Federal Register Vol. 83, No.156,

Background

On January 5, 2017, DOE published a final rule (January 2017 final rule) amending the test procedure and certification, compliance, and enforcement provisions for central air conditioners and heat pumps (CAC/HP). 82 FR 1426. Among other changes, the January 2017 final rule added a paragraph at 10 CFR 429.16(a)(3)(i) requiring, among other things, that central air conditioners and heat pumps be tested under the outdoor unit with no match provisions if: (1) Any of the refrigerants approved for use with an outdoor unit model is HCFC-22 or has a 95 °F midpoint saturation absolute pressure that is +/− 18 percent of the 95 °F saturation absolute pressure for HCFC-22, or if there are no refrigerants designated as approved for use; or (2) a model of outdoor unit is not charged with a specified refrigerant from the point of manufacture or if the unit is shipped requiring the addition of more than two pounds of refrigerant to meet the charge required for testing per section 2.2.5 of appendix M or appendix M1 (unless either (a) the factory charge is equal to or greater than 70% of the outdoor unit internal volume times the liquid density of refrigerant at 95 °F or (b) an A2L refrigerant is approved for use and listed in the certification report).

The original effective date of the January 2017 final rule was February 6, 2017. Subsequently, DOE delayed the effective date of the January 2017 final rule until March 21, 2017 (82 FR 8985), and then further delayed the effective date until July 5, 2017 (82 FR 14425; 82 FR 15457).

On March 3, 2017, Johnson Controls, Inc. (JCI) filed a petition for review of the January 2017 final rule in the United States Court of Appeals for the Seventh Circuit. This litigation is subject to ongoing mediation. JCI manufactures outdoor units with an approved refrigerant that has a 95 °F midpoint saturation absolute pressure that is +/− 18 percent of the 95 °F saturation absolute pressure for HCFC-22. These same models are also shipped requiring the addition of more than two pounds of refrigerant to meet the charge required for testing per section 2.2.5 of appendix M or appendix M1, and the factory charge is not equal to or greater than 70% of the outdoor unit internal volume times the liquid density of refrigerant at 95 °F. Thus, under either of the two provisions that were added at 10 CFR 429.16(a)(3)(i) by the January 2017 final rule, these models would need to be tested as outdoor units with no match under appendix M or M1.

Also on March 3, 2017, JCI submitted to DOE a petition for a 180-day extension of the requirement that JCI make efficiency representations for its GAW Series products in accordance with the two new provisions of the January 2017 final rule. DOE granted this request on June 2, 2017.

On April 6, 2017, JCI submitted to DOE a petition for waiver and application for interim waiver from these two test procedure provisions. JCI subsequently submitted an amended petition for waiver and application for interim waiver on June 5, 2018.

On May 31, 2017, JCI requested that DOE grant it an administrative stay of the above described two provisions pending judicial review of the January 2017 final rule. On June 6, 2017, JCI requested that DOE hold its stay request in abeyance, noting that DOE's June 2, 2017 grant of a 180-day extension of the date by which JCI must comply with the two provisions specified above obviated the need for an immediate grant of an administrative stay. Subsequently, on June 29, 2017, Lennox International Inc. (Lennox), a manufacturer of central air conditioners and heat pumps, filed a complaint in the U.S. District Court for the Northern District of Texas challenging DOE's decision to grant the 180-day extension to JCI.

On July 3, 2017, DOE issued an administrative stay in accordance with the Administrative Procedure Act (5 U.S.C. 705).1 DOE's determination to issue the stay and postpone the effectiveness of the two provisions was based on JCI's submissions that raised concerns about significant potential impacts of the test procedure provisions on JCI, as well as the desire to ensure that all manufacturers of central air conditioners and heat pumps would have the same relief granted to JCI. 82 FR 32228. On July 17, 2017, following the denial of its request for stay of the 180-day extension and/or for preliminary injunctive relief, Lennox voluntarily dismissed its lawsuit.

As stated above, JCI submitted initial and amended petitions for waiver and interim waiver that raise concerns about the equity of the challenged test procedure provisions. JCI contends that the challenged test procedure provisions unfairly require central air conditioner systems that are approved for use with R-407C refrigerant and are offered as new, matched systems to be tested as outdoor units with no match. Under the outdoor unit with no match testing provisions, these systems are treated as replacement outdoor units, regardless of whether they are sold as new, matched systems or replacement outdoor units, and are rated using default indoor parameters that approximate the performance of an old, previously installed indoor unit. As such, JCI argues that the test procedure is not representative of the energy consumption of such central air conditioners when installed in the field as new, matched systems. JCI proposes to evaluate the 1,178 system combinations listed in its amended waiver petition and certified in DOE's Compliance Certification Management System in a manner that is representative of the true energy consumption of these products when installed as new, matched systems, similar to how central air conditioners that use other refrigerants and are sold both as new, matched systems and as replacement outdoor units are treated under DOE's test procedure.

While the administrative stay has been in place, DOE has continued to evaluate JCI's initial and amended petitions for waiver and interim waiver. Based on a review of these petitions and JCI's public-facing materials, it is DOE's current understanding that the basic models listed in JCI's amended petition, similar to central air conditioners that use other refrigerants, are offered as both matched, new systems and as replacement outdoor units for existing systems. As a result, DOE determined that JCI's amended petition for waiver would likely be granted and issued a decision granting JCI an interim waiver subject to certain conditions.

In issuing the administrative stay, DOE determined that it was in the interest of justice to do so based on two concerns: (1) The potential for significant economic impacts for JCI resulting from a possibly unrepresentative test procedure; and (2) the desire to maintain a level playing field for all central air conditioner manufacturers. The issuance of the interim waiver removes the first concern and subjects the final determination on the waiver request to the administrative process, including a notice-and-comment period, in DOE's waiver regulations at 10 CFR 430.27. Further, even if DOE ultimately denies JCI's amended waiver petition, an administrative stay would still no longer be needed as DOE would have determined that the results of the test procedure issued in the January 2017 final rule accurately represent the energy use of JCI's products.2 In that case, there would be no concern about possible significant economic impacts to JCI resulting from an unrepresentative test procedure.

The waiver petition process also addresses the second concern as any manufacturer of a similar product may also submit a waiver petition. In fact, if DOE ultimately grants JCI's amended waiver petition, a manufacturer of a similar product would be required to submit a petition for waiver under DOE's regulations. 10 CFR 430.27(j). Further, DOE has determined that the waiver petition process is a better, more tailored approach to ensuring a level playing field as manufacturers are required to propose alternative test procedures to the test procedure from which the waiver is sought, which are then subject to potential modification and approval by DOE. 10 CFR 430.27(b)(1)(iii). Because DOE explicitly approves alternative test procedures, there is no possibility of uncertainty regarding how a product subject to a waiver should be tested. This also allows DOE to ensure that manufacturers of similar products are making energy efficiency representations using the same alternative test procedure, which is essential for maintaining integrity in a market.

Based on the foregoing reasons, DOE lifts the administrative stay issued on July 3, 2017.

Discussion

On March 14, 2017, at 82 FR 13567, the Federal Register published our notice of proposed rulemaking (NPRM), which proposed to amend 14 CFR part 39 by adding an AD that would apply to Model 234 and Model CH-47D helicopters with a pitch housing part number (P/N) 145R2075-11, 145R2075-12, 145R2075-13, 145R2075-14, 145R2075-15, 145R2075-16, 234R2075-1, or 234R2075-2 installed. The type certificate (TC) holder for Model 234 helicopters is Columbia (TC previously held by Boeing Defense & Space Group), and the TC holders for Model CH-47D helicopters currently include Columbia, Billings Flying Service, Inc., and Tandem Rotor, LLC. We did not limit the proposed AD to these TC holders because we expect additional TC holders of helicopters that are subject to this same unsafe condition.

The NPRM was prompted by reports of cracking in the pitch housing lugs, located on the lead side of the lower vertical pin lug. The reports initially prompted the FAA to issue SAIB SW-11-03, dated October 22, 2010, which recommends that all owners and operators of Columbia Model 234 helicopters perform repetitive ultrasonic inspections of the lugs. At that time, there were no civil Model CH-47D helicopters in service. On March 20, 2015, we received a report of lateral vibration on a Model 234 helicopter caused by a crack in an aft pitch housing upper lug. The crack was determined to be caused by fatigue and attributed to underestimated load conditions in the original life limit calculations. This cracking differed from the cracking described in the SAIB.

To correct this unsafe condition, we proposed to require repetitive eddy current and ultrasonic inspections of the pitch housing. Boeing, the original manufacturer of both model helicopters, developed service information for the SAIB ultrasonic inspections, which we proposed to require in the NPRM. Due to the rapid growth rate, an effective eddy current inspection must detect an inward-growing crack of no more than 0.10 inch. The NPRM proposed to require, for Columbia helicopters, the eddy current inspection method specified in Columbia's service information. Because the other TC holders have not developed service instructions, we proposed to require the eddy current inspection procedures for all other helicopters be submitted to the Seattle or Denver Aircraft Certification Offices for approval.

We also proposed to require removing the pitch housing from service when it accumulates a total of 8,200 hours time-in-service (TIS). Forward pitch housings on Model CH-47D helicopters had no life limit and the aft pitch housing already had a life limit of 8,200 hours TIS. For Model 234 helicopters, the forward pitch housing had a life limit of 12,547 hours TIS and the aft pitch housing had a life limit of 19,077 hours TIS. The NPRM proposed to establish or reduce these life limits to 8,200 hours TIS for both forward and aft pitch housings, regardless of the model helicopter.

The actions specified by the NPRM were intended to detect and prevent a crack in a pitch housing lug. This condition could result in loss of a rotor blade and consequent loss of helicopter control.

Since the NPRM was issued, the FAA's Aircraft Certification Service has changed its organization structure. The new structure replaces product directorates with functional divisions. We have revised some of the office titles and nomenclature throughout this final rule to reflect the new organizational changes. Additional information about the new structure can be found in the Notice published on July 25, 2017 (82 FR 34564).

On October 25, 2017, after the comment period closed, we had a teleconference with Columbia about Columbia's service information identified in the NPRM. Columbia's comment during this teleconference is addressed below. A summary of this discussion can be found in the rulemaking docket at http://www.regulations.gov in Docket No. FAA-2015-4007.

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

One commenter supported the actions required by this AD.

Another commenter requested that we provide more information regarding our determination to include all Model CH-47D and Model 234 helicopters in this AD, including the number of hours on the failed Japanese military CH-47 pitch housing. This commenter suggested the failures may be unique to the Model 234 helicopter or may result from factors, such as high speed operations, a corrosive Japanese operating environment, or inaccurate fatigue equations.

We agree to provide additional information regarding our determination. The Japanese military CH-47 pitch housing failure referenced in SAIB SW-11-03 failed due to fatigue cracking initiated by fretting. The event occurred in 2006, and we do not have access to the number of hours on the failed pitch housing. The reported pitch housing lug cracks occurred on both the Model 234 and the Model CH-47D. These models use identical rotor head design and components, including the same part-numbered pitch housings. Therefore, we determined that the life limits for the pitch housings on both models should be the same.

We found no indication that the lug failure resulted from the Japanese operating environment. Investigation of the cracking did not show evidence of damage originating at corrosion sites. The Japanese operating environment is not unique as these aircraft operate worldwide in a variety of conditions. We also found no indications that the failures were due to inaccuracies in the Boeing Model 234 cycle count equations. Our investigation concluded that the original fatigue life evaluation excluded certain loading conditions and resulted in a life limit that was too high.

Tandem Rotor requested the AD not impose a life limit on the forward pitch housing or, alternatively, impose a life limit consistent with the life limit of the MH-47E/G forward pitch housing of 24,975 hours TIS. As part of this request, Tandem Rotor asks us to reconsider the service lives established by Boeing.

We disagree. We reviewed newer analyses than those considered by Boeing, including fatigue loading that was not part of the original design data. These newer analyses show a life limit is required on both the forward and aft pitch housings. This is consistent with SAIB SW-11-03, which included the forward pitch housing despite cracks having only been found in service on the aft pitch housing. The newer analyses do not support the 24,975-hour life limit requested by Tandem Rotor. These helicopters are used in a wide variety of operations. The life limits required by this AD assume more severe usage than the average operator in order to fully cover the range of different operators and usages. Individual operators may request an alternative method of compliance if sufficient data is submitted to substantiate a different life limit because their usage is not as damaging to a particular part.

Tandem Rotor also requested that the repetitive ultrasonic inspection interval be increased from 200 hours to 250 hours TIS to align the inspection with an existing recurring 500-hour eddy current inspection, thus reducing travel costs and simplifying maintenance planning for the technician.

We disagree. We have determined that the 200-hour interval for the inspection represents an appropriate time in which the required actions can be performed in a timely manner within the affected fleet, while still maintaining an adequate level of safety. A 250-hour interval did not yield a sufficient safety margin when considering all usage spectrums in the current fleet.

Columbia requested that we change the AD to make the eddy current inspection requirement the same for all helicopters. In support of its request, Columbia states that its service bulletin is proprietary and should not be incorporated by reference (and thus made publicly available) as an inspection method in the AD.

We agree. The inspection methods in the Columbia service information is specific to Columbia helicopters. Because Columbia is the only operator of its U.S. fleet, we determined there are no other operators that need this information to perform the eddy current inspections. We have changed the AD accordingly.

We have reviewed the relevant information, considered the comments received, and determined that an unsafe condition exists and is likely to exist or develop on other products of these same type designs and that air safety and the public interest require adopting the AD with the change previously described. This change will not increase the economic burden on any operator or increase the scope of the AD.

We reviewed Boeing Service Bulletin 145R2075-62-0001, Revision 1, dated September 27, 2011, which specifies updated life limits for the forward and aft pitch housings and revised overhaul and ultrasonic inspection procedures for various military Model CH-47 and Model 234 helicopters.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We also reviewed Columbia Helicopters, Inc. Alert Service Bulletin No. 234-62-A0012, Revision 2, dated March 1, 2016, and Alert Service Bulletin No. 47D-62-A0002, Revision 0, dated March 1, 2016. This service information specifies performing repetitive eddy current inspections, visual inspections, and ultrasonic inspections and for reducing the life limit of the pitch housing assemblies.

The service information provides different life limits for the forward and aft pitch housings, while this AD requires a life limit of 8,200 hours TIS for all pitch housings. The service information requires either an ultrasonic inspection or a dye penetrant inspection as part of the overhaul procedures. The service information specifies different compliance times for the inspections than what this AD requires.

We estimate that this AD affects 15 helicopters of U.S. Registry and that labor costs average $85 per work-hour. Based on these estimates, we expect the following costs:

• An eddy current inspection requires 4 work-hours for a total cost of $340 per helicopter and $5,100 for the U.S. fleet, per inspection cycle.

• An ultrasonic inspection requires 4 work-hours for a total cost of $340 per helicopter and $5,100 for the U.S. fleet, per inspection cycle.

• Replacing a pitch housing requires 8 work-hours and parts cost $13,000, for a total cost of $13,680 per helicopter.

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

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

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

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

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

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

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

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

We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

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

I. Background

The NIGC Class III MICS were promulgated in 1999 and last substantively revised in 2005. In 2006, the D.C. Circuit Court of Appeals in Colorado River Indian Tribes v. Nat'l Indian Gaming Comm'n, 466 F.3d 134 (CRIT v. NIGC), held that NIGC lacked authority to enforce or promulgate Class III MICS. Since that time, the Class III MICS have remained untouched. Technology has advanced rapidly, though, making some standards obsolete and introducing new areas of risk not contemplated by the outdated standards. And yet, many tribal-state compacts—even those entered into since 2006—continue to adopt NIGC Class III MICS by reference.

In light of the ruling in CRIT v. NIGC and recognizing the industry's need for updated standards, the NIGC sought comment on what to do with the outdated standards still remaining in the regulations and whether to draft updated, non-binding guidance for Class III MICS. Between 2015 and 2016, over forty tribes provided comment and overwhelmingly supported the NIGC proposal for non-binding guidance. Many also supported keeping the existing 542 regulations in the Code of Federal Regulations, even though they would be unenforceable, to minimize impacts on tribal/state compacts that incorporate them by reference. Additionally, the Commission sent letters to state gaming regulators on June 14, 2017, requesting comment on the draft guidance. One responded with recommendations.

In light of these comments, the Commission has developed non-binding guidance for Class III MICS and is suspending the existing part 542 regulations. Doing so will leave the existing regulations “on the books,” but with an editorial note stating that they are not enforceable. The updated guidance document for Class III MICS is available on the NIGC website at www.nigc.gov. This guidance is not intended to modify or amend any terms in a state compact.

Because the document will be guidance instead of regulations, NIGC will be able to keep it updated and adapt much more quickly to changes in the industry.

Typically, the suspension of Agency regulations would require the Agency to follow the notice and comment process mandated by the Administrative Procedure Act (APA). However, the APA permits agencies to finalize some rules without first publishing a proposed rule in the Federal Register. This exception is limited to cases where the agency has “good cause” to find that the notice-and-comment process would be “impracticable, unnecessary, or contrary to the public interest.” In this case, because the D.C. Circuit has ruled that the NIGC may not enforce its Class III MICS, or even maintain them as agency regulations, the NIGC has good cause to find that the notice and comment period is unnecessary and may directly publish a final rule suspending the Class III MICS regulations. The NIGC did not appeal the Circuit court's decision to the United States Supreme Court, so it is the law of the land and the NIGC has no discretion in regard to following the court's mandates.

The rule will not have a significant impact on a substantial number of small entities as defined under the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. Moreover, Indian Tribes are not considered to be small entities for the purposes of the Regulatory Flexibility Act.

The rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. The rule does not have an effect on the economy of $100 million or more. The rule will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, local government agencies or geographic regions, nor will the proposed rule have a significant adverse effect on competition, employment, investment, productivity, innovation, or the ability of the enterprises, to compete with foreign based enterprises.

The Commission, as an independent regulatory agency, is exempt from compliance with the Unfunded Mandates Reform Act, 2 U.S.C. 1502(1); 2 U.S.C. 658(1).

In accordance with Executive Order 12630, the Commission has determined that the rule does not have significant takings implications. A takings implication assessment is not required.

In accordance with Executive Order 12988, the Commission has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

The Commission has determined that the rule does not constitute a major federal action significantly affecting the quality of the human environment and that no detailed statement is required pursuant to the National Environmental Policy Act of 1969, 42 U.S.C. 4321, et seq.

Suspending part 542 also suspends any information collection requirements contained within. Therefore, no detailed statement is required pursuant to the Paperwork Reduction Act, 44 U.S.C. 3501, et seq.

The National Indian Gaming Commission is committed to fulfilling its tribal consultation obligations—whether directed by statute or administrative action such as Executive Order (E.O.) 13175 (Consultation and Coordination with Indian Tribal Governments)—by adhering to the consultation framework described in its Consultation Policy published July 15, 2013. The NIGC's consultation policy specifies that it will consult with tribes on Commission Action with Tribal Implications, which is defined as: Any Commission regulation, rulemaking, policy, guidance, legislative proposal, or operational activity that may have a substantial direct effect on an Indian tribe on matters including, but not limited to the ability of an Indian tribe to regulate its Indian gaming; an Indian tribe's formal relationship with the Commission; or the consideration of the Commission's trust responsibilities to Indian tribes.

On February 26, 2015, the Commission announced consultation and sought comments over its plans to draft updated, non-mandatory Class III MICS guidance and proposal to withdraw the part 542 regulations. The Commission held four in-person and one telephonic consultation sessions. The consultation and comment period ended on February 23, 2016. Over forty tribes commented on the plan. As a result of the comments, the Commission, on November 22, 2016, announced its proposal to suspend the part 542 regulations and issue updated, non-mandatory Class III MICS guidance. The Commission developed and shared a draft of the guidance and held six in-person consultation sessions. The Commission received comments through July 2017.

For the reasons discussed in the preamble, the Commission amends 25 CFR part 542 as follows:

The Coast Guard was notified by the Historic Ships in Baltimore, Inc., on February 6, 2018, through submission of a marine event application that, due to a scheduling change, a change of dates is necessary to the dates previously published in the Code of Federal Regulations (CFR) for the biennially scheduled Baltimore Air Show, as listed in the table to 33 CFR 100.501. The date of the event for this year is changed to October 4, 2018, through October 7, 2018. The Coast Guard will enforce the special local regulations in 33 CFR 100.501 for the Baltimore Air Show regulated area from 11 a.m. through 5 p.m. on October 4, 2018, from 10:30 a.m. through 5 p.m. on October 5, 2018, from 11 a.m. through 5 p.m. on October 6, 2018, and from 11 a.m. through 5 p.m. on October 7, 2018. Our regulation for marine events within the Fifth Coast Guard District, § 100.501, specifies the location of the regulated area for the Baltimore Air Show, which encompasses portions of the Patapsco River, at Baltimore, MD.

This action is being taken to provide for the safety of life on navigable waterways during the event. As specified in § 100.501(c), during the enforcement period, the Coast Guard patrol commander or designated marine event patrol may forbid and control the movement of all vessels in the regulated area. Vessel operators may request permission to enter and transit through a regulated area by contacting the Coast Guard patrol commander on VHF-FM channel 16.

In addition to this notice of enforcement in the Federal Register, the Coast Guard plans to provide notification of this enforcement period via the Local Notice to Mariners and marine information broadcasts.

I. Background, Purpose and Legal Basis

On March 2, 2018, the Coast Guard published a Test Deviation entitled Petaluma River, Haystack Landing (Petaluma), CA in the Federal Register (83 FR 8936). We received five comments on this rule. Four of the five comments submitted, concerning the test deviation, addressed the 2-hour advance notification. The commenters stated that the lengthy advance notification would be a burden on waterway users. The fifth comment was directed at the structural deficiency of a number of dams in the United States; this comment is not pertinent to this deviation.

Sonoma-Marin Area Rail Transit (SMART) owns the Northwestern Pacific railroad bridge across the Petaluma River, mile 12.4, at Haystack Landing (Petaluma), CA. The bridge has a vertical clearance of 3.6 feet above mean high water in the closed-to-navigation position and unlimited vertical clearance in the open-to-navigation position, and currently operates under 33 CFR 117.187(a).

The duration of this initial test deviation was 90 days. During this initial test, according to drawtender logs, 96 vessels requested openings and passed through the bridge. At no time was a 2-hour notice given to the drawtender and in only one instance was a one-hour advance notice given. In all other instances, a notification of 30 minutes or less was given to the drawtender and the bridge opened for the passage of those vessels. The Coast Guard received five comments, via the Federal eRulemaking Portal, related to the initial test deviation. Four of the five comments indicated the 2-hour notice would be a burden on waterway users.

In order to meet the reasonable needs of navigation, while benefiting rail transportation, the Coast Guard is publishing this alternate temporary deviation to the proposed schedule change to determine whether a permanent change to the schedule is appropriate to better balance the needs of marine and rail traffic.

Under this temporary deviation, in effect from 6 a.m. on August 20, 2018 to 6 a.m. on October 18, 2018, the bridge shall open on signal from 3 a.m. to 11 p.m. if at least 30 minutes notice is given to the drawtender. At all other times, the draw shall be maintained in the fully open position, except for the passage of trains or for maintenance. To request an opening, mariners can contact the drawtender via marine radio VHF-FM channel 16/9 or by telephone at (707) 890-8650. Vessels able to pass through the bridge in the closed position may do so at any time. The bridge will be required to open as soon as practicable for vessels engaged in emergency response. SMART will log dates and times of vessels requesting openings. There are no alternate routes for vessels transiting upstream of the bridge on the Petaluma River.

The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners and through direct outreach to local harbors, marinas, and water-based business of the temporary change in the 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.

We view public participation as essential to effective rulemaking, and will consider all comments and materials received during the comment period. Your comments can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, visit http://www.regulations.gov/privacynotice.

Documents mentioned in this notice as being available in this docket and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that website's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking §  Section U.S.C. United States Code SR State Road II. Background Information and Regulatory History

The Coast Guard is issuing this final 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 the State Route (SR) 3090 Bridge, mile 0.05, across the Chevron Oil Company Canal, at Fourchon, Lafourche Parish, LA (SR 3090 Bridge), that once required draw operations in 33 CFR 117.437, was removed from the waterway. Therefore, the regulation is no longer applicable and shall be removed from publication. It is unnecessary to publish an NPRM because this regulatory action does not purport to place any restrictions on mariners but rather removes a restriction that has no further use or value.

Under 5 U.S.C. 553(d)(3), and for the same reasons stated in the preceding paragraph, the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register.

The Coast Guard is issuing this rule under authority 33 U.S.C. 499.

On May 7, 2018, the SR 3090 Bridge, mile 0.05, across the Chevron Oil Company Canal, at Fourchon, Lafourche Parish, LA was removed in its entirety. It has come to the attention of the Coast Guard that the governing regulation for this drawbridge was never removed subsequent to the removal of the drawbridge completion. The elimination of this drawbridge necessitates the removal of the drawbridge operation regulation, 33 CFR 117.437, which pertained to the former drawbridge.

The purpose of this rule is to remove 33 CFR 117.437 that refers to the Chevron Oil Company Canal, SR 3090 Bridge, mile 0.05, from the Code of Federal Regulations because it governs a bridge that is no longer in existence.

The Coast Guard is removing the regulation in 33 CFR 117.437 and the regulatory burden related to the draw operations for this bridge that is no longer in existence. This change does not affect waterway or land traffic.

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 protesters.

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, it 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 fact that the bridge was removed from the waterway and no longer operates as a drawbridge. The removal of the operating schedule from 33 CFR 117 Subpart B will have no effect on the movement of waterway or land traffic.

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.

For the reasons stated in section IV.A above this final rule would 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 Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule simply removes the operating regulations or procedures for a drawbridge no longer in existence. This action is categorically excluded from further review, under figure 2-1, paragraph (32)(e), of the Instruction.

A Record of Environmental Consideration and a Memorandum for the Record are not required for this rule.

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 117 as follows:

The Coast Guard Captain of the Port Sector New Orleans (COTP) is establishing a permanent safety zone on the Lower Mississippi River in order to better provide for the safety of life on these navigable waters during firework displays. The COTP has determined that a large and increasing volume of the firework displays occurring within Sector New Orleans' area of responsibility take place at locations between mile markers (MMs) 94 and 97 above Head of Passes on the Lower Mississippi River. Many of these events recur annually and are listed in Table 5 of 33 CFR 165.801 titled Sector New Orleans Annual and Recurring Safety Zones. However, a substantial and increasing number of these firework displays are one-time events associated with conventions, weddings, festivals, etc. By creating a permanent safety zone that can be enforced through a notice of enforcement, the COTP can more efficiently provide for the safety of life on these navigable waters. Therefore, on June 18, 2018, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Safety Zone; Lower Mississippi River, Mile Markers 94 to 97 Above Head of Passes, New Orleans, LA (83 FR 28175). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this fireworks display safety zone. During the comment period that ended on July 18, 2018, we received two comments.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The COTP has determined that a permanent safety zone that can be enforced as necessary for fireworks displays will better allow the COTP to provide for the safety of life. A large and increasing number of marine events has been occurring on the Lower Mississippi River, with the bulk of the events occurring within the same three-mile stretch of river. This rule allows for more timely and efficient responses to these requests and will also greatly reduce the administrative burden the COTP encounters with establishing individual safety zones for these various events. The purpose of this rulemaking is to ensure the safety of life on these navigable waters within this three-mile segment of the Lower Mississippi River before, during, and after firework displays. Potential hazards associated with firework displays include the accidental discharge of fireworks, dangerous projectiles, and falling embers and other debris.

As noted above, we received two comments on our NPRM published on June 18, 2018. One comment was unrelated to the rule. The second comment requested that the regulatory text include geographic coordinates in degrees-minutes-seconds with an associated horizontal datum in order to accurately depict the safety zone boundaries on NOAA nautical charts. The Coast Guard agrees that the requested information would be helpful for NOAA and the public to identify the boundaries of the zone. The regulatory text of this final rule has been updated to include this information.

This rule establishes a permanent safety zone between mile marker (MM) 94 (29°57′32″ N, 90°03′05″ W) and MM 97 (29°55′19″ N, 90°04′00″ W), NAD83 datum, on the Lower Mississippi River, above Head of Passes. While this zone encompasses a three-mile section of the waterway, the COTP will limit the enforcement of the zone only to the areas necessary for the protection of life on these navigable waters before, during, and after firework displays. No vessel or person is permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. A designated representative means any Coast Guard commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of USCG Sector New Orleans. Persons and vessels requiring entry into this proposed safety zone must request permission from the COTP or a designated representative. They may be contacted on VHF-FM Channel 16 or 67 or by telephone at (504) 365-2200. Persons and vessels permitted to enter the safety zone must transit at their slowest safe speed and comply with all lawful directions issued by the COTP or the designated representative.

In accordance with 33 CFR 165.7, for each enforcement of the safety zone established under this proposed rule, the COTP will publish a notice of enforcement in the Federal Register as early as practicable. The COTP or a designated representative will inform the public of the enforcement area and period of this safety zone through Vessel Traffic Service Advisories, Broadcast Notices to Mariners (BNMs), Local Notice 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, duration, and location of the safety zone. While this zone would be permanent, it would only be enforced on an as needed basis to better regulate marine events in the area. This typically encompasses one-hour operations for a one-mile portion of the waterway.

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 received no comments from the Small Business Administration on this rulemaking. 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.

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.

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 establishing a safety zone on the Lower Mississippi River, mile marker (MM) 94 to MM 97. While this zone will be permanent, it will only be subject to enforcement on an as-needed basis. 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:

I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port Marine Safety Unit Pittsburgh 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 safety zone must be established by August 17, 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 safety zone until after the date of the 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 rule effective less than 30 days after publication in the Federal Register. Delaying this rule would be contrary to the public interest because immediate action is necessary to respond to the potential safety hazards associated with this boat race.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Marine Safety Unit Pittsburgh (COTP) has determined that potential hazards associated with this boat race will be a safety hazard for anyone within a two-mile stretch of the Allegheny River. The rule is needed to protect persons, property, and the marine environment in the navigable waters within the safety zone before, during, and after the boat race.

This rule establishes a safety zone from 9 a.m. on August 17, 2018 through 8 p.m. on August 19, 2018. The safety zone will be enforced each day during the effective period from 9 a.m. through 8 p.m. The safety zone will cover all navigable waters of the Allegheny River, extending the entire width of the river, from mile marker (MM) 43.5 to MM 45.5. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters before, during, and after the boat race. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of USCG Marine Safety Unit Pittsburgh. Persons and vessels seeking entry into this safety zone must request permission from the COTP or a designated representative. They may be contacted on VHF-FM Channel 16 or by telephone at (412) 221-0807. Persons and vessels permitted to enter this safety zone must transit at their slowest safe speed and comply with all lawful instructions of the COTP or a designated representative. The COTP or a designated representative will inform the public of the enforcement period for the safety zone as well as any changes in the schedule through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Marine Safety Information Broadcasts (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, time, duration, and location of the safety zone. This safety zone encompasses a two-mile stretch of the Allegheny River for eleven hours on each of three days. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners (BNMs) 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 temporary 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 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 eleven hours that will prohibit entry on a two-mile stretch of the Allegheny River on each of three days. 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:

This final rule amends the VA regulation regarding persons who may receive burial benefits, paid by the Veterans Benefits Administration (VBA), to ensure that the regulation properly reflects current VBA policy. On June 6, 2014, VA published in the Federal Register final burial regulations that permit VBA to automate certain burial allowance payments, pay flat-rate burial and plot or interment allowances, and establish priority of payments to certain survivors and estate representatives. Burial Benefits, 79 FR 32653. The revised burial regulations became effective July 7, 2014. See 79 FR 32653.

Burial regulations at 38 CFR 3.1700 through 3.1713 streamlined VBA's burial benefits program to ensure that VBA quickly, efficiently, and accurately delivers benefits to survivors and other individuals who incur the cost of a veteran's burial and funeral. The regulations established rules for the automatic payment of burial allowances that facilitated payment to many surviving spouses at the time VA updates its computer system to reflect the veteran's date of death. Other individuals seeking reimbursement for burial expenses are paid on a first-to-file basis.

On December 16, 2016, Congress enacted Public Law 114-315, Sec. 101, which authorized VA to pay benefits under 38 U.S.C. chapters 13 and 15 and sections 2302, 2307, and 5121 “to a survivor of a veteran who has not filed a formal claim if [VA] determines that the record contains sufficient evidence to establish the entitlement of the survivor to such benefits.” See 38 U.S.C. 5101(a)(1)(B). This new statutory provision essentially affirmed VA's practice of providing automatic burial payments to surviving spouses under the current regulation. This rule brings about a procedural change that would allow VA to provide automatic burial payments to other surviving spouses whom VA determines are entitled to such benefits based on the record at the time VA updates its computer system to reflect the veteran's death, which we believe is consistent with the intent of section 5101(a)(1)(B).

Therefore, at this time, we amend 38 CFR 3.1702, which pertains to persons who may receive burial benefits and the priority of payments. The change in this final rule reflects the intent of the original amendments—to expedite the payment of these small, one-time benefit payments to survivors who generally have an immediate need for supplemental financial assistance after the veteran's death.

We amend § 3.1702(a), which permits VA to make automatic burial benefit payments to a deceased veteran's surviving spouse when VA is able to determine eligibility based on evidence of record at the time VA updates its computer system to reflect the veteran's date of death. We amend paragraph (a) to specifically state that a surviving spouse may receive an automatic burial benefit under certain circumstances, whether or not previously established as a dependent spouse on the veteran's compensation or pension award at the time of the veteran's death. There are several reasons why VA systems may not reflect the existence of a spouse at the time of a veteran's death even though a spouse does, in fact, exist. This could occur if a veteran was receiving disability compensation but was rated less than 30-percent disabled under the rating schedule. Such veterans with a service-connected disability rating of less than 30 percent are not entitled to additional compensation for spouses. See 38 U.S.C. 1115. It could also occur if a veteran has never claimed his or her spouse as a dependent. In addition, VA systems could show a spouse who is not the current spouse. This could occur if VA was never notified that the veteran's dependency status had changed. The amended regulation clarifies that VBA may pay the automatic burial benefit to an eligible surviving spouse when, at the time VA updates its computer system to reflect the veteran's date of death, VA knows of or is informed of the existence of the surviving spouse, can establish the individual's dependent status as the veteran's surviving spouse in accordance with § 3.204 (when applicable), and is able to determine burial benefits eligibility based on evidence of record at the time VA updates its computer system to reflect the veteran's date of death.

At this time, VA systems only permit automatic payments to surviving spouses. In the future, VA may consider making automatic payments to other persons.

This rule reflects VA's current practice and effectuates a procedural change to VA's final burial regulations published on June 6, 2014, to establish a uniform process for providing automatic burial payments to all surviving spouses. The lack of documentation of a dependent spouse in VA's system at the time of the veteran's death should not impose additional procedural requirements on those individuals when applying for burial benefits established under the regulations.

This rule does not make any substantive policy change or impose new rights, duties, or obligations on affected individuals but simply reflects VA's existing policy and effectuates a procedural change to VA's final burial regulations published on June 6, 2014, to ensure uniform procedures for eligible surviving spouses to receive burial allowance payments faster. In other words, this rule does not expand the class of individuals eligible for burial allowance payments but merely ensures faster payment of the burial allowance to surviving spouses who otherwise would have to submit an application for the burial allowance. Also, this rule does not adversely impact surviving spouses who would have been eligible for automatic payment under the 2014 amendments; we contemplate that all such individuals would also qualify for such payments under this rule. As a rule of agency procedure or practice, this rule is exempt under 5 U.S.C. 553(b)(A) from the prior notice-and-comment requirements of 5 U.S.C. 553. Also, this rule is exempt from the delayed effective date requirement under 5 U.S.C. 553(d) because it is a procedural rule and, alternatively, because this rule is beneficial to surviving spouses at a time of need, pursuant to 5 U.S.C. 553(d)(3), VA finds good cause to make the amendments effective on the date of publication.

Section 3.1703 contains an information collection approved by the Office of Management and Budget (OMB) under OMB control number 2900-0003. This final rule does not contain any provisions constituting an additional collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) and does not alter the existing information collection contained in § 3.1703; rather, the final rule merely provides that VA may grant benefits in certain cases even if the claimant has not filed an application under the existing information collection.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” which requires review by OMB, as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”

The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined and it has been determined not to be a significant regulatory action under Executive Order 12866. VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's website at http://www.va.gov/orpm by following the link for “VA Regulations Published from FY 2004 through Fiscal Year to Date.” This rule is not an Executive Order 13771 regulatory action because this rule is not significant under Executive Order 12866.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This final rule will have no such effect on State, local, and tribal governments, or on the private sector.

The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This final rule will not directly affect any small entities; only individuals will be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604.

The Catalog of Federal Domestic Assistance number and title for the program affected by this rulemaking is 64.101, Burial Expenses Allowance for Veterans.

The Secretary of Veterans Affairs approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Robert L. Wilkie, Secretary, Department of Veterans Affairs, approved this document on August 6, 2018, for publication.

For reasons set out in the preamble, the Department of Veterans Affairs amends 38 CFR part 3 as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

On June 15, 2018 (83 FR 25981), EPA issued a notice of proposed rulemaking (NPRM) for the State of Rhode Island. In the NPRM, EPA proposed approval of SIP revisions submitted by the Rhode Island Department of Environmental Management (RI DEM) on February 10, 2017. This SIP submittal included six revised Air Pollution Control Regulations (APCRs): No. 8, “Sulfur Content of Fuels;” No. 19, “Control of Volatile Organic Compounds from Surface Coating Operations;” No. 27, “Control of Nitrogen Oxides Emissions;” No. 35, “Control of Volatile Organic Compounds and Volatile Hazardous Air Pollutants from Wood Products Manufacturing Operations;” No. 36, “Control of Emissions from Organic Solvent Cleaning;” and General Definitions.

The NPRM provides the rationale for EPA's proposed approval, which will not be restated here.

EPA received two anonymous comments in response to the notice of proposed rulemaking. The comments address subjects outside the scope of the proposed action, did not explain (or provide a legal basis for) how the proposed action should differ in any way, and made no specific mention of the proposed action. Therefore, the comments are not germane and EPA provides no further response.

EPA is approving the February 10, 2017 RI DEM SIP submittal consisting of the six revised APCRs: No. 8, “Sulfur Content of Fuels” (with the exception of sections 8.7 and 8.8.3); No. 19, “Control of Volatile Organic Compounds from Surface Coating Operations” (with the exception of sections 19.2.2 and 19.9.2); No. 27, “Control of Nitrogen Oxides Emissions” (with the exception of section 27.7.3); No. 35, “Control of Volatile Organic Compounds and Volatile Hazardous Air Pollutants from Wood Products Manufacturing Operations” (with the exception of sections 35.2.3 and 35.9.3); No. 36, “Control of Emissions from Organic Solvent Cleaning” (with the exception of sections 36.2.2 and 36.14.2); and General Definitions (with the exception of the provision entitled “Application” under the “General Provisions”).

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the Rhode Island regulations described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents generally available through https://www.regulations.gov and at the EPA Region 1 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation.1

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

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• This action is not an Executive Order 13771 regulatory action because this action is not significant 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 Clean Air Act; and

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

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications 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 Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 12, 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).)

Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

On May 25, 2018 (83 FR 24259), the EPA published a Notice of Proposed Rulemaking (NPRM) for the State of Connecticut. In the May 25, 2018 proposed rulemaking action, the EPA proposed to approve the portion of a Connecticut SIP revision submitted on August 8, 2017 which demonstrates attainment of the 1997 ozone NAAQS. The EPA also proposed to approve the associated RACM analysis for the same area. Connecticut previously submitted an initial attainment demonstration for the 1997 ozone NAAQS for the Connecticut portion of the NY-NJ-CT area on February 1, 2008.

This action addresses Connecticut's demonstrations of attainment of the 1997 8-hour ozone standard and associated RACM analysis for the Connecticut portion of the NY-NJ-CT area, submitted by Connecticut on February 1, 2008 and August 8, 2017. The EPA is taking separate action on the 2011 base year emission inventories, RFP plans, motor vehicle emission budgets, and contingency measures submitted as part of the August 8, 2017 SIP revisions in a forthcoming Federal Register document.

As discussed in the Federal Register at 83 FR 24259, May 25, 2018, proposed rulemaking, the EPA reviewed the photochemical grid modeling used by Connecticut in its August 8, 2017 SIP submittal to demonstrate attainment of the 1997 ozone NAAQS and determined the modeling meets the EPA's guidelines and is acceptable to the EPA. Air quality monitoring data for 2014-2016 also demonstrates attainment of the 1997 8-hour ozone standard throughout the NY-NJ-CT area. The purpose of the attainment demonstration is to demonstrate how, through enforceable and approvable emission reductions, an area will meet the standard by the attainment date. The purpose of the RACM analysis is to show that the State has considered all reasonable available control measures to achieve attainment of the 1997 8-hour ozone standard. All necessary ozone control measures have already been adopted, submitted, approved and implemented. Also discussed in further detail in the Federal Register at 83 FR 24259, May 25, 2018, proposed rulemaking and based on (1) the State following the EPA's modeling guidance, (2) the modeled attainment of 1997 standard, (3) the air quality monitoring data for 2014-2016, and (4) the implemented SIP-approved control measures, the EPA is approving the attainment demonstration and RACM analysis for the 1997 ozone NAAQS for the Connecticut portion of the NY-NJ-CT area. The EPA is not taking action on the attainment demonstration and RACM analysis for the 2008 ozone NAAQS at this time.

Other specific requirements of an attainment demonstration and the rationale for the EPA's proposed action are explained in the NPRM and will not be restated here. The EPA received two comments during the comment period. Although one comment was partially supportive of the EPA's proposed action, the comments otherwise discuss subjects outside the scope of an attainment demonstration action, do not explain (or provide a legal basis for) how the proposed action should differ in any way, and make no specific mention of the proposed action. As such, they are not germane and do not require further response to finalize the action as proposed.

The EPA is approving the attainment demonstration and RACM analysis for the Connecticut portion of the NY-NJ-CT area for the 1997 ozone NAAQS. This rulemaking addresses the EPA's obligations to act on Connecticut's February 1, 2008 SIP revision for the 1997 ozone NAAQS, as well as the attainment demonstration and RACM analysis portion of the August 8, 2017 SIP submittal for the 1997 ozone NAAQS for the Connecticut portion of the NY-NJ-CT area.

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

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

• This action is not an Executive Order 13771 regulatory action because this action is not significant 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 Clean Air Act; and

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

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications 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 Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 12, 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).)

Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

On May 25, 2018 (83 FR 24264), EPA published a Notice of Proposed Rulemaking (NPRM) regarding specific Clean Air Act requirements applicable to the State of Maine. In particular, the NPRM proposed approval of Maine's February 21, 2018, SIP submittal for the 2010 primary NO2 NAAQS as it pertains to section 110(a)(2)(D)(i)(I) of the CAA.

Section 110(a)(2)(D)(i)(I) requires a state's SIP to include provisions prohibiting any source or other type of emissions activity within the state from emitting any air pollutant in amounts that will contribute significantly to nonattainment, or interfere with maintenance, of the NAAQS in another state. The two clauses of this section are referred to as prong 1 (significant contribution to nonattainment) and prong 2 (interference with maintenance of the NAAQS).

In the NPRM, EPA proposed to approve Maine's February 21, 2018, infrastructure SIP submittal for the 2010 primary NO2 NAAQS, concluding Maine's SIP submittal adequately addresses prong 1 and prong 2 requirements of CAA section 110(a)(2)(D)(i)(I) for the 2010 primary NO2 NAAQS. The rationale for EPA's proposed action is explained in the NPRM and will not be restated here.

In response to the May 25, 2018 NPRM, we received a number of anonymous comments that address subjects outside the scope of our proposed action, do not explain (or provide a legal basis for) how the proposed action should differ in any way, and make no specific mention of the proposed action. Consequently, those comments are not germane to this rulemaking and require no further response.

EPA received one relevant comment that referred specifically to the proposed rulemaking on the Maine's infrastructure SIP submittal for the 2010 primary NO2 NAAQS.

Comment: The commenter suggests that, under the Plain Writing Act of 2010, EPA should not have used the word “promulgated” in the NPRM for this action.

Response: The Plain Writing Act of 2010 (“PWA” or the “Act”), Public Law 111-274, 124 Stat. 2861, requires EPA to “use plain writing in every covered document of the agency that the agency issues or substantially revises.” See PWA section 4(b). The Act defines “plain writing” as “writing that is clear, concise, well-organized, and follows other best practices appropriate to the subject or field and intended audience.” See PWA section 3(3). The Office of Management and Budget (“OMB”) published guidance 1 on the Act that encourages agencies to follow Federal Plain Language Guidelines available at www.plainlanguage.gov that recommend agencies avoid certain words, including “promulgate.” Neither the PWA nor the guidelines, however, bar its use.

In the NPRM, EPA used forms of “promulgate” twice as follows: “[o]n February 9, 2010, EPA promulgated a new 1-hour primary NAAQS for NO2 at a level of 100 parts per billion (ppb), based on a 3-year average of the 98th percentile of the yearly distribution of 1-hour daily maximum concentrations” and “states are required to submit SIPs meeting the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS” (emphasis added). The Clean Air Act specifically requires EPA to “promulgate” NAAQS, CAA section 109(a)(1)(B), and requires states to submit infrastructure SIPs to EPA within three years after the “promulgation” of a NAAQS, CAA section 110(a)(1). EPA agrees that it can sometimes be clearer to avoid words like “promulgate,” but EPA appropriately used “promulgated” and “promulgation” in the NPR to refer specifically to these formal CAA requirements. In any event, the comment does not suggest that the commenter misunderstood EPA's proposed action due to the use of these words. See PWA section 2. Nor does the commenter state that EPA should disapprove Maine's submittal. Therefore, we are approving the SIP submittal as proposed.

EPA is approving Maine's February 21, 2018, SIP revision addressing prongs 1 and 2 of CAA section 110(a)(2)(D)(i)(I) for the 2010 primary NO2 NAAQS. EPA is taking final action to approve this SIP submittal because Maine's SIP includes adequate provisions to prevent emissions sources within the State from significantly contributing to nonattainment or interfering with maintenance of this standard in any other state.

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

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

• This action is not an Executive Order 13771 regulatory action because this action is not significant 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 Clean Air Act; and

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

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications 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 Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 12, 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).)

Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:

Executive Summary

Why we need to publish a rule. Under the Endangered Species Act (Act), a species may warrant protection through listing if it is found to be an endangered or threatened species. Listing a species as an endangered or threatened species can only be completed by issuing a rule. On July 6, 2012, the U.S. Fish and Wildlife Service (Service) published in the Federal Register (FR) a 12-month finding and proposed rule to list the hyacinth macaw (Anodorhynchus hyacinthinus) as an endangered species under the Act (77 FR 39965). On November 28, 2016, the Service published a revised proposed rule to list the hyacinth macaw as a threatened species (81 FR 85488), which included a proposed rule under section 4(d) of the Act that defined the prohibitions we are extending to the hyacinth macaw and the exceptions to those prohibitions, as well as provisions that are necessary and advisable for the species' conservation. This rule finalizes the listing of the hyacinth macaw as a threatened species under the Act, and establishes a 4(d) rule to further provide for the species' conservation.

The basis for our action. Under section 4(a)(1) of the Act, we determine that a species is an endangered or threatened species based on any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. The primary causes attributed to the decline of the hyacinth macaw include habitat loss and degradation (Factor A), hunting (Factor B), predation (Factor C), competition and low reproduction rate (Factor E), and climate change (Factor E).

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

Peer review and public comment. We sought comments from independent specialists to ensure that our analysis is based on scientifically sound data, assumptions, and analyses. We invited peer reviewers and the public to comment on our listing proposals. All substantive information from peer review and public comments was fully considered and incorporated into this final rule, where appropriate.

Please refer to the proposed listing rule, published in the Federal Register on July 6, 2012 (77 FR 39965), for previous Federal actions for this species prior to that date. The publication of the proposed listing rule opened a 60-day public comment period, which closed on September 4, 2012. Based on new information, on November 28, 2016, we published a revised proposed rule (81 FR 85488) to list the hyacinth macaw as a threatened species, which included a proposed rule under section 4(d) of the Act (16 U.S.C. 1531 et seq.) that defines the conservation measures that apply to the hyacinth macaw (50 CFR 17.41(c)). That revised proposed rule also opened a 60-day public comment period, which closed on January 27, 2017.

We included additional information regarding action plans in Brazil that aim to reduce deforestation.

Brazil has implemented actions plans that aim to reduce deforestation rates in the Amazon and Cerrado, referred to as the Plan of Action for Prevention and Control of Deforestation in the Legal Amazon (PPCDAm) and the Action Plan for the Prevention and Control of Deforestation and Burning in the Cerrado (PPCerrado), respectively. In the proposed rule we stated that we did not have any details regarding the success or progress of these plans. However, in this final rule we included the most recent information available and results achieved by these plans (see Factor D discussion, below).

We reviewed all comments we received from peer reviewers and the public for substantive issues and new information. All substantive information from peer review and public comments has been fully considered and is incorporated into this final rule, where appropriate.

We received 104 public comments combined on the proposed and revised proposed rules to list the hyacinth macaw under the Act during their respective comment periods. Many commenters supported listing the hyacinth macaw as an endangered or threatened species under the Act. However, many commenters also recommended that we issue a rule under section 4(d) of the Act that would allow interstate commerce of hyacinth macaws to occur without needing a permit. The following discussion summarizes issues and substantive information from public comments and provides our responses.

Comment (1): Many commenters opined that the Act was meant to protect species native to the United States, and the hyacinth macaw should not be listed since it is a foreign species.

Our Response: The Act does not differentiate between domestic and foreign species as it applies to our responsibilities to determine whether species are endangered or threatened, and sections 4(b)(1)(A) and 4(b)(1)(B)(i) expressly require the Service to consider efforts by a foreign nation prior to making a listing determination. The broad definitions of “species,” “fish or wildlife,” and “plants” in section 3 of the Act do not differentiate between species native to the United States, species native to both the United States and one or more other countries, and species not native to the United States. Further, the findings and purposes at sections 2(a)(4), 2(a)(5), and 2(b) of the Act also speak to the application of the Act to foreign species and numerous provisions of the Act and the implementing regulations refer to foreign jurisdictions (e.g., sections 8 and 8A, 50 CFR 424.11(e)).

Comment (2): Some commenters believed that there is no demonstrable benefit to listing the hyacinth macaw under the Act because it is already protected by CITES and the Wild Bird Conservation Act (WBCA; 16 U.S.C. 4901-4916).

Our Response: The decision to list a species under the Act is based on whether the species meets the definition of an endangered or threatened species as defined under section 3 of the Act and is made solely on the basis of the best scientific and commercial data available. Conservation measures provided to species listed as endangered or threatened under the Act include recognition, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and may encourage and result in conservation actions by foreign governments, Federal and State governments, private agencies and interest groups, and individuals. The purpose of the WBCA is to ensure that exotic bird species are not harmed by international trade and encourages wild bird conservation programs in countries of origin. The purpose of CITES is to ensure that international trade in plants and animals does not threaten their survival in the wild. Protection provided by other laws, such as CITES and WBCA, is taken into consideration when determining the status of the species. However, simply being protected by these other laws does not preclude the need to list if the species still meets the definition of an endangered or threatened species. Listing under the Act can help ensure that the United States and its citizens do not contribute to the further decline of the species. That said, we considered the conservation role that CITES and WBCA provide when developing the 4(d) rule for the species. The 4(d) rule that we are putting in place streamlines the permitting process by deferring to existing laws that are protective of hyacinth macaws in the course of import and export and not requiring permits under the Act for certain types of activities. Additionally, we are not prohibiting interstate commerce of hyacinth macaw within the United States (see 4(d) Rule, below).

Comment (3): Several commenters stated that the information used in the proposed rule was outdated; one also expressed concern that the information was from English-only sources.

Our Response: The Service is required by the Act to make determinations solely on the basis of the best scientific and commercial data available. We based the proposed rule on all the information we received following the initiation of the status review for the hyacinth macaw, as well as all of the information we found during our own research. The information we use is not always current, as it depends on research being conducted in the field and the availability of information. At that time, the information we compiled was considered the best available information. After we published the proposed rule in 2012, additional information became available or was submitted by the public, including more recent information and studies from a species expert and conservation organizations within the hyacinth macaw's range countries. Literature that was not in English was professionally translated and then reviewed, to the best of our ability. The information we received has been incorporated into this final rule and helped serve as the basis for our determination that the hyacinth macaw is threatened, not endangered.

Comment (4): Two commenters stated that significant additional wild populations have been recently discovered and were not included in the data cited for the proposed listings.

Our Response: The commenters did not provide any information or citations to support their claims. The information that we have indicates that hyacinth macaws may be expanding into new areas or areas previously abandoned; however, we found no support for significant additional populations having been established. The overall population estimate for the hyacinth macaw remains 6,500 individuals.

Comment (5): Many commenters raised concerns about the listing of the hyacinth macaw due to economic impacts on small businesses because of the restriction on commercial trade within the United States.

Our Response: Determinations on whether a species should be added to the Federal Lists of Endangered and Threatened Wildlife and Plants are based on whether the species meets the definition of “endangered species” or of “threatened species” in section 3 of the Act. The Act directs the Service to make these determinations solely on the basis of the best scientific and commercial data available. Furthermore, the Act directs the Service to consider economic impacts only when designating critical habitat. Therefore, we may not consider economic impacts when determining the status of a species. We understand that the regulations imposed by the listing of the hyacinth macaw will have an effect on those involved in the pet bird industry, especially bird breeders. The 4(d) rule that we are putting in place streamlines the permitting process by deferring to existing laws that are protective of hyacinth macaws in the course of import and export and not requiring permits under the Act for certain types of activities. Additionally, we are not prohibiting interstate commerce of hyacinth macaw within the United States (see 4(d) Rule, below).

Comment (6): Some commenters requested that captive birds in the United States be considered a separate and self-sustaining population from the wild population because the wild populations are in need of immediate help and should be managed and listed independently under the Act.

Our Response: We have determined that the Act does not allow for captive wildlife to be assigned separate legal status from their wild counterparts on the basis of their captive state, including through designation as a separate distinct population segment (DPS) (80 FR 34500; June 16, 2015).

Comment (7): One commenter stated that the proposed rule does not address the many positive steps that have been taken to conserve the hyacinth macaw in the wild. The commenter referenced the work of the Hyacinth Macaw Project specifically.

Our Response: We included a detailed description of the work being done by the Hyacinth Macaw Project under Conservation Measures in the November 28, 2016, revised proposed rule (81 FR 85488, November 28, 2016 see pp. 85499-85501) and “Conservation Actions” in the July 6, 2012, proposed rule (77 FR 39965, see pp. 39971-39972). Our final rule considers and incorporates additional information we subsequently received from the President of the Hyacinth Macaw Institute and Coordinator for the Hyacinth Macaw Project, Neiva Guedes.

Comment (8): Two commenters pointed to a recent increase in deforestation within the hyacinth macaw's range as a reason why the species should be listed as endangered rather than threatened.

Our Response: The deforestation rate is generally decreasing from historical levels (see Factor A discussion, below), although we recognize that the rates of deforestation may fluctuate annually, with some years having a higher rate than other years. If the deforestation rates are maintained or further reduced, the loss of all native habitat from these areas, including the species of trees needed by the hyacinth macaw for food and nesting, and the hyacinth macaw's risk of extinction, is not as imminent as predicted. Additionally, Brazil has implemented plans to reduce deforestation in the Amazon (PPCDAm) and Cerrado (PPCerrado) and has obtained significant reduction of the deforestation rate after 12 years of the PPCDAm and 6 years of PPCerrado (see Factor D discussion, below). Therefore, we do not find that the hyacinth macaw is currently in danger of extinction.

Comment (9): One commenter stated that deforestation stabilization does not equate with regeneration and does not account for negative impacts of historical habitat disturbance, which effects manduvi in the Pantanal, upon which the hyacinth macaw relies almost exclusively for nesting.

Our Response: Although the recruitment of the manduvi tree has been severely reduced and is expected to become increasingly rare in the future, active management has contributed to the increase in the hyacinth macaw population in the Pantanal, and farmers have begun to protect hyacinth macaws on their property. Additionally, hyacinth macaws have been reported in various trees species and even on cliffs on the border of the Pantanal (see Essential Needs of the Species, above), although the majority of their nests are in Brazil nut (Bertholettia excels) (in Pará) and manduvi (in the Pantanal). Further, hyacinth macaws in the Gerais region now use rock crevices for nesting. While we do not know if the hyacinth macaws in this region will respond in the same way to the loss of nesting trees as those in the Gerais region, it is possible that if these primary nesting trees become scarcer, hyacinth macaws may adapt to using cavities of other trees (van der Meer 2013, p. 3) or perhaps even cliff faces.

Comment (10): One commenter stated that we provide conflicting data on annual deforestation rates in the Gerais region because we stated that annual deforestation rates were more than 14,200 km2 (5,483 mi2) each year from 2002 to 2008, an estimated 12,949 km2 (4,999 mi2) per year from 2000 to 2005, and 11,812 km2 (4,560 mi2) per year from 2005 to 2010.

Our Response: We cited the best available data from research that used time frames that overlap or vary; therefore, it is difficult to make comparisons between studies and across years to provide a linear estimate of the annual deforestation rates within the species' range. Estimates of the deforestation rate from 2002 to 2008 of 14,200 km2 (5,483 mi2) each year are based on data from the PROBIO program (Projeto de Conservação e Utilização Sustentável da Diversidade Biológica) using imagery from 2002 (Beuchle et al. 2015, p. 117). The Project to Monitor Deforestation of Brazilian Biomes by Satellite (PMDBBS) used this baseline data to estimate deforestation rates from 2002 through 2008 in the Cerrado (see Table 2, below), and to map cleared areas from 2008 to 2009, 2009 to 2010, and 2010 to 2011; these data are also cited by Brazilian Ministry of the Environment (Ministério do Meio Ambiente) (MMA) (2015, p. 9) and World Wildlife Fund—United Kingdom (WWF-UK) (2011b, p. 2). The PMDBBS is one of the official national biome scale estimates for the Brazilian biomes. Estimates of the deforestation rate we cited from 2000 to 2005 of 12,949 km2 (4,999 mi2) per year and from 2005 to 2010 of 11,812 km2 (4,560 mi2) per year are from Beuchle et al. (2015, pp. 124-125), who were comparing their results to PMDBBS (see Factor A discussion, below).

Comment (11): Some commenters, while not opposed to the listing of the species, requested a rule under section 4(d) of the Act, which would allow ownership and interstate trade of the species to occur without obtaining a permit under the Act.

Our Response: Ownership of a listed species is not prohibited by the Act and, therefore, does not require a permit. Section 4(d) of the Act allows the Service to apply the prohibitions of section 9 or to provide measures that are necessary and advisable to provide for the conservation of threatened species. Therefore, whenever we list a species as a threatened species, we may issue regulations as we deem necessary and advisable to conserve the species under a 4(d) rule. We determined that listing the hyacinth macaw as threatened under the Act is appropriate, and as part of our determination, this final listing includes a 4(d) rule for the species articulating the measures that we deemed is necessary and advisable for the conservation of the species. See 4(d) Rule, below, for more discussion.

Comment (12): Two commenters stated that the proposed 4(d) rule is not adequate because it does not stem demand for illegally obtained hyacinth macaws and makes wild-sourced supply of hyacinth macaws more accessible to breeders.

Our Response: The 4(d) rule generally adopts the existing conservation regulatory requirements of CITES and the WBCA as the appropriate regulatory provisions for the import and export of certain hyacinth macaws. CITES is an international agreement between governments and ensures that the international trade of CITES-listed plants and animals does not threaten the survival of the species in the wild. Trade must be authorized through a system of permits and certificates that are provided by the designated CITES Scientific and Management Authorities of each CITES Party. The hyacinth macaw is listed in Appendix I of CITES. For species included in CITES Appendix I, international trade is permitted only under exceptional circumstances, which generally precludes commercial trade. The United States implements CITES through the Act and our implementing regulations at 50 CFR part 23. It is unlawful for any person subject to the jurisdiction of the United States to engage in any trade in any specimens contrary to the provisions of CITES, or to possess any specimens traded contrary to the provisions of CITES, the Act, or part 23. Protections for CITES-listed species are provided independently of whether a species is an endangered species or a threatened species under the Act.

Based on trade data obtained from the CITES Trade Database (accessed on January 12, 2018), from the time the hyacinth macaw was uplisted to CITES Appendix I in October 1987 through 2015, less than 3 percent of the live hyacinth macaws reported in trade were wild-sourced (see Factor B discussion and Table 4, below).

Two other laws in the United States apart from the Act provide protection from the illegal import of wild-caught birds into the United States: The WBCA and the Lacey Act (18 U.S.C. 42-43; 16 U.S.C. 3371-3378). The WBCA ensures that exotic bird species are not harmed by international trade and encourages wild bird conservation programs in countries of origin. Under the WBCA and our implementing regulations (50 CFR 15.11), it is unlawful to import into the United States any exotic bird species listed under CITES except under certain circumstances. The Service may issue permits to allow import of listed birds for scientific research, zoological breeding or display, cooperative breeding, or personal pet purposes when the applicant meets certain criteria (50 CFR 15.22-15.25). Under the Lacey Act, in part, it is unlawful: (1) To import, export, transport, sell, receive, acquire, or purchase any fish, or wildlife taken, possessed, transported, or sold in violation of any law, treaty, or regulation of the United States or in violation of any Indian tribal law, or (2) to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce any fish or wildlife taken, possessed, transported, or sold in violation of any law or regulation of any State or in violation of any foreign law. For example, because the take of wild-caught hyacinth macaws would be in violation of Brazil's Environmental Crimes Law, the subsequent import of hyacinth macaws would violate the Lacey Act. Similarly, under the Lacey Act it is unlawful to import, export, transport, sell, receive, acquire, or purchase specimens of this species traded contrary to CITES.

Based in large part on the protection from illegal and legal trade afforded to the hyacinth macaw by CITES, the WBCA, and the Lacey Act, the best available data indicate that legal and illegal trade of hyacinth macaws is not currently occurring at levels that are affecting the population of the species in the wild or would negatively affect any efforts aimed at the recovery of wild populations of the species. Although illegal trapping for the pet trade occurred at high levels during the 1980s, it has decreased significantly and we found no information suggesting that illegal trapping and trade of wild hyacinth macaws are current threats to the species. Therefore, we find that our 4(d) rule contains all the prohibitions and authorizations necessary and advisable for the conservation of the hyacinth macaw.

Comment (13): One commenter stated that interstate and international transport of hyacinth macaws seems to be a generally accepted practice of the exotic pet trade, and one that is expressly endorsed by the 4(d) rule, yet it is extremely dangerous and often detrimental to the animal's health and well-being.

Our Response: International transport is guided by part 50 CFR part 14, subpart J—Standards for the Humane and Healthful Transport of Wild Mammals and Birds to the United States. As mentioned earlier, importers/exporters must meet the requirement of this and other requirements in order to import their birds into the United States. These regulations are enforced by the Service. Interstate transport is guided by the Animal Welfare Act (AWA) (7 U.S.C. 2131 et seq.), which is the Federal law in the United States that regulates the treatment of animals in research, exhibition, transport, and by dealers (United States Department of Agriculture 2017, unpaginated). While other laws, policies, and guidelines may include additional species coverage or specifications for animal care and use, all refer to the AWA as the minimum acceptable standard. The AWA is enforced by the U.S. Department of Agriculture, Animal and Plant Health Inspection Service. Therefore, we determine that these laws and regulations adequately promote the humane treatment and transport of hyacinth macaws.

Comment (14): One commenter recommended there be an exception for legitimate parrot owners and opined that the United States should not confiscate private property (i.e., legitimately purchased pets) because of a problem occurring in Brazil, especially when there are already laws to protect wild parrots.

Our Response: There is no prohibition for ownership of lawfully acquired hyacinth macaws. With regards to import/export, we proposed exceptions for personal pet parrot owners in the 4(d) rule to allow a person to import or export either: (1) A specimen that was held in captivity prior to the date this species is listed under the Act; or (2) a captive-bred specimen, without a permit issued under the Act, provided the export is authorized under CITES and the import is authorized under CITES and the WBCA. A person may deliver, receive, carry, transport, or ship a hyacinth macaw in interstate commerce in the course of a commercial activity, or sell or offer to sell in interstate commerce a hyacinth macaw without a permit under the Act. However, the import and export of birds into and from the United States, taken from the wild after the date this species is listed under the Act; conducting an activity that could take or incidentally take hyacinth macaws; and foreign commerce will need to meet the requirements of 50 CFR 17.31 and 17.32, including obtaining a permit under the Act. See 4(d) Rule, below, for more discussion.

Comment (15): One commenter believed that we should have listed the species as endangered because they believed that it is in danger of extinction in a significant portion of its range.

Our Response: Under the Act and our implementing regulations, a species may warrant listing if it is an endangered or threatened species. The Act defines “endangered species” as any species that is in danger of extinction throughout all or a significant portion of its range (16 U.S.C. 1532(6)), and “threatened species” as any species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range (16 U.S.C. 1532(20)). Because we have determined that the hyacinth macaw is threatened throughout all of its range, under the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37578; July 1, 2014) (SPR Policy), if a species warrants listing throughout all of its range, no portion of the species' range can be a “significant” portion of its range.

While it is the Service's position under the SPR Policy that no further analysis of “significant portion of its range” in this circumstance is consistent with the language of the Act, we recognize that the SPR Policy is currently under judicial review, so we also took the additional step of considering whether there could be any significant portions of the species' range where the species is in danger of extinction. We evaluated whether there is substantial information indicating that there are any portions of the hyacinth macaw's range: (1) That may be “significant,” and (2) where the species may be in danger of extinction. In practice, a key part of identifying portions appropriate for further analysis is whether the threats are geographically concentrated. The hyacinth macaw's primary driver of its status is habitat destruction. This threat is affecting the species throughout its entire range and is of similar magnitude throughout its range; therefore, there is not a meaningful geographical concentration of threats to the hyacinth macaw. As a result, even if we were to undertake a detailed SPR analysis, there would not be any portions of the species' range where the threats are harming the species to a greater degree such that the species is in danger of extinction in that portion.

Comment (16): One commenter stated that the Service was obligated to issue a final regulation based on the proposal to list the hyacinth macaw as endangered in 2012, or issue a notice of withdrawal. They asserted the Service should have to go through the same requirements and procedures as for a downlisting by making a full scientific finding of why listing the hyacinth macaw as endangered is no longer warranted before it can repropose to list the species as threatened.

Our Response: We are obligated to make listing determinations under the Act based on the best available scientific and commercial information. In our 2012 proposed rule (77 FR 39965; July 6, 2012), we found that the hyacinth macaw was in danger of extinction (an endangered species) based on information estimating the original vegetation of the Amazon, Cerrado, and Pantanal, including the hyacinth macaw's habitat, would be lost between the years 2030 and 2050 due to deforestation, combined with the species' naturally low reproductive rate, highly specialized nature, hunting, competition, and effects of climate change. However, subsequent to publishing that proposal, we received new information from the public and peer review. As a result of this information, we reevaluated impacts to the species, made technical corrections, and assessed additional information regarding conservation efforts. Subsequently, we revised our determination in consideration of the new information and public comments we received to conclude that the hyacinth macaw's risk of extinction is not as imminent as previously predicted, and we published a revised proposed rule that opened a new comment period to allow the public the opportunity to submit additional comments in light of this new information (81 FR 85488; November 28, 2016).

Comment (17): One commenter stated that, while the proposed 4(d) rule is an amendment of an existing 4(d) rule for several other species of parrots at 50 CFR 17.41(c), it leaves out two provisions of that existing rule: (1) The exception for import and export of captive-bred specimens, and (2) interstate commerce. They assert that because the Service includes these provisions in the preamble of the proposed 4(d) rule but does not include the actual text in the draft rule, the Service did not provide sufficient notice and opportunity for public comment.

Our Response: In the revised proposed rule, under Proposed Regulation Promulgation (81 FR 85488, November 28, 2016, see pp. 81 FR 85506-85507), we proposed to amend 50 CFR 17.41 by revising paragraph (c) introductory text, paragraphs (c)(1), (c)(2) introductory text, (c)(2)(ii) introductory text, and (c)(2)(ii)(E). The amendatory instruction and regulatory text were formatted in accordance with Office of the Federal Register standards and only include those provisions of the existing text that are being revised. The proposed regulatory text for 50 CFR 17.41(c), together with the text we were not proposing to amend in that paragraph of the CFR, encompasses the whole of the proposed 4(d) rule for the hyacinth macaw. As the commenter notes, we explain the proposed 4(d) rule for the hyacinth macaw in the preamble of the revised proposed rule (81 FR 85488, November 28, 2016, see pp. 85505-85506). We accepted public comments on the revised proposed rule to list the hyacinth macaw as a threatened species, including the proposed 4(d) rule (81 FR 85488; November 28, 2016), for 60 days, ending January 27, 2017. We have complied with the notice-and-comment requirements of the Administrative Procedure Act (5 U.S.C. chapter 5) and the Act.

Comment (18): One commenter stated that neither CITES nor the WBCA provide for public notice and comment, which is required for permits for endangered species under the Act. They indicated the public would receive no notice about import/export or interstate movement of these parrots, which makes it difficult to track and protect these species from the pet trade.

Our Response: It is true that neither CITES nor the WBCA provide for public notice and comment for interstate movement of species. It is also true that there is required notice and comment for permits for endangered species under the Act. However, there is no notice-and-comment requirement for permits for threatened species. We found the hyacinth macaw to be a threatened species; therefore, the notice-and-comment provision for permits under the Act does not apply in this case. Additionally, we found it was not necessary or advisable for the conservation of the hyacinth macaw to extend the permit requirements to certain import/export and interstate transport because we did not find the pet trade to be a threat to the species. Further, interstate commerce within the United States was not found to threaten the hyacinth macaw, and the best available data indicate that legal and illegal trade of hyacinth macaws is not currently occurring at levels that are affecting the population of the species in the wild or would negatively affect any efforts aimed at the recovery of wild populations of the species.

Comment (19): One commenter stated that the Service provides no logical basis for the proposed 4(d) rule's assumption that “generally accepted animal husbandry practices” or breeding procedures do not result in harm and harassment as covered under the Act's prohibition on take.

Our Response: While the Act does not define “harm” or “harassment,” the Service's regulations at 50 CFR 17.3 provide definitions for those terms. “Harm” is defined as an act which actually kills or injures wildlife and “harassment,” when applied to captive wildlife, does not include generally accepted animal husbandry practices or breeding procedures as defined by the Service's regulations at 50 CFR 17.3. Consequently, such actions would not be prohibited or require a permit under the Act.

Comment (20): One commenter stated that wildlife-trade management authorities have shown that fraudulent permitting has been a frequent occurrence in many illicitly traded species across the globe (United Nations Office on Drugs and Crime 2016) and this impacts the hyacinth macaw.

Our Response: Although we recognize that fraudulent permitting may occur as part of the global wildlife trade, we have no information indicating that fraudulent permitting practices are impacting the hyacinth macaw. Furthermore, the commenter did not provide any information regarding fraudulent permitting specific to hyacinth macaws.

Comment (21): One commenter suggested an alternative 4(d) rule for the hyacinth macaw, which they say would better further the conservation of the species. The commenter suggested that any trade in captive-bred specimens must be limited to specimens legitimately designated as source code D instead of codes C, D, or F under CITES, and that commercial interstate commerce should not be exempted. (Note: Source codes indicate the source of the specimen used on CITES permits and certificates. See 4(d) Rule, below, for more discussion.)

Our Response: We considered the commenter's alternative approach to the 4(d) rule, and ultimately we determined that the import and export requirements of 50 CFR 17.41(c) provide the necessary and advisable conservation measures needed for this species. Interstate commerce within the United States was not found to threaten the hyacinth macaw, and the best available data indicate that legal and illegal trade of hyacinth macaws is not currently occurring at levels that are affecting the population of the species in the wild or would negatively affect any efforts aimed at the recovery of wild populations of the species.

Section 4 of the Act (16 U.S.C. 1533) and the implementing regulations in part 424 of title 50 of the Code of Federal Regulations (50 CFR part 424) set forth procedures for adding species to, removing species from, or reclassifying species on the Federal Lists of Endangered and Threatened Wildlife and Plants. The Act defines “endangered species” as any species that is in danger of extinction throughout all or a significant portion of its range (16 U.S.C. 1532(6)), and “threatened species” as any species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range (16 U.S.C. 1532(20)).

We summarize below the information on which we based our final determination and evaluation of the five factors provided in section 4(a)(1) of the Act. We are also including hyacinth macaws under a rule authorized under section 4(d) of the Act. This 4(d) rule contains the prohibitions and authorizations necessary and advisable for the conservation of the hyacinth macaw.

The hyacinth macaw is one of three species of the Anodorhynchus genus and the largest bird of the parrot family, Family Psittacidae, (Guedes and Harper 1995, p. 395; Munn et al. 1989, p. 405). It measures approximately 1 meter (m) (3.3 feet (ft)) in length. Average female and male wing lengths measure approximately 400 to 408 millimeters (mm) (1.3 ft), respectively. Average tail lengths for females and males are approximately 492 mm (1.6 ft) and 509 mm (1.7 ft), respectively (Forshaw 1989, p. 388). Hyacinth macaws are characterized by a predominately cobalt-blue plumage, black underside of wing and tail, and unlike other macaws, have feathered faces and lores (areas of a bird's face from the base of the bill to the front of the eyes). In addition, they have bare yellow eye rings, bare yellow patches surrounding the base of their lower mandibles, large and hooked gray-black bills, and dark-brown irises. Their legs, which are dark gray in most birds but lighter gray to white in older adults, are short and sturdy to allow the bird to hang sideways or upside down while foraging. Immature birds are similar to adults, but with shorter tails and paler yellow bare facial skin (Juniper and Parr 1998, pp. 416-417; Guedes and Harper 1995, p. 395; Munn et al. 1989, p. 405; Forshaw 1989, p. 388).

The hyacinth macaw experiences late maturity, not reaching first reproduction until 8 or 9 years old (Guedes 2009, p. 117). Hyacinth macaws are monogamous and faithful to nesting sites; a couple may reproduce for more than a decade in the same nest. They nest from July to January in tree cavities and, in some parts of its range, cliff cavities (Tortato and Bonanomi 2012, p. 22; Guedes 2009, pp. 4, 5, 12; Pizo et al. 2008, p. 792; Pinho and Nogueira 2003, p. 35; Abramson et al. 1995, p. 2). The hyacinth macaw lays two smooth, white eggs approximately 48 mm (1.9 inches (in)) long and 36 mm (1.4 in) wide. Eggs are usually found in the nest from August until December (Guedes 2009, p. 4; Juniper and Parr 1998, p. 417; Guedes and Harper 1995, p. 406). The female alone incubates the eggs for approximately 28 to 30 days. The male remains near the nest to protect it from invaders, but may leave 4 to 6 times a day to forage and collect food for the female (Schneider et al. 2006, pp. 72, 79; Guedes and Harper 1995, p. 406). Chicks are mostly naked, with sparse white down feathers at hatching. Young are fed regurgitated, chopped palm nuts (Munn et al. 1989, p. 405). Most chicks fledge at 105 to 110 days old; however, separation from the parents is a slow process. Fledglings will continue to be fed by the parents for 6 months, when they begin to break hard palm nuts themselves, and may remain with the adults for 16 months, after which they will join groups of other young birds (Schneider et al. 2006, pp. 71-72; Guedes and Harper 1995, pp. 407-411).

Hyacinth macaws naturally have a low reproductive rate, a characteristic common to all parrots, due, in part, to asynchronous hatching. Although hyacinth macaws lay two eggs, usually only one chick survives (Guedes 2009, p. 31; Faria et al. 2008, p. 766; Kuniy et al. 2006, p. 381; Guedes, 2004b, p. 6; Munn et al. 1989, p. 409). Not all hyacinth nests fledge young, and due to the long period of chick dependence, hyacinth macaws breed only every 2 years (Faria et al. 2008, p. 766; Schneider et al. 2006, pp. 71-72; Guedes 2004b, p. 7; Pinho and Nigueira 2003, p. 30; Guedes and Harper 1995, pp. 407-411; Munn et al. 1989, p. 409). In a study of the Pantanal, which contains the largest population of hyacinth macaws, it was suggested that only 15-30 percent of adults attempt to breed; it may be that the same or an even smaller percentage in Pará and Gerais attempt to breed (Munn et al. 1989, p. 409).

At one time, hyacinth macaws were widely distributed, occupying large areas of Central Brazil into the Bolivian and Paraguayan Pantanal (Guedes 2009, pp. xiii, 11; Pinho and Nogueira 2003, p. 30; Whittingham et al. 1998, p. 66; Guedes and Harper 1995, p. 395). Today, the species is limited to three areas totaling approximately 537,000 square kilometers (km2), (207,337 square miles (mi2)) almost exclusively within Brazil: (1) Eastern Amazonia in Pará, Brazil, south of the Amazon River along the Tocantins, Xingu, and Tapajós rivers; (2) the Gerais region of northeastern Brazil, including the states of Maranhão, Piauí, Goiás, Tocantins, Bahia, and Minas Gerais; and (3) the Pantanal of Mato Grosso and Mato Grosso do Sul, Brazil, and marginally in Bolivia and Paraguay. These populations of hyacinth macaws inhabit those portions of the species' original range that experienced the least pressure from bird catchers, meat and feather hunters, and agricultural developers (Munn et al. 1989, pp. 406-407).

Prior to the arrival of Indians and Europeans to South America, there may have been between 100,000 and 3 million hyacinth macaws (Munn et al. 1989, p. 412); however, due to the species' large but patchy range, an estimate of the original population size when the species was first described (1790) is unattainable (Collar et al. 1992, p. 253). Although some evidence indicates that the hyacinth macaw was abundant before the mid-1980s (Guedes 2009, p. 11; Collar et al. 1992, p. 253), the species significantly declined throughout the 1980s due to an estimated 10,000 birds illegally captured during the 1980s for the pet trade and a further reduction in numbers due to habitat loss and hunting. Population estimates prior to 1986 are lacking, but a very rapid population decline is suspected to have taken place over the last 31 years (three generations) (Birdlife International (BLI) 2014a, unpaginated). In 1986, the total population of hyacinth macaws was estimated to be 3,000, with a range between 2,500 and 5,000 individuals; 750 occurred in Pará, 1,000 in Gerais, and 1,500 in Pantanal (Guedes 2004b, p. 2; Collar et al. 1992, p. 253; Munn et al. 1989, p. 413). In 2003, the population was estimated at 6,500 individuals; 5,000 of which were located in the Pantanal region, and 1,000-1,500 in Pará and Gerais, combined (BLI 2017, unpaginated; Guedes 2009, p. 11; Brouwer 2004, unpaginated). Observations of hyacinth macaws in the wild have increased in Paraguay, especially in the northern region (Espinola 2013, pers. comm.), but no quantitative data are available. Locals report the species increasing in Bolivia; between 100 and 200 hyacinth macaws are estimated to occur in the Bolivian Pantanal, with estimates up to 300 for the country (Guedes 2012, p. 1; Pinto-Ledezma 2011, p. 19; BLI 2017, unpaginated; BLI 1992, p. 4).

The 2003 estimate indicates a substantial increase in the Pantanal population, although the methods or techniques used to estimate the population is not described. Therefore, the reliability of the estimation techniques, as well as the accuracy of the estimated increase, is not known (Santos, Jr. 2013, pers. comm.). Despite the uncertainty in the estimated population increase, the Pantanal is the stronghold for the species and has shown signs of recovery since 1990, most likely as a response to conservation projects (BLI 2017, unpaginated; Antas et al. 2006, p. 128; Pinho and Nogueira 2003, p. 30). The overall population trend for the hyacinth macaw throughout its range is reported as decreasing (BLI 2016, unpaginated), although there are no extreme fluctuations reported in the number of individuals (BLI 2016, unpaginated).

Hyacinth macaws use a variety of habitats in the Pará, Gerais, and Pantanal regions. Each region features a dry season that prevents the growth of extensive closed-canopy tropical forests and maintains the more open habitat preferred by this species. In Pará, the species prefers palm-rich várzea (flooded forests), seasonally moist forests with clearings, and savannas. In the Gerais region, hyacinth macaws are located within the Cerrado biome, where they inhabit dry open forests in rocky, steep-sided valleys and plateaus, gallery forests (a stretch of forest along a river in an area of otherwise open country), and Mauritia palm swamps. In the Pantanal region, hyacinth macaws frequent gallery forests and palm groves with wet grassy areas (Juniper and Parr 1998, p. 417; Guedes and Harper 1995, p. 395; Munn et al. 1989, p. 407).

Hyacinth macaws have a specialized diet consisting of the fruits of various palm species, which are inside an extremely hard nut that only the hyacinth macaw can easily break (Guedes and Harper 1995, p. 400; Collar et al. 1992, p. 254). Hyacinth macaws are highly selective in choice of palm nut; they have to be the right size and shape, as well as have an extractable kernel with the right lignin pattern (Brightsmith 1999, p. 2; Pittman 1993, unpaginated). They forage for palm nuts and water on the ground, but may also forage directly from the palm tree and drink fluid from unripe palm fruits. Hyacinth macaws also feed on the large quantities of nuts eliminated by cattle in the fields and have been observed in close proximity to cattle ranches where waste piles are concentrated (Juniper and Parr 1998, p. 417; Yamashita 1997, pp. 177, 179; Guedes and Harper 1995, pp. 400-401; Collar et al. 1992, p. 254).

In each of the three regions where hyacinth macaws occur, they use only a few specific palm species. In Pará, hyacinth macaws have been reported to feed on Maximiliana regia (inajá), Orbignya martiana (babassu), Orbignya phalerata (babacú) and Astrocaryum sp. (tucumán). In the Gerais region, hyacinth macaws feed on Attalea funifera (piacava), Syagrus coronata (catolé), and Mauritia vinifera (buriti). In the Pantanal region, hyacinth macaws feed exclusively on Scheelea phalerata (acuri) and Acrocomia totai (bocaiúva) (Antas et al. 2006, p. 128; Schneider et al. 2006, p. 74; Juniper and Parr 1998, p. 417; Guedes and Harper 1995, p. 401; Collar et al. 1992, p. 254; Munn et al. 1989, pp. 407-408). Although hyacinth macaws prefer bocaiúva palm nuts over acuri, bocaiúva is only readily available from September to December, which coincides with the peak of chick hatching; however, the acuri is available throughout the year and constitutes the majority of this species' diet in the Pantanal (Guedes and Harper 1995, p. 400).

Hyacinth macaws have specialized nesting requirements. As a secondary tree nester, they require large, mature trees with preexisting tree holes to provide nesting cavities large enough to accommodate them (Tortato and Bonanomi 2012, p. 22; Guedes 2009, pp. 4-5, 12; Pizo et al. 2008, p. 792; Abramson et al. 1995, p. 2). In Pará, the species nests in holes of Bertholettia excelsa (Brazil nut). In the Gerais region, nesting may occur in large dead Mauritia vinifera (buriti), but is most commonly found in natural rock crevices. In the Pantanal region, the species nests almost exclusively in Sterculia striata (manduvi) as it is one of the few tree species that grows large enough to supply cavities that can accommodate the hyacinth's large size. Manduvi trees must be at least 60 years old, and on average 80 years old, to provide adequate cavities (Guedes 2009, pp. 59-60; Pizo et al. 2008, p. 792; Santos Jr. et al. 2006, p. 185). Nesting has also been reported in Pithecellobium edwalii (angio branco), Enterolobium contortisiliquum (ximbuva), Vitex sp. (tarumá), and the cliff face of mountains on the border of the Pantanal (van der Meer 2013, p. 24; Guedes 2004b, p. 6; Kuniy et al. 2006, p. 381; Santos Jr. et al. 2006, p. 180; Pinho and Nogueira 2003, pp. 30, 33; Guedes 2002, p. 4; Juniper and Parr 1998, p. 417; Guedes and Harper 1995, p. 402; Collar et al. 1992, p. 255; Munn et al. 1989, p. 408).

In 1989, the hyacinth was listed on the Official List of Brazilian Fauna Threatened with Extinction by the Brazilian Institute of Environment and Natural Resources (IBAMA), the government agency that controls the country's natural resources (Lunardi et al. 2003, p. 283; IBAMA Ordinance No. 1522, of December 19, 1989). Due to actions to combat trafficking of animals, the hyacinth macaw was removed from the list in 2014 (Instituto Chico Mendes de Conservação da Bioversidade 2016, unpaginated). It is listed as “critically endangered” by the State of Minas Gerais and “vulnerable” by the State of Pará (Garcia and Marini 2006, p. 153). In Paraguay, the hyacinth macaw is listed as in danger of extinction (Bauer 2012, pers. comm.).

From 2000 to 2013, this species was classified as “endangered” by the International Union for Conservation of Nature (IUCN). However, in 2014, the hyacinth macaw was downlisted to “vulnerable” because evidence suggested that it had not declined as rapidly as previously thought. A “vulnerable” taxon is considered to be facing a high risk of extinction in the wild, whereas an “endangered” taxon is considered to be facing a very high risk of extinction in the wild (IUCN 2012, unpaginated). The hyacinth macaw is also listed as Appendix I on the CITES list. Species included in CITES Appendix I are considered threatened with extinction, and international trade is permitted only under exceptional circumstances, which generally precludes commercial trade.

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

Most of the information on the hyacinth macaw is from the Pantanal region, as this is the largest and most studied population. The species occurs only marginally within Bolivia and Paraguay as extensions from the Brazilian Pantanal population, and there is little information on the species in those countries. We found little information on the status of the Pará and Gerais populations; therefore, we evaluated impacts to these populations by a broader region (e.g., the Amazon biome for Pará and the Cerrado biome for Gerais).

Parrots in general have traits that increase their vulnerability of extinction (Lee 2010, p. 3; Thiollay 2005, p. 1121; Guedes 2004a, p. 280; Wright et al. 2001, p. 711; Munn et al. 1989, pp. 407-409). The specialized nature and reproductive biology of the hyacinth macaw contribute to low recruitment of juveniles and decrease the ability to recover from reductions in population size caused by anthropogenic disturbances (Faria et al. 2008, p. 766; Wright et al. 2001, p. 711). This species' vulnerability to extinction is further impacted by deforestation that negatively affects the availability of essential food and nesting resources; hunting that removes individuals from already small populations; and other factors that further reduce naturally low reproductive rates, recruitment, and the population. Additionally, the hyacinth macaw has highly specialized food and nest-site requirements (Faria et al. 2008, p. 766; Pizo et al. 2008, p. 795; Munn et al. 1998, p. 409; Johnson et al. 1997, p. 186; Guedes and Harper 1995, p. 400), as they feed on and nest in very limited number of tree species. Therefore, hyacinth macaws are particularly vulnerable to extinction due to the loss of food sources and nesting sites (Faria et al. 2008, p. 766; Pizo 2008, p. 795; Munn et al. 1989, pp. 407-409; Johnson et al. 1997, p. 186).

Natural ecosystems across Latin America are being transformed due to economic development, international market demands, and government policies. In Brazil, demand for soybean oil and soybean meal has increased, causing land conversion to significantly increase to meet this demand (Barona et al. 2010, pp. 1-2). Much of the recent surge in cropland area expansion is taking place in the Brazilian Amazon and Cerrado regions (Nepstad et al. 2008, p. 1738). Brazil has also become the world's largest exporter of beef. Over the past decade, more than 10 million hectares (ha) (24.7 million acres (ac)) were cleared for cattle ranching, and the government is aiming to double the country's share of the beef export market to 60 percent by 2018 (Butler 2009, unpaginated).

Pará: Pará is one of the Brazilian states that constitute the Amazon biome (Greenpeace 2009, p. 2). This biome contains more than just the well-known tropical rainforests; it also encompasses other ecosystems, including floodplain forests and savannas. Between 1995 and 2009, conversion of floodplain forests in the Amazon region to cattle ranching expanded significantly and was the greatest cause of deforestation (da Silva 2009, p. 3; Lucas 2009, p. 1; Collar et al. 1992, p. 257).

Cattle ranching has been present in the várzea (floodplain forests) of the Amazon for centuries (Arima and Uhl, 1997, p. 433). However, since the late 1970s, state subsidies and massive infrastructure development have facilitated large-scale forest conversion and colonization for cattle ranching (Barona et al. 2010, p. 1). Certain factors have led to a significant expansion of this land use. The climate of the Brazilian Amazon is favorable for cattle ranching; frosts do not occur in the north of Brazil; and rainfall is more evenly distributed throughout the year, increasing pasture productivity and reducing the risk of fire. Additionally, the price of land in Pará has been lower than in central and south Brazil, resulting in ranchers establishing larger farms in Pará (Arima and Uhl, 1997, p. 446).

Although the immediate cause of deforestation in the Amazon was predominantly the expansion of pasture between 2000 and 2006 (Barona et al. 2010, p. 8), the underlying cause may be the expansion of soy cultivation in other areas, leading to a displacement of pastures farther north into parts of Pará and causing additional deforestation (Barona et al. 2010, pp. 6, 8).

In the Brazilian North region, including Pará, cattle occupy 84 percent of the total area under agricultural and livestock uses. This area, on average, expanded 9 percent per year over 10 years, causing 70-80 percent of deforestation (Nepstad et al. 2008, p. 1739). Pará itself contains two-thirds of the Brazilian Amazonia cattle herd (Arima and Uhl 1997, p. 343), with a sizable portion of the state classified as cattle-producing area (Walker et al. 2009, p. 69). For 7 months of the year, cattle are grazed in the várzea, but are moved to the upper terra firma the other 5 months (Arima and Uhl, 1997, p. 440). Intense livestock activity can affect seedling recruitment via trampling and grazing. Cattle also compact the soil such that regeneration of forest species is severely reduced (Lucas 2009, pp. 1-2). This type of repeated disturbance can lead to an ecosystem dominated by invasive trees, grasses, bamboo, and ferns (Nepstad et al. 2008, p. 1740).

Pará has long been known as the epicenter of illegal deforestation (Dias and Ramos 2012, unpaginated) and has one of the highest deforestation rates in the Brazilian Amazon (Butler 2016, unpaginated). From 1988 to 2016, the state lost 143,159 km2 (55,274 mi2), with annual rates varying between 1,741 and 8,870 km2 (672 and 3,425 mi2) (Brazil's National Institute for Space Research (INPE) 2016, unpaginated; Butler 2016, unpaginated) (Table 1). Since 2004, deforestation rates in Pará have generally decreased. However, rates rose 35 percent in 2013, decreased in 2014, and increased in 2015 and 2016 (INPE 2016, unpaginated) (Table 1). The impacts to and loss of biodiversity within the two large regions of the Brazilian Amazon located in the state of Pará are due to not only deforestation across the landscape but also within-forest disturbance, such as wildfire and selective logging, resulting in a loss of biodiversity beyond what is expected based on deforestation alone. Within-forest disturbance can increase even as deforestation rates fall (Barlow et al. 2016, p. 144).

Given the role cattle ranching plays in national and international markets and the profitability of ranching, significant expansion of cattle herds in the Brazilian Amazon has continued (Walker et al. 2009, p. 68). The remaining forested areas of Pará are at risk of being cleared; Pará is one of the states where most of Brazil's agriculture expansion is taking place (British Broadcasting Company News 2014, unpaginated). Furthermore, modeled future deforestation is concentrated in eastern Amazonia, which includes Pará, where the density of paved highways (existing and planned) will continue to be highest for several decades (Soares-Filho et al. 2006, p. 522).

Gerais: The Gerais region is within the Cerrado biome, a 2-million-km2 (772,204-mi2) area consisting of plateaus and depressions with vegetation that varies from dense grasslands with sparse shrubs and small trees to almost closed woodland (Pinto et al. 2007, p. 14; da Silva 1997, p. 437; Ratter et al. 1997, p. 223). In the Cerrado, hyacinth macaws now mostly nest in rock crevices, most likely a response to the destruction of nesting trees (Collar et al. 1992, p. 255). These crevices will likely remain constant and are not a limiting factor. However, deforestation for agriculture, primarily soy crops, and cattle ranching threaten the remaining native cerrado vegetation, including palm species the hyacinth macaw relies on as a food source.

Approximately 50 to 80 percent of the original Cerrado vegetation has been lost due to conversion to agriculture and pasture, and the area continues to suffer high rates of habitat loss (Grecchi et al. 2015, p. 2865; Beuchle et al. 2015, p. 121; WWF 2015, p. 2; Soares-Filho et al. 2014, p. 364; Pearce 2011, unpaginated; WWF-UK 2011b, p. 2; Carvalho et al. 2009, p. 1393; BLI 2008, unpaginated; Pinto et al. 2007, p. 14; Klink and Machado 2005, p. 708; Marini and Garcia 2005, p. 667; WWF 2001, unpaginated; da Silva 1997, p. 446; da Silva 1995, p. 298). From 2002 to 2008, the demand for land conversion in the Cerrado resulted in an annual deforestation rate of more than 14,200 km2 (5,483 mi2) (PROBIO program (Projeto de Conservação e Utilização Sustentável da Diversidade Biológica); Ministério do Meio Ambiente (MMA) 2015, p. 9; WWF-UK 2011b, p. 2; Beuchle et al. 2015, p. 117). At this rate, the vegetation of the Cerrado region was disappearing faster than the Amazon rainforest (Pearce 2011, unpaginated; WWF-UK 2011c, p. 19; Pennington et al. 2006, in Beuchle et al. 2015, p. 117; Klink and Machado 2005, p. 708; Ratter et al. 1997, p. 228). However, the annual deforestation rate from 2008 to 2009 and 2009 to 2010 in the Cerrado slowed by 46 percent and 16 percent respectively (MMA 2015, p. 9; Critical Ecosystem Partnership Fund (CEPF) 2016, p. 145) (Table 2). In a comparison study, the loss of natural vegetation decreased to an estimated 12,949 km2 (4,999 mi2) per year from 2000 to 2005, and 11,812 km2 (4,560 mi2) per year from 2005 to 2010 (Beuchle et al. 2015, pp. 124-125).

Since 2008, annual monitoring of deforestation in the Cerrado has taken place through a government program that monitors each of the Brazilian biomes. Compared to the deforestation rates of the early 2000s, deforestation has decreased about 40 percent (CEPF 2016, p. 145). Although the annual rate of deforestation is generally decreasing, the total amount of forested habitat continues to experience a slow and steady decline (MMA 2015, p. 9) (Table 2).

The remaining natural vegetation of the Cerrado is highly fragmented (only 20 percent of the original biome is considered intact) and continues to be pressured by conversion for soy plantations and extensive cattle ranching (WWF-UK 2011b, p. 2; WWF-UK 2011c, p. 21; Carvalho et al. 2009, p. 1393; BLI 2008, unpaginated). About 6 in every 10 ha (15 of 25 ac) of the Cerrado are suitable for mechanized agriculture (WWF-UK 2011b, p. 2). Maranhão, Tocantins, Piauí, and Bahia, states where hyacinth macaws occur, are undergoing rapid conversion, mostly to soy crops (CEPF 2016, p. 151). In two of these states, deforestation increased by 40 percent in Toncantins (INPE 2016, unpaginated) and by 25 percent in Maranhão (Butler 2016, unpaginated) in 2016 compared to the deforestation rate in 2015. Soy production will continue to grow as the beans have many uses for food, feed, and industry in Brazil and abroad (CEPF 2016, p. 152). Furthermore, the Brazilian government has proposed a 731,735-km2 (282,524-mi2) agricultural development, of which 91 percent occurs in the Cerrado, with little regard for the environment, at least as of 2015 (Clark 2015 and Miranda 2015, in CEPF 2016, p. 95). Additionally, the conversion of land for biofuel production is likely imminent, creating a market for the expansion and establishment of new areas for soy, castor beans, other oil-bearing plants, and sugar cane (Carvalho et al. 2009, p. 1400).

Given that the Cerrado is the most desirable biome for agribusiness expansion and contains approximately 40 million ha (99 million ac) of environmental surplus, which is land that exceeds the conservation requirements of the forest code and that could be legally deforested (see Factor D discussion, below) (Soares-Filho et al. 2014, p. 364), this region will likely continue to suffer high deforestation rates. Projections for coming decades show the largest increase in agricultural production occurring in the Cerrado (CEPF 2016, p. 145).

Pantanal: The Pantanal is a 140,000-km2 (54,054-mi2) seasonally flooded wetland interspersed with higher areas not subject to inundation (cordilleras), covered with cerrado or seasonal forests (Santos Jr. 2008, p. 133; Santos Jr. et al. 2007, p. 127; Harris et al. 2005, p. 715; Mittermeier et al. 1990, p. 103). Transitions during the 1990s to more intensive cattle ranching methods led to the conversion of more forests to pasture and the introduction of nonnative grasses. Ninety-five percent of the Pantanal is privately owned; 80 percent of the privately owned land is used for cattle ranches, making cattle ranching the predominant economic activity in this region and the greatest cause of habitat loss in the Pantanal (van der Meer 2013, p. 5; Guedes and Vicente 2012, pp. 146-147, 148; Guedes 2009, p. 12; Pizo et al. 2008, p. 793; Harris et al. 2006, pp. 165, 175-176; Harris et al. 2005, pp. 715-716, 718; Pinho and Nogueira 2003, p. 30; Seidl et al. 2001, p. 414; Guedes and Harper 1995, p. 396; Mittermeier 1990, pp. 103, 107-108).

Manduvi, the tree that hyacinth macaws almost exclusively use for nesting in this region, grow in cordilleras, which constitute only 6 percent of the vegetative area of the Pantanal (van der Meer 2013, p. 6; Pizo et al. 2008, p. 793; Johnson et al. 1997, p. 186). Many of these patches and corridors are surrounded by seasonally flooded grasslands used as rangeland for cattle during the dry season (Johnson et al. 1997, p. 186). During the flooding season (January to June), up to 80 percent of the Pantanal is flooded and ranchers move cattle to cordilleras, increasing cattle pressure on upland forests (van der Meer 2013, p. 3; Guedes 2002, p. 3). These upland forests are often removed and converted to cultivated pastures with exotic grasses (van der Meer 2013, p. 6; Santos Jr. 2008, p. 136; Santos Jr. et al. 2007, p. 127; Harris et al. 2006, p. 165; Harris et al. 2005, p. 716; Pinho and Nogueira 2003, p. 30; Seidl et al. 2001, p. 414; Johnson et al. 1997, p. 186). Clearing land to establish pasture is perceived as the economically optimal land use, while land not producing beef is often perceived as unproductive (Seidl et al. 2001, pp. 414-415).

Since 2002, regular monitoring of land use and vegetative cover in the Upper Paraguay Basin, which includes the Pantanal, has taken place. While the annual rate of deforestation is decreasing, satellite monitoring of the area indicates a slow and steady increase in deforested area (Table 3, below).

When clearing land for pastures, palm trees are often left, as the cattle will feed on the palm nuts (Pinho and Nogueira 2003, p. 36). In fact, hyacinth macaws occur near cattle ranches and feed off the palm nuts eliminated by the cattle (Juniper and Parr 1998, p. 417; Yamashita 1997, pp. 177, 179; Guedes and Harper 1995, pp. 400-401; Collar et al. 1992, p. 254). However, other trees, including potential nesting trees, are often removed (Snyder et al. 2000, p. 119). Even in areas where known nesting trees were left and the surrounding area was cleared, competition with each other and other macaw species became so fierce that hyacinth macaws were unable to reproduce; both eggs and chicks were killed by competitors (see Factor C discussion, below).

Other activities associated with cattle ranching, such as grazing, burning, compaction, the introduction of exotic grasses, and fragmentation, negatively impacts the nesting trees of the hyacinth macaw (Guedes 2013, pers. comm.; Guedes and Vicente 2012, pp. 149-150; Santos Jr. et al. 2007, p. 128; Harris et al. 2006, p. 175; Snyder et al. 2000, p. 119). For example, fire is a common method for renewing pastures, controlling weeds, and controlling pests (e.g., ticks); however, fires frequently become uncontrolled and burn patches and corridors of manduvi trees during the dry season (Harris et al. 2005, p. 716; Johnson et al. 1997, p. 186). Although fire can promote cavity formation in manduvi trees, frequent fires prevent trees from surviving to a size capable of providing suitable cavities, and cause a high rate of nesting-tree loss (Guedes 1993 in Johnson et al. 1997, p. 187). Five percent of manduvi trees are lost each year to deforestation, fire, and storms (Guedes 1995, in Santos Jr. et al. 2006, pp. 184-185; Guedes and Vicente 2012, p. 157).

In addition to the impact of fire on recruitment of manduvi trees, cattle directly impact the density of manduvi seedlings in the Pantanal. Cattle forage on and trample manduvi seedlings, affecting the recruitment of this species to be able to reach a size large enough to accommodate hyacinth macaws (Pizo et al. 2008, p. 793; Johnson et al. 1997, p. 187; Mittermeier et al. 1990, p. 107). Only those manduvi trees at least 60 years old are capable of providing these cavities (Pizo et al. 2008, p. 792; Santos Jr. et al. 2006, p. 185). The minimum diameter at breast height (DBH) for trees to potentially contain a cavity suitable for hyacinth macaws is 50 centimeters (cm) (20 in), while all manduvi trees greater than 100 cm (39 in) DBH contain suitable nest cavities. However, there is low recruitment of manduvi trees in classes greater than 5 cm (2 in) DBH, a strong reduction in the occurrence of trees greater than 50 cm (20 in) DBH, and very few trees greater than 110 cm (43 in) DBH (Santos Jr. et al. 2007, p. 128). Only 5 percent of the existing adult manduvi trees (trees with a DBH greater than 50 cm (20 in)) in south-central Pantanal (Guedes 1993, in Johnson et al. 1997, p. 186) and 11 percent in southern Pantanal (van der Meer 2013, p. 16) contain suitable cavities for hyacinth macaws. Thus, potential nesting sites are rare and will become increasingly rare in the future (Santos Jr. et al. 2007, p. 128).

Impacts of Deforestation: Because the hyacinth macaw has highly specialized diet and nesting requirements, it is particularly vulnerable to the loss of these resources (Faria et al. 2008, p. 766; Pizo 2008, p. 795; Munn et al. 1989, pp. 407-409; Johnson et al. 1997, p. 186). The loss of tree species used by hyacinth macaws negatively impacts the species by reducing availability of food resources, creating a shortage of suitable nesting sites, increasing competition, and resulting in lowered recruitment and a reduction in population size (Lee 2010, pp. 2, 6, 12; Santos Jr. et al. 2007, p. 128; Johnson et al. 1997, p. 188).

Its specialized diet makes the hyacinth macaw vulnerable to changes in food availability. Inadequate nutrition can contribute to poor health and reduced reproduction in parrots generally (McDonald 2003, in Lee 2010, p. 6). Changes in palm fruit availability decreases reproduction in hyacinth macaws (Guedes 2009, pp. 42-43, 44). In Pará and the Gerais region, where food sources are threatened, persistence of the species is a concern given that one of the major factors thought to have contributed to the critically endangered status of the Lear's macaw (Anodorhynchus leari) is the loss of its specialized food source, Syagrus sp. (licuri palm) stands, to cattle grazing (Collar et al. 1992, p. 257).

Hyacinth macaws can tolerate a certain degree of human disturbance at their breeding sites (Pinho and Noguiera 2003, p. 36). However, the number of usable cavities increases with the age of the trees in the forest (Newton 1994, p. 266), and clearing land for agriculture and cattle ranching, cattle trampling and foraging, and burning of forest habitat result in the loss of mature trees with natural cavities of sufficient size and a reduction in recruitment of native species that could eventually provide nesting cavities.

A shortage of nest sites can jeopardize the persistence of the hyacinth macaw by constraining breeding density, resulting in lower recruitment and a gradual reduction in population size (Santos Jr. et al. 2007, p. 128; Johnson et al. 1997, p. 188; Guedes and Harper 1995, p. 405; Newton 1994, p. 265). This reduction may lead to long-term effects on the viability of the hyacinth macaw population, especially in Pará and the Pantanal where persistence of nesting trees is compromised (Santos Jr. et al. 2007, p. 128; Santos Jr. et al. 2006, p. 181). Although a species may survive the initial deforestation, the resulting lack of food resources and breeding sites may reduce the viability of the population and make the species vulnerable to extinction (Sodhi et al. 2009, p. 517).

In response to the loss of its nesting tree in the Gerais region, hyacinth macaws now use rock crevices for nesting. Hyacinth macaws have been reported in various trees species and even on cliffs on the border of the Pantanal, although the majority of their nests are in Brazil nut (in Pará) and manduvi (in the Pantanal) (see Essential Needs of the Species, above). We do not know if the hyacinth macaws in the Pantanal will respond in the same way to the loss of nesting trees as those in the Gerais region; however, it is possible that if these primary nesting trees become scarcer, hyacinth macaws may adapt to using cliff faces or cavities of other trees (van der Meer 2013, p. 3). Deforestation in these regions would likely impact any alternative nesting trees and food sources, resulting in the same negative effect on the hyacinth macaw. Furthermore, competition for limited nesting sites and food would continue.

In Pará and the Gerais region, hunting removes individual hyacinth macaws vital to the already small populations (Brouwer 2004, unpaginated; Collar et al. 1992, p. 257; Munn et al. 1989, p. 414). Hyacinth macaws in Pará are hunted for subsistence and the feather trade by some Indian groups (Brouwer 2004, unpaginated; Munn et al. 1989, p. 414). Because the hyacinth macaw is the largest species of macaw, it may be targeted by subsistence hunters, especially by settlers along roadways (Collar et al. 1992, p. 257). The Gerais region is poor, and animal protein is not as abundant as in other regions; therefore, meat of any kind, including the large hyacinth macaw, is sought as a protein source (Collar et al. 1992, p. 257; Munn et al. 1989, p. 414). Additionally, increased commercial sale of feather art by Kayapo Indians of Gorotire may be of concern given that 10 hyacinth macaws are required to make a single headdress (Collar et al. 1992, p. 257).

Because the hyacinth macaw populations in Pará and the Gerais region are estimated at only 1,000-1,500 individuals combined, the removal of any individuals from these small populations has a negative effect on reproduction and the ability of the species to recover. Any continued hunting for either meat or for the sale of feather art is likely to contribute to the decline of the hyacinth macaw in these regions, particularly when habitat conversion is also taking place.

Hunting, capture, and trade of animal species are prohibited without authorization throughout the range of the hyacinth macaw (Clayton 2011, p. 4; Snyder et al. 2000, p. 119; Environmental Crimes Law (Law No. 9605/98); Stattersfield and Capper 1992, p. 257; Munn et al. 1989, p. 415; Official List of Brazilian Endangered Animal Species (Order No. 1.522/1989) (IBAMA 1989); Brazilian Constitution (title VIII, chapter VI, 1988); Brazilian Law No. 5197/1967; UNEP, n.d., unpaginated). However, continued hunting in some parts of its range is evidence that existing laws are not being adequately enforced. Without greater enforcement of laws, hunting will continue to impact the hyacinth macaw (see Factor D discussion, below).

In the 1970s and 1980s, substantial trade in hyacinth macaws was reported, but actual trade was likely significantly greater given the amount of smuggling, routing of birds through countries not parties to CITES, and internal consumption in South America (Collar et al. 1992, p. 256; Munn et al. 1989, pp. 412-413). Trade in parrots in the 1980s was particularly high due to a huge demand from developed countries, including the United States, which was the main consumer of parrot species at that time (Rosales et al. 2007, pp. 85, 94; Best et al. 1995, p. 234). In the late 1980s and early 1990s, reports of hyacinth macaw trapping included one trapper who worked an area for 3 years removing 200-300 wild hyacinth macaws a month during certain seasons and another trapper who caught 1,000 hyacinth macaws in 1 year and knew of other teams operating at similar levels (Silva (1989a) and Smith (1991c) in Collar et al. 1992, p. 256). More than 10,000 hyacinth macaws are estimated to have been taken from the wild in the 1980s (Smith 1991c, in Collar et al. 1992, p. 256; Munn et al. 1987, in Guedes 2009, p. 12). In the years following the enactment of the WBCA, studies found lower poaching levels than in prior years, suggesting that import bans in developed countries reduced poaching levels in exporting countries (Wright et al. 2001, pp. 715, 718).