) made the simplified cost accounting procedures permanent for eligible States. Six new States in addition to the original fourteen States were determined eligible. The Consolidated Appropriations Act, 2008 extended the simplified procedures to all sponsors in all States.

This final rule also makes discretionary changes to the SFSP regulations to improve management of the Program and reduce paperwork requirements for program operators. The purpose of the simplified procedures is to facilitate and encourage participation by eligible sponsors, in turn providing access to those in need in the summer months and other times during the year when they do not have access to school meals.

The regulatory changes to the reimbursement procedures will align Program regulations with current policy FNS issued in 2008 to implement statutory changes, SFSP 01-2008, Nationwide Expansion of Summer Food Service Program Simplified Cost Accounting Procedures, January 2, 2008. This policy guidance implemented the elimination of the cost comparison to determine reimbursements, the establishment of a reimbursement rate of “meals times rate” without comparison to actual or budgeted costs, and the requirement that sponsors maintain records of their costs for State agency review, rather than report their costs to the State agency.

The intent of this rulemaking is to simplify the SFSP for State agencies, sponsors, and site operators while providing a quality meal service to children and maintaining integrity of the Program. The proposed rule was published in the Federal Register (78 FR 41857) on July 12, 2013, seeking to codify changes to cost accounting practices as well as make changes to improve the efficiency and effectiveness of the Program and reduce administrative paperwork. The majority of provisions in the proposed rule codify the existing policies and guidance already being implemented in the SFSP nationwide:

• Extend simplified cost accounting and reporting procedures to SFSP sponsors in all States and eliminate the cost comparison requirements for determining payments to sponsors.

• Require sponsors to utilize unused reimbursement to improve the Program, or pay allowable costs of other Child Nutrition Programs operated by the sponsor.

• Provide State agencies the flexibility to exempt school food authority sponsors from submitting a separate budget when applying to operate SFSP, provided that operation of SFSP was included in their annual budget for operation of the National School Lunch Program.

• Require sponsors to maintain documentation confirming the operation of a nonprofit food service.

• Establish the responsibilities of State agencies when reviewing a sponsor's operation under simplified procedures, including suggestions for monitoring of the nonprofit food service.

• Encourage State agencies to provide technical assistance to sponsors to utilize unused reimbursements to improve the meal service, improve Program management, or pay allowable costs of other Child Nutrition Programs operated by the sponsor if significant unused reimbursements are found during a sponsor review.

• Allow more alternatives for sponsors to combine claims for reimbursement.

• Allow sponsors to renew contracts for up to four years, to reduce paperwork and increase the sponsors' negotiating power to get higher quality meals at a better price.

• Clarify the administrative oversight role of sponsors at meal service sites.

• Provide consistent notification and simplified acquisition threshold requirements across Child Nutrition Programs.

FNS appreciates the insightful comments provided by stakeholders and the public. Twenty-two comments were received from a cross section of SFSP administrators, SFSP operators, and advocates. Commenters included representatives of State Departments of Education, food banks, and nonprofit organizations supporting anti-hunger efforts, summer learning, and afterschool programs. Seven State administering agencies, four SFSP sponsors, and 11 advocacy organizations submitted comments on the proposed rule. It should be noted that 22 comments represent a very small portion of the vast number of SFSP stakeholders. To view all of the public comments on the proposed rule, go to www.regulations.gov and search for public submissions under docket number FNS-2013-0026.

Of the 22 comments received, 19 voiced general support for the implementation of the simplified cost accounting amendments, the clarification of the sponsor's responsibility for oversight at meal sites, and the amendment of the threshold for small purchases, and offered thoughtful suggestions for improvements to strengthen the rule and provide more clarity on certain sections.

Some commenters specifically voiced concern regarding the proposed changes to the collection of excess funds, approval of applications, review of nutrition quality, and monitoring of sponsor budgets and nonprofit food service. These commenters expressed concern that the proposed changes could compel State agencies to reinstate administrative practices that had been required for cost accounting, prior to the 2008 law and publication of subsequent implementing guidance. Additionally, a few commenters expressed concern that several of the provisions regarding State agency monitoring would create undue burden on the administering State agencies and sponsors and might discourage participation. Several commenters also requested clarity and guidance on a number of the provisions, particularly State agency monitoring of sponsors and operation of a nonprofit food service.

The following is a summary of the public comments by provision. In some instances, several provisions are grouped together under the same topic area because the provisions and comments received are related:

Proposed Rule: The proposed rule would codify the practice of using a combined operating and administrative reimbursement of “meals times rates” for all sponsors, and eliminate cost comparison requirements at 7 CFR 225.9(d)(7) and (8). The proposed rule would also streamline the process for calculating advances under 7 CFR 225.9(c) by no longer differentiating between operating and administrative advances. As required by legislative action, FNS updated its policy guidance to provide for implementation of a combined reimbursement nationwide.

Regulations at 7 CFR 225.9(c) provide a framework for advancing payments to sponsors, while 7 CFR 225.9(d)(7) and (8) require State agencies to reimburse participating sponsors on a per-meal basis for meals meeting Program requirements. Prior to the implementation of the pilot and the subsequent extension of the simplified cost accounting procedures to all States and sponsors, sponsors received reimbursement separately for both operating costs and administrative costs.

Comments: There was unanimous support from all commenters who commented on these specific provisions. Several of the commenters offered recommendations to create more flexibility within this provision by allowing State agencies to determine the percentage of the advance that is given to sponsors. Other commenters suggested additional training for school food authorities (SFA).

FNS Response: The changes to 7 CFR 225.9(d)(7) and (8) to eliminate cost comparison requirements, as proposed, are finalized in this rule. In response to commenters' request for more flexibility for State agencies to determine the percentage of advance payments, we must clarify that FNS does not have the statutory authority to amend those requirements. The requirements to provide service institutions with advance payments as well as the determined percentages of advance payments are codified at Section 13(e)(1) and (2) of the NSLA and do not provide the discretion FNS would need to amend the requirements for advance payments. However, the regulations at 7 CFR 225.9(c)(3) (this rulemaking amends citation to 7 CFR 225.9(c)(2)) do provide some flexibility to the State agency to “make the best possible estimate based on the sponsor's request and any other available data” when determining the amount of the advanced payment. State agencies should work with sponsors, especially those sponsors that are operating the Program for the first time, as they develop their request for advance payments.

In current regulations, State agencies already have the discretion to require more training for SFAs. Therefore, FNS maintains that the proposed language provides State agencies with the flexibility to require additional training. However, in order to provide clarity, FNS intends to issue additional guidance on administration of advances as deemed necessary.

Accordingly, the changes to 7 CFR 225.9(d)(7) and (8) and (c) as proposed are finalized in this rule. They eliminate the cost comparison requirements, combine operating and administrative reimbursements into a single “meals times rates” reimbursement, and combine operating and administrative advances. In addition, references to operating and administrative costs were removed throughout 7 CFR 225.9.

Proposed Rule: The proposed rule would amend 7 CFR 225.6(b)(7) to allow State agencies to exempt SFA sponsors that participated in the SFSP in the previous year and had no documented serious problems managing the SFSP or National School Lunch Program (NSLP) from the annual budget submission requirement.

Prior to publication of the proposed rule, FNS issued policy guidance (SFSP 01-2008, Nationwide Expansion of Summer Food Service Program Simplified Cost Accounting Procedures, January 2, 2008 and SFSP 03-2008, Simplified Procedures in the Summer Food Service Program, February 14, 2008) that provided State agencies with the flexibility to exempt certain sponsors from the requirement to submit budgets annually with their applications for participation as specified in 7 CFR 225.6(c)(2)(ii)(B) and (c)(3)(ii)(B) and to receive start-up or advance payments as specified in 7 CFR 225.9(a) and (c)(2)(i).

The proposed changes would have brought the regulations in line with exemptions currently available nationwide.

Comments: Of the five unique comments received on this provision, two supported, one opposed, and two provided recommendations for clarifying and streamlining the process to reduce administrative burden on sponsors. One commenter recommended allowing State agencies to exempt SFA sponsors, who participated successfully in any Child Nutrition Program (including NSLP, School Breakfast Program (SBP), and Seamless Summer Option (SSO)) in the prior year, from the annual budget submission requirement. The commenter that opposed this provision expressed that “successful” was too vague a term and requested additional criteria for identifying a successful operation. The opposing commenter also identified the budget submission as a necessity in order to determine the nonprofit food service status of sponsors.

FNS Response: The proposed changes to the budget submission process were intended to align regulations with implemented national flexibility to allow States to exempt certain sponsors from the requirement. This flexibility dates back to the original simplified cost accounting pilot first started in 2001. However, these provisions are not consistent with statutory changes made in the Healthy, Hunger-Free Kids Act of 2010 (Pub. L. 111-296). Amendments to Section 13(b)(3) of the NSLA revised budget submission requirements to specify that “when applying for participation in the program, and not less frequently than annually thereafter, each service institution shall submit a complete budget for administrative costs related to the program, which shall be subject to approval by the State.” Based on the legislative amendments to Section 13 of the NSLA, all sponsors, without exception, applying to participate must submit a complete budget for administrative costs related to the Program.

FNS has received consistent feedback from stakeholders that budget submissions are a useful tool for maintaining Program integrity. The budget review process provides the opportunity to identify unallowable costs and helps ensure that funds are used only for allowable costs. Maintaining a requirement for State agencies to annually review budgets allows SFA sponsors to receive important feedback on the allowability of planned expenditures.

However, FNS recognizes that submitting a separate budget for SFSP would be duplicative for SFAs that have already submitted budget information as part of their operation of another Child Nutrition Program. In an effort to reduce administrative and paperwork burden, State agencies may exempt SFAs applying to operate the SFSP from submitting a separate budget to the State agency, provided that operation of the SFSP is included in the annual budget submitted for the NSLP.

Accordingly, the proposed changes to budget submission requirements are not included in the final rule and the requirement at 7 CFR 225.6(b)(7) that sponsors must submit budgets when they apply for participation in the SFSP is maintained. In addition, the final rule adds at 7 CFR 225.6(b)(7) State agency discretion to exempt SFAs from submitting a separate budget provided that operation of the SFSP is included in the annual budget submitted for the NSLP.

The proposed rule touched on several sections of the regulations relating to maintenance of a nonprofit food service, including sections on claims against sponsors and management responsibilities of sponsors.

Proposed Rule: The proposed rule would amend 7 CFR 225.15(a)(4) to require sponsors to maintain documentation confirming the operation of a nonprofit food service. The proposed rule would also clarify 7 CFR 225.12(a) and 225.15(c)(1), which restrict the use of SFSP reimbursements on allowable costs only and require that sponsors' records include all costs associated with the meal service and document that all costs are allowable.

Regulations found at 7 CFR 225.6(e)(1) require sponsors to maintain a nonprofit food service. Regulations at 7 CFR 225.12(a) and 225.15(a) and (c) outline the requirements for maintaining a nonprofit food service in the SFSP. Sponsors that operate multiple Child Nutrition Programs on a year-round basis are not required to maintain a separate nonprofit food service account for the SFSP. The Consolidated Appropriations Act of 2008, which expanded the simplified cost accounting procedures, also amended statutory requirements for maintaining a nonprofit food service. FNS provided guidance on what is required to document the maintenance of a nonprofit food service under the legislative changes via policy memorandum (SFSP 01-2008, Nationwide Expansion of Summer Food Service Program Simplified Cost Accounting Procedures, January 2, 2008).

Comments: FNS received eight unique comments on the topic of maintaining a nonprofit food service. Three of the eight comments opposed the provision, two proposed recommendations for clarity, and one expressed concern that this provision could eventually result in USDA requiring end-of-year operating statements. Commenters expressed concern that FNS was establishing a requirement that sponsors report costs to the State agency on a routine or annual basis. Similarly, commenters recommended clarifying the language to ensure that sponsors do not have to report their costs to the State agency on an annual basis. Commenters also recommended codifying the language used in the January 2008 guidance, which said that sponsors “must be able to document” their nonprofit food service.

FNS Response: The intent of this provision is consistent with the January 2008 guidance, which requires that sponsors be able to document that they have maintained a nonprofit food service. It is not the intent of this provision to require sponsors to submit cost records to the State agency on a routine or annual basis. As noted in that guidance, sponsors may meet this requirement by retaining records of all revenues received and expenses paid from the nonprofit food service account. This requirement does not include submitting records to the State agency on a routine or annual basis. However, FNS expects that sponsors will maintain documentation to support their operation of a nonprofit food service to ensure the integrity of the Program. This documentation permits the sponsor, reviewers, and auditors to evaluate and verify during a review that the SFSP was operated on a nonprofit basis. State agencies are responsible for informing sponsors that expenses paid from the nonprofit food service account must be allowable costs that are necessary, reasonable, and properly documented. Accordingly, FNS will amend 7 CFR 225.12(a) and 225.15(a)(4) and (c)(1) to retain the language to maintain documentation of a nonprofit service account in the final rule as it was proposed.

Proposed Rule: As proposed, this provision would add a paragraph to 7 CFR 225.9 to require sponsors to use “excess funds” (reimbursements exceeding allowable costs) to improve the meal service or management of the program. The provision also would allow sponsors to use remaining funds at the end of the Program year to be used to pay allowable costs of other Child Nutrition Programs.

The provision went further to require excess funds to be collected from sponsors that do not operate at least one other Child Nutrition Program and do not plan to participate in the SFSP in the following year. At the time the proposed rule was published, the only requirements for collection of excess funds in SFSP regulations were found at 7 CFR 225.9(c)(7) and referred to collection of funds in excess of advanced payments.

Comments: Of the six unique comments received, two opposed the provision, two offered recommendations, one expressed concern, and one supported the changes. Those who opposed the provision stated that it would increase administrative burden on the States and sponsors. In addition, commenters believed that collecting excess funds would make it difficult for sponsors to improve Program operations and would discourage participation. Ten commenters noted that the proposed changes were not supported by the Consolidated Appropriations Act of 2008 (Pub. L. 110-161), which extended the simplified cost accounting procedures to all sponsors and therefore entitles all sponsors to the maximum reimbursement, as long as the sponsor is meeting the program requirements, including serving meals that meet the Federal nutrition standards.

FNS Response: FNS appreciates the comments received on the effectiveness of collecting excess funds and challenges associated with the implementation of this provision. Upon further review, FNS has determined that the proposed rule and guidance issued following the publication of the proposed rule did not accurately represent the intent of the provision. The regulatory language in the proposed rule, which would have required the State agency to collect “excess funds” (meaning both reimbursements in excess of costs and advance payments in excess of reimbursement) at the end of each summer of Program operations, was overly broad and could create undue burden on both the State agency and sponsors. Additionally, by preventing sponsors from retaining funds at the end of Program operations, sponsors would be unable to take necessary steps between operating times to improve meal service during operation. FNS also recognizes the need for clarity when discussing excess funds and seeks to alleviate the confusion caused by the proposed rule and subsequent guidance.

Under the simplified cost accounting procedures, FNS issued guidance on how to manage excess funds in the SFSP. However, FNS did not clearly define the term “excess funds.” There is an important distinction between excess funds and unused reimbursement that needs to be explained.

FNS defines excess funds, for Program purposes, as the difference between any advance funding and reimbursement funding, when advance funds received by a sponsor are greater than the reimbursement amount earned by a sponsor. This distinction is statutorily established in Section 13(e)(1) of the NSLA, 42 U.S.C. 1761(e)(1), which states that “Not later than June 1, July 15, and August 15 of each year, or, in the case of service institutions that operate under a continuous school calendar, the first day of each month of operation, the State shall forward advance program payments to each service institution. . .” Further, in Section 13(e)(2), the NSLA provides that, “[p]rogram payments advanced to service institutions that are not subsequently deducted from a valid claim for reimbursement shall be repaid upon demand by the State. Any prior payment that is under dispute may be subtracted from an advance program payment.” This requirement is also codified in current regulations at 7 CFR 225.9(c)(7).

While there is, similarly, a statutory directive in Section 13(e)(2) of the NSLA requiring the collection of excess funds, as described above, there is no such statutory directive, or intent, to collect unused reimbursements.

So, an example of excess funds would be if a sponsor requested $1,000 in advance funding and only claimed $900 in meal reimbursement; the sponsor would have $100 in excess funds that cannot be used in other Child Nutrition Programs. The State agency has the statutory and regulatory authority to recover the $100 in excess funds at the end of Program operations for which the advance was paid.

In contrast, FNS defines unused reimbursements differently than excess funds. Unused reimbursements are the difference between the amount claimed for reimbursement and actual costs, should reimbursement exceed costs. For example, if a sponsor received $1,000 in meal claim reimbursement but only spent $900 on actual costs to operate the Program, the sponsor would have $100 in unused reimbursement.

FNS expects States and sponsors to adequately manage resources, so that a well-run, quality summer meal service does not result in a significant amount of unused reimbursement. It is incumbent on sponsors and State agencies to monitor program operations throughout the summer and for sponsors to make adjustments to ensure that quality meals are being served. However, should a sponsor have unspent reimbursement, this remaining amount must be kept in a nonprofit food service account, as required of all Child Nutrition Programs. These funds must benefit the operation of another Child Nutrition Program operated by the sponsor or SFSP operations operated by the sponsor the following Program year. If a sponsor does not return to participate in SFSP and does not operate any other Child Nutrition Programs, the sponsor is not required to return the unused reimbursement. As noted by commenters, this is in keeping with the intent of the statute which entitles all sponsors to the maximum reimbursement, as long as the sponsor is meeting the program requirements.

Additionally, in order to address the issue of treating sponsors remaining in the Program differently than sponsors not intending to participate in the following year, FNS would like to highlight the regulatory requirements at 7 CFR 225.6(e)(1)(i) that sponsors must enter into a permanent agreement with the State agency, in which they must agree to operate a nonprofit food service during the period specified. Therefore, those sponsors remaining in the Program must continue to operate a nonprofit food service in order to be in compliance with regulations and not be in violation of the Sponsor-State agreement. This means that should a sponsor have unused reimbursement, it must be used to improve the Program or for allowable costs in other Child Nutrition Programs operated by the sponsor. In contrast, a sponsor that chooses not participate in the Program no longer has an agreement with the State agency and is not required to operate a nonprofit food service.

Since 2008, consistent with statutory direction in Section 13 of the NSLA, FNS has made the distinction between excess funds and unused reimbursement in order to protect the integrity of program operations by ensuring that sponsors are only permitted to retain funds that are payment for meals served to children through the SFSP. It is important to remember that under simplified cost accounting procedures, unused reimbursements are not returned to the State agency unless unallowable meals were claimed for reimbursement. State agencies are always permitted to conduct closeout audits or reviews to determine if all meals claimed were valid and that Program funds were spent on allowable costs only.

FNS encourages this oversight activity, particularly when the State agency has concerns about how the sponsor operated the Program.

If unallowable costs are identified during a closeout review or audit, the State agency should follow appropriate audit resolution procedures, although no funds would be recovered. If a sponsor will not operate SFSP in the future, but currently operates another Child Nutrition Program, the sponsor would be required to restore the misspent SFSP funds to its nonprofit food service account. In cases where the organization does not intend to participate in the SFSP in the future and does not currently participate in any other Child Nutrition Programs, the State agency should notify the sponsor of the findings and retain documentation of the findings on file. If the organization applies for participation in any Child Nutrition Program in the future, the State agency should ensure the organization has proper controls in place to prevent a recurrence of the improper expenditures of nonprofit food service account funds. This is consistent with longstanding Department policy, issued during the implementation of the simplified cost accounting procedures (SFSP 01-2008, Nationwide Expansion of Summer Food Service Program Simplified Cost Accounting Procedures, January 2, 2008).

Therefore, the final rule retains the current requirement that excess funds, defined as the difference between any advance funding and reimbursement funding, when advance funds received by a sponsor are greater than the reimbursement amount earned by a sponsor, must be returned to the State agency at the end of program operations, even if the sponsor plans to return to the Program the following year. The final rule additionally clarifies that unused reimbursement may be retained by the sponsor. If the sponsor plans to return to the Program the following year, the unused reimbursement must be maintained in the sponsor's nonprofit food service account and must be put toward the operation of another Child Nutrition Program or for SFSP operations the following summer. FNS has issued guidance instructing sponsors to utilize unused reimbursement for the improvement of the meal service or management of the Program or to use the funds for allowable costs in other Child Nutrition Programs.

Accordingly, this final rule adds definitions of “Excess funds” and “Unused reimbursement” under 7 CFR 225.2 and clarifies what sponsors should do with unused reimbursement under a new paragraph at 7 CFR 225.9(g). The final rule will retain the requirement for sponsors to utilize unused reimbursement to improve the Program, or for allowable costs in other Child Nutrition Programs and will not codify the proposed requirement to collect unused reimbursement from sponsors.

In order to maintain the integrity of Program operations, it is critical that State agencies and sponsors practice sound Program management. The proposed rule would change several provisions to provide additional requirements that would ensure thorough reviews of program operations. These changes expanded upon requirements for State agencies to establish financial management systems and standards for sponsor recordkeeping found at 7 CFR 225.7(d). In general, one commenter opposed the changes and one offered a recommendation. The commenter who opposed the provision believed that the procedures were too prescriptive and would increase the administrative burden for both sponsors and States. Another commenter offered the recommendation to provide additional funding and training to help States develop additional systems needed to support this requirement. Several commenters offered more detailed comments on the specific provisions, as discussed below.

Proposed Rule: The proposed rule would require State agencies to determine if a sponsor provides a nutritious, high quality food service.

Comments: Two commenters supported the provision, while several others offered recommendations to provide additional guidance on what defines a nutritious, high quality food service.

FNS Response: FNS agrees with commenters that including a review of “nutritious, high quality food” is vague and should not be codified in the regulations. FNS has issued additional guidance on operating a high quality meal service to ensure that sponsors are providing the best possible meals to children and that State agencies have the resources to support sponsors in serving high quality meals following the publication of this rule. FNS encourages State agencies and sponsors to review the overall quality of the meal service. Accordingly, this provision is absent from the final rule.

Proposed Rule: The proposed rule would have required State agencies to determine if expenditures are allowable and consistent with FNS Instructions and guidance.

Comments: Two commenters offered support and requested additional guidance to define what is allowable.

FNS Response: FNS agrees with commenters that additional guidance is necessary for this provision. FNS has issued Instruction 796-4 that clearly outlines what costs are considered allowable in the SFSP. Accordingly, FNS has codified at 7 CFR 225.7(d)(2)(iii)(A) that the State agency should determine if expenditures are allowable and consistent with FNS Instructions and guidance and all funds accruing to the food service are properly identified and recorded as food service revenue.

Proposed Rule: The proposed rule would require State agencies to determine if expenditures are consistent with expenditures of comparable sponsors.

Comments: Three State agencies opposed the part of the provision that requires a comparison to similar sponsors, saying that it is not a reasonable request for State agencies as they do not have the resources to conduct such a comparison and it would be technically difficult for States to accomplish.

FNS Response: FNS recognizes that comparing the expenditures of similar sponsors would be unnecessarily burdensome on the State agencies. State agencies should be aware of what reasonable costs of similarly sized sponsoring organizations would be; however, a formal comparison is not required. Accordingly, FNS has clarified in the codified language at 7 CFR 225.7(d)(2)(iii)(B) that State agencies should determine if expenditures are consistent with budgeted costs and previous year's expenditures.

Proposed Rule: The proposed rule would require State agencies to determine if sponsor reimbursements have resulted in accumulation of net cash resources as defined in 7 CFR 225.7(f).

Comments: One commenter expressed support but also concern for how State agencies would be able to distinguish the difference when evaluating combined accounts.

FNS Response: State agencies must establish a system for monitoring and reviewing a sponsor's nonprofit food service accounts to ensure that the sponsor has not accumulated net cash resources over the limits as defined in 7 CFR 225.7(f). FNS expects that this knowledge will be developed through the review process. As mentioned in the discussion on excess funds and unused reimbursement, accumulations of net cash resources should be closely monitored by sponsors and State agencies to ensure resources are being appropriately managed. Accordingly, FNS has codified at 7 CFR 225.7(d)(2)(iii)(C) that State agencies should determine that reimbursements have not resulted in accumulation of net cash resources.

Proposed Rule: The proposed rule would require State agencies to determine if the level of administrative spending is reasonable.

Comments: One commenter recommended providing specific guidance for determining when spending is reasonable. Another commenter opposed the provision, saying that it goes against the elimination of the distinction between operating and administrative reimbursements and would place an administrative burden on State agencies.

FNS Response: State agencies should be able to determine what is reasonable spending and ensure that sponsors are using reimbursements for administrative costs in a manner that is consistent with the operation of a nonprofit food service. Accordingly, FNS retains the proposed provision and codifies it at 7 CFR 225.7(d)(2)(iii)(D).

Proposed Rule: The proposed rule would require State agencies to determine if there are any other issues identified by reviewers and whether these issues are being managed appropriately.

Comments: No commenters responded to this provision.

FNS Response: As FNS amended the final rule to put forth a list of recommended conditions for State agencies to review, including other identified issues became redundant. Accordingly, this provision is absent from the final rule.

In summary, accordingly, the final rule removes the requirements at 7 CFR 225.7(d)(2)(iii) that the State agency review the specific aspects of sponsor operations listed in the regulatory text and instead provides a list of Program management issues for potential review by the State agency at 7 CFR 225.7(d)(2)(iii)(A) through (D).

Proposed Rule: The proposed rule would have added additional requirements at 7 CFR 225.7(f) that the State must establish a system to monitor and review the sponsor's nonprofit food service to ensure that Program reimbursement funds are being used solely to conduct the food service operation. Under the proposed rule, the State must also ensure that sponsors do not have net cash resources totaling more than three months' average expenditures in their nonprofit food service accounts.

The addition of § 225.7(f), as proposed, would have codified that certain corrective actions may be necessary to improve food service quality under the following conditions:

• The sponsor's net cash resources exceed three months' average expenditures for the sponsor's nonprofit food service or such other amount as may be approved in accordance with the paragraph;

• The ratio of administrative to operational costs (as defined in 7 CFR 225.2) is high as compared to similar sponsors;

• There is significant use of alternative funding for food and/or other costs; or

• A significant portion of the food served is privately donated or purchased at a very low price.

Comments: On the criteria required for State agencies to review sponsor nonprofit food service, several commenters opposed portions of this section, specifically the requirement to use the three month cap on cash resources, the comparison between sponsors, the ratio of administrative to operating costs, the significant use of alternative funds to determine the quality of the nonprofit food service and the requirement for States to take corrective action should sponsors fall under any of these indicators. Commenters preferred these indicators to be considered but not required.

FNS Response: FNS appreciates the responses from various stakeholders expressing concern about the proposed changes to require corrective action to improve food service quality under prescribed conditions. While the intent of this rule is to streamline Program operations and decrease the administrative burden for both States and sponsors, FNS must also ensure the integrity of the Program. FNS agrees with commenters that due to the short duration of summer meal programs, a net cash resource limit of three months' average expenditures may be considered too high. FNS recognizes that the prescriptive language proposed could add increased burden or unfairly target certain organizations that run quality programs but still meet the conditions specified in the proposed rule. For example, a food pantry might have a higher ratio of administrative costs to operating costs and have significant use of alternative funds. Under the proposed rule, the food pantry might have been subject to a higher level of scrutiny based on the criteria set forth, despite operating a high quality meal service.

Accordingly, due to the short duration of the Program, the final rule includes a limit of one month's net cash resources for sponsors that operate during the summer months but retains the three month limit for sponsors that operate Child Nutrition Programs year round at 7 CFR 225.7(f). Additionally, the final rule retains the conditions State agencies should review, as proposed, but rather than requiring a review of these conditions, encourages States to use these conditions as indicators of potential Program mismanagement.

Proposed Rule: The proposed rule sought to add to requirements at 7 CFR 225.11(f)(1) to direct the State agency to require the sponsor to implement appropriate corrective action if it is determined during a review that the sponsor was not providing a high quality meal service. The proposed rule outlined in the proposed changes to 7 CFR 225.7(f) how the State agency would make the determination if corrective action was necessary.

Comments: In response to the additional requirement for State agencies to require corrective action to improve the meal service if a sponsor is found to be operating a program with poor quality food service, six commenters either opposed or recommended additional guidance. Of the six commenters, four State agencies expressed concern that the guidance was too vague and they would not be able to effectively determine what constitutes a poor quality meal service.

FNS Response: FNS agrees with commenters that requiring corrective action for poor quality meal service is too vague and requires more guidance. Accordingly, the final rule removes the requirement for corrective action if a sponsor is determined to be operating a poor quality meal service and is operating below the reimbursement level, and instead adds a new paragraph at 7 CFR 225.11(g) that recommends that States provide technical assistance to sponsors in these circumstances. However, if State agencies observe violations during a review, they should act immediately, due to the short duration of summer program operations.

Proposed Rule: The proposed change would remove reference to the outdated small purchase threshold (referred to as simplified acquisition threshold in 2 CFR part 200 and throughout the remainder of this final rule) of $10,000 and allow State and local agencies to use the simplified acquisition threshold for small purchases up to the threshold set by 2 CFR part 200.

Comments: FNS received five unique comments. Of these, three supported the provision, one commenter partially supported and partially opposed the provision, and one commenter offered a recommendation for improving the bid bond requirements. Commenters generally supported aligning the requirements for small purchase procedures with those already at 2 CFR part 200. One State agency opposed the requirement that all bids be submitted to the State agency for approval before acceptance, and that these bids are responded to within five working days of receipt, claiming that this would create a burden on the State agency.

Commenters also expressed concern that the bid bond requirements should be left to the discretion of the sponsor, as the new requirements might pass additional costs from Food Service Management Companies (FSMC) to the sponsor.

FNS Response: FNS appreciates the support for aligning the requirements for small purchase procedures with those already in Federal Regulations. The purpose of this provision is to align SFSP regulations with broader Federal requirements. Aligning the requirement with 2 CFR part 200 allows for periodic adjustments in the dollar value when the periodic adjustment occurs and relieves FNS of the requirement to change the dollar amount in the Program regulations. Some commenters provided responses to portions of the provisions that did not contain proposed changes, specifically the comments related to the State agency responsibilities regarding bids and sponsor discretion in determining the amount of the bid bond. While FNS appreciates these comments, this final rule will only address the alignment of the simplified acquisition threshold. Accordingly, the final rule aligns regulations at 7 CFR 225.15(m)(4) through (6) with the simplified acquisition threshold with current Federal regulations at 2 CFR part 200.

Proposed Rule: The proposed rule sought to remove the existing limit of $10,000 in aggregate for food service management companies, and instead link the standard contract threshold to 2 CFR part 200. This change would help ensure that the standard contract threshold in SFSP is adjusted regularly in accordance with the thresholds applied to the other Child Nutrition Programs. The proposed rule would apply this threshold to individual contracts, rather than aggregate contracts.

The proposed rule also offered changes to 7 CFR 225.6(h)(7) to make SFSP requirements consistent with NSLP requirements that pertain to food service management companies. The changes would allow sponsors to enter into annual contracts that may be renewed annually for up to four additional years. The rule also proposed that all contracts in excess of $10,000 contain clauses for termination for both cause and convenience with 60-day notification.

Comments: FNS received eight unique comments regarding FSMCs and Procurement Standards, with four commenters supporting the provision, two commenters opposing the term for contract termination and two commenters offering recommendations for improving the rule consistent with preferred practice. Due to the short length of the Program, some commenters felt that a 60-day notification of termination was too long. Commenters recommended that a 30-day notification period would be better suited for the Program.

FNS Response: FNS recognizes that the Program has certain time constraints and that making the procurement standards consistent with NSLP might be impractical for sponsors. Accordingly, FNS amends 7 CFR 225.6(h)(2) to align the small purchase threshold to 2 CFR part 200. This final rule also adds a new paragraph at 7 CFR 225.6(h)(7) to set a maximum 60-day notification of termination for cause or convenience. The final rule retains language to allow sponsors to enter into annual contracts with FSMCs that may be renewed annually for up to four additional years.

Proposed Rule: The proposed rule would include the requirement for allowing all contracts to be terminated for cause or for convenience.

Comments: Two commenters expressed support for this change. One commenter specifically noted that they supported the change because it did not include the 60-day notification of termination clause contained in the proposed changes to 7 CFR 225.6(h)(7).

FNS Response: FNS agrees with commenters that this section should not include a 60-day notification of termination clause. Accordingly, the language in the final rule is codified as proposed under a new paragraph at 7 CFR 225.17(f).

Proposed Rule: The proposed rule sought to clarify sponsors' responsibilities with respect to meal services at the approved meal service sites and emphasizes that sponsors must have “administrative oversight,” rather than “direct operational control,” of meal services. Current regulations require sponsors to have “direct operational control” of meal service sites, meaning they are responsible for managing site staff, including hiring and determining conditions of employment and termination.

Based on FNS's experience in administering SFSP and in consultation with local, State, and Federal administrators, USDA determined that sponsors find it difficult to comply with the understanding of “direct operational control.” Many sponsors deliver meals to recreational sites that are not directly affiliated with or managed by the sponsors, thus they do not have the authority to hire or terminate staff. Instead, these sponsors have control over only the meal service provided at the site and related activities such as training of staff on meal counting and record keeping procedures.

Comments: FNS received 13 comments touching on this matter, five of which were unique. All commenters expressed support for the change to the provision.

FNS Response: FNS will retain the proposed language for the final rule. Accordingly, the final rule defines sponsor oversight as “administrative oversight” and will not include direct operational control, at 7 CFR 225.14(d)(3).

Proposed Rule: The proposed rule sought to make optional the requirement for sponsors operating for less than 10 days in the final month of operations to submit a combined claim for the final and immediate preceding month. Additionally, sponsors wishing to submit combined claims would be allowed to consolidate claims for reimbursement and submit a single claim for reimbursement in the following ways:

• Claims for 10 operating days or less in the initial month of operations may be combined with the claim for the subsequent month;

• Claims for 10 operating days or less in the final month of operations may be combined with the claim for the preceding month; and

• Claims for 3 consecutive months may be combined, as long as this combined claim only includes 10 operating days or less from each of the first and last months of Program operations.

Comments: FNS received four unique comments regarding the option for sponsors to submit a combined reimbursement claim. Two commenters supported the provision while two commenters opposed the provision. Commenters recommended that States be given the discretion to decide how claims were made in order to retain consistent methods.

FNS Response: The intent of this provision is to streamline the claims process for States and sponsors. The proposed language permits sponsors to submit a combined claim. Therefore, the language that was presented in the proposed rule is retained in the final rule with the addition of language specifying State agency discretion. Accordingly, the final rule amends 7 CFR 225.9(d)(3) to provide States with the flexibility to allow sponsors to submit combined claims for reimbursement.

Proposed Rule: FNS proposed changes that would specify in NSLP and SFSP regulations what constitutes proper delivery and receipt of a notice of action in an effort to be consistent with the regulations in the Child and Adult Care Food Program (CACFP). A notice of action is considered delivered by certified mail, return receipt, by facsimile, or by email. Neither NSLP nor SFSP have requirements that explain notice and delivery by a State agency or FNS to an institution. FNS proposed this change because some State agencies have been experiencing difficulty in notifying institutions of review findings, required corrective actions, and terminations. By choosing to avoid accepting the State agency's certified mail, non-complying institutions have continued to operate, claim reimbursement, and mismanage the Programs.

Comments: FNS received three unique comments, all of which supported the provision to make the requirements consistent with CACFP.

FNS Response: Accordingly, the final rule amends 7 CFR 210.18(i) and 225.13(b)(1) to include delivery notice requirements in NSLP and SFSP, respectively.

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This final rule has been determined to be not significant by the Office of Management and Budget (OMB) in conformance with Executive Order 12866. Therefore, this rule has not been reviewed by OMB. No Regulatory Impact Analysis is required. Executive Order 13771 directs agencies to reduce regulation and control regulatory costs and provides that for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process. FNS considers this rule to be an Executive Order 13771 deregulatory action.

The Regulatory Flexibility Act (5 U.S.C. 601-612) requires agencies to analyze the impact of rulemaking on small entities and consider alternatives that would minimize any significant impacts on a substantial number of small entities. Pursuant to that review, it has been certified that this final rule would not have a significant impact on a substantial number of small entities. This rule will streamline cost accounting procedures so that more time and resources may be directed toward increasing access, providing quality meal service to benefit eligible children, and ensuring Program integrity. While this rule will impact school food authorities, non-profit organizations, and local governments that choose to participate, its implementation will not have significant economic impact on any of those entities.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments, and the private sector.

Under section 202 of the UMRA, USDA generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local or tribal governments, in the aggregate, or the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, Section 205 of the UMRA generally requires USDA to identify and consider a reasonable number of regulatory alternatives and adopt the most cost effective or least burdensome alternative that achieves the objectives of the rule. This final rule does not contain Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local and tribal governments or the private sector of $100 million or more in any one year. Thus, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.

The Summer Food Service Program is listed in the Catalog of Federal Domestic Assistance Programs under 10.559. The National School Lunch Program is listed in the Catalog of Federal Domestic Assistance Programs under 10.555. Both of these Child Nutrition Programs are subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. Since Child Nutrition Programs are State-administered, FNS has formal and informal discussions with State and local officials, including representatives of Indian Tribal Organizations, on an ongoing basis regarding program requirements and operation. This provides FNS with the opportunity to receive regular input from program administrators which contributes to the development of feasible program requirements.

Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agency's considerations in terms of the three categories called for under Section (6)(b)(2)(B) of Executive Order 13121. USDA has considered the impact of this final rule on State and local governments and has determined that this rule does not have federalism implications. Therefore, under section 6(b) of the Executive Order, a federalism summary is not required.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is intended to have preemptive effect with respect to any State or local laws, regulations, or policies which conflict with its provisions or which would otherwise impede its full and timely implementation. This rule is not intended to have retroactive effect. Prior to any judicial challenge to the provisions of this rule or the application of its provisions, all applicable administrative procedures must be exhausted. Appeal procedures are set forth at 7 CFR 225.13.

FNS has reviewed this final rule in accordance with USDA Regulation 4300-4, “Civil Rights Impact Analysis,” to identify any major civil rights impacts the rule might have on program participants on the basis of age, race, color, national origin, sex, or disability. After a careful review of the rule's intent and provisions, FNS has determined that this rule is not expected to limit or reduce the ability of protected individuals to participate in the Summer Food Service Program or the National School Lunch Program.

Executive Order 13175 requires Federal agencies to consult and coordinate with Tribes on a government-to-government basis on policies that have Tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. FNS has assessed the impact of this rule on Indian tribes and determined that this final rule does not, to our knowledge, have tribal implications that require tribal consultation under Executive Order 13175. If a Tribe requests consultation, FNS will work with the Office of Tribal Relations to ensure meaningful consultation is provided where changes, additions and modifications identified herein are not expressly mandated by Congress. FNS is unaware of any current Tribal laws that could be in conflict with this rule.

The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; 5 CFR part 1320) requires that OMB approve all collections of information by a Federal agency before they can be implemented. Commenters are not required to respond to any collection of information unless it displays a current valid OMB control number. This rule does not contain information collection requirements subject to approval by OMB under the Paperwork Reduction Act of 1995.

USDA is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

Accordingly, 7 CFR parts 210 and 225 are amended as follows:

This correction is being published to correct the General Administrative Regulations; Subpart R—Administrative Remedies for Non-Compliance regulations. The outdated reference to “7 CFR part 3017” will be removed and replaced by the correct reference of “2 CFR parts 180 and 417” in §§ 400.451 and 400.456.

Accordingly, 7 CFR part 400 is corrected by making the following amendments:

The substance of these special conditions previously has been published in the Federal Register for public comment. These special conditions have been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, the FAA has determined that prior public notice and comment are unnecessary, and finds that, for the same reason, good cause exists for adopting these special conditions upon publication in the Federal Register.

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

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

On November 20, 2014, Textron applied for a type certificate for their new Model 700 series airplanes. The Textron Model 700 series airplanes are transport-category, twin turbofan-powered airplanes with standard seating provisions for up to 12 passengers and 2 crewmembers, and a maximum takeoff weight of 38,514 lbs.

Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.17, Textron must show that the Model 700 series airplanes meet the applicable provisions of part 25 as amended by amendments 25-1 through 25-139, 25-141, and 25-143.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Textron Model 700 series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

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

In addition to the applicable airworthiness regulations and special conditions, the Textron Model 700 series airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.17(a)(2).

The Textron Model 700 series airplanes will incorporate the following novel or unusual design features:

The installation of rechargeable lithium batteries. Known uses of rechargeable and non-rechargeable lithium batteries on airplanes include:

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

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

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

Rechargeable lithium batteries are considered to be a novel or unusual design feature in transport category airplanes, with respect to the requirements in § 25.1353. This type of battery has certain failure, operational, and maintenance characteristics that differ significantly from those of the nickel-cadmium and lead-acid rechargeable batteries currently approved for installation on transport category airplanes. These batteries introduce higher energy levels into airplane systems through new chemical compositions in various battery-cell sizes and construction. Interconnection of these cells in battery packs introduces failure modes that require unique design considerations, such as provisions for thermal management.

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

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

Special Conditions 3, 7, and 8 are self-explanatory, and the FAA does not provide further explanation for them at this time.

Special Condition 4 clarifies that the flammable-fluid fire-protection requirements of § 25.863 apply to rechargeable lithium battery installations. Section 25.863 is applicable to areas of the airplane that could be exposed to flammable fluid leakage from airplane systems. Rechargeable lithium batteries contain electrolyte that is a flammable fluid.

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

Special Condition 9 requires rechargeable lithium batteries to have “automatic” means, for charge rate and disconnect, due to the fast acting nature of lithium battery chemical reactions. Manual intervention would not be timely or effective in mitigating the hazards associated with these batteries.

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

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

As discussed above, these special conditions are applicable to the Textron Model 700 series airplane. Should Textron apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

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

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Textron Aviation Inc. Model 700 series airplane:

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

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

2. Be designed to prevent the occurrence of self-sustaining, uncontrollable increases in temperature or pressure, and automatically control the charge rate of each cell to protect against adverse operating conditions, such as cell imbalance, back charging, overcharging and overheating.

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

4. Meet the requirements of § 25.863.

5. Not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape in such a way as to cause a major or more-severe failure condition.

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

7. Have a failure sensing and warning system to alert the flight crew if its failure affects safe operation of the airplane.

8. Have a monitoring and warning feature that alerts the flightcrew when its charge state falls below acceptable levels if its function is required for safe operation of the airplane.

9. Have a means to automatically disconnect from its charging source in the event of an over-temperature condition, cell failure or battery failure.

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 prior to it becoming effective. However, we invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that resulted from adopting this AD. The most helpful comments reference a specific portion of the AD, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit them only one time. We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this rulemaking during the comment period. We will consider all the comments we receive and may conduct additional rulemaking based on those comments.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD No. 2016-0115-E, dated June 16, 2016, to correct an unsafe condition for Airbus Helicopters Model SA-365C, SA-365C1, SA-365C2, and SA-365C3 helicopters. EASA advises that the 2,000 flight hour life limit for the bolts was not referenced in the helicopter maintenance documentation. EASA states that some helicopters are therefore likely to continue flying with these bolts past their life limit. This condition, if not detected and corrected, could lead to bolt failure, resulting in main rotor mast, hub or blade damage and reduced helicopter control, EASA advises. As a result, the EASA AD requires replacing the bolts if they have reached or exceeded 2,000 flight hours, if the bolt part number (P/N) cannot be identified, or if the number of flight hours of the bolt is not known. The EASA AD also requires maintaining the continuous airworthiness records for the bolts.

These helicopters have been approved by the aviation authority of France and are approved for operation in the United States. Pursuant to our bilateral agreement with France, EASA, its technical representative, has notified us of the unsafe condition described in the EASA AD. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs.

Airbus Helicopters has issued Emergency Alert Service Bulletin No. SA365 65.51, Revision 0, dated June 2, 2016. This service information establishes a life limit of 2,000 flight hours for certain bolts installed on Airbus Helicopters Model SA-365C, SA-365C1, SA-365C2, and SA-365C3 helicopters and specifies replacing the bolts if necessary.

This AD requires the following before further flight:

• Removing from service any bolt P/N 365A31-1182-20, 365A31-1182-21, 365A31-1183-20, 365A31-1183-21, 365A31-1928-20, or 365A31-1143-20 that has accumulated 2,000 or more hours TIS or any bolt for which the hours TIS is unknown. Thereafter, removing from service each bolt P/N 365A31-1182-20, 365A31-1182-21, 365A31-1183-20, 365A31-1183-21, 365A31-1928-20, or 365A31-1143-20 before it accumulates 2,000 hours TIS.

• Removing from service any bolt with a P/N not listed in the AD or any bolt for which you cannot determine the P/N.

• Creating a component history card or equivalent record for each bolt P/N 365A31-1182-20, 365A31-1182-21, 365A31-1183-20, 365A31-1183-21, 365A31-1928-20, or 365A31-1143-20 and recording a life limit of 2,000 hours TIS.

The EASA AD applies to Airbus Helicopters Model SA-365C3 helicopters. This AD does not because the SA-365C3 helicopter has no FAA type certificate.

There are no costs of compliance with this AD because there are no helicopters with this type certificate on the U.S. Registry.

There are no helicopters with this type certificate on the U.S. Registry. We believe it is therefore unlikely that we will receive any adverse comments or useful information about this AD from U.S. operators.

Therefore, we find good cause that notice and opportunity for prior public comment are unnecessary. In addition, for the reasons stated above, we find that good cause exists for making this amendment effective in less than 30 days.

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, 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 14 CFR part 39 as follows:

I. Background

In 1972, the Commission began compiling and publishing Commission orders and rulemaking releases in an SEC Docket for weekly dissemination to the public. The Commission has determined that publishing the SEC Docket is no longer a cost-efficient way to disseminate information to the public because all materials appearing in the SEC Docket have already been posted upon release on the SEC public website at www.sec.gov.

In 2013, facing increases in publication costs and dwindling subscription numbers, the Commission began publishing the Docket electronically on the SEC website. Producing and posting the SEC Docket electronically continues to require significant staff resources. The Office of the Secretary estimates that approximately 600 staff hours are expended annually to prepare the Docket. Moreover, with Docket materials already posted elsewhere on the website several weeks before the Docket is completed and published, the Docket generally receives less than 0.01% of all SEC website traffic.

Accordingly, the Commission plans to immediately discontinue publication of the SEC Docket but to continue posting these materials on the SEC website in real time. In light of this change, the Commission is adopting technical amendments to Title 17, Chapter II of the Code of Federal Regulations to eliminate references to the SEC Docket and, where appropriate, replace references to the SEC Docket with references to the SEC website.

The Commission finds, in accordance with the Administrative Procedure Act (“APA”), that these revisions relate solely to agency organization, procedures, or practice and do not constitute a substantive rule. Accordingly, the APA's provisions regarding notice of rulemaking, opportunity for public comment, and advance publication of the amendments are not applicable.1 For the same reason, and because these amendments do not affect the rights or obligations of non-agency parties, the provisions of the Small Business Regulatory Enforcement Fairness Act are not applicable.2 Additionally, the provisions of the Regulatory Flexibility Act, which apply only when notice and comment are required by the APA or other law, are not applicable.3 These amendments do not contain any collection of information requirements as defined by the Paperwork Reduction Act of 1995.4 Further, because the amendments impose no new burdens on private parties, the Commission does not believe that the amendments will have any impact on competition for purposes of Section 23(a)(2) of the Exchange Act.5

I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port Sector Upper Mississippi River DHS Department of Homeland Security FR Federal Register MM Mile marker NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. This special local regulation must be established by June 2, 2018 and we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing this rule. The NPRM process would delay the establishment of the special local regulation until after the scheduled date of the power boat race and compromise public safety.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this temporary rule effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be impracticable and contrary to the public interest because immediate action is necessary to ensure the safety the public, participants, spectators, and the marine environment during the power boat race.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1233. The Captain of the Port Sector Upper Mississippi River (COTP) has determined that potential hazards associated with the Lake Race 2018 occurring on June 2, 2018 will be a safety concern for persons and vessels within four tenths of a mile stretch of the Osage arm of the Lake of the Ozarks. The purpose of this rule is to ensure safety of the public, participants, spectators, and the marine environment in the regulated area before, during, and after the Lake Race 2018.

This rule establishes a temporary special local regulation from 7 a.m. through 6 p.m. on June 2, 2018 on all navigable waters of the Osage arm of the Lake of the Ozarks from mile marker (MM) 0.0 to MM 0.4 in Bagnell, MO. The duration of the special local regulation is intended to protect the public from the power boat race before, during, and after the event. No vessel or person is permitted to enter the regulated area without obtaining permission from the COTP or a designated representative. A designated representative may be a Patrol Commander (PATCOM). The PATCOM may be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The PATCOM may be contacted on Channel 16 VHF-FM (156.8 MHz) by the call sign “PATCOM”.

All persons and vessels not registered with the sponsor as participants or official patrol vessels are considered spectators. The “official patrol vessels” consist of any Coast Guard, state, or local law enforcement and sponsor provided vessels assigned or approved by the COTP or a designated representative to patrol the regulated area.

Spectator vessels desiring to enter, transit through or within, or exit the regulated area may do so only with permission from the COTP or a designated representative, and when permitted, must operate at a minimum safe navigation speed in a manner which will not endanger participants in the regulated area or any other vessels. No spectator vessel shall anchor, block, loiter, or impede the through transit of participants or official patrol vessels in the regulated area during the effective dates and times, unless cleared for entry by or through an official patrol vessel. Any spectator vessel may anchor outside the regulated area, but may not anchor in, block, or loiter in a navigable channel. Spectator vessels may be moored to a waterfront facility within the regulated area in such a way that they shall not interfere with the progress of the event. Such mooring must be complete at least 30 minutes prior to the establishment of the regulated area and remain moored through the duration of the event.

The COTP or a designated representative may forbid and control the movement of all vessels in the regulated area. When hailed or signaled by an official patrol vessel, a vessel shall come to an immediate stop and comply with the directions given. Failure to do so may result in expulsion from the area, citation for failure to comply, or both.

The COTP or a designated representative may terminate the event or the operation of any vessel at any time it is deemed necessary for the protection of life or property. The COTP or a designated representative will terminate enforcement of the special local regulations at the conclusion of the event.

The COTP or a designated representative will inform the public of the enforcement times and date for this regulated area through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs) as appropriate.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the size, location, duration, and time-of-day for the special local regulation. This special local regulation cover a less than half-mile stretch of the arm of the Osage arm of the Lake of the Ozarks for eleven hours on one day. Moreover, the Coast Guard will issue BNMs via VHF-FM marine channel 16 about the regulation so that waterway users may plan accordingly for transits during this restriction, and the rule allows vessels to seek permission from the COTP or a designated representative to enter the regulated area.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a special local regulation lasting eleven hours on a four-tenths of a mile stretch of the Osage arm of the Lake of the Ozarks. It is categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

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

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

New York City Transit, the bridge owner, requested a temporary deviation from the normal operating schedule to facilitate replacement of the middle track. The Broadway Bridge across the Harlem River, mile 6.8, has a vertical clearance in the closed position of 24 feet at mean high water and 29 feet at mean low water. The existing bridge operating regulations are listed at 33 CFR 117.789(b)(1).

Under this temporary deviation, the Broadway Bridge shall remain in the closed position between 6 a.m. and 7 p.m. on June 9, June 16, June 23, June 30, August 4 and August 11, 2018; and between 6 a.m. and 5 p.m. on June 17, July 1, August 5 and August 12, 2018.

The waterway is transited by commercial and recreational traffic. The Coast Guard notified known commercial vessel operators that transit the area, including the Sandy Hook Pilots Association and the local Tug/Tow Committee; there were no objections to this temporary deviation. Vessels able to pass under the bridge in the closed position may do so at any time. The bridge will not be able to open for emergencies and there is no immediate alternate route for vessels to pass.

The Coast Guard will inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

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

The Town of Hempstead Department of Public Works requested this temporary deviation and both Nassau County, the owner of the Long Beach Bridge, and the New York State Department of Transportation, the owner of the Loop Parkway Bridge, concur with the request to deviate from the normal operating schedules to facilitate the “Annual Salute to Veterans and Fireworks Display.”

The Long Beach Bridge across Reynolds Channel, mile 4.7, has a vertical clearance of 22 feet at mean high water and 24 feet at mean low water in the closed position. The existing drawbridge operating regulation is listed at 33 CFR 117.799(g). The Loop Parkway Bridge across Long Creek, mile 0.7, has a vertical clearance of 21 feet at mean high water and 25 feet at mean low water in the closed position. The existing drawbridge operating regulation is listed at 33 CFR 117.799(f).

The temporary deviation will allow both bridges to remain closed from 9:30 p.m. to 11:59 p.m. on June 30, 2018 with rain date of July 1, 2018. Reynolds Channel and Long Creek are transited by seasonal recreational vessels and commercial vessels. Coordination with Coast Guard Sector Long Island Sound has indicated no mariner objections to the proposed short-term closure of the bridges.

Vessels that can pass under the bridges without an opening may do so at all times. The bridges will be able to open for emergencies. There is no alternate route for vessels to pass.

The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridges so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

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

The event director, Ocean City, Maryland, Department of Emergency Services, with approval from the Maryland State Highway Administration, who owns and operates the U.S. 50 (Harry Kelly) Bridge, has requested a temporary deviation from the current operating regulations to accommodate the free movement of pedestrians and vehicles during the 2017 Ocean City Air Show. The bridge is a double bascule bridge and has a vertical clearance in the closed position of 13 feet above mean high water.

The current operating schedule is set out in 33 CFR 117.559. Under this temporary deviation, the bridge will be maintained in the closed-to-navigation position from 4:30 p.m. to 5 p.m. on June 16 and 17, 2018. The Isle of Wight (Sinepuxent) Bay is used by a variety of vessels including small commercial vessels and recreational vessels. The Coast Guard has carefully considered the nature and volume of vessel traffic on the waterway in publishing this temporary deviation.

Vessels able to pass through the bridge in the closed position may do so at any time. The bridge will be able to open for emergencies and there is no immediate alternate route for vessels unable to pass through the bridge in the closed position. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notice to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impacts caused by this temporary deviation.

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

The Coast Guard will enforce a safety zone for the Rice's Landing Riverfest in 33 CFR 165.801, Table 1, Line 7 from 9:45 p.m. through 10:45 p.m. each day on June 8, 2018 and June 9, 2018. This action is being taken to provide for the safety of life on navigable waterways during this 2-day event. Our regulation for marine events within the Eighth Coast Guard District, § 165.801, specifies the location of the safety zone for the Rice's Landing Riverfest, which covers a less than one-mile stretch of the Monongahela River. Entry into the safety zone is prohibited unless authorized by the Captain of the Port Marine Safety Unit Pittsburgh (COTP) or a designated representative. Persons or vessels desiring to enter into or pass through the area must request permission from the COTP or a designated representative. They can be reached on VHF FM channel 16. If permission is granted, all persons and vessel shall comply with the instructions of the COTP or designated representative.

In addition to this notice of enforcement in the Federal Register, the COTP or a designated representative will inform the public through Broadcast Notice to Mariners (BNM), Local Notices to Mariners (LNM), Marine Safety Information Bulletins (MSIBs), and/or through other means of public notice as appropriate at least 24 hours in advance of each enforcement.

I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port Sector Upper Mississippi River DHS Department of Homeland Security FR Federal Register MM Mile marker NPRM Notice of proposed rulemaking §  Section U.S.C. United States Code UMR Upper Mississippi River II. Background Information and Regulatory History

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. We must establish this safety zone by July 3, 2018 and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule. The NPRM process would delay the establishment of the safety zone until after the event and compromise public safety.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Delaying the effective date of the rule is contrary to the public interest as it would delay the safety measures necessary to respond to potential safety hazards associated with the air show evolutions.

The Fair St. Louis will be holding air shows and a fireworks display in the vicinity of the St. Louis Gateway Arch from mile marker (MM) 179 to MM 180 on the 4th of July. A practice session for the air shows will be held on July 3, 2018 from noon through 2 p.m. The air shows will take place on July 4, 2018 twice: Between the hours of 12:30 p.m. through 2 p.m., and 6:45 p.m. through 8:15 p.m. The fireworks display will take place from 9 p.m. through 10 p.m. on July 4, 2018.

The Coast Guard is issuing this rule under the authority in 33 U.S.C. 1231. The purpose of this rule to provide for the safety of life and property during the air shows and the fireworks display. Over the years, there have been unfortunate instances of aircraft mishaps that involve crashing during performances at various air shows around the world. Occasionally, these incidents result in a wide area of scattered debris in the water that can damage property or cause significant injury or death to the public observing the air shows. The Captain of the Port Sector Upper Mississippi River (COTP) has determined that a safety zone is necessary to protect the general public from hazards associated with the aerobatic and high speed aerial flight demonstrations. In addition, potential hazards associated with firework displays include accidental discharge of fireworks, dangerous projectiles, and falling embers or other debris. The COTP has determined that a safety zone is necessary to protect the general public from hazards associated with the fireworks display. The purpose of this rule is to ensure the safety of life and property on the navigable waters in the safety zone before, during, and after the air show practice, the air shows, and the fireworks display.

This rule establishes a safety zone from noon on July 3, 2018 through 10:30 p.m. on July 4, 2018. It will be enforced during four separate periods, once on July 3, 2018 from noon through 2 p.m., and three times on July 4, 2018 from noon to 2 p.m., from 6:30 p.m. to 8:15 p.m., and from 8:30 p.m. to 10:30 p.m. The safety zone will cover all navigable waters between mile markers (MMs) 179 and 180, extending the entire width of the river, on the Upper Mississippi River (UMR) in St. Louis, MO. Entry of vessels or persons into this zone is prohibited unless authorized by the COTP or a designated representative. A designated representative may be a Patrol Commander (PATCOM). The PATCOM may be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The PATCOM may be contacted on Channel 16 VHF-FM (156.8 MHz) by the call sign “PATCOM”. The COTP or a designated representative may be contacted on VHF-FM channel 13 or 16, or by phone at by telephone at 314-269-2332. All persons and vessels permitted to enter this safety zone must transit at their slowest safe speed and comply with all lawful directions issued by the COTP or the designated representative.

The COTP or a designated representative will inform the public of the effective period for the safety zone as well as any changes in the dates and times of enforcement through Local Notice to Mariners (LNMs), Broadcast Notices to Mariners (BNMs), and/or Marine Safety Information Bulletins (MSIBs) as appropriate.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the size, location, and duration of the safety zone. This safety zone impacts a one-mile stretch of the UMR for a total of seven and a half hours. Moreover, the Coast Guard would issue a BNMs via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting a total of seven and a half hours that will prohibit entry on a one-mile stretch of the UMR on July 3rd and 4th, 2018. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration is available in the docket where indicated under ADDRESSES.

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port Detroit DHS Department of Homeland Security FR Federal Register NPRM Notice of Proposed Rulemaking §  Section U.S.C. United States Code II. Background Information and Regulatory History

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b) (B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable. The Coast Guard did not receive the final details of this offshore barrier test in time to publish an NPRM. As such, it is impracticable to publish an NPRM because we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would inhibit the Coast Guard's ability to protect participants, mariners and vessels from the hazards associated with this event.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Detroit (COTP) has determined that potential hazard associated with offshore barrier test from 7 a.m. on May 30, 2018 through 4 p.m. on June 2, 2018 will be a safety concern to anyone within a 2000 yard radius of the site. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the offshore barrier test is being conducted.

This rule establishes a safety zone from 7 a.m. on May 30 until 4 p.m. on June 2, 2018. The safety zone will encompass all U.S. navigable waters of Lake Huron, North Lakeport, MI, within a 2000 yard of position 43°08.7′ N, 082°26.5′ W (NAD 83). No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the size, location, duration, and time-of-year of the safety zone. Vessel traffic will be able to safely transit around this safety zone which will impact a small designated area of Lake Huron from 7 a.m. on May 30, 2018 through 4 p.m. on June 2, 2018. Moreover, the Coast Guard will issue Broadcast Notice to Mariners (BNM) via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission to enter the zone.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting 4 days that will prohibit entry into a designated area. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

On January 17, 2018, the Office published a final rule regarding the deposit requirements for certain types of literary works and musical compositions. 83 FR 2371 (Jan. 17, 2018) (“Deposit Requirements Final Rule”). Among other things, the Deposit Requirements Final Rule amended 37 CFR 202.19. On January 30, 2018, the Office published a final rule regarding the group registration of newspapers. 83 FR 4144 (Jan. 30, 2018 (“Group Newspaper Registration Final Rule”). The Group Newspaper Registration Final Rule also amended 37 CFR 202.19, but the amendments inadvertently eliminated a provision that had been added by the Deposit Requirements Final Rule. The Deposit Requirements Final Rule went into effect February 16, 2018. The Group Newspaper Registration Final Rule went into effect March 1, 2018.

Thus, the Copyright Office is amending 37 CFR 202.19 to correct this error.

For the reasons set forth in the preamble, the Copyright Office amends 37 CFR part 202, as follows:

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

States are required to submit a progress report every five years that evaluates progress towards the Reasonable Progress Goals (RPGs) for each mandatory Class I Federal area within the State and in each mandatory Class I Federal area outside the State which may be affected by emissions from within the State. See 40 CFR 51.308(g). States are also required to submit, at the same time as the progress report, a determination of the adequacy of their existing regional haze SIP. See 40 CFR 51.308(h). The first progress report is due five years after the submittal of the initial regional haze SIP.

Michigan submitted its regional haze plan on November 5, 2010. EPA partially approved Michigan's regional haze plan into its SIP on December 3, 2012 (77 FR 71533).

As part of this action, EPA found that the State's submittal appropriately addressed the best available retrofit technology (BART) requirements for some sources but failed to satisfy BART for two sources, namely St. Marys Cement (SMC) and Escanaba Paper Company. EPA promulgated a Federal Implementation Plan (FIP) that included nitrogen oxide emission (NOx) limits for these two sources and sulfur dioxide emission limits for SMC to satisfy these requirements on December 3, 2012 (77 FR 71533).

In order to satisfy the requirements for BART for certain taconite ore processing facilities in Minnesota and Michigan, EPA promulgated a taconite FIP on February 6, 2013 (78 FR 8706), and revised the taconite FIP on April 9, 2015 (81 FR 21672). In Michigan, the taconite facility impacted by this FIP is the Tilden Mining Company.

Michigan submitted its five-year progress report on January 12, 2016. The State submitted its determination of adequacy with the progress report.

The emission reductions from several Federal programs are contributing to visibility improvement in Michigan. In its regional haze plan, Michigan considered the emission reductions from the Tier 2 Gasoline, Heavy-duty Highway Diesel, Non-road Diesel, and a variety of Maximum Achievable Control Technology programs. Michigan also relied, in part, on the Clean Air Interstate Rule (CAIR) to meet certain regional haze requirements. EPA issued a limited disapproval of Michigan's regional haze SIP based on its reliance on CAIR and issued a FIP on June 11, 2012 replacing reliance on CAIR with reliance on the Cross State Air Pollution Rule (CSAPR) (77 FR 33642).

EPA published a direct final rule (DFR) on October 18, 2017 (82 FR 48435), approving the Michigan regional haze progress report as a revision to the Michigan SIP, along with a proposed rule (82 FR 48473), that provided a 30-day public comment period.

The DFR states that if EPA received adverse comments, EPA would publish a timely withdrawal of the DFR in the Federal Register informing the public that the rule will not take effect. EPA received adverse comments during the comment period, and the October 18, 2017 DFR approving the Michigan regional haze progress report was withdrawn on December 8, 2017 (82 FR 57836). The adverse comments received are addressed below.

EPA evaluated the Michigan submittal assessing the state's progress in implementing its regional haze plan during the first half of the first implementation period, as well as the statutory and regulatory background for Michigan's regional haze plan. The DFR also provided a description of the regional haze requirements addressed in the Michigan progress report.

EPA received four comments on the DFR (82 FR 48435). In the first comment, New Jersey expressed concern over sources in Michigan impacting Class I areas in the northeast. The second and third comments were anonymous and dealt with Federal Implementation Plans (FIPs) and regional trading programs, respectively. A fourth comment was not relevant to the rulemaking. We will address the comments here.

Comment #1—EPA received a comment from the New Jersey Department of Environmental Protection (NJDEP) stating that EPA cannot approve the Michigan regional haze 5-year progress report because it is unclear how the State has addressed the request from the Mid-Atlantic Northeast Visibility Union (MANE-VU) states to reduce emissions from several electric generating units in Michigan. NJDEP noted that two of the facilities in Michigan identified by MANE-VU—Trenton Channel (Unit 9A) and Saint Clair (Unit 7)—have not reduced sulfur dioxide emissions and thus remain large uncontrolled sources of sulfur dioxide that adversely impact visibility in the MANE-VU region.

EPA's Response—Michigan is a member of the Midwest Regional Planning Organization (Midwest RPO), a collaborative effort of state governments and federal agencies to coordinate activities associated with the management of regional haze, visibility, and other air quality issues in the Midwest. During the first planning period of the regional haze program, the Midwest RPO and other regional planning organizations facilitated consultations between states to help in the determination of appropriate control strategies for regional haze. The adequacy of Michigan's consultation with other states and its responses to other states' requests for specific emissions reductions were reviewed in EPA's assessment of its regional haze SIP submitted in 2010. EPA approved Michigan's decision to not require source-specific controls at Trenton Channel (Unit 9A) and Saint Clair (Unit 7) at that time. Given this, NJDEP's comments regarding Michigan's response to the request from MANE-VU fall outside the scope of this rulemaking.

We do note, however, that the two sources specifically mentioned in NJDEP's comment, Trenton Channel Unit 9A and Saint Clair Unit 7, owned by DTE Energy, are tentatively scheduled to be shut down 1 in 2023.

I. Background

Under the CAA, EPA establishes NAAQS for criteria pollutants in order to protect human health and the environment. In response to scientific evidence linking ozone exposure to adverse health effects, EPA promulgated the first ozone NAAQS, the 0.12 part per million (ppm) 1-hour ozone NAAQS, in 1979. See 44 FR 8202 (February 8, 1979). The CAA requires EPA to review and reevaluate the NAAQS every 5 years in order to consider updated information regarding the effects of the criteria pollutants on human health and the environment. On July 18, 1997, EPA promulgated a revised ozone NAAQS, referred to as the 1997 ozone NAAQS, of 0.08 ppm averaged over eight hours. 62 FR 38855. This 8-hour ozone NAAQS was determined to be more protective of public health than the previous 1979 1-hour ozone NAAQS. In 2008, EPA strengthened the 8-hour ozone NAAQS from 0.08 to 0.075 ppm. The 0.075 ppm standard is referred to as the 2008 ozone NAAQS. See 73 FR 16436 (March 27, 2008).

On May 21, 2012 and June 11, 2012, EPA designated nonattainment areas for the 2008 ozone NAAQS. 77 FR 30088 and 77 FR 34221. Effective July 20, 2012, the Washington, DC-MD-VA area was designated as marginal nonattainment for the 2008 ozone NAAQS. The Virginia portion of the Washington, DC-MD-VA nonattainment area is comprised of Arlington County, Fairfax County, Loudoun County, Prince William County, Alexandria City, Fairfax City, Falls Church City, Manassas City, and Manassas Park City. See 40 CFR 81.347.

Section 182 of the CAA identifies additional plan submissions and requirements for ozone nonattainment areas. Specifically, section 182(a)(3)(B) of the CAA requires that states develop and submit, as a revision to their SIP, rules which establish annual reporting requirements for certain stationary sources. Sources that are within marginal or above ozone nonattainment areas must annually report the actual emissions of NOX and VOC to the state. However, states may waive sources that emit under 25 tpy of NOX and VOC if the state provides an inventory of emissions from such class or category of sources as required by CAA sections 172 and 182. See CAA section 182(a)(3)(B)(ii).

Additionally, portions of Virginia are included in the ozone transport region (OTR) established by Congress in section 184 of the CAA. The OTR is comprised of the states of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, and the Consolidated Metropolitan Statistical Area that includes the District of Columbia and portions of Virginia. The areas designated as in the Virginia portion of the OTR are as follows: Arlington County, Fairfax County, Loudoun County, Prince William County, Stafford County, Alexandria City, Fairfax City, Falls Church City, Manassas City, and Manassas Park City.1

Pursuant to section 184(b)(2), any stationary source located in the OTR that emits or has the potential to emit at least 50 tpy of VOC shall be considered a major stationary source and subject to the requirements which would be applicable to major stationary sources if the area was classified as a moderate nonattainment area. See CAA section 184. Thus, states within the OTR are subject to plan (or SIP) requirements in CAA section 182(b) applicable to moderate nonattainment areas. Also, section 182(f)(1) of the CAA requires that the plan provisions required for major stationary sources of VOC also apply to major stationary sources of NOX for states with ozone nonattainment areas. A major stationary source of NOX is defined as a stationary facility or source of air pollutants which directly emits, or has the potential to emit, 100 tpy or more of NOX. See CAA section 302(j).

In summary, sources located within the portions of Virginia included in the OTR, including areas designated as attainment for the 2008 ozone NAAQS, that emit more than 50 tpy of VOC or 100 tpy of NOX are considered major sources and are subject to the same requirements as major stationary sources located in moderate or above nonattainment areas. These requirements include the emissions statement requirements of CAA section 182(a)(3)(B). See CAA section 182(f) and 184(b)(2). Sources located in designated marginal or above nonattainment areas must also submit an emissions statement as required by CAA section 182(a)(3)(B). As stated previously, states may waive sources that emit less than the 25 tpy of NOX and 25 tpy of VOC threshold if the state provides an inventory of emissions from such class or category of sources as required by CAA sections 172 and 182. See CAA section 182(a)(3)(B)(ii). States are required by section 182(a)(3)(B) of the CAA to submit, for approval into the state's SIP, rules requiring the sources described above to provide annual statements showing their actual emissions of NOX and VOC to the state.

The EPA published guidance on source emissions statements in a July 1992 memorandum titled, “Guidance on the Implementation of an Emission Statement Program” and in a March 14, 2006 memorandum titled, “Emission Statement Requirements Under 8-hour Ozone NAAQS Implementation” (2006 memorandum). In addition, on March 6, 2015, EPA issued a final rule addressing a range of nonattainment area SIP requirements for the 2008 ozone NAAQS, including the emissions statement requirements of CAA section 182(a)(3)(B) (2015 final rule). 80 FR 12264. The 2006 memorandum clarified that the source emissions statement requirement of CAA section 182(a)(3)(B) was applicable to all areas designated nonattainment for the 1997 ozone NAAQS and classified as marginal or above under subpart 2, part D, title I of the CAA. Per EPA's 2015 final rule, the source emissions statement requirement also applies to all areas designated nonattainment for the 2008 ozone NAAQS.

According to EPA's 2015 final rule, most areas that are required to have an emissions statement program for the 2008 ozone NAAQS already have one in place due to a nonattainment designation for an earlier ozone NAAQS. EPA's 2015 final rule states that, “If an area has a previously approved emissions statement rule in force for the 1997 ozone NAAQS or the 1-hour ozone NAAQS that covers all portions of the nonattainment area for the 2008 ozone NAAQS, such rule should be sufficient for purposes of the emissions statement requirement for the 2008 ozone NAAQS.” In cases where an existing emissions statement rule is still adequate to meet the emissions statement requirement under the 2008 ozone NAAQS, states may provide the rationale for that determination to EPA in a written statement for approval into the SIP to meet the requirements of CAA section 182(a)(3)(B). In this statement, states should identify how the emissions statement requirements of CAA section 182(a)(3)(B) are met by their existing emissions statement rule.

In summary, Virginia is required to submit, as a formal revision to its SIP, a statement certifying that Virginia's existing emissions statement program satisfies the requirements of CAA section 182(a)(3)(B) and covers the Washington, DC-MD-VA nonattainment area for the 2008 ozone NAAQS.2

On August 1, 2017, the Commonwealth of Virginia, through the Virginia Department of Environmental Quality (VADEQ), submitted, as a formal revision to its SIP, a statement certifying that Virginia's existing SIP-approved emissions statement program covers the Virginia portion of the Washington, DC-MD-VA nonattainment area for the 2008 ozone NAAQS and is at least as stringent as the requirements of CAA section 182(a)(3)(B). In its submittal, Virginia states that the emissions statement requirements of CAA section 182(a)(3)(B) are contained under 9VAC5-20-160 (Registration) of the Virginia Administrative Code and are SIP-approved under 40 CFR 52.2420(c). According to Virginia, these provisions mandate that facilities emitting more than 25 tpy of NOX or VOC must submit emission statements to Virginia while those emitting less than 25 tpy must comply with inventory requirements.

The provisions under 9VAC5-20-160 that implement Virginia's emissions statement program were approved into the Virginia SIP on May 2, 1995 (60 FR 21451).3 These provisions require the owner of any stationary source that emits 25 tpy or more of VOC or NOX and is located in an emissions control area designated under 9VAC5-20-206 (Volatile Organic Compound and Nitrogen Oxides Emissions Control Areas) to submit an emissions statement to the Virginia State Air Pollution Control Board by April 15 of each year for the emissions discharged during the previous calendar year.4 Emissions statements are required to be prepared and submitted in accordance with 9VAC5-20-121 (Air Quality Program Policies and Procedures), which references Virginia's January 1, 1993 document AQP-8 titled, “Procedures for Preparing and Submitting Emission Statements for Stationary Sources.” The provisions under 9VAC5-20-121 were also approved into the Virginia SIP on May 2, 1995 (60 FR 21451).

EPA's review of the Commonwealth of Virginia's submittal finds that Virginia's existing, SIP-approved emissions statement program under 9VAC5-20-160 satisfies the requirements of CAA section 182(a)(3)(B) for emission statements for sources located in marginal or above nonattainment areas including such sources in the Virginia portion of the Washington, DC-MD-VA nonattainment area for the 2008 ozone NAAQS. EPA notes 9VAC5-20-160 also requires sources located in portions of Virginia included in the OTR to submit required emission statements in accordance with CAA section 184 (OTR requirements) and 182 (plan submissions and requirements for ozone nonattainment areas). Pursuant to CAA sections 182 and 184, Virginia is required to have an emissions statement program for sources located in marginal or above nonattainment areas and the portions of Virginia included in the OTR. EPA finds the provisions under 9VAC5-20-160 satisfy these requirements of CAA sections 182 and 184 because they apply to the Northern Virginia Emissions Control Area, which includes the Virginia localities within the Virginia portion of the Washington, DC-MD-VA nonattainment area for the 2008 ozone NAAQS (i.e., Arlington County, Fairfax County, Loudoun County, Prince William County, Alexandria City, Fairfax City, Falls Church City, Manassas City, and Manassas Park City), and the portions of Virginia included in the OTR (i.e., Arlington County, Fairfax County, Loudoun County, Prince William County, Stafford County, Alexandria City, Fairfax City, Falls Church City, Manassas City, and Manassas Park City). EPA also finds Virginia's emissions thresholds for sources that are required to submit an emissions statement meet the requirements of CAA sections 182 and 184. As stated above, 9VAC5-20-160 requires the owner of any stationary source located in an emissions control area that emits 25 tpy or more of VOC or NOX to annually submit an emissions statement. This 25 tpy threshold is equivalent to the threshold required by CAA section 182. As previously mentioned, per CAA section 182(a)(3)(B)(ii), states may waive sources that emit less than 25 tpy of NOX or VOC if the state provides an inventory of emissions from such class or category of sources as required by CAA sections 172 and 182. Virginia does provide emissions inventories for nonattainment areas as required by CAA section 172(c)(3).5 Therefore, EPA has determined that 9VAC5-20-160, which is currently in the Virginia SIP, is appropriate to address the emissions statement requirements in section 182(a)(3)(B) for the 2008 ozone NAAQS.

On March 12, 2018 (83 FR 10652), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Virginia. In the NPR, EPA found the Commonwealth's August 1, 2017 emissions statement program certification to be approvable under CAA section 182(a)(3)(B) and proposed to approve it as a revision to the Virginia SIP.

EPA received public comments on our March 12, 2018 proposal to approve Virginia's emissions statement certification for the 2008 ozone NAAQS. All of the submitted comments were either supportive of or not specific to this action and thus are not addressed here.

EPA is approving the Commonwealth's August 1, 2017 emissions statement program certification as a revision to the Virginia SIP.

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) Are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce federally authorized environmental programs in a manner that is no less stringent than their federal counterparts. . . .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.

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

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

• is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866.

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

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

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

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

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

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

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

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

The SIP is not approved to apply on any Indian reservation land as defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 31, 2018. 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 approving Virginia's certification that its existing SIP-approved emissions statement program under 9VAC5-20-160 satisfies the requirements of CAA section 182(a)(3)(B) for the 2008 ozone NAAQS may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

The supplementary information is organized in the following order:

EPA is providing notice of an update to its delegable authority for implementation and enforcement of the Federal standards shown in the tables below to the states of Iowa, Kansas, Missouri, and Nebraska. This action updates the delegation tables previously published at 80 FR 10596 (February 27, 2015). EPA has established procedures by which these agencies are automatically delegated the authority to implement the standards when they adopt regulations which are identical to the Federal standards. We then periodically provide notice of the new and revised standards for which delegation has been given. This document does not affect or alter the status of the listed standards under state or Federal law.

For the current, most up-to-date, status of delegations to the above-mentioned agencies, please refer to the following web pages:

1. Section 111(c)(1) of the Clean Air Act (CAA) authorizes EPA to delegate authority to any state agency which submits adequate regulatory procedures for implementation and enforcement of the NSPS program. The NSPS are codified at 40 CFR part 60.

2. Section 112(l) of the CAA and 40 CFR part 63, subpart E, authorizes EPA to delegate authority to any state or local agency which submits adequate regulatory procedures for implementation and enforcement of emission standards for hazardous air pollutants. The hazardous air pollutant standards are codified at 40 CFR parts 61 and 63, respectively.

Delegation confers primary responsibility for implementation and enforcement of the listed standards to the respective state and local air agencies. However, EPA also retains the concurrent authority to enforce the standards.

Tables I, II, and III below list the delegated standards. Each item listed in the Subpart column has two relevant dates listed in each column for each state. The first date in each block is the reference date to the CFR contained in the state rule. In general, the state or local agency has adopted the applicable standard through the date as noted in the table. The second date is the most recent effective date of the state agency rule for which the EPA has granted the delegation. This document specifically addresses revisions to the columns for Iowa, Kansas, Missouri, and Nebraska and the local agencies of Lincoln-Lancaster County, Nebraska, and the city of Omaha, Nebraska. If there are no dates listed in the delegation table, the state has not accepted delegation of the standard and implementation of those standards reside with EPA.

1. The EPA regulations effective after the first date specified in each block have not been delegated, and authority for implementation of these regulations is retained solely by EPA.

2. In some cases, the standards themselves specify that specific provisions cannot be delegated. In such cases, a specific section of the standard details what authorities can and cannot be delegated. You should review the applicable standard in the CFR for this information.

3. In some cases, the state rules do not adopt the Federal standard in its entirety. Each state rule (available from the respective agency) should be consulted for specific information.

4. In some cases, existing delegation agreements between the EPA and the agencies limit the scope of the delegated standards. Copies of delegation agreements are available from the state agencies, or from this office.

5. With respect to 40 CFR part 63, subpart A, General Provisions (see Table III), EPA has determined that sections 63.6(g), 63.6(h)(9), 63.7(e)(2)(ii) and (f), 63.8(f), and 63.10(f) cannot be delegated. Additional information is contained in 40 CFR 63.91(g)(2).

On July 18, 1997 (62 FR 38652), EPA revised the NAAQS for particulate matter to add new standards for PM2.5 (annual and 24-hour). The primary and secondary annual standards were each set at a level of 15.0 micrograms per cubic meter (μg/m3), based on a 3-year average of annual mean PM2.5 concentrations. The primary and secondary 24-hour standards were each set at a level of 65 μg/m3, based on a 3-year average of the 98th percentile of 24-hour concentrations. EPA established the standards based on significant evidence and numerous health studies demonstrating that serious health effects are associated with exposures to particulate matter.

The process for designating areas following promulgation of a new or revised NAAQS is contained in section 107(d)(1) of the Clean Air Act (CAA). EPA and state air quality agencies initiated the monitoring process for the 1997 PM2.5 NAAQS in 1999, and deployed all air quality monitors by January 2001. On January 5, 2005 (70 FR 944), EPA designated areas across the country as nonattainment, unclassifiable, or unclassifiable/attainment 1 for the 1997 PM2.5 NAAQS based upon air quality monitoring data from these monitors for calendar years 2001-2003.

Greenville County, South Carolina, had a monitor with less than three years of data because the monitor had not been in operation for the full 2001-2003 period. Based upon the data that was obtained during its operation, the monitor indicated a potential to violate the 1997 annual PM2.5 NAAQS. Also, Anderson and Spartanburg Counties had emissions and population levels that potentially contributed to the elevated concentrations of PM2.5 at the Greenville monitor in question. Therefore, EPA designated all three counties—Anderson, Greenville and Spartanburg—as unclassifiable for the 1997 annual PM2.5 NAAQS.

On January 22, 2018, South Carolina submitted a request for EPA to redesignate the Greenville Area to unclassifiable/attainment for the 1997 annual PM2.5 NAAQS now that there is sufficient data to determine that the Area is in attainment. In a notice of proposed rulemaking (NPRM) published on March 13, 2018 (83 FR 10814), EPA proposed to approve the State's redesignation request. The details of South Carolina's submittal and the rationale for EPA's actions are further explained in the NPRM. EPA did not receive any adverse comments on the proposed action.

EPA is approving South Carolina's redesignation request and redesignating the Greenville Area from unclassifiable to unclassifiable/attainment for the 1997 primary and secondary annual PM2.5 NAAQS.

Under the CAA, redesignation of an area to unclassifiable/attainment is an action that affects the status of a geographical area and does not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to unclassifiable/attainment does not in and of itself create any new requirements. Accordingly, this action merely redesignates an area to unclassifiable/attainment and does not impose additional requirements. 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);

• is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because redesignations are exempted under Executive Order 12866;

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

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

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

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

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

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

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

• will not have disproportionate human health or environmental effects under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this action does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). The Catawba Indian Nation Reservation is located within the State of South Carolina. Pursuant to the Catawba Indian Claims Settlement Act, S.C. Code Ann. 27-16-120, “all state and local environmental laws and regulations apply to the Catawba Indian Nation and Reservation and are fully enforceable by all relevant state and local agencies and authorities.” However, because no tribal lands are located within the Area and the redesignation does not create new requirements, EPA has determined that this rule does not have substantial direct effects on an Indian Tribe. EPA notes this action will not impose substantial direct costs on Tribal governments or preempt Tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 31, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

40 CFR part 81 is amended as follows:

In carrying out our responsibility to enforce the Endangered Species Act of 1973, as amended (Act; 16 U.S.C. 1531 et seq.), we, the U.S. Fish and Wildlife Service (Service), maintain the Lists of Endangered and Threatened Wildlife and Plants in title 50 of the Code of Federal Regulations (CFR). We added Trichostema austromontanum ssp. compactum to the List of Endangered and Threatened Plants in 1998 (63 FR 49006, September 14, 1998). On January 5, 2017, we proposed to remove this subspecies from the List.

Please refer to the proposed delisting rule for Trichostema austromontanum ssp. compactum (82 FR 1296, January 5, 2017) for a detailed description of previous Federal actions concerning this subspecies.

Trichostema austromontanum ssp. compactum, a member of the Lamiaceae (mint family), was described by F. Harlan Lewis (1945) based on specimens collected in 1941, by M.L. Hilend at Hidden Lake in the San Jacinto Mountains of Riverside County, California. Trichostema a. ssp. compactum is a compact, soft-villous (with long, shaggy hairs), annual plant, approximately 4 inches (in) (10 centimeters (cm)) tall, with short internodes (stem segments between leaves), elliptic leaves, and blue flowers with a five-lobed corolla (Lewis 1945, pp. 280-281, 284-285; Lewis 1993, p. 732). For a detailed discussion and species description of Trichostema austromontanum ssp. compactum, please see our proposed delisting rule (82 FR 1296, January 5, 2017).

Trichostema austromontanum ssp. compactum is found only on the margins of Hidden Lake, a small montane vernal pool, in the San Jacinto Mountains, Riverside County, California. At an elevation of 8,700 feet (ft) (2,650 meters (m)), Hidden Lake is Riverside County's only high-elevation vernal pool (Bauder 1999, pp. 3-4), and is owned and managed by Mount San Jacinto State Park (Park). Hidden Lake is located within a California State Park Natural Preserve (The Hidden Lake Divide Natural Preserve) and is surrounded by the Mount San Jacinto State Wilderness Area (CDPR 2002, pp. 62-63). The single pool that supports the entire range of T. a. ssp. compactum encompasses an area of approximately 2 acres (ac) (1 hectare (ha)) and is about 4 ft (1.3 m) deep during the period of maximum inundation (November to April) (Bauder 1999, p. 13; CDPR 2002, pp. 62-63). The pool shrinks in size as the seasons progress, sometimes remaining wet in the center and other times drying out completely.

A small portion of the population (36 individuals) of Trichostema austromontanum ssp. compactum was once observed less than 300 ft (91 m) outside of the Hidden Lake area of inundation (Fraga and Wall 2007, p. 10). This area is within the vernal pool's watershed, and is within the aforementioned Natural Preserve and State Wilderness. We do not consider this small group of individuals to be biologically separate from the rest of the population within the margins of Hidden Lake because the areas are in such close proximity to each other and are connected through the watershed.

Several studies have examined the breeding system, habitat parameters, and micro-distribution of Trichostema austromontanum ssp. compactum and its relatives (Lewis 1945, pp. 276-303; Lewis 1960, pp. 93-97; Spira 1980, pp. 278-284; Bauder 1999, pp. 1-41). Seeds of T. a. ssp. compactum typically germinate in early July, and plants complete their life cycle as the temperature begins to drop to freezing (October to November) (Fraga and Wall 2007, pp. 2-5). Plants generally flower between July and September, but flowering has been documented as late as November (Bauder 1999, p. 1; Fraga and Wall 2007, pp. 4-5). Fruits and seeds begin to develop in early August and continue to develop until November (Fraga and Wall 2007, pp. 2-5). Trichostema austromontanum ssp. compactum has no documented pollinators and is self-compatible (flowers are able to be fertilized by pollen from the same plant) (89.1 percent seed set with the exclusion of pollinators) (Spira 1980, p. 282). Spira (1980, p. 280) also found that insects visiting the other subspecies of T. austromontanum lacked pollen grains on their dorsal surface (which is needed for the transfer of pollen to stigma) and, therefore, were not acting as effective pollinators. More research is needed to investigate the importance of pollinators for reproduction and seed set of T. a. ssp. compactum.

Trichostema austromontanum ssp. compactum produces seeds that contribute to a viable seed bank, which provides adaptability to variable environmental conditions. In nature, plants occur around the margins of Hidden Lake in open soil that is exposed during the summer after the water recedes (Bauder 1999, p. 37). A germination study of T. a. ssp. compactum was conducted by Bauder (1999) using controlled light and temperature growing chambers. Results from the study indicated that daily temperature maxima must be in the range of 77 to 86 degrees Fahrenheit (°F) (25 to 30 degrees Celsius (°C)) for germination to occur (Bauder 1999, p. 37). This study also showed that seeds require a period of cold stratification and a cycle of wet and dry conditions to break their dormancy (Bauder 1999, pp. 28-30, 37). A large portion of the seeds produced by T. a. ssp. compactum did not germinate in this study and a subsequent germination study conducted by staff at Rancho Santa Ana Botanic Garden (RSABG). The authors of both reports suggested that seeds that do not germinate remain in the soil as a seed bank over multiple seasons until specific environmental and physiological conditions are met (Bauder 1999, p. 37; RSABG 2009, p. 5; see also Baskin and Baskin 1989, pp. 54-66).

The soil seed bank provides a buffering mechanism for this taxon against the variability of its habitat conditions and periodic drought years. For example, there may be a year when Hidden Lake dries atypically fast or is subject to a seasonal inundation (e.g., from a late-summer thunderstorm), which may lead to a catastrophic loss of a standing population prior to seed set. Thus, a soil seed bank offsets the loss of seeds in poor years. This strategy helps Trichostema austromontanum ssp. compactum to remain viable in a variable environment, similar to other species adapted to vernal pool habitat or desert environments (Philippi 1993, pp. 481-484; Simovich and Hathaway 1997, pp. 41-43). Due to the complex nature of this strategy to be maintained through varied conditions, we recommend as part of the post-delisting monitoring (PDM) plan to conduct research on seed bank density, seed viability, seed longevity, and reproductive potential of standing plants to better understand the long-term health of this subspecies and the likelihood that the small occurrence will remain viable.

Surveys have shown that the population size of Trichostema austromontanum ssp. compactum differs greatly from year to year. This fluctuation may be due to the amount of precipitation, the extent of suitable habitat along the margins of the lake, or a combination of factors. The population has been documented to be as large as 243,000 individuals in 2012, to as few as 75 individuals in 2000 (Fraga and Wall 2010, p. 6; CNDDB 2011, p. 1; Fraga 2016, pers. comm.). Despite the annual differences in population size, the population is considered stable because the variation in population size is primarily due to natural factors and because similar variations are seen over a multi-year period.

Trichostema austromontanum ssp. compactum seeds germinate around the margin of Hidden Lake as the ponded water evaporates (Bauder 1999, pp. 20-23). Though the highest density of plants has been observed in different portions of the vernal pool margin, observations of T. a. ssp. compactum were most abundant on the northern margin of the vernal pool (Fraga and Wall 2007, p. 4) and the eastern portion of the vernal pool (Fraga 2017, p. 3). These areas likely receive more sunlight due to the lack of trees just to the south where the pool is located. A small portion of the population is located in a swale (a low area where runoff collects) approximately 300 ft (91 m) away to the northeast from the vernal pool between the Desert View Overlook and Hidden Lake.

Prior to listing, the Service and others were concerned that, without the protections and implementation of proper management actions, Trichostema austromontanum ssp. compactum could become in danger of extinction and possibly go extinct. Trichostema austromontanum ssp. compactum was subsequently listed as a threatened species due to vulnerabilities associated with trampling and due to its limited numbers (63 FR 49006, September 14, 1998). For a detailed discussion of pre-listing threats of Trichostema austromontanum ssp. compactum, please see our proposed delisting rule (82 FR 1296, January 5, 2017).

A formal recovery plan for Trichostema austromontanum ssp. compactum has not been prepared, and, therefore, specific delisting criteria have not been developed for the subspecies. However, the Service reviewed the status of the subspecies in the 2006 and 2013 5-year reviews (Service 2006; 2013). In those reviews, the Service identified remaining threats to the taxon and actions that could be taken to make progress in addressing those threats and ensuring long-term management. These included demonstrating that: (1) Management by the California Department of Parks and Recreation (CDPR) has been effective; (2) stochastic threats are not significant; and (3) sufficient seed is banked for reintroduction after an adverse stochastic event (Service 2013, pp. 14-15). Additionally, a Conservation Strategy was developed that outlined additional conservation actions for this taxon (Fraga and Kietzer 2009, entire). We identified in the 2009 Spotlight Species Action Plan (Service 2009, pp. 2-4, 6) specific actions that would ameliorate threats and ensure long-term management:

(1) Continue Work With CDPR as Partners To Monitor Visitor Use at Hidden Lake;

(2) Monitor the Population and Habitat of Trichostema austromontanum ssp. compactum;

(3) Complete Collections for Seed Banking;

(4) Devise Long-Term Protocol for Seed Banking and Use of Seeds in Recovery; and

(5) Finalize the Conservation Strategy and a Long-Term Management Plan for the Subspecies, and a Long-Term Agreement With CDPR That Will Include Established Monitoring and the Implementation of an Adaptive Management Plan.

Existing conservation efforts for each of these actions are discussed below.

Monitoring of visitor use at Hidden Lake was conducted by CDPR from 2007 to 2015 (Kietzer 2011a, pp. 4-5). Although unauthorized access to the area appears to have been minimized (Fraga and Wall 2010, p. 5; Kietzer 2011a, pp. 4-5), CDPR will continue to monitor visitor use as described in the PDM plan. This action has been fully implemented, and we expect implementation to continue as part of the PDM plan and Conservation Strategy.

In coordination with the Service, CDPR and RSABG developed a monitoring protocol for Trichostema austromontanum ssp. compactum resulting from several years of investigation (2006 to 2009), which included mapping the area of occupancy of T. a. ssp. compactum around Hidden Lake and conducting census counts to estimate population size (Fraga and Wall 2010, pp. 4-6; Fraga 2012, pp. 1-4). Additionally, equipment for monitoring Hidden Lake's microclimate and its effects on the lake level was installed by CDPR in 2010 (Kietzer 2011a, pp. 2-3; Kietzer 2011b, p. 4). Over the past few years, CDPR and RSABG have worked together to develop and implement a more robust statistical sampling method. Initial results suggest that plant numbers were previously underestimated in annual surveys (Kietzer 2016, pers. comm.). Monitoring of this taxon and its habitat will continue as described in the PDM plan and Conservation Strategy.

Collection of Trichostema austromontanum ssp. compactum seeds and establishment of an ex situ (off-site) conservation seed bank at RSABG occurred over 3 years (2006, 2008, and 2009). As a precaution, backup samples from each year's collections will be stored at the U.S. Department of Agriculture's National Center for Genetic Resource Preservation in Fort Collins, Colorado (Fraga and Wall 2010, p. 7). This action will provide insurance against the subspecies going extinct if the natural occurrence were extirpated due to an adverse stochastic event or other circumstances (such as disease or prolonged drought).

Trichostema austromontanum ssp. compactum seeds collected at Hidden Lake are being stored at RSABG. Additional germination trials are needed to determine a long-term protocol for seed banking and use of seeds to sustain recovery. This project is ongoing and is discussed in further detail in the PDM plan.

The Conservation Strategy was used as the foundation for the PDM plan. Methods for long-term monitoring of this taxon are discussed further in the PDM plan (see ADDRESSES for information on viewing the PDM plan).

We have considered all comments and information received during the comment period for the proposed rule to delist Trichostema austromontanum ssp. compactum. In this final rule, we have made only minor changes based on comments received during the public comment period. We made changes in response to peer reviewer recommendations, and included an expanded discussion of stochastic events (such as wildfire) that could impact the subspecies and its habitat.

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

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

A species is an “endangered species” for purposes of the Act if it is in danger of extinction throughout all or a significant portion of its range and is a “threatened species” if it is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act does not define the term “foreseeable future.” For this final delisting rule, our forecast of future impacts is based on a review of the period of available data for each potential threat and, when possible, a projection of the situation at least for a similar time period into the future. For example:

• The effect of trampling on Trichostema austromontanum ssp. compactum can be addressed through management of hikers and equestrians, which CDPR does through implementing regulatory mechanisms. CDPR started addressing the impacts about the time the subspecies was listed, in particular with the Mount San Jacinto State Park general plan update in 2002. This plan serves as a “long-range management tool” by providing “conceptual parameters for future management actions” (CDPR 2002, p. 3). To assess the timeframe of this regulatory mechanism, we note that it does not include an “expiration date” or equivalent. Further, we note that in 2010, CDPR changed its approach to the duration of a given Park's general plan, stating in its Planning Handbook (CDPR 2010, p. 17) that CDPR previously considered general plans to have a 15- to 20-year planning horizon or lifespan. Under the current planning structure of broad, goal-oriented general plans and subordinate, more focused management plans, general plans are no longer thought of as having expiration dates or a finite lifespan when they would be considered invalid. General plans are reconsidered for amendments or revisions when circumstances and needs dictate, such as additional land acquisitions and/or substantial development considerations that were not addressed in the general plan or evaluated during the general plan process.

Thus, for trampling, we have about a 15-year record of management actions to benefit Trichostema austromontanum ssp. compactum that are linked to the general plan's implementation, and because the general plan is a long-term document (more than 15 to 20 years), we expect that management will continue into the future for at least 20 years. At the future point when the general plan is updated, the public—including the Service—will have the opportunity to review and comment on the new general plan under the State's California Environmental Quality Act (CEQA) process (independent of the subspecies' listing status).

• The timeline for examining the effects of small populations is inherently difficult to assess, especially for an annual plant, and the effects are inherently difficult to address. This is especially true for a population that is naturally small, which is the case for Trichostema austromontanum ssp. compactum. Population trend data can help with that assessment. As detailed in the PDM plan, we have at least rough estimates of population size going back to 1979, though with a gap between 1993 and 2006, when more formalized monitoring began. Thus, we have a general idea about the population's size over a span of about 40 years.

• Although information exists regarding potential impacts from climate change beyond a 50-year timeframe, the projections depend on an increasing number of assumptions, and thus become more uncertain with increasingly large timeframes. Therefore, a timeframe of 50 years is used to provide the best balance of scope of impacts considered, versus certainty of those impacts.

No threats to the habitat of Trichostema austromontanum ssp. compactum were identified in the final listing rule (63 FR 49006, September 14, 1998). Habitat loss or alteration associated with land use and land management practices is not now a threat, nor do we expect it to be in the future. The land where T. a. ssp. compactum occurs is owned and managed by the Mount San Jacinto State Park and is located within a California State Park Natural Preserve, which is surrounded by the San Jacinto State Wilderness Area (CDPR 2002, pp. 62-63). Because the only known occurrence of this subspecies is on State-owned land designated as State Wilderness inside a State Park, and the Hidden Lake area has been designated as the Hidden Lake Divide Natural Preserve, the subspecies and its habitat are protected from any development or other modification of habitat. Some habitat disturbance from recreational activities has occurred in the past. As discussed below, surveys have been conducted at Hidden Lake in recent years, and observers found that habitat disturbances have been minimized (Fraga and Wall 2010, p. 5). We anticipate that these conditions will remain essentially the same in the future because of the CDPR's implementation of the Park's general plan.

As described in the proposed rule and reaffirmed here, there are no threats now nor are there likely to be any threats in the future to Trichostema austromontanum ssp. compactum, throughout its range, related to overutilization for commercial, recreational, scientific, or educational purposes. For a detailed discussion of potential threats related to overutilization for commercial, recreational, scientific, or educational purposes, please see our proposed delisting rule (82 FR 1296, January 5, 2017).

No threats to Trichostema austromontanum ssp. compactum were attributed to Factor C in the 1998 listing rule (63 FR 49006, September 14, 1998). We have no data to suggest that herbivory or disease are affecting T. a. ssp. compactum, nor do we have data that suggest impacts from these sources will become a threat in the future.

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

Although inadequacy of existing regulatory mechanisms was not specifically identified as a threat to Trichostema austromontanum ssp. compactum at the time of listing, we did discuss the very limited number of protections that existed for the subspecies at that time (63 FR 49006, September 14, 1998). Specifically, we discussed conservation provisions under section 404 of the Federal Clean Water Act (CWA; 33 U.S.C. 1251 et seq.) and land management of CDPR at the Park.

Under section 404 of the Federal CWA, the U.S. Army Corps of Engineers (Corps) regulates the discharge of fill material into waters of the United States, which include navigable and isolated waters, headwaters, and adjacent wetlands (33 U.S.C. 1344). Any action with the potential to impact waters of the United States must be reviewed under the Federal CWA, National Environmental Policy Act (42 U.S.C. 4321 et seq.), and (when listed species may also be impacted) the Act. However, because the only known occurrence of this subspecies was on State-owned land designated as a State Wilderness inside a State Park, we concluded at the time the subspecies was listed that it was unlikely that fill materials will be discharged and thus protections associated with section 404 of the Federal CWA would not be relevant. Now, Hidden Lake is within an area designated by the State as a Natural Preserve, which itself is within State Wilderness. As such, we continue to conclude that it is unlikely that an action will occur that would trigger section 404 of the Federal CWA.

As discussed above, the entire known distribution of Trichostema austromontanum ssp. compactum occurs at a single vernal pool known as Hidden Lake, owned by the State of California and managed by CDPR. Under existing regulatory mechanisms enacted by the State of California, CDPR manages specifically for the conservation of the subspecies. While discussion of CDPR's management of many aspects of the conservation needs of the subspecies might also be appropriately discussed under other factors (e.g., eliminating trails to maintain natural drainage could also be discussed under factor A; efforts to reduce and manage impacts from recreational activities could also be discussed under factor E), it is included here for ease of discussion since CDPR's authority to provide for the continued conservation of the species flows from regulatory protections provided by State regulations, designations, and the Park's general plan. Such management was being implemented before listing and is being implemented today. Prior to listing, the protections included actions to reduce impacts from visitors by removing references to Hidden Lake from trail maps and signs. Since listing, the CDPR installed barriers in 2000, to exclude equestrian use of the area surrounding Hidden Lake (Guaracha 2006, pers. comm.), thereby reducing the threat of trampling to the subspecies (see Factor E discussion, below).

As a part of the 2002 general plan for Mount San Jacinto State Park, CDPR designated Hidden Lake and its associated watershed area as the Hidden Divide Natural Preserve (Preserve) (CDPR 2002, pp. 62-63). As a Preserve, the 255-ac (103-ha) area is afforded regulatory protection under California Public Resources Code section 5019.71, which states, “[t]he purpose of natural preserves shall be to preserve such features as rare or endangered plant and animal species and their supporting ecosystems.” This allows CDPR to manage Hidden Lake specifically for the conservation of Trichostema austromontanum ssp. compactum and other sensitive resources found in the area, as opposed to pre-designation when recreational use was part of management considerations. We summarize below the management actions CDPR has taken for the conservation of the subspecies associated with management under the natural preserve designation.

With funding from the Service's Showing Success Grant Program (a Service initiative, discontinued in 2012, that provided funding for final actions needed to bring a species to the point it could be downlisted or delisted), CDPR conducted a survey of the Preserve boundary and erected signs along the official trail informing visitors that off-trail hiking is prohibited in the Preserve. Additionally, these funds were used to install an automated weather station, conduct monitoring of unauthorized visitors, and establish monitoring protocols for Trichostema austromontanum ssp. compactum in coordination with RSABG and the Service, which will allow for future management of the area and visitors' activity based on the regulatory mechanisms now available. Due to the remote location, the weather station at Hidden Lake has been difficult to maintain, however, CDPR plans to resolve these issues in the future in order to obtain useful data from this station.

Additionally, CDPR has recently constructed the Hidden Divide Trail to minimize impacts to Trichostema austromontanum ssp. compactum from now-unauthorized access, while facilitating future authorized but restricted visits to the Preserve. This process involved eliminating an existing unauthorized trail and moving it approximately 20 to 40 ft (6 to 12 m) upslope and away from the margin of Hidden Lake where the largest portion of T. a. ssp. compactum occurs. The trail bed is incorporated into the existing slope where it should be easier, compared to the unauthorized trail, to maintain natural drainage patterns in the Hidden Lake's watershed. Inspections of the completed trail will take place by trained CDPR staff during peak seasons, and maintenance will occur as needed to prevent alteration of natural hydrology. The new Hidden Divide Trail will not directly connect to other Park trails and will remain off maps and unadvertised by Park staff. Once completed, CDPR will allow access to the trail through a limited permit system or guided tour only for those visitors who inquire about the site. Horses will not be allowed. The trail will provide some viewing areas with interpretive signs to educate visitors about the unique ecosystem supporting T. a. ssp. compactum. Fencing has been erected along the trail to restrict physical access to Hidden Lake; signs will also help minimize off-trail use.

Based on the regulatory mechanisms now available, CDPR will increase visitor monitoring and begin a zero-tolerance program, issuing citations to off-trail visitors within the Preserve (Fraga and Kietzer 2009, pp. 16-17). Finally, adaptive management techniques will be applied. For example, CDPR will monitor Trichostema austromontanum ssp. compactum populations and visitor use of the Hidden Lake area; the combined information will allow CDPR to control visitation, minimizing impact to the subspecies and its habitat (Fraga and Kietzer 2009, p. 22).

Additionally, Hidden Lake and the Hidden Divide Natural Preserve are within an area designated as State Wilderness. California Public Resources Code section 5019.68 recognizes such areas “as areas where the earth and its community of life are untrammeled by man and where man himself is a visitor who does not remain.” California Public Resources Code sections 5093.30-5093.40, the California Wilderness Act, also states that wilderness areas, including Mount San Jacinto State Wilderness, “shall be administered for the use and enjoyment of the people in such manner as will leave them unimpaired for future use and enjoyment as wilderness, provide for the protection of such areas, [and] preserve their wilderness character.” As the Conservation Strategy for the subspecies notes, “Being within a Natural Preserve and a State Wilderness Area provides [Trichostema austromontanum] ssp. compactum the highest level of protection for natural resources that the State Park System has to offer” (Fraga and Kietzer 2009, p. 19). Thus, these regulatory mechanisms will help minimize the likelihood of future threats to T. a. ssp. compactum and its habitat at Hidden Lake.

These protections enacted by the CDPR associated with the Preserve are expected to remain should this subspecies be delisted, and we conclude that these protections are adequate to reduce or eliminate existing or potential future threats to Trichostema austromontanum ssp. compactum now and in the future.

We conclude that, in absence of the protections afforded by the Act, the other existing regulatory mechanisms will continue to provide adequate protections to ensure that threats to Trichostema austromontanum ssp. compactum are controlled through management and monitoring programs established by CDPR. Listing under the Act provided support for the Service and CDPR to establish management and monitoring programs to provide for the conservation of T. a. ssp. compactum. If this subspecies is removed from the Federal List of Endangered and Threatened Plants, the primary protections for T. a. ssp. compactum will be provided by CDPR through conservation actions to benefit the subspecies in the Preserve. These protections are applied in connection with the Park's existing general plan, and we expect that they will remain unchanged at least until a new plan is adopted, which would not occur until circumstances or needs dictate and, moreover, would not occur without the opportunity of review and comment by the Service and public. This, in turn, would likely mean that any changes to the protections provided by the new general plan would not result in substantial impacts to T. a. ssp. compactum. In conclusion, we find that the currently existing regulatory mechanisms described above are adequate, and they will remain adequate to protect T. a. ssp. compactum and its habitat across its range now and in the future.

In the 1998 final listing rule, we stated that Trichostema austromontanum ssp. compactum was particularly vulnerable to trampling by recreational visitors and that the subspecies' low numbers and extremely localized range further made it more susceptible to disturbance, which included trampling during the flowering season (63 FR 49006, September 14, 1998, pp. 49016-49017). In our 2013 5-year review (Service 2013, pp. 13-14), we also identified effects associated with global climate change as potential threats, which were not considered at the time of listing. Trampling, low numbers of individuals, and climate change are discussed below.

At the time of listing, we concluded that trampling was a threat to Trichostema austromontanum ssp. compactum due to its extremely narrow endemic habitat and easy accessibility to Hidden Lake from the trail, just over a mile from the Palm Springs Aerial Tramway (63 FR 49006, September 14, 1998). This site became increasingly popular with the development of the Tramway in 1964 and the Desert Divide Trail in 1979. Measures such as removing references to Hidden Lake from State Park interpretive materials and eliminating existing trails helped to ameliorate impacts from visitors, but did not prevent all trampling impacts. The 1998 listing rule (63 FR 49006, September 14, 1998) indicated the subspecies continued to experience ongoing impacts from trampling by hikers and horses at that time.

Since listing, CDPR, in cooperation with RSABG staff, finalized the Conservation Strategy for Trichostema austromontanum ssp. compactum (Hidden Lake bluecurls; Lamiaceae) (Fraga and Kietzer 2009, entire), and CDPR has completed several actions to minimize the threat of trampling to the subspecies (Fraga and Kietzer 2009, pp. 25-26). CDPR reduced the likelihood of visitation to the area (by both humans and horses) by removing references to Hidden Lake from trails, maps, and signs in the Park, and physically obscuring trails to the lake (72 FR 54377, September 25, 2007; see also Fraga and Kietzer 2009, p. 16). Additionally, CDPR installed a wooden barrier fence at historical access points to exclude equestrian use (Fraga and Kietzer 2009, p. 16). CDPR also designated Hidden Lake and its associated watershed area as a Natural Preserve as part of their 2002 general plan revision (CDPR 2002, pp. 62-63), as discussed under Factor D, above. Although a low number of hikers currently access the Hidden Lake area despite efforts to exclude visitors from the area, impacts from trampling appear to have been minimized (Fraga and Wall 2010, p. 5; Kietzer 2011a, pp. 4-5). Furthermore, there is no evidence that horses have had access to the area around Hidden Lake since the exclusionary fences were installed in 2000 (Fraga and Kietzer 2009, p. 13; Fraga and Wall 2010, p. 5).

We expect that most of these measures to benefit Trichostema austromontanum ssp. compactum will remain in place for at least the next few decades while the 2002 general plan is active. Further, we expect future general plans to continue to prevent impacts to T. a. ssp. compactum because, compared to the time of listing, CDPR has taken measures to minimize future impacts of certain recreational uses of Hidden Lake that are incompatible with the conservation of the subspecies. This is illustrated by CDPR's formal designation of the Preserve. Thus, trampling of T. a. ssp. compactum by hikers and horses has largely been eliminated, and there is little likelihood that trampling will be a threat to the subspecies in the future.

In the final listing rule (63 FR 49006, September 14, 1998), we described the vulnerabilities associated with low numbers, stating that the limited numbers and extremely localized range of Trichostema austromontanum ssp. compactum make this taxon more susceptible to single disturbance events such as trampling during the flowering season or alteration of the local water table from soil compression. However, the 1998 final rule did not provide details explaining why we concluded that the subspecies was more susceptible to disturbance. We provide additional explanation in our 2013 5-year review (Service 2013, p. 12), in which we note that conservation biology literature (such as Shaffer 1981, pp. 131-134; 1987, pp. 69-86; Primack 1998, pp. 301-308; Leppig and White 2006, pp. 264-274) commonly notes the increased vulnerability of taxa known from only one or very few locations and when only small populations exist. We then explained that the threat associated with low numbers of individuals was based on the concern that in years when there were fewer than 100 individual plants, very little seed was produced, resulting in a species that may not be self-sustaining.

Based on new information since the time of listing, we now know that it is likely that Trichostema austromontanum ssp. compactum is able to survive years with poor conditions and very few flowering plants because of the existing, naturally occurring, onsite seed bank in the soil (Bauder 1999, p. 37). The majority of seeds of T. a. ssp. compactum produced each year are likely deposited in the soils of the basin of Hidden Lake because there are no known means of seed dispersal. We have also found through germination experiments that only a small percentage of seeds germinate, even when conditions are appropriate (Bauder 1999, p. 28; Fraga and Wall 2009, p. 5). This suggests that some proportion of T. a. ssp. compactum seeds likely remain dormant in the soil and survive through years lacking adequate environmental conditions for plants to reach maturity and reproduce. In the PDM plan, we recommend monitoring reproductive success of the taxon, because it may be cause for concern if the reproductive potential decreases. Data collected since 1980 on this taxon show that the standing population size fluctuates from fewer than 100 to greater than 10,000 plants, but the presence of a persistent soil seed bank demonstrates resiliency and has allowed the subspecies to remain viable. The differences in standing population size of T. a. ssp. compactum, especially absent evidence of trampling, may still be best characterized as natural variation or fluctuation tied to the annual water level of Hidden Lake (Bauder and McMillan 1998, pp. 63-66; Bauder 1999, pp. 13-17). In this manner, we conclude that the low numbers of individuals in some years is a temporary phenomenon and does not pose a long-term threat to this plant. Nevertheless, an ex situ seed bank (an offsite, artificial collection of seeds held in special climate-controlled conditions for long-term storage) has been established and is discussed further in the PDM plan.

As noted in the 2013 5-year review (Service 2013, pp. 12-13), species known from only one or a few populations, or that exist in populations with low numbers of individuals, are more vulnerable to stochastic (random) events. For example, a fire, flood, or drought is likely to be more devastating to a small, localized population than to a large, widespread population. Though increased vulnerability to stochastic events has not been documented for Trichostema austromontanum ssp. compactum in the past, nor were specific concerns discussed in detail in the final listing rule (63 FR 49006, September 14, 1998), fire could affect the area in the future. A fire burned near Hidden Lake in 2013 (Mountain Fire). Though there were no impacts to T. a. ssp. compactum, a large fire could potentially affect the lake, and subsequently T. a. ssp. compactum, through increased sedimentation or changes to the hydrology.

While it is possible that stochastic events could impact Trichostema austromontanum ssp. compactum in the future, we conclude that this threat alone is not significant enough to cause long-term population declines because the natural persistent seed bank in the soil would likely survive such events, including fire. RSABG collected T. a. ssp. compactum seeds over 3 years (2006, 2008, and 2009) and is maintaining an ex situ (offsite) conservation seed bank. As indicated in the PDM plan, additional research is needed to estimate the size of the seed bank, as well as additional collections during years of high and low abundance. Maintenance of this seed bank provides insurance against the subspecies going extinct if the natural occurrence were extirpated due to an adverse stochastic event or other circumstances (such as disease or prolonged drought).

Here, we consider observed or likely environmental changes resulting from ongoing and projected changes in climate. The 1998 listing rule did not discuss the potential impacts of climate change on Trichostema austromontanum ssp. compactum or its habitat (63 FR 49006, September 14, 1998). As defined by the Intergovernmental Panel on Climate Change (IPCC), the term “climate” refers to the mean and variability of different types of weather conditions over time, with 30 years being a typical period for such measurements, although shorter or longer periods also may be used (IPCC 2013a, p. 1,450). The term “climate change” thus refers to a change in the mean or the variability of relevant properties, which persists for an extended period, typically decades or longer, due to natural conditions (e.g., solar cycles) or human-caused changes in the composition of atmosphere or in land use (IPCC 2013a, p. 1,450).

Scientific measurements spanning several decades demonstrate that changes in climate are occurring. In particular, warming of the climate system is unequivocal, and many of the observed changes in the last 60 years are unprecedented over decades to millennia (IPCC 2013b, p. 4). The current rate of climate change may be as fast as any extended warming period over the past 65 million years and is projected to accelerate in the next 30 to 80 years (National Research Council 2013, p. 5). Thus, rapid climate change is adding to other sources of extinction pressures, such as land use and invasive species, which will likely place extinction rates in this era among just a handful of the severe biodiversity crises observed in Earth's geological record (AAAS 2014, p. 17).

Examples of various other observed and projected changes in climate and associated effects and risks, and the bases for them, are provided for global and regional scales in reports issued by the IPCC (2013c, 2014), and similar types of information for the United States and regions within it can be found in the National Climate Assessment (Melillo et al. 2014, entire).

Results of scientific analyses presented by the IPCC show that most of the observed increase in global average temperature since the mid-20th century cannot be explained by natural variability in climate and is “extremely likely” (defined by the IPCC as 95 to 100 percent likelihood) due to the observed increase in greenhouse gas (GHG) concentrations in the atmosphere as a result of human activities, particularly carbon dioxide emissions from fossil fuel use (IPCC 2013b, p. 17 and related citations).

Scientists use a variety of climate models, which include consideration of natural processes and variability, as well as various scenarios of potential levels and timing of GHG emissions, to evaluate the causes of changes already observed and to project future changes in temperature and other climate conditions. Model results yield very similar projections of average global warming until about 2030, and thereafter the magnitude and rate of warming vary through the end of the century depending on the assumptions about population levels, emissions of GHGs, and other factors that influence climate change. Thus, absent extremely rapid stabilization of GHGs at a global level, there is strong scientific support for projections that warming will continue through the 21st century, and that the magnitude and rate of change will be influenced substantially by human actions regarding GHG emissions (IPCC 2013b, 2014; entire).

Global climate projections are informative, and in some cases, the only or the best scientific information available for us to use. However, projected changes in climate and related impacts can vary substantially across and within different regions of the world (e.g., IPCC 2013c, 2014; entire) and within the United States (Melillo et al. 2014, entire). Therefore, we use “downscaled” projections when they are available and have been developed through appropriate scientific procedures, because such projections provide higher resolution information that is more relevant to spatial scales used for analyses of a given species (see Glick et al. 2011, pp. 58-61, for a discussion of downscaling).

Various changes in climate may have direct or indirect effects on species. These may be positive, neutral, or negative, and they may change over time, depending on the species and other relevant considerations, such as interactions of climate with other variables like habitat fragmentation (for examples, see Franco et al. 2006; Forister et al. 2010; Galbraith et al. 2010; Chen et al. 2011; Bertelsmeier et al. 2013, entire). In addition to considering individual species, scientists are evaluating potential climate change-related impacts to, and responses of, ecological systems, habitat conditions, and groups of species (e.g., Deutsch et al. 2008; Berg et al. 2010; Euskirchen et al. 2009; McKechnie and Wolf 2010; Sinervo et al. 2010; Beaumont et al. 2011; McKelvey et al. 2011; Rogers and Schindler 2011; Bellard et al. 2012).

Regional temperature observations are often used as an indicator of how climate is changing. The Western Regional Climate Center (WRCC) has defined 11 climate regions for evaluating various climate trends in California (Abatzoglou et al. 2009, p. 1535). The relevant WRCC climate region for the distribution of Trichostema austromontanum ssp. compactum within the San Jacinto Mountains is the Southern Interior Region.

Two indicators of temperature, the increase in mean temperature and the increase in maximum temperature, are important for evaluating trends in climate change in California. For the Southern Interior climate region, linear trends (evaluated over a 100-year time period) indicate an increase in mean temperatures (January through December) of approximately 1.71± 0.47 °F per 100 years (0.95 ± 0.26 °C per 100 years) since 1895, and 3.11± 1.16 °F per 100 years (1.73 ± 0.64 °C per 100 years) since 1949 (WRCC 2016). Similarly, the maximum temperature 100-year trend for the Southern Interior Region shows an increase of about 1.48 ± 0.57 °F per 100 years (0.82 ± 0.32 °C per 100 years) since 1895, and 2.54 ± 1.38 °F per 100 years (1.41 ± 0.77 °C per 100 years) since 1949 (WRCC 2016). It is logical to assume the rate of temperature increase for this region is higher for the second time period (i.e., since 1949) than for the first time period (i.e., since 1895) due to the increased use of fossil fuels in the 20th century.

Climate models provide climate projections into the future, which help inform our evaluations of potential future impacts, but these projections become more uncertain with increasingly large timeframes. Pierce et al. (2013, entire) presented both Statewide and regional probabilistic estimates of temperature and precipitation changes for California (by the 2060s) using downscaled data from 16 global circulation models and 3 nested regional climate models. The study looked at a historical (1985-1994) and a future (2060-2069) time period using the IPCC Special Report on Emission Scenarios A2 (Pierce et al. 2013, p. 841), which is an IPCC-defined scenario used for the IPCC's Third and Fourth Assessment reports, and is based on a global population growth scenario and economic conditions that result in a relatively high level of atmospheric GHGs by 2100 (IPCC 2007, pp. 44-45; see Stocker et al. 2013, pp. 60-68, and Walsh et al. 2014, pp. 25-28, for discussions and comparisons of the prior and current IPCC approaches and outcomes). Importantly, the projections by Pierce et al. (2013, pp. 852-853) include daily distributions and natural internal climate variability.

Simulations using these downscaling methods project an increase in yearly temperature for the Southern California Mountains region ranging from 3.78 °F to 5.22 °F (2.1 °C to 2.9 °C) by the 2060s time period, compared to 1985-1994 (Pierce et al. 2013, p. 844). Averaging across all models and downscaling techniques, the simulations project a yearly averaged warming of 4.32 °F (2.4 °C) by the 2060s (Pierce et al. 2013, p. 842).

While we do not have information to suggest warmer temperatures will directly impact Trichostema austromontanum ssp. compactum, there can be indirect effects. For example, Williams et al. (2015, p. 6826) found, “anthropogenic warming has intensified the recent drought [in California] as part of a chronic drying trend that is becoming increasingly detectable,” but they also noted that it was, “small relative to the range of natural climate variability.” Shukla et al. (2015, p. 4392) also found that temperature was an important factor in exacerbating drought conditions in California in 2014, although they noted that the low level of precipitation was the primary driver. Thus, the anticipated increasing temperatures (driven by global climate change) are likely to contribute to increased severity of droughts when they occur. However, because the natural climate of California is so variable, it is not clear whether increased drought severity will have substantial impact on T. a. ssp. compactum, which can take advantage of wetter years, when they occur, to replenish its natural seed bank.

Higher temperatures can also be expected to result in increased evaporation, which suggests that Hidden Lake will likely dry more quickly over a season. However, the effects of increased evaporation to habitat occupied by Trichostema austromontanum ssp. compactum or to the plant's life history are uncertain. For example, faster evaporation of Hidden Lake might provide an increased growing season (more time at the beginning) because more habitat may be available earlier in the season (the plant primarily grows in the dry portions of the lakebed), or it could result in a shorter growing season (less time at the end) because the area dries out too much and the plants may desiccate before producing seed, or the two processes could happen together and produce a shift in the growing season (same overall amount of growth time, just starting earlier in the year). Observed increases in temperature over the past 100 years do not appear to have currently adversely affected the subspecies. Based on the best available regional data, current and future trends do not lead us to conclude that change in ambient temperature is currently a threat to T. a. ssp. compactum or likely to become one in the future.

Precipitation patterns can also be used as an indicator of how climate is changing. We obtained yearly precipitation data for the Idyllwild region of the San Jacinto Mountains from the National Oceanic and Atmospheric Administration's National Centers for Environmental Information (http://www.ncdc.noaa.gov/). We then conducted a nonparametric correlation test, the Mann-Kendall statistical test (Hipel and McLeod 1994, pp. 63-64, 856-858), to evaluate trends in precipitation over time. This analysis was conducted using the R and R Studio software programs (R Development Core Team 2014) with the “Kendall” package, version 2.2 (McLeod 2011). We found no significant trend in precipitation over time (increasing or decreasing) from 1944-2015 (Grizzle 2016, pers. comm.). There is no information currently available that would lead us to conclude that potential changes in the amount of precipitation are a threat now or likely to be in the future. However, changes in the timing and type (rain or snow) of precipitation could alter the unique environment of Hidden Lake and potentially impact habitat where this taxon occurs in the future. To address this concern, we have included monitoring in the PDM plan (see Post-Delisting Monitoring, below) to provide baseline data on climatic conditions as well as the duration and depth of ponding that occurs at Hidden Lake. Additionally, the maintenance of the ex situ seed bank provides some flexibility to respond to stochastic events including those associated with a changing climate.

Management actions implemented at Hidden Lake by CDPR in recent years have reduced the threat of trampling to a minimal level. At the time of listing, we were concerned that low numbers of individuals in some years threatened the existence of Trichostema austromontanum ssp. compactum. Since listing, data suggest this subspecies has a soil seed bank and germination mechanisms that have allowed the taxon to remain viable over time, even in years when very few plants flower and set seed. Low numbers of individuals in certain years followed by years with high numbers of individuals suggests this is a natural phenomenon for this taxon. Though stochastic events, such as wildfire, could affect the subspecies in the future, the soil seedbank will likely be maintained, facilitating future growth. Climate change was also identified as a potential threat since listing, but we do not consider it to be a substantial threat at this time, and ongoing management and monitoring is designed to detect future changes.

In the proposed rule published on January 5, 2017 (82 FR 1296), we requested that all interested parties submit written comments on the proposal by March 6, 2017. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. We did not receive any requests for a public hearing. Another comment period was opened on November 1, 2017, for 30 days in order to publish a legal notice and to give all interested parties further opportunity to comment on the proposed rule to delist Trichostema austromontanum subsp. compactum (82 FR 50606). Newspaper notices inviting general public comment were published in The Desert Sun.

During the comment periods for the proposed rule, we received a total of 17 comment letters or statements directly addressing the proposed action. These included 4 comments from peer reviewers and 13 comments during open comment periods (1 from the State and 12 from the general public) that are posted on Federal docket no. FWS-R8-ES-2016-0127. Three of the public comments (including comments from the State) supported the proposed action to delist Trichostema austromontanum ssp. compactum. A fourth commenter provided no relevant information related to T. a. ssp. compactum. The remaining nine public commenters objected to the action to delist the subspecies; however, of these, only one provided substantive information regarding the proposed delisting rule.

In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinion from seven knowledgeable individuals with scientific expertise that included familiarity with Trichostema austromontanum ssp. compactum and its habitat, biological needs, and threats, as well as familiarity with conservation biology, plant systematics, rare species, and plant phylogeography. We received responses from four of the peer reviewers. The reviewers generally supported the proposed delisting rule and commented that the current status of T. a. ssp. compactum is accurately presented.

We reviewed all comments received from the peer reviewers and the public for substantive issues and new information regarding the delisting of Trichostema austromontanum ssp. compactum. Substantive comments received during the comment period are addressed below and, where appropriate, incorporated directly into this final rule and the post-delisting monitoring plan.

Comment (1): Multiple reviewers commented on the natural seed bank. One peer reviewer expressed concern with the density of the seed bank and said it would be useful to know more about the mean seed set in order to be better able to predict size of the seed bank and stability of the population. Another peer reviewer recommended identifying specific targets for number of plants/seeds stored and stated that different genotypes may be represented in different years, so ex situ collections should target multiple years including those with large and small numbers of plants.

Our Response: We appreciate the suggestions from peer reviewers and identified additional research that is needed to inform implementation of the PDM plan.

Comment (2): One peer reviewer asked whether the proposed 13-year monitoring will result in the appropriate data to assess if the species remains recovered and whether monitoring every 3 years provides enough information to assess trends. They recommended monitoring more regularly, perhaps in paired years.

Our Response: Though more regular surveys will likely occur (State Parks and RSABG have conducted annual surveys for the past several years), this PDM plan describes at a minimum the 5 years of post-delisting monitoring that will occur following removal from the Federal List of Endangered and Threatened Plants. These 5 years of monitoring have been expanded over a 13-year period to enable us to look for and detect changes in the population following delisting. The PDM plan further indicates that at the end of each survey year and at the end of the planned 13-year monitoring period, PDM data will be assessed to determine whether the survey protocols are functioning as anticipated and whether any changes in species protection are needed. If monitoring indicates that the species may be less secure than anticipated, the duration of the PDM period may be extended. Additional parameters or increased monitoring frequency could also be considered to increase the probability of detecting any future declines.

Comment (3): Peer reviewers made several additional recommendations for the final PDM plan, including: (1) Clarifying the trigger for re-listing and how it will be confirmed from monitoring; (2) monitoring of visitation rates to Hidden Lake bluecurls; (3) monitoring potential dispersal rates of nonnative plant species; (4) clarifying triggers for how the ex-situ seed bank would be used should it be needed, and how seeds would be used for reintroduction; and (5) clarifying genetic diversity, seed viability, and seed collection standards for seeds stored in the ex-situ seed bank.

Our Response: We appreciate the suggestions from the peer reviewers, and have adjusted the PDM plan to incorporate these recommendations.

Comment (4): One peer reviewer indicated that they have concerns regarding the sampling approach between the two methods described in the PDM plan. The reviewer indicated that an entire population census approach would be best to monitor population trends for this annual plant rather than restricted random sampling in years when large numbers of plants occur.

Our Response: We appreciate the information from peer reviewers. Annual surveys were conducted using this refined monitoring plan for the past 5 years. We will continue to work with our partners to evaluate methods for detecting trends.

Comment (5): One peer reviewer suggested that it is premature to suggest that Trichostema austromontanum ssp. compactum is not commonly pollinated by insects.

Our Response: We have made revisions to the final rule to reflect that additional research is needed to investigate the importance of pollinators for reproduction and seed set of Trichostema austromontanum ssp. compactum.

Comment (6): One peer reviewer thought that we had underestimated the potential threat from wildfire, given recent drought and resulting increases in dead or stressed trees in the San Jacinto Mountains and a fire in close proximity to Hidden Lake in 2013. The reviewer noted that, despite the species' long-lived seed bank, a wildfire could result in altered hydrology and increased sedimentation into Hidden Lake.

Our Response: We have added a short discussion of fire and stochastic events to the discussion of threats above. While we acknowledge that there is a chance that fire could impact the species, the natural and ex situ seed banks provide the ability to respond to this type of stochastic event, should it occur.

Comment (7): One public commenter recommended that post-delisting monitoring should be extended to a minimum of 25 years in order to monitor ongoing changes in climate and that status reviews be completed every 5 years and made publicly available.

Our Response: Section 4(g) of the Act states that the Secretary shall implement a system in cooperation with the States to monitor effectively for not less than 5 years the status of all species that have recovered to the point at which the measures provided pursuant to the Act are no longer necessary. As discussed above, the PDM plan for Trichostema austromontanum subsp. compactum expands the required 5-year period to 13 years. More regular surveys will likely occur as State Parks and RSABG have conducted annual surveys for the past several years. Furthermore, the PDM plan indicates that at the end of the 13-year monitoring period the PDM data will be assessed to determine whether the data collection protocols are functioning as anticipated and whether changes in species protection are needed. We have determined that this timeframe is sufficient, and if monitoring indicates that the species may be less secure than anticipated, the duration of the PDM period may be extended.

Comment (8): One public commenter stated that the PDM plan needs triggers for action if downward trends or impacts are reported from monitoring efforts.

Our Response: If data produced as part of or in conjunction with this PDM plan suggest that Trichostema austromontanum subsp. compactum are in decline or habitat destruction at Hidden Lake reaches a magnitude such that the species is likely to become endangered, it would trigger potential commencement of re-listing procedures. The justifications for four potential outcomes are described in the PDM plan. These actions are based on the status of trends and current impacts to the species and lay out the steps needed to determine if additional protections are needed.

Comment (9): One public commenter stated that the main threat to Trichostema austromontanum ssp. compactum is trampling by hikers. The commenter suggested that the Service and the Department of the Interior restrict access from known populations and that research be conducted to identify where plants occur so that trails could be rerouted to avoid them.

Our Response: The entire distribution where Trichostema austromontanum ssp. compactum occurs is owned by the State of California and managed by CDPR. As discussed above, CDPR has conducted surveys for this subspecies for the past several years and protections enacted in association with the Preserve and Wilderness designation are anticipated to remain should this subspecies be delisted. They are working to minimize impacts to T. a. ssp. compactum through construction of a new trail (Hidden Divide Trail), which will minimize unauthorized access and enable access only through a permit system. The trail will provide viewing areas and interpretive signs to educate visitors about the unique ecosystem, and fencing has been installed to restrict physical access.

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species meets the definition of “endangered species” or “threatened species.” The Act defines an “endangered species” as a species that is “in danger of extinction throughout all or a significant portion of its range,” and a “threatened species” as a species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The Act requires that we determine whether a species meets the definition of “endangered species” or “threatened species” because of any of the following 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. The same factors apply whether we are analyzing the species' status throughout all of its range or throughout a significant portion of its range.

On July 1, 2014, we published a final policy interpreting the phrase “significant portion of its range” (SPR) (79 FR 37578). Aspects of that policy were vacated for species that occur in Arizona by the United States District Court for the District of Arizona. CBD v. Jewell, No. CV-14-02506-TUC-RM (Mar. 29, 2017), clarified by the court, Mar. 29, 2017. Since Trichostema austromontanum ssp. compactum does not occur in Arizona, for this finding we rely on the SPR Policy, and also provide additional explanation and support for our interpretation of the SPR phrase. In our policy, we interpret the phrase “significant portion of its range” in the Act's definitions of “endangered species” and “threatened species” to provide an independent basis for listing a species in its entirety; thus there are two situations (or factual bases) under which a species would qualify for listing: A species may be in danger of extinction or likely to become so in the foreseeable future throughout all of its range; or a species may be in danger of extinction or likely to become so throughout a significant portion of its range. If a species is in danger of extinction throughout an SPR, it, the species, is an “endangered species.” The same analysis applies to “threatened species.”

Our final policy addresses the consequences of finding a species is in danger of extinction in an SPR, and what would constitute an SPR. The final policy states that (1) if a species is found to be endangered or threatened throughout a significant portion of its range, the entire species is listed as an endangered species or a threatened species, respectively, and the Act's protections apply to all individuals of the species wherever found; (2) a portion of the range of a species is “significant” if the species is not currently endangered or threatened throughout all of its range, but the portion's contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range; (3) the range of a species is considered to be the general geographical area within which that species can be found at the time the Service or the National Marine Fisheries Service makes any particular status determination; and (4) if a vertebrate species is endangered or threatened throughout an SPR, and the population in that significant portion is a valid distinct population segment (DPS), we will list the DPS rather than the entire taxonomic species or subspecies.

The SPR policy applies to analyses for all status determinations, including listing, delisting, and reclassification determinations. As described in the first element of our policy, once the Service determines that a “species”—which can include a species, subspecies, or DPS—meets the definition of “endangered species” or “threatened species,” the species must be listed in its entirety and the Act's protections applied consistently to all individuals of the species wherever found (subject to modification of protections through special rules under sections 4(d) and 10(j) of the Act).

For the second element, the policy sets out the procedure for analyzing whether any portion is an SPR; the procedure is similar, regardless of the type of status determination we are making. The first step in our assessment of the status of a species is to determine its status throughout all of its range. We subsequently examine whether, in light of the species' status throughout all of its range, it is necessary to determine its status throughout a significant portion of its range. If we determine that the species is in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range, we list the species as an endangered (or threatened) species and no SPR analysis is required. The policy explains in detail the bases for this conclusion—including that this process ensures that the SPR language provides an independent basis for listing; maximizes the flexibility of the Service to provide protections for the species; and eliminates the potential confusion if a species could meet the definitions of both “endangered species” and “threatened species” based on its statuses throughout its range and in a significant portion of its range. See, e.g., SPR Policy, 79 FR 37580-81, July 1, 2014.

No threats attributable to Factors A, B, or C were identified at the time Trichostema austromontanum ssp. compactum was listed in 1998. Threats identified at the time of listing included impacts associated with human and horse trampling (Factor E), the limited numbers and an extremely localized range of T. a. ssp. compactum (Factor E), and the limited protections afforded by the CDPR to reduce or eliminate those threats (Factor D). Since listing, conditions associated with climate change (Factor E) have been identified as a potential rangewide threat to the subspecies.

We now have sufficient data to show that management enacted by CDPR to benefit Trichostema austromontanum ssp. compactum and its habitat at Hidden Lake has been effective and will continue to be in the foreseeable future. CDPR, as the operative land manager, has demonstrated a long-term commitment to provide for the conservation of T. a. ssp. compactum. Their staff, in cooperation with RSABG staff, finalized the Conservation Strategy for Trichostema austromontanum ssp. compactum (Hidden Lake bluecurls; Lamiaceae) (Fraga and Kietzer 2009, entire), which outlined immediate conservation actions, goals, and conservation measures for the recovery and long-term management of the subspecies. In subsequent years, both entities have continued to monitor the area and have developed an improved survey methodology for T. a. ssp. compactum. Because T. a. ssp. compactum is entirely within Mount San Jacinto State Park, is within the Mount San Jacinto State Wilderness Area, and is within the recently established Preserve, CDPR is able to manage Hidden Lake specifically for the conservation of T. a. ssp. compactum and its habitat, along with other sensitive resources found in the area.

Trampling by humans has been minimized, and no visible impacts to Trichostema austromontanum ssp. compactum have been observed from trampling by horses since 2000 because of CDPR's management. CDPR indicated that the Hidden Divide Trail will be a pedestrian trail and equestrian use will not be authorized. Therefore, we no longer consider T. a. ssp. compactum to be threatened by trampling. The low numbers of standing plants in some years appears to be a natural phenomenon for this subspecies. The species' soil seed bank provides resiliency that allows the species to remain viable through years with poor conditions, and, therefore, low numbers in some years is not considered a threat at this time. The ex situ seed banking program at RSABG also provides insurance for this subspecies by assuring propagation potential should future stochastic events or climate change adversely impact the endemic population. Actions taken by CDPR and RSABG have reduced the threats associated with trampling, small population size, and stochastic events to a manageable level.

Since listing, we have become aware of the potential for anthropogenic climate change to affect all biota, including Trichostema austromontanum ssp. compactum. While available information indicates that temperatures are increasing, there is no clear signal as to the potential impacts to T. a. ssp. compactum at this time. Additionally, the lack of a significant declining trend in the amount of precipitation suggests that there is no immediate cause for concern, but potential impacts to T. a. ssp. compactum from changes in the timing and type of precipitation should be monitored in the future.

Ongoing management by CDPR and protections provided by designation as a State Wilderness Area as well as designation as the Hidden Lake Divide Natural Preserve work to protect this area from development or other habitat disturbance. Management by State Parks has successfully ameliorated threats to the species and the species' adaptations, including the soil seedbank, provide sufficient resilience to withstand its variable environment. Having considered the individual and cumulative impact of threats on this subspecies, we find that Trichostema austromontanum ssp. compactum is not in danger of extinction throughout all of its range, nor is it likely to become so in the foreseeable future.

Consistent with our interpretation that there are two independent bases for listing species as described above, after examining the status of Hidden Lake bluecurls throughout all of its range, we now examine whether it is necessary to determine its status throughout a significant portion of its range. Per our final SPR policy, we must give operational effect to both the “throughout all” of its range language and the SPR phrase in the definitions of “endangered species” and “threatened species.” We have concluded that to give operational effect to both the “throughout all” language and the SPR phrase, the Service should conduct an SPR analysis if (and only if) a species does not warrant listing according to the “throughout all” language.

If the species is neither endangered nor threatened throughout all of its range, we determine whether the species is endangered or threatened throughout a significant portion of its range. To undertake this analysis, we first identify any portions of the species' range that warrant further consideration. The range of a species can theoretically be divided into portions in an infinite number of ways. However, there is no purpose in analyzing portions of the range that have no reasonable potential to be significant or in analyzing portions of the range in which there is no reasonable potential for the species to be endangered or threatened. To identify only those portions that warrant further consideration, we determine whether there is substantial information indicating that there are any portions of the species' range: (1) That may be “significant” and (2) where the species may be in danger of extinction or likely to become so within the foreseeable future. We emphasize that answering these questions in the affirmative is not a determination that the species is in danger of extinction or likely to become so in the foreseeable future throughout a significant portion of its range—rather, it is a step in determining whether a more-detailed analysis of the issue is required.

In practice, one key part of identifying portions for further analysis may be whether the threats or effects of threats are geographically concentrated in some way. If a species is not in danger of extinction or likely to become so in the foreseeable future throughout all of its range and the threats to the species are essentially uniform throughout its range, then the species is not likely to be in danger of extinction or likely to become so in the foreseeable future in any portion of its range and no portion is likely to warrant further consideration. Moreover, if any concentration of threats applies only to portions of the species' range that are not “significant,” such portions will not warrant further consideration.

We evaluate the significance of the portion of the range based on its biological contribution to the conservation of the species. For this reason, we describe the threshold for “significant” in terms of an increase in the risk of extinction for the species. We conclude in our policy that such a biologically based definition of “significant” best conforms to the purposes of the Act, is consistent with judicial interpretations, and best ensures species' conservation. We determine if a portion's biological contribution is so important that the portion qualifies as “significant” by asking whether, without that portion, the status of the species would be so impaired that the species would be in danger of extinction or likely to become so in the foreseeable future (i.e., would be an “endangered species” or a “threatened species”). Conversely, we would not consider the portion of the range at issue to be “significant” if there is sufficient viability elsewhere in the species' range that the species would not be in danger of extinction or likely to become so throughout its range even if the population in that portion of the range in question became extirpated (extinct locally).

If we identify any portions (1) that may be significant and (2) where the species may be in danger of extinction or likely to become so in the foreseeable future, we engage in a more-detailed analysis to determine whether these standards are indeed met. The identification of an SPR does not create a presumption, prejudgment, or other determination as to whether the species is in danger of extinction or likely to become so in the foreseeable future in that identified SPR. We must go through a separate analysis to determine whether the species is in danger of extinction or likely to become so in the SPR. To make that determination, we will use the same standards and methodology that we use to determine if a species is in danger of extinction or likely to become so in the foreseeable future throughout all of its range.

If we have identified portions of the species' range for further analysis, we conduct a detailed analysis of the significance of the portion and the status of the species in that portion. Depending on the biology of the species, its range, and the threats it faces, it might be more efficient for us to address the significance question first or the status question first. If we address significance first and determine that a portion of the range is not “significant,” we do not need to determine whether the species is in danger of extinction or likely to become so in the foreseeable future there; if we address the status of the species in portions of its range first and determine that the species is not in danger of extinction or likely to become so in a portion of its range, we do not need to determine if that portion is “significant.”

Applying the process described above, to identify whether any portions warrant further consideration for Trichostema austromontanum ssp. compactum, we determine whether there is substantial information indicating that (1) particular portions may be significant and (2) the species may be in danger of extinction in those portions or likely to become so within the foreseeable future.

First, we will consider whether there is substantial information to indicate that Trichostema austromontanum ssp. compactum faces any threats or effects of threats that are geographically concentrated in any portion of the subspecies' range.

Trichostema austromontanum ssp. compactum is a narrow endemic plant subspecies, found only in and around Hidden Lake in Mount San Jacinto State Park. Its entire range is about 2 ac (1 ha) in size. It is an annual plant, which means it completes its life cycle in less than 1 year. As previously noted, it has a natural seed bank in the soil, with seeds that persist for extended periods of time. Although the number and distribution of standing (growing) plants varies from year to year, the distribution of the seeds in soil is likely fairly ubiquitous within the area occupied by the subspecies. Within this 2-ac (1-ha) area, there is no natural division that would arbitrarily separate one portion of the range from another. Because of the limited geographic area the subspecies occupies, the entire subspecies experiences similar conditions and management by CDPR such that no portion of the subspecies' range is likely to experience a different or elevated level of threats.

We conclude that there are no portions of the subspecies' range that are likely to be both significant and be in danger of extinction or likely to become so in the foreseeable future. Therefore, no portion warrants further consideration to determine whether the subspecies is in danger of extinction or likely to become so in a significant portion of its range.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to Trichostema austromontanum ssp. compactum. Because the species is neither in danger of extinction now nor likely to become so in the foreseeable future throughout all or any significant portion of its range, the species does not meet the definition of an endangered species or threatened species. Therefore, we find that T. a. ssp. compactum no longer requires the protection of the Act, and we are removing the subspecies from the List of Endangered and Threatened Plants.

The Act sets forth a series of general prohibitions and exceptions that apply to all endangered plants. The Act's implementing regulations extend most of the prohibitions provided under section 9(a)(2) of the Act to threatened plants (see 50 CFR 17.61 and 17.71). It is illegal for any person subject to the jurisdiction of the United States to import or export, transport in interstate or foreign commerce in the course of a commercial activity, sell or offer for sale in interstate or foreign commerce, or remove and reduce Trichostema austromontanum ssp. compactum to possession from areas under Federal jurisdiction. Section 7 of the Act requires that Federal agencies consult with us to ensure that any action authorized, funded, or carried out by them is not likely to jeopardize the subspecies' continued existence. This final rule revises 50 CFR 17.12 to remove T. a. ssp. compactum from the Federal List of Endangered and Threatened Plants, and these prohibitions no longer apply. Because critical habitat has not been designated for this taxon, this rule does not affect 50 CFR 17.96.

Section 4(g)(1) of the Act requires us, in cooperation with the States, to implement a system to monitor effectively, for not less than 5 years, all species that have been recovered and delisted. The purpose of this post-delisting monitoring is to verify that a species remains secure from risk of extinction after it has been removed from the protections of the Act. The monitoring is designed to detect the failure of any delisted species to sustain itself without the protective measures provided by the Act. If, at any time during the monitoring period, data indicate that protective status under the Act should be reinstated, we can initiate listing procedures, including, if appropriate, emergency listing under section 4(b)(7) of the Act. Section 4(g) of the Act explicitly requires us to cooperate with the States in development and implementation of post-delisting monitoring programs, but we remain responsible for compliance with section 4(g) of the Act and, therefore, must remain actively engaged in all phases of post-delisting monitoring. We also seek active participation of other entities that are expected to assume responsibilities for the species' conservation post-delisting.

We prepared a PDM plan for Trichostema austromontanum ssp. compactum. The plan discusses the current status of the taxon and describes the methods proposed for monitoring after the taxon is removed from the Federal List of Endangered and Threatened Plants (https://ecos.fws.gov). The PDM plan:

(1) Summarizes the status of Trichostema austromontanum ssp. compactum at the time the final delisting rule published;

(2) Describes frequency and duration of monitoring;

(3) Discusses monitoring methods and potential sampling regimes;

(4) Defines what potential triggers will be evaluated for additional monitoring;

(5) Outlines reporting requirements and procedures;

(6) Indicates what additional research is needed to implement the PDM plan; and

(7) Proposes a schedule for implementing the PDM plan and defines responsibilities.

It is our intent to work with our partners towards maintaining the recovered status of Trichostema austromontanum ssp. compactum.

We determined that we do not need to prepare an environmental assessment or an environmental impact statement, as defined under the authority of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), in connection with regulations adopted pursuant to section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

A complete list of all references cited in this final rule is available on the internet at http://www.regulations.gov under Docket No. FWS-R8-ES-2016-0127, or upon request from the Field Supervisor, Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

The primary author of this final rule is the Carlsbad Fish and Wildlife Office in Carlsbad, California, in coordination with the Pacific Southwest Regional Office in Sacramento, California.

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