Federal Register Vol. 83, No.73,

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2015-19-12, Amendment 39-18274 (80 FR 58346, September 29, 2015) (“AD 2015-19-12”). AD 2015-19-12 applied to certain the Boeing company Model 767 airplanes. The NPRM published in the Federal Register on August 15, 2017 (82 FR 38634). The NPRM was prompted by reports indicating that certain fasteners were not installed in the stringer 37 (S-37L and S-37R) lap splice between body stations 428 and 431 on certain airplanes. The NPRM proposed to continue to require the actions required by AD 2015-19-12 and revise the applicability by adding airplanes. We are issuing this AD to detect and correct missing fasteners, which could result in cracks in the fuselage skin that could adversely affect the structural integrity of the airplane.

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

Boeing and FedEx Express concurred with the contents of the NPRM.

United Airlines asked if Boeing was going to revise the Model 767 airworthiness limitation items to include exceptions for airplanes that have been repaired using the Accomplishment Instructions of Boeing Alert Service Bulletin 767-53A0251, Revision 1, dated March 7, 2017 (“SB 767-53A0251”). The commenter observed that note 1 to table 2 in paragraph 1.E., “Compliance,” of SB 767-53A0251, indicates that lap splice fastener installation and repairs will affect Structural Significant Items (SSIs) 53-10-I07C and 53-10-I07D, as listed in Section 9, Airworthiness Limitations—Structural Inspections, of the Model 767 maintenance planning document. The commenter stated that their understanding is that if a repair is accomplished it could potentially interfere with an operator's ability to do the inspections specified in the SSIs.

We do not agree that it is necessary to include exceptions in the Model 767 maintenance planning document for airplanes that have been repaired using the Accomplishment Instructions of SB 767-53A0251. SB 767-53A0251 requires repairs be accomplished in accordance with the structural repair manual (SRM). The SRM repairs for lap splices provide alternative inspection instructions to the SSI inspections in the area of the repair, such that exceptions to the SSI inspections in the above mentioned Airworthiness Limitations section is not necessary. Additionally, the SRM denotes that the SRM alternative inspections provided in the SRM have been approved as an AMOC to the SSI inspections required to be incorporated into an operator's maintenance or inspection program as required by AD 2014-14-04. We have not changed this AD in regard to this issue.

United Airlines requested that certain actions in the Accomplishment Instructions of Boeing Alert Service Bulletin 767-53A0251, Revision 1, dated March 7, 2017, be identified as “RC” exempt. The commenter noted that action 3.B.1.b, “Get internal access. Refer to PART 1—ACCESS as an accepted procedure,” and action 3.B.1.d, “Install equipment that was removed for internal access. Refer to PART 2—RESTORATION as an accepted procedure” are identified as “RC” items in the service information. The commenter stated that operators should be allowed to use alternate access and restoration procedures, therefore these steps should be denoted as “RC” exempt, or removed from the “RC” portion of the Accomplishment Instructions in Boeing Alert Service Bulletin 767-53A0251, Revision 1, dated March 7, 2017.

We disagree with the commenter's request because the service information already provides operators with the opportunity to use an accepted alternative procedure if the work instructions use the words “refer to” when identifying procedures in other Boeing documents. Specifically, note 8 in section 3.A., “General Information” of Boeing Alert Service Bulletin 767-53A0251, Revision 1, dated March 7, 2017, states “These work instructions refer to procedures included in other Boeing documents. When the words `refer to' are used and the operator has an accepted alternative procedure, the accepted alternative procedure can be used.” More explicitly, accepted alternative procedures may be used for the RC actions in sections 3.B.1.b and 3.B.1.d of Boeing Alert Service Bulletin 767-53A0251, Revision 1, dated March 7, 2017. We have not changed this AD in regard to this issue.

Aviation Partners Boeing stated that accomplishing Supplemental Type Certificate (STC) ST01920SE does not affect the ability to accomplish the actions specified in the NPRM.

We concur with the commenter. We have redesignated paragraph (c) of the proposed AD as (c)(1) and added paragraph (c)(2) to this AD to state that installation of STC ST01920SE does not affect the ability to accomplish the actions required by this AD. Therefore, for airplanes on which STC ST01920SE is installed, a “change in product” AMOC approval request is not necessary to comply with the requirements of 14 CFR 39.17.

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

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

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

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

We reviewed Boeing Alert Service Bulletin 767-53A0251, Revision 1, dated March 7, 2017. The service information describes procedures for a general visual inspection of certain S-37 lap splices for missing fasteners, and applicable on-condition actions. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 398 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

We estimate the following costs to do any necessary inspections/installations that would be required based on the results of the inspection. We have no way of determining the number of aircraft that might need these inspections/installations:

According to the manufacturer, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all available costs in our cost estimate.

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 is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.

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

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

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

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

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

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 787-8 and 787-9 airplanes. The NPRM published in the Federal Register on June 12, 2017 (82 FR 26872). The NPRM was prompted by a report that the PBM may unintentionally disengage, fail to set, fail to release, or become jammed. The NPRM proposed to require replacing the PBM and doing a PBM installation test.

We are issuing this AD to prevent an unintended parking brake release, which could result in damage to the airplane and be a hazard to persons or property on the ground.

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

Boeing requested that information not related to the unsafe condition be removed. Boeing stated that the AD should specifically address the unintended release of the parking brake module. Boeing also stated that the additional information describes a reliability improvement that is not related to the unsafe condition of unintended parking brake release.

We agree with the commenter's request to revise the description of the unsafe condition accordingly, for the reasons provided.

All Nippon Airways (ANA) requested that no action be required for airplanes with an original certificate of airworthiness or original export certificate of airworthiness issued after the effective date of the AD. ANA commented that the applicability in the proposed AD would apply to all The Boeing Company Model 787-8 and 787-9 airplanes. ANA stated that paragraph (g) of the proposed AD is only for airplanes on which the original certificate of airworthiness or the original export certificate of airworthiness was issued on or before the effective date of the AD. ANA also stated that the action that would be required for airplanes on which the original certificate of airworthiness or the original export certificate of airworthiness will be issued after the effective date of this AD is uncertain.

ANA stated that it has already prohibited installation of PBM part number (P/N) 4260-0037-3 and -4 on any airplane. ANA also stated that PBM P/N 4260-0037-5 is installed on the airplanes on which the original certificate of airworthiness or the original export certificate of airworthiness will be issued after the effective date of this AD. ANA commented that therefore, it believes that no action is necessary for airplanes on which the original certificate of airworthiness or the original export certificate of airworthiness will be issued after the effective date of this AD if installation of PBM P/N 4260-0037-3 and -4 is already prohibited before the effective date of this AD.

We disagree with the commenter's request. We have determined that the affected parts are rotable parts such that these parts could later be installed on airplanes that were initially delivered with acceptable parts, thereby subjecting those airplanes to the unsafe condition. Therefore, all The Boeing Company Model 787-8 and 787-9 airplanes are subject to the requirements in paragraph (h) of this AD. We do concur with the commenter that paragraph (g) of this AD only applies to an airplane with a certificate of airworthiness or an original export certificate of airworthiness issued on or before the effective date of this AD. We have not revised the AD in this regard.

The Air Line Pilots Association, International (ALPA) requested that the compliance time in the proposed AD be revised. ALPA stated that the compliance time of 60 months has been provided for both inspection and replacement of the affected parts. ALPA commented that the 60 months for inspection and corrective action is excessive. ALPA also stated that due to the unobtrusive nature of the inspection for the affected parts, the compliance time for the inspection should be re-evaluated and reduced to less than that of the compliance time for the corrective action.

We disagree with the commenter's request. The compliance time in this AD is based on FAA analysis of safety risk factors including consideration of the rulemaking time, as well as the time required to rework each PBM to the part number 4260-0037-5 configuration. We have not revised this AD in this regard.

American Airlines (AAL) requested that the “in accordance with” language in Boeing Service Bulletin B787-81205-SB320028-00, Issue 001, dated October 31, 2016, be revised. AAL stated that where the service information proposes accomplishing the actions “in accordance with” the airplane maintenance manual (AMM), “refer to” should be used instead so that compliance with paragraph (g)(2) of the proposed AD can be properly attained. AAL also stated that paragraph (g)(1) of the proposed AD does not require verification that the PBM was installed and the installation tested “in accordance with” 787 AMM 32-44-01.

We agree with the commenter. We agree that the wording in Boeing Service Bulletin B787-81205-SB320028-00, Issue 001, dated October 31, 2016, should specify “refer to” instead of “in accordance with” because it allows operators additional flexibility. For clarification, we have revised paragraph (g)(2) of this AD to state: Where Boeing Service Bulletin B787-81205-SB320028-00, Issue 001, dated October 31, 2016, specifies accomplishing an action “in accordance with 787 AMM 32-44-01,” for this AD “refer to 787 AMM 32-44-01” for that action. Because the corrective action is specified in the AMM and the AMM is no longer required by “in accordance with” text, we have removed the references to “applicable corrective actions” from the first two sentences of paragraph (g)(2) of this AD and added a new corrective action statement in paragraph (g)(2) of this AD.

ANA requested that we delete or modify a contradictory sentence in the proposed AD. ANA stated that according to paragraph (g) of the proposed AD, if the PBM is Rockwell Collins P/N 4260-0037-3 or -4, ANA has to install PBM P/N 4260-0037-5 within 60 months after the effective date of this AD, and in the last sentence of the paragraph, it says to do all applicable corrective actions “before further flight.” ANA stated that the two sentences are contradictory and that it is too hard to do all applicable corrective actions before further flight. ANA also commented that installing PBM P/N 4260-0037-5 “within 60 months” is acceptable.

We agree to clarify the compliance time language. Paragraph (g)(2) of this AD requires installing the PBM, doing the installation test, and doing applicable corrective actions. Operators have the entire compliance time of “within 60 months after the effective date of this AD” to accomplish the PBM installation and the installation test. However, if the test fails, all applicable corrective actions must be done before further flight after the test. As stated previously, we have revised the corrective action statement in paragraph (g)(2) of this AD to clarify the requirements.

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

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

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

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

We reviewed Boeing Service Bulletin B787-81205-SB320028-00, Issue 001, dated October 31, 2016. The service information describes procedures for replacing the PBM and doing a PBM installation test. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 68 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

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

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

This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.

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

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

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

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

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

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2005-12-16, Amendment 39-14132 (70 FR 34642, June 15, 2005) (“AD 2005-12-16”). AD 2005-12-16 applied to all Fokker Services B.V. Model F28 Mark 0100 airplanes. The NPRM published in the Federal Register on November 3, 2017 (82 FR 51172). The NPRM was prompted by reports of smoke in the passenger compartment during ground operations and in flight, and the determination that the modification actions required by AD 2005-12-16 might not have been implemented correctly. The NPRM proposed to continue to require an inspection to determine the part number of the PSU panels for the PSU modification status, and corrective actions if applicable. The NPRM also proposed to require an inspection of the PSU panels and the PSU panel/airplane interface connectors for discrepancies, and corrective actions if necessary. We are issuing this AD to detect and correct overheating of the PSU panel due to moisture ingress, which could result in smoke or fire in the passenger cabin.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2017-0043, dated March 6, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Fokker Services B.V. Model F28 Mark 0100 airplanes. The MCAI states:

Discrepancies include incorrect application of the sealant on the PSU panels, uninstalled gaskets, inability to properly lock the connectors, and incorrectly applied sealant on the connectors. Corrective actions include restoring the sealing of the affected PSU panel, repairing the PSU panel, or installing a new PSU panel with a replaced receptacle, and installing gaskets; making sure the connecter can properly lock; and applying sealant on the connector.

The MCAI also revised the applicability by specifying certain line numbers and excluding airplanes on which certain modifications were done. You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0906.

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

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

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

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

Fokker Services B.V. has issued Fokker Service Bulletin SBF100-25-128, dated July 21, 2016. This service information describes procedures for inspection of the PSU panels and the PSU panel/airplane interface connectors for discrepancies, and for incorrectly applied sealant on the connectors, and corrective actions.

Grimes Aerospace has issued Service Bulletin 10-1178-33-0040, dated October 15, 1993; Service Bulletin 10-1178-33-0040, Revision 1, dated March 25, 1996; and Service Bulletin 10-1571-33-0041, dated October 15, 1993. This service information describes procedures for inspection of the PSU panels and the PSU panel/airplane interface connectors for discrepancies, and corrective actions. This service information is distinct since it applies to different part numbers.

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

We estimate that this AD affects 8 airplanes of U.S. registry.

The actions required by AD 2005-12-16, and retained in this AD take about 5 work-hours per product, at an average labor rate of $85 per work-hour. Required parts cost about $6 per product. Based on these figures, the estimated cost of the actions that are required by AD 2005-12-16 is $431 per product.

We also estimate that it would take about 13 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $8,840, or $1,105 per product.

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

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

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

This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2014-03-07, Amendment 39-17744 (79 FR 9392, February 19, 2014) (“AD 2014-03-07”). AD 2014-03-07 applied to certain The Boeing Company Model MD-11 and MD-11F airplanes. The NPRM published in the Federal Register on August 17, 2017 (82 FR 39062). The NPRM was prompted by the determination that it is necessary to require an inspection of the wire bundles for damage at certain center upper auxiliary fuel tank locations on certain airplanes. The NPRM proposed to continue to require inspecting certain locations of the wire bundles of the center upper auxiliary fuel tank for damage, and corrective action if necessary. The NPRM also proposed to continue to require installing nonmetallic barrier/shield sleeving, new clamps, new attaching hardware, and a new extruded channel. The NPRM proposed to add certain inspections and expand the applicability. We are issuing this AD to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.

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

The Air Line Pilots Association, International and Boeing supported the content of the NPRM.

FedEx Express (FedEx) asked that the requirements in the NPRM relative to the referenced service information be clarified. FedEx stated that Boeing Service Bulletin MD11-28-126 has been revised 6 times, and its related AD has been superseded twice; therefore, the NPRM requirements are confusing. FedEx added that the NPRM might need to be re-written completely to clearly state what the new requirements are, since some operators have accomplished either the original issue or one or more of Revisions 1 through 5 of Boeing Service Bulletin MD11-28-126. FedEx stated that it has accomplished Boeing Service Bulletin MD11-28-126, Revision 4, dated November 29, 2011; and at the time those procedures were done, the FedEx fleet was classified as Group 1, Configuration 1, and Group 2, Configuration 1 airplanes because FedEx didn't accomplish prior revisions of the service information. FedEx noted that currently its airplanes are Group 1, Configuration 2, and Group 2, Configuration 2, because FedEx has accomplished prior revisions of Boeing Service Bulletin MD11-28-126 on its airplanes.

We acknowledge the commenter's request and agree to clarify. The new requirements of this AD apply only to certain airplanes identified in Boeing Service Bulletin MD11-28-126, Revision 6, dated July 1, 2016. As noted by the commenter, for a given airplane, the group and configuration might have changed between Boeing Service Bulletin MD11-28-126, Revision 4, dated November 29, 2011, and Boeing Service Bulletin MD11-28-126, Revision 6, dated July 1, 2016.

Group 1, Configuration 1 airplanes in Boeing Service Bulletin MD11-28-126, Revision 4, dated November 29, 2011, are defined as airplanes on which “prior issues of this service bulletin” have not been accomplished. If the actions specified in Boeing Service Bulletin MD11-28-126, Revision 4, dated November 29, 2011, have been done on one of these airplanes, this airplane becomes a Group 1 Configuration 2 airplane as defined in Boeing Service Bulletin MD11-28-126, Revision 6, dated July 1, 2016, (airplanes on which “prior issues of this service bulletin” have been accomplished). Therefore, for this airplane, the inspections specified in Boeing Service Bulletin MD11-28-126, Revision 6, dated July 1, 2016, for its new configuration must be done.

The inspections in paragraph (i) of this AD must be done for airplanes identified as Groups 1, 2, and 5, Configuration 2 airplanes in Boeing Service Bulletin MD11-28-126, Revision 6, dated July 1, 2016. For this configuration, Boeing Service Bulletin MD11-28-126, Revision 6, dated July 1, 2016, adds certain work instructions that were not in Boeing Service Bulletin MD11-28-126, Revision 4, dated November 29, 2011; or Boeing Service Bulletin MD11-28-126, Revision 5, dated July 29, 2014. Therefore, we have not changed this AD in this regard.

FedEx asked that the new inspection requirements specified in the proposed AD be clarified. FedEx stated that the proposed AD would retain all requirements of AD 2014-03-07, and would add inspection requirements for certain airplanes, as well as expanding the applicability. FedEx noted that Boeing Service Bulletin MD11-28-126, Revision 6, dated July 1, 2016, adds new inspection requirements but does not specify that the inspection be done at additional locations, as indicated in the proposed AD. FedEx added that the work instructions specified in Revisions 4 and 6 of Boeing Service Bulletin MD11-28-126 are for the same area, so it is not clear which additional locations are mandated by the proposed AD.

We agree to clarify. Boeing Service Bulletin MD11-28-126, Revision 6, dated July 1, 2016, adds an inspection to determine if the wire bundles routed above the center upper auxiliary fuel tank between floor beams touch the upper surface of the tank for Groups 1, 2, and 5, Configuration 2 airplanes. We acknowledge that the phrase “additional locations” is unclear, and we have revised paragraph (i)(1) of this AD to state “Do a general visual inspection of the wire bundles at the applicable center upper auxiliary fuel tank locations . . .” Boeing Service Bulletin MD11-28-126, Revision 6, dated July 1, 2016, identifies the applicable inspection areas.

FedEx asked that the airplane configurations specified in the proposed AD be clarified. FedEx stated that paragraph (i) of the proposed AD specifies the following: “For Groups 1, 2, and 5 Configuration 2 airplanes, as identified in Boeing Service Bulletin MD11-28-126, Revision 6, dated July 1, 2016.” FedEx added that, as defined in Boeing Service Bulletin MD11-28-126, Revision 6, dated July 1, 2016, the FedEx fleet will be Group 1, Configuration 2 and Group 2, Configuration 2 airplanes because FedEx has accomplished a prior revision of this service information. FedEx believes its fleet should be in Group 1, Configuration 1, and Group 2, Configuration 1, but stated that it is not clear which airplanes are in which groups and configurations.

We acknowledge the commenter's request and provide the following clarification. Paragraph 1.A., “Effectivity” of Boeing Service Bulletin MD11-28-126, Revision 6, dated July 1, 2016, specifies that airplanes on which previous issues of the service information have been done are identified as Configuration 2 airplanes. Therefore, any airplanes on which any previous issue of the service information was accomplished would be classified as Configuration 2. We have not changed this AD in this regard.

FedEx and United Parcel Service (UPS) requested credit for previous accomplishment of the actions in paragraphs (i)(1) and (i)(2) of the proposed AD using Boeing Service Bulletin MD11-28-126, Revision 4, dated November 29, 2011.

FedEx stated that new inspections and corrective actions as specified in paragraphs (i)(1) and (i)(2) of the proposed AD were already performed by FedEx per Boeing Service Bulletin MD11-28-126, Revision 4, dated November 29, 2011, and should not be performed again. FedEx believes the proposed AD should give credit for work accomplished under Boeing Service Bulletin MD11-28-126, Revision 4, dated November 29, 2011.

UPS stated that prior accomplishment of Boeing Service Bulletin MD11-28-126, Revision 4, dated November 29, 2011, for Groups 1 and 2, Configuration 1 freighter aircraft meets the requirements of Boeing Service Bulletin MD11-28-126, Revision 6, dated July 1, 2016. UPS stated that the additional steps added by Revisions 5 and 6 of Boeing Service Bulletin MD11-28-126 are not applicable to airplanes in freighter configurations or have already been accomplished using Boeing Service Bulletin MD11-28-126, Revision 4, dated November 29, 2011. UPS added that no further actions should be required on those airplanes.

We agree to clarify. As stated previously, Boeing Service Bulletin MD11-28-126, Revision 6, dated July 1, 2016, adds an inspection to determine if the wire bundles routed above the center upper auxiliary fuel tank between floor beams touch the upper surface of the tank for Groups 1, 2, and 5, Configuration 2 airplanes. This inspection was not included in Boeing Service Bulletin MD11-28-126, Revision 5, dated July 29, 2014; nor any of the previous revisions of Boeing Service Bulletin MD11-28-126. In addition, for compliance with this AD, this inspection must be done before the detailed inspection specified in Boeing Service Bulletin MD11-28-126, Revision 6, dated July 1, 2016, for Groups 1, 2, and 5, Configuration 2 airplanes. However, under the provisions of paragraph (m) of this AD, we will consider requests for approval of alternative methods of compliance (AMOCs) if sufficient data are submitted to substantiate that the actions would provide an acceptable level of safety. We have not changed this AD in this regard.

We also partially agree with the commenter. The new requirements in Boeing Service Bulletin MD11-28-126, Revision 6, dated July 1, 2016, do not apply to certain freighter airplanes. Freighter airplanes are included in the procedures for Groups 1 and 5, Configuration 2 airplanes, but not for Group 2, Configuration 2 airplanes, as specified in Boeing Service Bulletin MD11-28-126, Revision 6, dated July 1, 2016. Only passenger airplanes are included in the procedures for Group 2, Configuration 2 airplanes in Boeing Service Bulletin MD11-28-126, Revision 6, dated July 1, 2016. Therefore, we have added “as applicable” to the introductory text to paragraph (i) of this AD to clarify that the actions in paragraphs (i)(1) and (i)(2) of this AD apply to Groups 1 and 5, Configuration 2 airplanes, and passenger airplanes in Group 2, Configuration 2.

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

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

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

We reviewed Boeing Service Bulletin MD11-28-126, Revision 6, dated July 1, 2016. This service information describes procedures for inspecting certain wire bundles of the center auxiliary fuel tank for damage, and repairing or replacing damaged wires. This service information also describes procedures for installing barrier/shield sleeving, clamping, and an extruded channel. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 125 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

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

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

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

This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes and associated appliances to the Director of the System Oversight Division.

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

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

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

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

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

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

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

Pursuant to the authority granted in 33 U.S.C. 1605, the DoN amends 32 CFR part 706.

This amendment provides notice that the DAJAG (Admiralty and Maritime Law), under authority delegated by the Secretary of the Navy, has certified that USS WICHITA(LCS 13) is a vessel of the Navy which, due to its special construction and purpose, cannot fully comply with the following specific provisions of 72 COLREGS without interfering with its special function as a naval ship: Annex I paragraph 2(a)(i), pertaining to the height of the forward masthead light above the hull and Annex I; and paragraph 3(a), pertaining to the location of the forward masthead light in the forward quarter of the ship, and the horizontal distance between the forward and after masthead light. The DAJAG (Admiralty and Maritime Law) has also certified that the lights involved are located in closest possible compliance with the applicable 72 COLREGS requirements.

Moreover, it has been determined, in accordance with 32 CFR parts 296 and 701, that publication of this amendment for public comment prior to adoption is impracticable, unnecessary, and contrary to public interest since it is based on technical findings that the placement of lights on this vessel in a manner differently from that prescribed herein will adversely affect the vessel's ability to perform its military functions.

It has been determined that publication of this CFR part removal for public comment is impracticable, unnecessary, and contrary to public interest since it is based on removing a duplicative CFR part.

Both 5 CFR part 581 and 32 CFR part 734 derive their authority from 42 U.S.C. 659, and 5 CFR part 581 encompasses entirely the language found in 32 CFR part 734. Furthermore, 5 CFR part 581 is a more thorough regulation; for example, 5 CFR part 581 contains a definitions section and a provision identifying which moneys are subject to garnishment.

Garnishment operations and their underlying processes will remain unaffected by this regulatory action. In addition, no requirement for paperwork or procedures are set forth in 32 CFR part 734 that are not covered in 5 CFR part 581.

This rule is not significant under Executive Order (E.O.) 12866, “Regulatory Planning and Review,” therefore, E.O. 13771, “Reducing Regulation and Controlling Regulatory Costs” does not apply.

This action pertains to facilities in Louisiana, and is not based on a determination of nationwide scope or effect. Thus, under section 307(b)(1) of the Clean Air Act, any petitions for review of EPA's action denying the Sierra Club and the NPCA petition for reconsideration must be filed in the Court of Appeals for the Fifth Circuit on or before June 15, 2018.

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2016-0573 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before June 15, 2018. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2016-0573, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

In the Federal Register of December 20, 2016 (81 FR 92758) (FRL-9956-04), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 6F8507) by Isagro S.p.A (d/b/a Isagro USA, Inc.), 430 Davis Drive, Suite 240, Morrisville, NC 27560. The petition requested that 40 CFR 180.557 be amended by establishing tolerances for residues of the fungicide tetraconazole, 1-[2-(2,4-dichlorophenyl)-3-(1,1,2,2-tetrafluoroethoxy)propyl]-1H-1,2,4-triazole, in or on barley at 0.3 parts per million (ppm); crop group 16, forage, fodder, and straw of cereal grains group (except corn) at 8.0 ppm; dried shelled pea and bean (except soybean) subgroup 6C, hay at 8.0 ppm; dried shelled pea and bean (except soybean) subgroup 6C, seed at 0.15 ppm; dried shelled pea and bean (except soybean) subgroup 6C, vine at 2.0 ppm; rapeseed crop subgroup 20A at 0.9 ppm; and wheat at 0.1 ppm. That document referenced a summary of the petition prepared by Isagro S.p.A (d/b/a Isagro USA, Inc., the registrant, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

Based upon review of the data supporting the petition, EPA is establishing tolerances that vary slightly from what the petitioner requested. The reason for these changes are explained in Unit IV.C.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for tetraconazole including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with tetraconazole follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

The liver and kidney are the primary target organs of tetraconazole in all species in oral toxicity studies of subchronic and chronic durations. Following long-term oral exposure, tetraconazole caused liver tumors in mice in both sexes. In the acute neurotoxicity study, loss of motor activity in both sexes, and clinical signs including hunched posture, decreased defecation, and/or red or yellow material on various body surfaces were observed in females. There was no evidence of immunotoxicity or neurotoxicity following subchronic exposure. There were no systemic effects observed in the 21-day dermal toxicity study up to the highest dose tested. Tetraconazole did not show evidence of mutagenicity in in vitro or in vivo studies.

Oral rat and rabbit prenatal developmental studies showed no evidence for increased quantitative susceptibility in utero. Developmental effects (increased incidences of supernumerary ribs, and hydroureter and hydronephrosis) were seen in the presence of maternal effects in rats (decreased body weight gain, and food consumption and increased water intake, and increased liver and kidney weights), while no developmental effects were seen in rabbits. A 2-generation rat reproduction study also revealed no evidence for increased quantitative susceptibility in offspring. Decreased litter and mean pup weights and increased liver weights were noted in offspring at a dose higher than that which caused mortality in adult females. Effects in parental animals that survived the duration of the study were consistent with other studies in the database. In contrast to the oral studies where the most sensitive effects were in the liver and kidney, inhalation exposure of tetraconazole to rats resulted in portal-of-entry effects, including squamous cell metaplasia of the laryngeal mucous, mono-nuclear cell infiltration, goblet cell hyperplasia, hypertrophy of the nasal cavity and nasopharyngeal duct, and follicular hypertrophy of the thyroid in males. At the highest concentration tested, there were treatment-related increases in absolute lung weights in both sexes.

Although liver tumors were observed in mice in both sexes in a mouse carcinogenicity study, the agency has classified tetraconazole as “Not likely to be carcinogenic to humans at levels that do not cause increased cell proliferation in the liver.” This classification is supported by an in vivo cancer mode-of-action study in mice, demonstrating that cancer risk is linked to increased cell proliferation in the liver. Because the current reference dose (RfD) of 0.0073 mg/kg/day is below the level at which increased cell proliferation occurs in the liver, it would be protective of any liver effects caused by tetraconazole in the mouse carcinogenicity or MoA studies at higher doses. Quantification of carcinogenic potential is not required.

Tetraconazole was categorized as having low acute toxicity via the oral, dermal, and inhalation routes (Toxicity Categories III-IV). It is not a dermal irritant or a dermal sensitizer. It is considered a slight eye irritant.

Specific information on the studies received and the nature of the adverse effects caused by tetraconazole as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in document “Human Health Risk Assessment for the Section 3 Registration for Application to add Crop Group 6C, Dried Shelled Pea and Bean (except Soybean) Subgroup, Barley, Canola, Wheat, and Crop Group 16, Forage Fodder, and Straw of Cereal Grains Group (except corn)” in docket ID number EPA-HQ-OPP-2016-0573.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www.epa.gov/pesticides/factsheets/riskassess.htm.

A summary of the toxicological endpoints for tetraconazole used for human risk assessment is discussed in Unit B of the final rule published in the Federal Register of January 10, 2017 (82 FR 2900) (FRL-9955-74).

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to tetraconazole, EPA considered exposure under the petitioned-for tolerances as well as all existing tetraconazole tolerances in 40 CFR 180.557. EPA assessed dietary exposures from tetraconazole in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure.

Such effects were identified for tetraconazole. In estimating acute dietary exposure, EPA used food consumption information from the 2003-2008 United States Department of Agriculture (USDA) National Health and Nutrition Examination Survey, What We Eat in America, (NHANES/WWEIA). As to residue levels in food, EPA used tolerance-level residues and 100 percent crop treated (PCT) estimates.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA NHANES/WWEIA (2003-2008). As to residue levels in food, EPA utilized residue data from field trials and feeding studies to obtain average residues and assumed the PCT estimates provided in Unit III.C.1.iv. Empirically derived processing factors were used in these assessments when available.

iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that tetraconazole has been classified as “Not likely to be carcinogenic to humans at levels that do not cause increased cell proliferation in the liver.” Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

iv. Anticipated residue and percent crop treated (PCT) information. Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must require pursuant to FFDCA section 408(f)(1) that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Data will be required to be submitted no later than 5 years from the date of issuance of these tolerances.

Section 408(b)(2)(F) of FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if:

• Condition a: The data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain the pesticide residue.

• Condition b: The exposure estimate does not underestimate exposure for any significant subpopulation group.

• Condition c: Data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area.

In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by FFDCA section 408(b)(2)(F), EPA may require registrants to submit data on PCT.

For the chronic dietary exposure assessment, the Agency used the following PCT estimates for existing uses as follows: Corn, 1%; grapes, 5%; peanuts, 1%; strawberries, 2.5%; sugar beet, 25%; and soybean, 2.5%.

In most cases, EPA uses available data from United States Department of Agriculture/National Agricultural Statistics Service (USDA/NASS), proprietary market surveys, and the National Pesticide Use Database for the chemical/crop combination for the most recent 6-7 years. EPA uses an average PCT for chronic dietary risk analysis. The average PCT figure for each existing use is derived by combining available public and private market survey data for that use, averaging across all observations, and rounding to the nearest 5%, except for those situations in which the average PCT is less than 2.5% or 1%. In those cases, the Agency uses 2.5% or 1%, respectively, as the average PCT. EPA uses a maximum PCT for acute dietary risk analysis. The maximum PCT figure is the highest observed maximum value reported within the recent 6 years of available public and private market survey data for the existing use and rounded up to the nearest multiple of 5%, unless the maximum PCT value is estimated at less than 2.5%, in which case the Agency uses 2.5% as the maximum PCT value in the analysis.

The Agency believes that the three conditions discussed in Unit III.C.1.iv. have been met. With respect to Condition a, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions b and c, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available reliable information on the regional consumption of food to which tetraconazole may be applied in a particular area.

2. Dietary exposure from drinking water. The Agency used screening-level water exposure models in the dietary exposure analysis and risk assessment for tetraconazole in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of tetraconazole. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www.epa.gov/oppefed1/models/water/index.htm.

Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Pesticide Root Zone Model Ground Water (PRZM GW), the estimated drinking water concentrations (EDWCs) of tetraconazole for acute exposures are estimated to be 11 parts per billion (ppb) for surface water and 120 ppb for ground water. The estimated EDWCs of tetraconazole for chronic exposures for non-cancer assessments are estimated to be 5.5 ppb for surface water and 118 ppb for ground water.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 120 ppb was used to assess the contribution to drinking water. For chronic dietary risk assessment, the water concentration of value 118 ppb was used to assess the contribution to drinking water.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

Tetraconazole is not registered for any specific use patterns that would result in residential exposure.

4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

Tetraconazole is a member of the triazole-containing class of pesticides. Although conazoles act similarly in plants (fungi) by inhibiting ergosterol biosynthesis, there is not necessarily a relationship between their pesticidal activity and their mechanism of toxicity in mammals. Structural similarities do not constitute a common mechanism of toxicity. Evidence is needed to establish that the chemicals operate by the same, or essentially the same, sequence of major biochemical events. In conazoles, however, a variable pattern of toxicological responses is found; some are hepatotoxic and hepatocarcinogenic in mice. Some induce thyroid tumors in rats. Some induce developmental, reproductive, and neurological effects in rodents. Furthermore, the conazoles produce a diverse range of biochemical events including altered cholesterol levels, stress responses, and altered DNA methylation. It is not clearly understood whether these biochemical events are directly connected to their toxicological outcomes. Thus, there is currently no evidence to indicate that conazoles share common mechanisms of toxicity and EPA is not following a cumulative risk approach based on a common mechanism of toxicity for the conazoles. For information regarding EPA's procedures for cumulating effects from substances found to have a common mechanism of toxicity, see EPA's website at http://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides.

Tetraconazole, as a triazole-derived pesticide, is one of a class of compounds that can form the common metabolite 1,2,4-triazole and two triazole conjugates (triazolylalanine and triazolylacetic acid). To support existing tolerances and to establish new tolerances for triazole-derivative pesticides, including tetraconazole, EPA conducted a human health risk assessment for exposure to 1,2,4-triazole, triazolylalanine, and triazolylacetic acid resulting from the use of all current and pending uses of any triazole-derived fungicide. The risk assessment is a highly conservative, screening-level evaluation of hazards associated with common metabolites (e.g., use of a maximum combination of uncertainty factors) and potential dietary and non-dietary exposures (i.e., high end estimates of both dietary and nondietary exposures). In addition to the 10X interspecies factor and the 10X intraspecies factor, the Agency retained a 3X for the LOAEL to NOAEL safety factor when the reproduction study was used. In addition, the Agency retained a 10X for the lack of studies including a developmental neurotoxicity (DNT) study. The assessment includes evaluations of risks for various subgroups, including those comprised of infants and children. The Agency's complete risk assessment is found in the propiconazole reregistration docket at http://www.regulations.gov/, Docket Identification (ID) Number EPA-HQ-OPP-2005-0497.

An updated dietary exposure and risk analysis for the common triazole metabolites 1,2,4-triazole (T), triazolylalanine (TA), triazolylacetic acid (TAA), and triazolylpyruvic acid (TP) was completed on July 18, 2017, in association with registration requests for tetraconazole and difenoconazole fungicides. The requested new uses of tetraconazole did not significantly change the dietary exposure estimates for free triazole or conjugated triazoles. Therefore, an updated dietary exposure analysis was not conducted. The July 18, 2017 update for triazoles may be found in docket ID number EPA-HQ-OPP-2016-0573.

1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

2. Prenatal and postnatal sensitivity. There are no residual uncertainties for pre- and post-natal toxicity. There was no evidence of increased quantitative susceptibility of rat or rabbit fetuses following in utero exposures to tetraconazole. However, there was evidence of increased qualitative susceptibility of fetuses in the rat prenatal developmental toxicity study where there were increased incidences of supernumerary ribs, and hydroureter and hydronephrosis were seen in fetuses at the same dose that caused maternal toxicity (decreased body weight gain, and food consumption and increased water intake, and increased liver and kidney weights). In addition, there was also no evidence of increased quantitative or qualitative susceptibility to offspring in the 2-generation reproduction study.

3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X. That decision is based on the following findings:

i. The toxicity database for tetraconazole is complete.

ii. Although there were effects indicative of neurotoxicity in the acute neurotoxicity study in rats, there were no such effects noted in the subchronic neurotoxicity study or any other studies in the database. The fact that a clear NOAEL was established for the neurotoxicity effects observed and the selected endpoints are protective of those effects, which were observed at doses 2- to 100-fold higher than the most sensitive effects in the database (liver and kidney). Therefore, there is no need for a developmental neurotoxicity study or additional uncertainty factors (UFs) to account for neurotoxicity.

iii. As discussed in Unit III.D.2., there is no evidence that tetraconazole results in increased quantitative susceptibility in in utero rats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study. There is evidence of increased qualitative susceptibility to fetuses in the rat prenatal developmental toxicity study (increased incidences of supernumerary ribs, and hydroureter and hydronephrosis). The level of concern (LOC) is low because: (1) The fetal effects were seen at the same dose as the maternal effects; (2) a clear NOAEL was established; (3) the developmental NOAEL from a study in rats is being used as the POD for the acute dietary endpoint (females 13-49 years of age) and are protected for; and (4) there were no developmental effects in the rabbit study. There is also no evidence of increased quantitative or qualitative susceptibility to offspring in the 2-generation reproduction study.

iv. There are no residual uncertainties identified in the exposure databases. The acute dietary food exposure assessments were performed based on 100 PCT, tolerance-level residues, and modeled water estimates. Therefore, the acute analysis is highly conservative. The chronic dietary exposure analysis utilized modeled drinking water estimates, empirical processing factors, average field trial residues, average residues from the feeding studies, PCT, and modeled drinking water estimates. Therefore, the chronic risk estimates provided in this document are unlikely to underestimate the risks posed by tetraconazole. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to tetraconazole in drinking water. These assessments will not underestimate the exposure and risks posed by tetraconazole.

EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

1. Acute risk. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to tetraconazole will occupy 4.8% of the aPAD for all infants (<1 year old), the population group receiving the greatest exposure.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to tetraconazole from food and water will utilize 91% of the cPAD for all infants (<1 year old), the population group receiving the greatest exposure. There are no residential uses for tetraconazole.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). A short-term adverse effect was identified; however, tetraconazole is not registered for any use patterns that would result in short-term residential exposure. Short-term risk is assessed based on short-term residential exposure plus chronic dietary exposure. Because there is no short-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess short-term risk), no further assessment of short-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating short-term risk for tetraconazole.

4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). An intermediate-term adverse effect was identified; however, tetraconazole is not registered for any use patterns that would result in intermediate-term residential exposure. Intermediate-term risk is assessed based on intermediate-term residential exposure plus chronic dietary exposure. Because there is no intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess intermediate-term risk), no further assessment of intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating intermediate-term risk for tetraconazole.

5. Aggregate cancer risk for U.S. population. As discussed in Unit III.A., EPA has concluded that tetraconazole is “Not likely to be carcinogenic to humans at levels that do not cause increased cell proliferation in the liver.” Because the chronic endpoint is protective of cell proliferation in the liver, there is not likely to be a cancer risk from exposure to tetraconazole.

6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to tetraconazole residues.

Adequate analytical methods are available to enforce the established/recommended tetraconazole plant and livestock tolerances (D280006, W. Donovan, 10-Jan-2002, D267481, 12-Oct-2000; D278236, W. Donovan, 22-Oct-2001). Isagro has also submitted adequate method validation and independent laboratory validation (ILV) data that indicates that the QuEChERS multi-residue method L00.00-115 (48135104.der) is capable of quantifying tetraconazole residues in/on a variety of fruit, cereal grain, root, oilseed, and livestock commodities.

The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: [email protected].

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

The Codex has not established MRLs for tetraconazole.

Some of the terminology the petitioner used to describe requested tolerances is not the standard terminology the Agency uses for establishing tolerances. Tolerances requested for “dried shelled pea and bean (except soybean) subgroup 6C” and “crop group 16, forage, fodder, and straw of cereal grains group” are being issued for “pea and bean, dried shelled, except soybean, subgroup 6C” and “grain, cereal, forage, fodder, and straw, group 16”, respectively. The subgroup 6C includes all edible pods and the dried and succulent seed forms of the commodities in the subgroup; the Agency does not specifically used the term “seed” in the naming of this subgroup, consistent with its food and feed commodity vocabulary. The petitioner also requested tolerances for hay and vine commodities in subgroup 6C. Hay and vine are plant parts of legume vegetables, which are covered under crop subgroup 7A. Therefore, the Agency is establishing this requested tolerance as “vegetable, foliage of legume, except soybean, subgroup 7A”.

Additionally, the Agency has determined that some of the field trials were replicates, which lead to the agency recommending for different tolerance levels than that proposed. EPA added significant figures for the tolerance values to be consistent with its practice.

Although the petitioner requested tolerances for residues of tetraconazole in or on commodities in group 16 except corn, the tolerances for corn, field, forage and corn, field, stover as well as corn, pop, stover are superseded by the new group 16 tolerances. Based on cereal grain processing data, which indicate that tetraconazole residues concentrate in the processed commodities of barley and wheat, the Agency is establishing tolerances for residues in or on the flour and bran commodities of barley and the flour, bran, and germ commodities of wheat. In addition, because residue data indicate that there will be increased residues in aspirated grain fractions as a result of the use of tetraconazole on cereal grains, the Agency is modifying the existing tolerance for aspirated grain fractions, in accordance with the provisions at 40 CFR 180.40(f)(1)(i)(B).

Finally, because the established tolerances will increase the ruminant dietary burdens, the Agency is increasing existing milk and meat tolerance levels as well, pursuant to 40 CFR 180.6(b).

Therefore, tolerances are established for residues of tetraconazole, 1-[2-(2,4-dichlorophenyl)-3-(1,1,2,2-tetrafluoroethoxy)propyl]-1H-1,2,4-triazole, in or on pea and bean, dried shelled (except soybean) subgroup 6C at 0.09 ppm; vegetable, foliage of legume (except soybeans) subgroup 7A at 8.0 ppm; barley, grain at 0.30 ppm; rapeseed subgroup 20A at 0.90 ppm; wheat, grain at 0.05 ppm; wheat, germ at 0.50 ppm; grain, cereal, forage, fodder, and straw, group 16 at 7.0 ppm; barley, bran at 1.0 ppm; barley, flour at 0.50 ppm; wheat, bran at 0.15 ppm; wheat, flour at 0.08 ppm. In addition, EPA is revising existing tolerances for grain, aspirated fractions to 4.0 ppm; milk to 0.06 ppm; cattle, meat to 0.02 ppm; goat, meat to 0.02 ppm; horse, meat to 0.02 ppm; and sheep, meat to 0.02 ppm. Additionally, the existing tolerances for corn, field, forage; corn, field, stover; and corn, pop, stover are being removed since they are superseded by this action.

This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001); Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997); or Executive Order 13771, entitled “Reducing Regulations and Controlling Regulatory Costs” (82 FR 9339, February 3, 2017). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule 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. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

On May 17, 2017, VA published a proposed rule in the Federal Register (82 FR 22635), which announced VA`s intent to amend regulations for VAAR Case 2014-V001. In addition to the revisions outlined in the summary, this final rule also updates the policy governing improper business practices and personal conflicts of interests, and provides the agency's procedures on due process rights and who in VA determines whether or not a violation of the Gratuities clause has occurred. The rule adds clarifying information on sealed bidding including preparation of invitations for bids and other general rules for solicitation of bids. VA provided a 60-day comment period for the public to respond to the proposed rule. The comment period for the proposed rule ended on July 17, 2017 and VA received no comments. The proposed rule is being adopted as final, with three technical non-substantive changes and minor stylistic and grammatical edits.

The final rule makes administrative changes to two of the authorities for the parts on the recommendation of counsel, specifically the removal of 38 U.S.C. 501, and the addition of 41 U.S.C. 1702 which addresses overall direction of procurement policy, acquisition planning and management responsibilities of Chief Acquisition Officers and Senior Procurement Executives, including implementation of unique procurement policies, regulations, and standards of the agency. 38 U.S.C. 501 is a more general authority of the Secretary of the Department of Veterans Affairs to prescribe all rules and regulations which are necessary or appropriate to carry out the laws administered by the Department. The Title 41 authority is the more appropriate authority to cite when publishing the VA Acquisition Regulation.

The final rule, in section 802.101, will remove definitions and titles relating to D&S Committee, Debarring official, and Suspending official and replaces them with two definitions/titles and the acronyms now in use in the agency: Suspending and Debarring Official (SDO) and Suspension and Debarment Committee (S&D Committee). These were properly updated via VAAR Class Deviation issued on June 2, 2017, after the proposed rule was published for public comment.

This final rule has Federal Register administrative format changes in the amendatory text which makes no substantive text changes at the affected sections.

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.

Although this action contains provisions constituting collections of information at 48 CFR 814.201-6(a) and 852.214-70, under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), no new or proposed revised collections of information are associated with this final rule. The information collection requirements for 48 CFR 814.201-6(a) and 852.214-70 are currently approved by OMB, have been assigned OMB control number 2900-0593, and are being removed and discontinued. This results in a removal of 2 estimated annual burden hours to respondents.

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. The rule text does not change VA's policy regarding small businesses. Therefore, the rule does not have a significant economic impact on substantial number of small entities. There are no increased and/or decreased costs to small entities. The overall impact of this final rule will be of benefit to small businesses owned by Veterans or service-disabled Veterans as the VAAR is being updated to remove extraneous procedural information that applies only to VA's internal operating procedures. VA estimates no cost impact to individual business resulting from these rule updates. On this basis, 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. Therefore, under 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

Executive Orders (E.O.) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits of reducing costs, of harmonizing rules, and of promoting flexibility. E.O. 12866, Regulatory Planning and Review defines “significant regulatory action” to mean 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.”

VA has examined the economic, interagency, budgetary, legal, and policy implications of this regulatory action, and it has been determined this rule is not a significant regulatory action under E.O. 12866. This final rule is considered an E.O. 13771 deregulatory action. Details on the estimated cost savings of this final rule can be found in the rule's economic analysis.

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.

The Secretary of Veterans Affairs, or designee, 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. Gina S. Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, approved this document on February 23, 2018, for publication.

For the reasons set out in the preamble, VA amends 48 CFR parts 801, 802, 803, 812, 814, 822, and 852 as follows:

This final rule is organized as follows:

For access to docket FMCSA-2012-0376 to read background documents and comments received, go to http://www.regulations.gov at any time, or to Docket Services at U.S. Department of Transportation, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

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

This rule establishes parity between paper and electronic documents and signatures, and expands businesses' and individuals' ability to use electronic methods to comply with FMCSA's requirements. This rule applies only to documents that FMCSA requires entities to retain. It also updates references to outdated recordkeeping and reporting methods throughout chapter III of subtitle B of title 49, Code of Federal Regulations (49 CFR parts 300-399) to make them technologically neutral.

This rulemaking implements portions of the Government Paperwork Elimination Act (GPEA) and the Electronic Signatures in Global and National Commerce Act (E-SIGN).

This rule does not impose new requirements, and it is expected to provide regulatory relief to the industry. It codifies previously issued regulatory guidance that provides flexibility to the industry in the use of electronic documents and electronic signatures, and removes outdated and obsolete references in the regulatory text. Examples of documents affected by this rule include vehicle maintenance records, driver qualification files, bills of lading, and business records. Regulated entities are provided additional flexibility and may choose to conduct business using either electronic versions or traditional paper-based versions of these types of documents. Because the choice of using electronic methods is optional and not mandatory, and regulated entities may continue to use traditional paper-based methods if they desire to do so, the Agency expects regulated entities will choose those methods that best suit their individual needs. For those regulated entities that do choose to use electronic documents and methods under this rule, potential cost savings may include reduced expenditures on labor time, office and storage space, materials, and office equipment.

Because the previously issued regulatory guidance that is now being codified in this final rule has been in place for several years, since January 4, 2011, it is believed that many regulated entities for whom the use of electronic documents and methods best suits their needs may have already made this transition from traditional paper-based methods. Therefore, many of the potential cost savings possible from this rule may have largely already occurred. It is estimated that though there may still be some additional incremental cost savings that could result from the regulatory flexibility being codified by this final rule (e.g., for any remaining regulated entities that may desire at some time to use electronic documents and methods but have not yet made this transition), overall these additional cost savings will be minimal.

The Motor Carrier Safety Act of 1984 (Pub. L. 98-554, Title II, 98 Stat. 2832, October 30, 1984), as amended, (the 1984 Act) provides broad authority to regulate drivers, motor carriers, and vehicle equipment. Section 211 of the 1984 Act grants the Secretary broad power, in carrying out motor carrier safety statutes and regulations, to “prescribe recordkeeping and reporting requirements” and to “perform other acts the Secretary considers appropriate” (49 U.S.C. 31133(a)(8) and (10)). The FMCSA Administrator has been delegated authority under 49 CFR 1.87(f) to carry out the functions vested in the Secretary of Transportation by 49 U.S.C. chapter 311, subchapters I and III, relating to commercial motor vehicle (CMV) programs and safety regulation.

Two Federal statutes govern the Agency's implementation of electronic document and signature requirements. The GPEA (Pub. L. 105.277, Title XVII (Secs. 1701-1710), 112 Stat. 2681-749, 44 U.S.C. 3504 note) was enacted on October 21, 1998, to improve customer service and governmental efficiency through the use of information technology. E-SIGN (Pub. L. 106-229, 114 Stat. 464, 15 U.S.C. 7001-7031) was signed into law on June 30, 2000. E-SIGN was designed to promote the use of electronic contract formation, signatures, and recordkeeping in private commerce by establishing legal equivalence between traditional paper-based methods and electronic methods.

The GPEA defines an electronic signature as a method of signing an electronic communication that: (a) Identifies and authenticates a particular person as the source of the electronic communication; and (b) indicates such person's approval of the information contained in the electronic communication (section 1710(1)). It also requires Federal agencies to provide individuals and entities the options of: (a) Submitting information to or transacting with the agency electronically; and (b) using electronic records retention when practicable. The GPEA states that electronic records and their related electronic signatures shall not be denied legal effect, validity, or enforceability merely because they are in electronic form (section 1707). It also encourages agencies to use electronic signature alternatives (section 1704). This final rule is concerned only with implementing the use of electronic document creation and retention with regard to documents and records required to be maintained, and does not cover electronic submission to FMCSA, as is discussed more broadly in the response to comments below.

For any transaction in or affecting interstate or foreign commerce, E-SIGN supersedes all pre-existing requirements that paper records be kept so long as: (a) Such records are generated in commercial, consumer, and business transactions between private parties; and (b) those parties consent to using electronic methods. Specifically, the statute establishes the legal equivalence for contracts, signatures, and other legally-required documents, whether in traditional paper or electronic form (15 U.S.C. 7001(a)(1)).

In recent years, FMCSA received a number of requests from motor carriers and other interested parties asking permission to use electronic methods to comply with various Agency regulations that require motor carriers and individuals to generate, sign, or store documents. Previously, FMCSA made determinations on whether certain categories of documents could be generated, signed, or stored electronically on a case-by-case basis. However, FMCSA recognized that modern technologies and evolving business practices rendered the distinction between paper and electronic documents and signatures obsolete in most cases.

FMCSA determined that many businesses and individuals could achieve greater efficiencies using electronic methods, but that others might prefer paper-based recordkeeping. As a result, FMCSA decided to give regulated entities the flexibility to choose which methods to use. On January 4, 2011, FMCSA issued regulatory guidance to 49 CFR 390.31 on the use of electronic signatures and documents to satisfy FMCSA's regulatory requirements. (76 FR 411). That guidance provided that, for the purposes of complying with any provision in chapter III of subtitle B of title 49, Code of Federal Regulations (49 CFR parts 300-399) that requires a document to be created, signed, certified, or retained by any person or entity, that person or entity may, but is not required to, use electronic methods. The guidance further stated that in order for electronic methods to satisfy FMCSA's regulatory requirements, the documents or signatures had to accurately reflect the information in the record and remain accessible in a form that can be viewed or reproduced according to agency rules.

On April 28, 2014, FMCSA issued a Notice of Proposed Rulemaking (NPRM) that proposed incorporating the 2011 guidance into regulations. (79 FR 23306). Subsequent to the issuance of the NPRM, FMCSA removed guidance question 27 and revised question 28 for 49 CFR 395.8, addressing the use of logging software programs for drivers' records of duty status (RODS) in order to ensure consistency with FMCSA's January 2011 guidance (79 FR 39342, July 10, 2014).

In addition, Presidential Executive Order (E.O.) 13563, “Improving Regulation and Regulatory Review” (issued January 18, 2011, and published January 21 at 76 FR 3821), prompted DOT to publish a notice in the Federal Register on February 16, 2011 (76 FR 8940). This notice requested readers to comment on a plan for reviewing existing rules, as well as to identify existing rules that may be outmoded, ineffective, insufficient, or excessively burdensome. DOT placed all retrospective regulatory review comments, including a transcript of a March 14, 2011, public meeting, in docket DOT-OST-2011-0025. One of the comments submitted to that docket was relevant to this rule, and has been included in the comment summary below.1

On April 28, 2014, FMCSA published an NPRM titled “Electronic Signatures and Documents” in the Federal Register (79 FR 23306). FMCSA received 17 comments on the NPRM. No public meetings were requested and none was held.

The NPRM proposed to codify FMCSA's guidance issued under § 390.31 and eliminate references to outdated recordkeeping and reporting methods throughout the Agency's regulations. The proposed rule was intended to establish parity between paper and electronic documents and signatures, and expand businesses' and individuals' ability to use electronic methods to comply with FMCSA's requirements. It applied only to documents that FMCSA requires individuals or entities to retain. It also updated references to outdated recordkeeping and reporting methods throughout 49 CFR parts 300-399 to make them technologically neutral.

Seventeen submissions were posted to the docket. One submission was a duplicate 2 and three were outside the scope of this rulemaking, leaving 13 relevant submissions. Commenters included four trade associations: American Moving and Storage Association (AMSA), American Trucking Associations (ATA), National Motor Freight Traffic Association (NMFTA), and Owner, Operator, Independent Driver Association (OOIDA). Three businesses, Atlas Van Lines (Atlas), KeepTruckin (sic), and First Advantage, also provided comments, as did six individuals.

Eight commenters, including the four trade associations, three individuals and a business expressed their support for the proposed rule. First Advantage agreed with the rule and recommended that 49 CFR part 382 be included in its adoption. Trade associations AMSA and NMFTA both strongly supported the rulemaking. OOIDA and ATA supported the rulemaking, although each had concerns (which are addressed further below). Finally, an individual stated “with technology these days, this makes perfect sense.”

Comment. An individual commenter expressed concern about the lack of description in the preamble concerning the new regulatory language in § 390.32(c)(2) and (d). Paragraph § 390.32(c)(2) in the NPRM provided a definition of the term electronic signature, using terms from the GPEA, to set the performance standard for allowing use of electronic signatures. The subparagraph also provided flexibility that such an electronic signature may be made using any available technology that otherwise satisfies FMCSA's requirements. Paragraph § 390.32(d) in the NPRM provided that any person or entity may use documents signed, certified, generated, maintained, or exchanged using electronic methods if the documents accurately reflect the information otherwise required to be contained in them. Paragraph (d) also provided that records, documents, or signatures generated, maintained, or exchanged using electronic methods would not satisfy FMCSA requirements if they are not legible or capable of being retained, used for the purpose for which they were created, or accurately reproduced for reference by any party entitled to access them. This individual commenter noted that “identification and authentication” have specific meanings defining levels of security. This same commenter wrote that the NPRM seemed to assume that electronic signatures are legible, rather than being nothing more than a PIN or user ID and password. Another individual commenter wrote that “allowing electronic signatures needs to be defined.”

OOIDA was concerned about the security of electronic documents. It requested that FMCSA provide clarification through a supplemental notice of proposed rulemaking and allow for public comment.

An anonymous commenter noted FMCSA's requirements implied that it would require a level 2 or 3 authentication of a signature, and wrote, “FMCSA should explain exactly what it will require in terms of authentication and identity proofing (a necessary step in ensuring authentication).” This commenter did not see why FMCSA should require that level of authentication. Further, the individual pointed out there would be a cost to impose level 2 or 3 authentication requirements that FMCSA has not considered.

FMCSA Response. Based on the confusion generated by the NPRM's placement of the definition in § 390.32(c)(2), FMCSA has decided to move the definition of “electronic signature” to the general definition section for all Federal Motor Carrier Safety Regulations (FMCSRs) in §§ 390.5 and 390.5T. The definition in §§ 390.5 and 390.5T will continue to provide that an electronic signature is “a method of signing an electronic communication that identifies and authenticates a particular person as the source of the electronic communication and indicates such person's approval of the information contained in the electronic communication.”

FMCSA recognizes that the terms “identifies” and “authenticates” carry distinct meanings in the world of information technology, particularly when dealing with information security. However, these are the terms used in the GPEA to set the performance standard for allowing use of electronic signatures. Changing them here could have unintended consequences. FMCSA does not use the terms to mean that a specific level of information or authentication security must be used. Those companies and individuals who would like to use electronic signatures are free to decide, for themselves, what level of information security they are most comfortable maintaining.

For FMCSA purposes, we require only that the electronic signatures have some level of security to meet the performance standard set forth in the statute and regulations. To make it clear that the §§ 390.5 and 390.5T definition of “electronic signature” follows the GPEA performance standard, this rule will add at the end of the §§ 390.5 and 390.5T definitions a cross reference to the GPEA for the benefit of the public's understanding as to where the definition originated.

Comment. ATA wrote that motor carriers create and store records used to demonstrate compliance using electronic on-board recorders. ATA commented that FMCSA must explicitly allow drivers to sign and store documents transmitted through the electronic on-board recorder by clicking an “I agree” button. ATA said the NPRM was ambiguous on this issue and explained that there is a distinction between the characterizations of an electronic signature in § 390.32 of the NPRM and in the 2011 guidance, which stated that signatures must “accurately reflect the information in the record and remain accessible in a form that can be accurately viewed and/or reproduced according to agency rules.”

FMCSA response. We do not believe that the regulation needs to be revised to explicitly state that clicking an “I agree” button on an electronic on-board recorder is an electronic signature. Sections 390.5T and 390.32, when read together, would already allow for such an interpretation so long as the on-board recorder satisfies FMCSA's requirements. This means the on-board recorder must accurately reflect the information and/or data it is designed to record, must retain the information and/or data for the proscribed time period, and must be able to accurately reproduce the information and/or data within the required timeframes (49 CFR 390.32(d)). Additionally, it must be able to show that the user approved the information contained in the on-board recorder (49 CFR 390.5T).

Comment. Both AMSA and Atlas strongly supported the ability to provide the Ready to Move brochure and Rights and Responsibilities booklet to consumers electronically, rather than by hyperlink to FMCSA's website. AMSA and Atlas noted, however, that the word “paper” still remains in § 375.213(a), (b)(1), and (e)(2). AMSA indicated that it believed this is an “oversight” on the Agency's part. Furthermore, AMSA pointed out: “Eliminating the paper requirement for the required Ready to Move brochure and Rights and Responsibilities booklet will allow carriers to provide all of that information together electronically.”

Both commenters noted that the only currently available electronic method for delivering the required Ready to Move brochure and Rights and Responsibilities booklet “is basically unusable by carriers because: (a) It requires that the carrier obtain a receipt that the individual shipper has actually received both booklets when the carrier is not actually providing them the documents, so does not know when the shipper has actually received them in order to be able to obtain an honest and truthful receipt; (b) the regulation does not allow the carrier to have the shipper access the documents on its website, but requires that the shipper go to the FMCSA website to obtain them, eliminating any means for the carrier to electronically track that the shipper has actually received the documents; and (c) the regulation requires that the carrier obtain and keep the required receipt for 3 years (versus the one year period required for most other documents).”

FMCSA Response. The Agency agrees with the commenters and amends the language in § 375.213(e)(2), by removing the words “electronic or paper.” FMCSA also eliminates the requirement in § 375.213 for the Ready to Move brochure and Rights and Responsibilities booklet to be provided only in paper copy or retrieved at a URL. Finally, FMCSA removes the need to receive a physical receipt of waiver from the shipper as well.

The proposed rule did not address the length of time a carrier needs to keep the receipt in § 375.213(e)(3) because FMCSA resolved the issue in 2012. AMSA's and Atlas' June 27, 2014, comments discussed reducing the length of time required to maintain the receipt from a three-year period to a one-year period. This was almost two years after FMCSA harmonized the retention period for the required receipt to one year based on AMSA's January 11, 2011, petition. The Agency published a direct final rule (DFR) on July 16, 2012 (77 FR 41699), establishing the retention period as one year.

Comment. Atlas stated that the rewording of § 370.3 left the process for filing complaints unclear. Specifically, Atlas objected to the removal of the phrase “or electronic” and FMCSA's failure to delete the parenthetical statement that followed.

FMCSA Response. In response to Atlas' comment, the Agency removes the parenthetical “(when agreed to by the carrier and shipper or receiver involved)” from § 370.3(b), because the form of communication used is determined by agreement of the parties involved. This will clarify that the claimants need to file a claim, either in writing or electronically, rather than orally stating a claim. For the same reason, the Agency also removes the identical parenthetical phrase in § 378.3(a) for the filing and processing of overcharge, duplicate payment, or overcollection payments for motor carrier and household goods freight forwarder transportation of property.

Comment. OOIDA was concerned that the protections established by a lease “will be compromised if a motor carrier exercises its rights under the proposed rule to use electronic documents, but the owner-operator does not have the means to maintain personal possession at all times and refer to it when necessary during the course of the lease.” OOIDA requested several clarifications regarding the proposed regulatory text in part 376 related to the responsibility of the motor carrier to make documents available to the owner-operator. OOIDA also asked how the owner-operator was to store the document on the CMV. OOIDA wrote that anything other than a paper copy may be less than effective in achieving the purposes of the leasing regulations.

OOIDA also asked FMCSA to clarify in the final rule that the new requirements for electronic signatures are not intended to permit easy amendment of a lease or its addendums.

FMCSA Response. As stated in the introduction, the E-SIGN statute requires consent from the consumer to share documents in electronic format. This consent should be part of the contract reached by the parties, in normal business arrangements, which must be signed by all parties indicating their consent to the requirements. We have added this requirement (that consent be documented) into 49 CFR 390.32(d), to ensure it is clear to all who wish to take advantage of the electronic documents and signatures options. If the owner-operator does not have the ability to receive and maintain the lease in electronic format, the owner-operator should obtain the lease in a format he or she can use, i.e., a printed copy.

In response to OOIDA's request for clarification that the requirements for electronic signatures are not intended to permit easy amendment of a lease or its addendums, without ratification by both parties, FMCSA reiterates that the purpose of this rule is to give regulated entities the choice to conduct business using either electronic or traditional paper-based methods. This rule does not change any substantive legal requirements or business practices. We have added language into 49 CFR 379.5 to include a requirement for the protection of records from unauthorized access and modification, to make this clear.

Comment. First Advantage encouraged the Agency to use electronic records and signatures under part 382, “Controlled Substances and Alcohol Use and Testing,” as this would provide regulatory relief to the industry.

ATA requested that the Agency work with the DOT Office of the Secretary to create identical allowances for electronic signatures and transmissions related to drug and alcohol testing requesting requirements found in 49 CFR part 40.

FMCSA Response. While FMCSA did not include specific changes to part 382 in its NPRM of April 28, 2014, the addition of a new § 390.32 in this final rule applies to those records that are created under part 382. Thus, industry parties may now use electronic records to comply with the records retention requirements found in 49 CFR 382.401, so long as their electronic records captured the information required by § 382.401. On December 5, 2016, FMCSA published a final rule titled “Commercial Driver's License Drug and Alcohol Clearinghouse,” (81 FR 87686). That final rule, which falls under part 382, contemplates the use of electronic signatures for certain transactions related to the reporting and receipt of drug and alcohol testing information, including an employer's ability to obtain driver consent.

In reviewing the CFR for any additional terms to align with the changes proposed in the NPRM, the Agency has included a revision to § 382.601(d). FMCSA removes the phrase “the original of” in this section to reflect the practical reality that there is no real distinction between originals and copies of electronic documents. Moreover, this change conforms to the changes at § 390.31 which permit parties to maintain accurate copies in lieu of originals.

The DOT Office of Drug and Alcohol Policy and Compliance (ODAPC) has not approved the use of electronic signatures or documents to satisfy the requirements of the DOT-wide drug and alcohol testing regulations, which are found at 49 CFR part 40. The Agency has no authority over regulations under 49 CFR part 40. Any questions about part 40 regulations should be directed to ODAPC. You may find ODAPC contact information at https://www.transportation.gov/odapc.

Comment. Commenters asked that the regulatory guidance for § 395.8, regarding the use of electronic devices to keep a driver's RODS, be addressed. Commenters, including ATA and KeepTruckin (sic), a mobile technology-related firm, wanted the new rule to specifically address how RODS and other HOS documents could be provided to an enforcement officer at roadside. ATA interpreted the need for an “accurate copy” as requiring that drivers retain paper copies to satisfy law enforcement requests. Two individual commenters and KeepTruckin asked if RODS would have to be printed or if they could be displayed on a tablet or smart phone. A commenter asked if RODS and supporting documents could be sent electronically. A commenter asked if a driver had to submit the original log book or if it could be faxed to the motor carrier and printed out when needed.

ATA stated that FMCSA should allow the use of electronic documents at roadside, and eliminate question 28 of the DOT Interpretations for § 395.8 that requires the ability to print paper RODS. It did not believe that there is a “compelling government interest” in requiring paper copies at roadside inspection. ATA said that, currently, the risk of fraud is no greater than for paper documents. Tablet and smart phone technology can present the documents required at roadside in an easily reviewable format and transmit them electronically.

FMCSA Response. As noted in Section V, Background, above, interpretative guidance issued under 49 CFR 395.8 that was in effect during the NPRM comment period was subsequently revised, consistent with FMCSA's July 2014 guidance on electronic signatures and documents (79 FR 39342, July 10, 2014). This revision rendered multiple comments obsolete. The July 2014 guidance addressed logging software programs that do not qualify as automatic on-board recording devices (AOBRDs) or electronic logging devices (ELDs). The Agency is in the process of reviewing all regulatory guidance previously issued by FMCSA. Any changes to existing guidance for § 395.8, § 395.15, or other sections addressed in this rulemaking will be considered during that review. In the meantime, the existing guidance remains in effect.

This rule modifies 49 CFR 395.15 governing use of AOBRDs. Provisions pertaining to ELDs were addressed in a separate rulemaking (80 FR 78292, December 16, 2015). The ELD final rule also addressed the handling of supporting documents during inspections beginning December 18, 2017. The ATA comment erroneously presumes that the reference to an electronic document constituting an “accurate copy” would mean that drivers would need to have paper documents available for inspections. While there will be circumstances where paper RODS may be required, the need for production of paper records will diminish over time with the adoption of this rule and implementation of FMCSA's ELD final rule.

FMCSA has long acknowledged drivers' ability to satisfy their obligation to submit paper RODS to their motor carrier employer by scanning the original documents and submitting them electronically (75 FR 32860, June 10, 2010). Submission of supporting documents can be handled in the same manner.

Comment. NFMTA and ATA recommended that the rule be expanded to include documents that FMCSA receives as well. An individual commenter stated that “FMCSA regulations still require paper signatures on many daily reports; creating a paperwork burden to technology adoption.” This commenter requested that FMCSA adopt technology and remove current barriers.

OOIDA was concerned that the Agency would consider electronic documents as more accurate than other methods in regards to the recording of HOS. OOIDA wrote that a document is only as accurate as the information recorded by its author.

ATA expressed their confusion of what constitutes an electronic signature.

FMCSA Response. FMCSA understands the position of those who seek to broaden the scope of this rule to allow electronic signatures on forms submitted to FMCSA. In fact, FMCSA has in certain situations made it possible for industry to use electronic signatures and submit information in limited electronic format. As an example, Certified Medical Examiners may use electronic signatures, if they choose to do so, to sign medical forms, certificates, and a new driver medication report. If FMCSA requests these forms, they are uploaded in portable document format (PDF) to the Medical Examiner's account associated with the National Registry of Certified Medical Examiners for FMCSA to access. Unfortunately, adapting all FMCSA systems to allow for use of electronic signatures and submissions would significantly delay the implementation of this rule for use by third parties, as it would require FMCSA to develop and implement technology systems to allow for direct submission to FMCSA from regulated parties. Such development is often a multi-year process, as has been seen in the ongoing implementation for the online Unified Registration System. FMCSA sees no reason the opportunity for private parties to use electronic signatures and records retention should be dependent on FMCSA's ability to receive submissions electronically. Doing so would delay potential benefits to be gained by third parties. Thus, FMCSA is moving forward with this final rule, and will continue to look for opportunities to expand electronic submission options in the future.

FMCSA's intent is to provide the industry with an electronic signature option for all instances where regulations currently require the more traditional pen and ink signatures on documents to be created and maintained by third parties (i.e., not submitted to FMCSA). We welcome any input as to specific instances where we may have inadvertently omitted the electronic signature option. This input can be submitted using the information listed in the FOR FURTHER INFORMATION CONTACT section of this final rule.

In response to OOIDA's concern, FMCSA notes that this rule merely establishes parity between paper and electronic documents and gives the industry more flexibility. The Agency does not intend to give preference to electronic or paper records.

With regard to ATA's confusion over what constitutes an electronic signature, FMCSA is purposely providing a performance standard, as opposed to defining a specific technology to be used. There are numerous ways to electronically sign a document. We leave to the parties involved in the transaction to determine the method most appropriate for their purposes.3

This final rule adopts the NPRM substantially as proposed, thereby incorporating previously issued guidance into the CFR. This rule establishes parity between paper and electronic documents and signatures, and expands businesses' and individuals' ability to use electronic methods to comply with certain of the Agency's requirements. This rule only applies to documents between private parties that FMCSA requires individuals or entities to retain. It also updates references to outdated recordkeeping and reporting methods throughout chapter III of subtitle B of title 49, Code of Federal Regulations (49 CFR parts 300-399) to make them technologically neutral.

This rulemaking implements portions of the GPEA and E-SIGN. It removes the words “original” and “written and electronic” in many cases where they still appeared in the regulatory text, in order to provide parity between electronic and paper records.

In response to comments by AMSA and Atlas, FMCSA has also updated § 375.213 to allow electronic copies of the Ready to Move brochure and Rights and Responsibilities document, provided they receive agreement from the customer. Finally, the parenthetical has been removed in §§ 370.3(b) and 378.3(a) to ensure all claims are filed in writing, either by paper or electronically.

This final rule does not adopt the changes proposed in part 389, FMCSA's rulemaking procedures. Those changes are included in the August 7, 2017, document “Rulemaking Procedures Update” covering broader changes to part 389 (82 FR 36719). The timing of the part 389 NPRM and this final rule were such that addressing all part 389 changes in one rulemaking was less confusing than attempting to finalize a few changes in this final rule while proposing others in the August 7, 2017, part 389 NPRM.

In addition, this rule reflects changes made in the CFR between April 2014 when the NPRM was published and April 16, 2018. For further discussion of the changes, please see the Section-by-Section Analysis in Part IX of this preamble.

The Agency makes changes throughout its regulations to conform to the new definition of “written or in writing” at §§ 390.5 and 390.5T, which eliminates the distinction between paper and electronic methods of communication. The term “written” no longer means “on paper.” As a result the words “electronic” and “paper” are removed throughout as long as they are no longer needed for an alternative reason. This change can be found in parts 370, 371, 373, 375, 376, 378, 379, 382, 387, 391, 395, 396, and 398, and are not discussed any further in this section as they remain unchanged from what was proposed in the NPRM.4

FMCSA is removing the parenthetical “(when agreed to by the carrier and shipper or receiver involved)” from 370.3(b) in response to comments. All other changes to part 370 remain as proposed in the NPRM.

In reviewing the CFR, FMCSA discovered an additional instance in § 370.7 where existing regulatory text could be updated to align with the changes proposed in the NPRM. The Agency is removing “original” as referenced in the “original bill of lading,” “original invoice,” and “a photographic copy of the original invoice, or an exact copy thereof or any extract made therefrom . . .” These are either identical or similar to those that were included in the NPRM, similar to the discussion in § 390.32 below. FMCSA also removes the word “photographic” to make this section technologically neutral. Motor carriers, freight forwarders, consignees, and consignors may still maintain a copy of the invoice or an extract made therefrom, but they are free to choose the method of making that copy. We believe that notice and comment on these changes is unnecessary as the additional revisions are similar, if not identical, to changes that were included in the NPRM and garnered no adverse comments.

As proposed in the NPRM, in § 373.103, FMCSA removes references to “original” documents to reflect the practical reality that there is no real distinction between originals and copies of electronic documents. Moreover, these changes conform to the changes at § 390.31 that permit parties to maintain accurate copies in lieu of originals.

The changes to § 375.505 make clear that when a household goods motor carrier transports a shipment on a collect-on-delivery basis, notification of the charges can be made using any method of communication, including, but not limited to fax, email, overnight courier, certified mail, or return receipt requested.

As proposed in the NPRM, FMCSA amends § 376.11(b)(1) to remove the outdated language specifying that receipts for leased equipment may be transmitted by mail, telegraph, or similar means of communication. Accordingly, the amended section no longer includes references to the method of transmitting receipts, thereby giving the parties the freedom to choose their own delivery method.

In paragraph (g), as proposed in the NPRM, FMCSA eliminates outdated references to computer generated documents to eliminate the distinction between electronic and manually generated documents. In today's business and legal environment, there is no need to afford special treatment to computer generated documentation; eliminating this special treatment establishes technological neutrality in this section. These changes do not mean, however, that parties are prohibited from using computers to generate the documents required in this section. To the contrary, all parties are free to conduct their business using the technology they choose, as long as it otherwise meets the Agency's requirements.

Also, as proposed in the NPRM, in paragraph (1), FMCSA eliminates reference to the original of each lease for the same reasons explained in the discussion of § 373.103 above.

In addition to removing “original” in § 378.4(c) for the reasons discussed in §§ 370.7 and 373.103 above, FMCSA has introduced a technical amendment in § 378.4(e) to correct a misspelling of the word “orginal” to be “original”. The use of this “original” continues to be proper in this context of informing the carrier that it must accept copies, but doing so means no one else can come forward with the originals and make a duplicate claim. Otherwise, this section remains as proposed.

As previously drafted, section 379.5 required motor carriers to protect records required under FMCSA's regulations from damage or loss. The outdated language in paragraph (a) referred to physical damage that generally can pertain only to paper records. FMCSA updates this paragraph by changing it to require motor carriers to protect records against destruction, deterioration, unauthorized access and modification, and data corruption. This change reflects the importance of maintaining the integrity of records regardless of the method used to maintain them, and responds to those commenters who requested that FMCSA ensure electronic records are protected from unauthorized amendment. We have updated paragraph (b) to ensure FMCSA is notified in any case where the integrity of the record is at issue.

As previously drafted, section 379.7 contained outdated record preservation language that does not take into account the use of computers and modern technology. As proposed in the NPRM, FMCSA replaces this language with language that permits companies to preserve records using any technology that accurately reflects all of the information in the record and remains accessible for later use in accordance with the Agency's record keeping requirements. These changes conform to the requirements for electronic methods in new § 390.32.

Also in reviewing the CFR, FMCSA discovered an additional instance where recently added regulatory text could be updated to align with the changes proposed in the NPRM. The Agency has included a revision to § 380.715(a). FMCSA replaces the phrase “assessments (in written or electronic format)” in this section with the phrase “written assessments” to conform to the new definition of “written or in writing” at §§ 390.5 and 390.5T, which eliminates the distinction between paper and electronic methods of communication. We believe that notice and comment on this change is unnecessary as the additional revision in § 380.715 is similar, if not identical, to changes that were included in the NPRM.

Entry-level driver training providers are required by § 380.725(b)(2) to maintain a copy of the driver-trainee's commercial learner's permit(s) or commercial driver's license, and § 380.725(b)(3) requires these training providers maintain copies of commercial driver's licenses and applicable endorsements held by behind-the-wheel and theory instructors. As mentioned throughout this preamble about copies of records, entry-level driver training providers are free to choose the method of maintaining copies as long as it meets the requirements in § 390.31 which permit parties to maintain accurate copies in lieu of originals.

Also while reviewing the CFR, the Agency discovered an additional instance where existing regulatory text could be updated to align with the changes proposed in the NPRM. In this final rule, FMCSA made an additional revision to § 382.601(d). FMCSA removes the phrase “the original of” in this section for the reasons explained in the discussion of § 373.103, above.

As previously drafted, paragraph (b)(1) of § 387.7 required insurers and motor carriers to give 35 days' notice prior to cancelling the financial responsibility policies required in § 387.9. This section formerly established mail as the only method of communicating cancellations. As proposed in the NPRM, FMCSA amends this section by replacing the word “mailed” with the more technologically neutral term “transmitted,” and “Proof of mailing” with “Proof of transmission.” This establishes parity between mailing and other methods of transmission as proof of cancellation.

FMCSA amends § 387.15 by removing the outdated 1982 illustration I and the outdated 1983 illustration II. These illustrations represent FMCSA's predecessor Federal Highway Administration's Forms MCS-90 and MCS-82. FMCSA will update the forms by making non-substantive changes to these OMB-approved forms by replacing the terms “mailed” with “transmitted,” and “Proof of mailing” with “Proof of transmission” for the reasons explained in the discussion of § 387.7, above. FMCSA adds a reference to the section that the public may access the current OMB-approved versions of Forms MCS-90 and MCS-82 at FMCSA's website https://www.fmcsa.dot.gov/mission/forms. Thus, the public will have access to the most current OMB-approved forms via FMCSA's website rather than outdated forms in § 387.15. This change is in addition to what was proposed in the NPRM. Because the illustrations were not representations of the current OMB-approved forms, we believe that this change is not subject to notice and comment. It is a ministerial action that removes confusion from the regulations. As such, notice and comment are unnecessary.

As proposed, FMCSA amends § 387.31(b)(1) by replacing the term “mailed” with “transmitted,” and “Proof of mailing” with “Proof of transmission” for the reasons explained in the discussion of § 387.7, above.

FMCSA amends § 387.39 by removing the outdated 2003 illustrations I and II. These illustrations represent FMCSA's Forms MCS-90B and MCS-82B. FMCSA will update the forms for the same reasons explained in the discussion of §§ 387.7 and 387.15, above. FMCSA also adds a reference to the section that the public may access the current OMB-approved versions of Forms MCS-90B and MCS-82B at FMCSA's website https://www.fmcsa.dot.gov/mission/forms. This change is in addition to what was proposed in the NPRM. Because the illustrations were not representations of the current OMB-approved forms, we believe that this change is not subject to notice and comment. It is a ministerial action that removes confusion from the regulations. As such, notice and comment are unnecessary.

FMCSA moves the definition for “electronic signature” from proposed § 390.32(c)(2) to §§ 390.5 and 390.5T, and adds a § 390.5T cross reference for the term to § 390.32(c)(1). As discussed in the response to comments about electronic signatures earlier in this preamble, an electronic signature continues to mean a method of signing an electronic communication that: (1) Identifies and authenticates a particular person as the source of the electronic communication; and (2) indicates such person's approval of the information contained in the electronic communication.

Based on a few commenters' confusion with the definition, FMCSA adds a clarifying phrase that the definition is in accordance with the Government Paperwork Elimination Act (Pub. L. 105-277, Title XVII, Secs. 1701-1710, 112 Stat. 2681-749, 44 U.S.C. 3504 note). This will ensure that regulated entities know FMCSA is using GPEA's performance standard for allowing use of electronic signatures. This change also is made to the currently suspended § 390.5, to ensure that when FMCSA rescinds the suspension, the changes made by this final rule will remain intact.

As proposed, FMCSA introduces the definition of “written or in writing” in §§ 390.5 and 390.5T. The new definition is technologically neutral and includes anything typed, handwritten, or printed on a tangible medium, such as paper, as well as anything typed or generated electronically, as long as it otherwise meets the new standards in § 390.32. This definition establishes technological neutrality throughout the FMCSRs and eliminates any distinction between paper and electronic documentation as being “written or in writing.”

As proposed in the NPRM, FMCSA removes the outdated explanation of the term “writing” from the rules of construction in § 390.7(b)(2). As explained above, FMCSA has implemented a new definition of “written or in writing” in §§ 390.5 and 390.5T.

Revised § 390.31 permits persons or entities subject to document retention requirements to keep copies in lieu of originals. As proposed in the NPRM, FMCSA removes the reference to microfilm as the only acceptable method for storing such copies. It also removes the prohibition on using computer technology to maintain documents with signatures. This change provides the flexibility to choose the type of recordkeeping and storage that best suits an entity's capacities and business needs. To comply with the requirements of this section, copies must be legible; anyone entitled to inspect them must be able to view and read the content required to be in the record. The requirement that the Agency be able to inspect records applies regardless of whether the copy is in paper or electronic form.

As proposed in the NPRM, new § 390.32 permits any person or entity to use electronic methods to comply with any provision in chapter III of subtitle B of title 49, Code of Federal Regulations (49 CFR parts 300-399) that requires a document to be signed, certified, generated, maintained, or exchanged. It applies to all forms of written documentation, including forms, records, notations, and other documents. This rule establishes parity between paper and electronic documents and signatures, greatly expanding interested parties' ability to use electronic methods to comply with FMCSA's requirements.

Paragraph (a) specifies that the rule applies only to documents that FMCSA requires entities or individuals to retain, regardless of whether the Agency subsequently requires them to be produced or displayed at the request of an FMCSA official or other parties entitled to access. It does not apply to documents that individuals or entities are required to file directly with the Agency. For more information about electronic filing methods for documents filed directly with FMCSA, interested parties can consult specific program information on FMCSA's website (www.fmcsa.dot.gov).

Paragraph (b) permits, but does not require, any entity to satisfy FMCSA requirements by using electronic methods to generate, maintain, or exchange documents. The substance of the document would otherwise have to comply with applicable Federal laws and Agency rules.

Paragraph (c) permits, but does not require, any entity required to sign or certify a document to do so using electronic signatures. The rule specifies that a person may use any available technology so long as the signature otherwise complies with FMCSA's requirements. In response to comments, this paragraph has been further revised to include that any electronically signed documents must incorporate or otherwise include evidence that both parties have consented to the use of electronic signatures, as required by the E-SIGN Act (15 U.S.C. 7001(c)).

Paragraph (d) establishes the minimum requirements for electronic documents and signatures. Any electronic document or signature would be considered the legal equivalent of a paper document or signature if it is the functional equivalent with respect to integrity, accuracy, and accessibility. In other words, the electronic documents or signatures need to accurately and reliably reflect the information in the record. They must remain accessible in a form that could be accurately viewed or reproduced according to Agency rules.

Electronic documents are not to be considered the legal equivalent of traditional paper documents if they are not capable of being retained and accurately reproduced for reference by any entity entitled to access by law, for the period of time required by the Agency's recordkeeping requirements. For example, if Agency rules require that a document be produced upon demand, such as a record of duty status requested by an enforcement officer, the entity must be able to provide the Agency with an accurate copy of the electronic record upon demand. Similarly, if Agency rules require that a document be produced to the Agency within 48 hours, such as a motor carrier with multiple offices, the entity would have to provide the Agency with an accurate copy of the electronic record within 48 hours. The person inspecting the document must be able to view and read the content of that electronic record. As with any documents, paper or electronic, documents that are not legible—for any reason—do not satisfy the Agency's requirements.

This rule does not apply to other agencies' rules, even if FMCSA requires compliance with those rules. For example, some of FMCSA's regulations cross-reference other agencies' rules, such as those related to drug and alcohol testing (49 CFR part 40) and hazardous materials (49 CFR parts 105-199). In addition, if a motor carrier is operating in a foreign country, it must follow any rules that apply in that country.

Former 49 CFR 391.55 required each motor carrier to maintain a “photographic” copy of a Longer Combination Vehicle driver-instructor's commercial driver's license. But current technology for reproducing documents is not limited to photographic methods; other methods for capturing digital images also exist. Accordingly, as proposed in the NPRM, FMCSA removes the word “photographic” to make this section technologically neutral. Motor carriers are still required to maintain a copy of the Longer Combination Vehicle driver-instructor's commercial driver's license, but they are free to choose the method of making that copy.

Former § 395.8(f)(2) required that RODS be made in the driver's own handwriting. Recognizing that many drivers and motor carriers prefer to use electronic RODS, including electronic signatures, FMCSA proposed removal of the requirement that RODS be in the driver's own handwriting and adopts the rule as proposed. But drivers are still required to make their own entries; and those entries are required to be legible, regardless of the medium used to record them. This change permits drivers to choose whether to use electronic or handwritten entries and signatures. For example, a driver could make RODS entries in his or her own handwriting with a handwritten signature; electronically with an electronic signature; or typed and then subscribed with a handwritten signature, depending on the method used to record RODS.

Formerly § 395.15 (b)(2) permitted use of automatic on-board recording devices (AOBRDs) in conjunction with handwritten or printed RODS. Recognizing that many drivers and motor carriers prefer to use electronic means of recording duty status, FMCSA removes reference to handwritten or printed RODS, as proposed in the NPRM. The changes permit drivers and motor carriers to use RODS maintained in other media in conjunction with AOBRDs, as long as they otherwise meet FMCSA's requirements.

Former paragraph (b)(4) required a driver to have the previous 7 consecutive days of RODS available for inspection and specified that those RODS can be from an AOBRD, handwritten records, computer generated records, or any combination thereof. As proposed in the NPRM, FMCSA makes this section technologically neutral by removing reference to handwritten and computer generated records. Drivers are still permitted to use handwritten or computer generated records, but they are free to choose any medium for maintaining these records that otherwise meets FMCSA's requirements.

As previously drafted, paragraph (b)(5) referenced “hard copies” of the RODS documents described in paragraph (b)(4). As proposed, FMCSA removes reference to “hard copies” for the same reasons explained in the discussion of paragraph (b)(4) above.

In paragraph (e), FMCSA removes, as proposed, the requirement that RODS be made in a driver's own handwriting for the reasons explained in the discussion of § 395.8(f)(2), above.

In paragraph (f), FMCSA removes, as proposed, the requirement that RODS be made in a driver's own handwriting for the reasons explained in the discussion of § 395.8(f)(2), above.

In paragraph (h), FMCSA removes, as proposed, the option that RODS may be submitted to employers via mail for the same reasons explained in the discussion of § 387.7, above.

In the introduction to paragraph (i), FMCSA removes, as proposed, reference to handwritten RODS for the reasons explained in the discussion of § 395.8(f)(2), above. In paragraphs (i)(4) and (7), FMCSA removes, as proposed, outdated language applicable to AOBRDs installed before October 31, 1988. FMCSA does not believe that AOBRDs installed before this date are still in use. As such, this language is no longer necessary.

As proposed in the NPRM and for the same reasons explained in the discussion of § 391.55 above, FMCSA removes the requirement in 49 CFR 398.3 that certain documents must be “photographically reproduced.”

The FMCSRs, and any exceptions to the FMCSRs, apply only within the United States (and, in some cases, United States territories). Motor carriers and drivers are subject to the laws and regulations of the countries that they operate in, unless an international agreement states otherwise. Drivers and carriers should be aware of the regulatory differences amongst nations.

FMCSA determined that this final rule is not a significant regulatory action under section 3(f) of E.O. 12866 (58 FR 51735, October 4, 1993), Regulatory Planning and Review, as supplemented by E.O. 13563 (76 FR 3821, January 21, 2011), Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. Accordingly, the Office of Management and Budget (OMB) has not reviewed it under that Order. It is also not significant within the meaning of DOT regulatory policies and procedures (DOT Order 2100.5 dated May 22, 1980; 44 FR 11034, February 26, 1979).

This final rule does not impose new requirements, and it is expected to provide regulatory relief to the industry. It codifies previously issued regulatory guidance that provides flexibility to the industry in the use of electronic documents and electronic signatures, and removes outdated and obsolete references in the regulatory text. Examples of documents affected by this rule include vehicle maintenance records, driver qualification files, bills of lading, and business records. Regulated entities are provided additional flexibility and may choose to conduct business using either electronic versions or traditional paper-based versions of these types of documents.

Because the choice of using electronic methods is optional and not mandatory, and regulated entities may continue to use traditional paper-based methods if they desire to do so, the Agency expects regulated entities will choose those methods that best suit their individual needs. For those regulated entities that do choose to use electronic documents and methods under this rule, potential cost savings may include reduced expenditures on labor time, office and storage space, materials, and office equipment. For example, specific types of savings could include purchasing less paper and toner/ink, printing fewer documents, requiring fewer file cabinets or document boxes for storage of paper documents, using less space for storage of paper documents, expending less labor time in activities such as handling and filing of paperwork, expending less labor time in identifying and retrieving documents, and transmitting fewer paper documents by mail or courier services.

Because the previously issued regulatory guidance that is now being codified in this final rule has been in place for several years, since January 4, 2011, it is believed that many regulated entities for whom the use of electronic documents and methods best suits their needs may have already made this transition from traditional paper-based methods. Therefore, many of the potential cost savings possible from this rule may have largely already occurred. It is estimated that though there may still be some additional incremental cost savings that could result from the regulatory flexibility being codified by this final rule (e.g., for any remaining regulated entities that may desire at some time to use electronic documents and methods but have not yet made this transition), overall these additional cost savings will be minimal. Furthermore, these potential remaining additional cost savings cannot be reliably quantified or monetized. Factors contributing to difficulties in quantifying the potential cost savings include the variety of records and documents potentially affected across multiple FMCSA regulations, a lack of information regarding the number of records or documents signed, certified, generated, exchanged, or maintained, and a lack of information regarding the extent to which electronic documents and signatures have already been voluntarily adopted under existing FMCSA guidance.

Of the comments submitted to the April 28, 2014, NPRM, discussed earlier in Section VII, Comments and Responses, none provided data or information to suggest that this final rule would be a significant regulatory action.

In light of the above considerations, the Agency does not believe that the rule would have an annual effect on the economy of $100 million or more, nor would it meet any of the other criteria presented in section 3(f) of E.O. 12866, Regulatory Planning and Review, for a significant regulatory action. Therefore, as noted earlier, FMCSA has determined that this final rule is not a significant regulatory action.

E.O. 13771 (82 FR 9339, February 3, 2017), Reducing Regulation and Controlling Regulatory Costs, requires that for “every one new [E.O. 13771 regulatory action] issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.” Implementation guidance for E.O. 13771 issued by the Office of Management and Budget (OMB) (Memorandum M-17-21, April 5, 2017) defines two different types of E.O. 13771 actions: An E.O. 13771 regulatory action, and an E.O. 13771 deregulatory action.

An E.O. 13771 regulatory action is defined as:

(i) A significant action as defined in Section 3(f) of E.O. 12866 that has been finalized, and that imposes total costs greater than zero; or

(ii) a significant guidance document (e.g., significant interpretive guidance) reviewed by OIRA under the procedures of E.O. 12866 that has been finalized and that imposes total costs greater than zero.

The Agency action, in this case a rulemaking, must meet both the significance and the total cost criteria to be considered an E.O. 13771 regulatory action. This rulemaking is not a significant regulatory action as defined in Section 3(f) of E.O. 12866, and therefore does not meet the significance criterion for being an E.O. 13771 regulatory action. Consequently, this rulemaking is not an E.O. 13771 regulatory action.

An E.O. 13771 deregulatory action is defined as “an action that has been finalized and has total costs less than zero.” As discussed earlier, this final rule does not impose new requirements, and it is expected to provide regulatory relief to the industry. Because the choice of using electronic methods is optional and not mandatory, and regulated entities may continue to use traditional paper-based methods if they desire to do so, the Agency expects regulated entities will choose those methods that best suit their individual needs. For those regulated entities that do choose to use electronic documents and methods under this rule, potential cost savings may include reduced expenditures on labor time, office and storage space, materials, and office equipment. Consequently, this rule has total costs less than zero, and therefore is a deregulatory action under E.O. 13771. However, as discussed earlier, it is believed that many regulated entities for whom the use of electronic documents and methods best suits their needs may have already made this transition from traditional paper-based methods under existing FMCSA guidance, and therefore many of the potential cost savings possible from this rule may have largely already occurred. It is estimated that though there may still be some additional incremental cost savings that could result from the regulatory flexibility being codified by this final rule (e.g., for any remaining regulated entities that may desire at some time to use electronic documents and methods but have not yet made this transition), overall these additional cost savings will be minimal. Furthermore, these potential remaining additional cost savings cannot be reliably quantified or monetized because of the large variety of records and documents potentially affected across multiple FMCSA regulations, a lack of information regarding the number of records or documents signed, certified, generated, exchanged, or maintained, and a lack of information regarding the extent to which electronic documents and signatures have already been voluntarily adopted under existing FMCSA guidance. Therefore, though it is expected that there will be some additional incremental cost savings that will result from this final rule, these cost savings are expected to be minimal and are not quantified.

As a deregulatory action under E.O. 13771, this rule contributes to Agency compliance with section 2(a) of E.O. 13771 regarding issuing at least two E.O. 13771 deregulatory actions for each E.O. 13771 regulatory action. Because the cost savings resulting from this rule are not quantified, this rule does not however contribute towards Agency compliance with section 2(c) of E.O. 13771 regarding offsetting the costs of E.O. 13771 regulatory actions with cost savings from E.O. 13771 deregulatory actions.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) requires Federal agencies to consider the effects of the regulatory action on small business and other small entities and to minimize any significant economic impact. The term “small entities” comprises small businesses and 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. Accordingly, DOT policy requires an analysis of the impact of all regulations on small entities, and mandates that agencies strive to lessen any adverse effects on these businesses. Under the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857), the rule is not expected to have a significant economic impact on a substantial number of small entities. As discussed earlier, though it is expected that there will be some additional incremental cost savings that will result from this final rule, these cost savings are expected to be minimal, and to the extent that they occur they will be beneficial to the entities that realize these cost savings. Consequently, I certify the action will not have a significant economic impact on a substantial number of small entities.

In accordance with section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, FMCSA wants to assist small entities in understanding this final rule so that they can better evaluate its effects on themselves and participate in the rulemaking initiative. If the rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult the FMCSA point of contact listed in the For Further Information Contact section of this rule.

Small businesses may send comments on the actions of Federal employees who enforce or otherwise determine compliance with Federal regulations to the Small Business Administration's 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 FMCSA, call 1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights of small entities to regulatory enforcement fairness and an explicit policy against retaliation for exercising these rights.

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 $156 million (which is the value equivalent of $100,000,000 in 1995, adjusted for inflation to 2015 levels) or more in any one year. Though this final rule will not result in such an expenditure, the Agency does discuss the potential effects of this rule elsewhere in this preamble.

This final rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). This rule codifies FMCSA regulatory guidance within the CFR, allowing those documents that FMCSA's regulations obligate entities or individuals to retain, many of which are generated as part of customary and usual business or private practices, to be maintained electronically or in paper form. This rule does not apply to forms or other documents that must be submitted directly to FMCSA; the regulations which state that those documents either must or may be submitted to FMCSA in electronic format (such as those covered by 49 CFR part 382, subpart G) are not impacted by this final rule, and any paperwork burdens associated with those rules were already analyzed by FMCSA in prior rulemakings.

For this final rule, FMCSA reviewed all current, active, OMB-approved information collection request (ICR) supporting statements. These statements are available for public inspection via www.reginfo.gov. Table 1 shows the 27 active ICRs covering the rules in 49 CFR parts 300 to 399 that are being impacted by this final rule allowing electronic methods or signatures. Each of these listed collections currently allows for electronic creation, retention, or signature of records covered by the collection. We also show the current expiration date for each collection.

Each of the above-listed collections has a section in its supporting statement discussing the extent to which automated information collection, creation, or storage is expected to occur. For example, FMCSA's “Lease and Interchange of Vehicles” ICR, 2126-0056, states “Leases may be created and maintained electronically. FMCSA estimates that 50% of the leases are electronic.”

Therefore, there are no new collections of information under the Paperwork Reduction Act of 1995 for OMB to approve, nor are there any revisions of currently approved collections required by this final rule.

A rule has implications for federalism under Section 1(a) of E.O. 13132, if it has “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” FMCSA has determined that this rule would not have substantial direct costs on or for States, nor would it limit the policymaking discretion of States. Nothing in this document preempts any State law or regulation. Therefore, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

This final rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), requires agencies issuing “economically significant” rules, if the regulation also concerns an environmental health or safety risk that an agency has reason to believe may disproportionately affect children, to include an evaluation of the regulation's environmental health and safety effects on children. The Agency determined this final rule is not economically significant. Therefore, no analysis of the impacts on children is required. In any event, the Agency does not anticipate that this regulatory action could in any respect present an environmental or safety risk that could disproportionately affect children.

FMCSA reviewed this final rule in accordance with E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, and has determined it will not effect a taking of private property or otherwise have taking implications.

Section 522 of title I of division H of the Consolidated Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447, 118 Stat. 2809, 3268, 5 U.S.C. 552a note), requires the Agency to conduct a privacy impact assessment (PIA) of a regulation that will affect the privacy of individuals. This final rule does not require the collection of personally identifiable information (PII).

The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies and any non-Federal agency that receives records contained in a system of records from a Federal agency for use in a matching program. FMCSA has determined that this rule would not result in a new or revised Privacy Act System of Records for FMCSA.

The E-Government Act of 2002, Public Law 107-347, sec. 208, 116 Stat. 2899, 2921 (December 17, 2002), requires Federal agencies to conduct a PIA for new or substantially changed technology that collects, maintains, or disseminates information in an identifiable form. No new or substantially changed technology would collect, maintain, or disseminate information as a result of this rule. Accordingly, FMCSA has not conducted a privacy impact assessment.

The regulations implementing E.O. 12372, regarding intergovernmental consultation on Federal programs and activities do not apply to this program.

FMCSA has analyzed this final rule under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Agency has determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, it does not require a Statement of Energy Effects under E.O. 13211.

This rule does not have tribal implications under E.O. 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.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) are standards that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

FMCSA analyzed this rule for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and determined this action is categorically excluded from further analysis and documentation in an environmental assessment or environmental impact statement under FMCSA Order 5610.1 (69 FR 9680, March 1, 2004), Appendix 2, paragraph (6)(q) and paragraph (6)(y). The Categorical Exclusion (CE) in paragraph (6)(q) covers regulations implementing record preservation procedures for motor carriers, brokers, and household goods freight forwarders, including record types retained and retention periods. The CE in paragraph (6)(y) covers motor carrier identification and registration reports, and requirements about motor carriers', drivers', brokers', and freight forwarders' copies of records. The content in this rule is covered by these CEs and the final action does not have any effect on the quality of the environment. The CE determination is available for inspection or copying in the Federal eRulemaking Portal: http://www.regulations.gov.

FMCSA also analyzed this rule under the Clean Air Act, as amended (CAA), section 176(c) (42 U.S.C. 7401 et seq.), and implementing regulations promulgated by the Environmental Protection Agency. Approval of this action is exempt from the CAA's general conformity requirement since it does not affect direct or indirect emissions of criteria pollutants.

Under E.O. 12898, each Federal agency must identify and address, as appropriate, “disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations” in the United States, its possessions, and territories. FMCSA evaluated the environmental justice effects of this proposed rule in accordance with the E.O., and has determined that no environmental justice issue is associated with this final rule, nor is there any collective environmental impact that would result from its promulgation.

For the reasons stated in the preamble, FMCSA amends 49 CFR, chapter III, as follows:

Executive Summary

Why we need to publish a rule. Under the Endangered Species Act, a species may be removed (delisted) from the Federal List of Endangered and Threatened Wildlife if it is determined it has recovered and is no longer endangered or threatened. Delisting can only be completed by issuing a rule.

This rule removes the black-capped vireo (Vireo atricapilla, listed as Vireo atricapillus) from the Federal List of Endangered and Threatened Wildlife.

The basis for our action. Under the Endangered Species 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. We must consider the same factors in delisting a species. We may delist a species if the best scientific and commercial data indicate the species is neither endangered nor threatened for one or more of the following reasons: (1) The species is extinct; (2) the species has recovered and is no longer threatened or endangered; or (3) the original scientific data used at the time the species was classified were in error. We have determined that the primary threats to the black-capped vireo have been reduced or managed to the point that the species is recovered.

Peer review and public comment. We completed a Species Status Assessment (SSA) to evaluate the species' needs, current conditions, and future conditions to support our proposed rule. We sought comments from independent specialists to ensure that our determination is based on scientifically sound data, assumptions, and analyses. We invited these peer reviewers to comment on the SSA report. We considered all comments and information we received during the comment period on the proposed rule to delist the black-capped vireo when finalizing our SSA report and this final rule.

Please refer to the proposed delisting rule for the black-capped vireo (81 FR 90762, December 15, 2016) for a detailed description of previous Federal actions concerning this species.

Please refer to the proposed delisting rule for the black-capped vireo (81 FR 90762, December 15, 2016) for a summary of species information.

Our December 15, 2016, proposed rule was based largely on the SSA report, which characterized the species' overall viability in the future. Please see ADDRESSES, above, for information on how to obtain a copy of the SSA report.

The black-capped vireo is a migratory songbird that breeds and nests in south-central Oklahoma, Texas, and the northern states of Mexico (Coahuila, Nuevo León, Tamaulipas), and winters along Mexico's western coastal states. In general, black-capped vireo breeding habitat is shrublands and open woodlands.

The resource needs of the black-capped vireo are described in the SSA report for individuals, populations, and for the species rangewide. Life-history needs are generally categorized as breeding, feeding, and sheltering; for migratory species, this may also include habitat for migration and wintering. Individual black-capped vireos need a suitable breeding habitat patch of at least 1.5 hectares (ha) (3.7 acres (ac)) of shrublands with between 35 and 55 percent shrub cover that consists largely of deciduous shrubs, often oaks in mesic areas, and with a low proportion of junipers. Within breeding habitat patches, shrub mottes (groups of shrubs) with deciduous foliage from ground level to 3 meters (m) (0 to 9.8 feet (ft)) in height are needed for nest concealment and foraging.

Populations of black-capped vireos are described based on the number of adult males the breeding habitat can support. Those sites (defined as geographical areas with suitable breeding habitat) capable of supporting at least 30 adult males are considered “manageable populations.” Those sites with suitable breeding habitat capable of supporting 100 or more adult males are considered “likely resilient populations,” that have the ability to withstand disturbances of varying magnitude and duration. Brown-headed cowbird (Molothrus ater) brood parasitism rates below 40 percent (Tazik and Cornelius 1993, p. 46; Wilsey et al. 2014, p. 568) are necessary to sustain and expand vireo populations.

Information on use of habitat during migration is sparse. In general, black-capped vireos require airspace for movement and woody vegetation for stopovers extending from the northernmost portion of the breeding grounds to the extent of the known wintering grounds.

The winter range of the black-capped vireo occurs entirely on the slopes of Mexico's Pacific coast. Arid and semi-arid scrub and secondary growth habitat, generally 0.6 to 3.0 m (2 to 10 ft) in height, is needed for feeding and sheltering.

Across its range, the black-capped vireo needs suitable breeding habitat to support manageable and likely resilient populations that are geographically distributed to allow gene flow and dispersal, low brown-headed cowbird brood parasitism rates to allow sufficient productivity, sufficient airspace and stopover sites for migration, and wintering areas of arid and semi-arid scrub and secondary growth habitat along the Pacific slopes of western Mexico. During the breeding season, habitat requirements appear to be more specialized than during wintering and migration. Given the potential for black-capped vireos to use a wide range of habitat types during migration and wintering, much of the subsequent analysis is focused on breeding habitat.

There are no available rangewide population estimates of breeding black-capped vireos. However, reported occurrences (sightings) of black-capped vireos are available for comparing abundance and distribution across timeframes (but see section 4.1, “Assumptions,” in the SSA report (Service 2016) regarding inherent differences in survey effort and the differences between reported occurrences and population estimates). At the time of listing in 1987, there were approximately 350 reported black-capped vireo occurrences. From 2009 to 2014, there were 5,244 adult males reported, a 17.5 percent increase from the prior review period in 2000 to 2005.

At the time of listing in 1987, the known population occurred in 4 Oklahoma counties, 21 Texas counties and 1 Mexican state. The consistency of survey effort has varied throughout the years; however, it represents the best information available to evaluate abundance and distribution rangewide. The known breeding distribution now occurs in 5 Oklahoma counties, 40 Texas counties, and 3 states in Mexico.

Information from 2009 to 2014 indicates there are 14 known populations with 100 males or more (defined as a likely resilient population) throughout the breeding range, 9 of which occur on managed lands (under Federal, State, or municipal ownership, or under conservation easement) in the United States. An additional 20 manageable populations (30 or more adult males, but fewer than 100), 10 of which occur on managed lands, are distributed throughout the range in the United States.

Information gathered from annual black-capped vireo monitoring at four publicly managed areas containing the largest known black-capped vireo populations represents some of the best data available on the species' population trends. These four regularly surveyed areas (Fort Hood Military Installation, Fort Sill Military Installation, Kerr Wildlife Management Area, and Wichita Mountains Wildlife Refuge) show stable or increasing population estimates since 2005. From 2000 to 2005 these populations represented 64 percent of the known population. From 2009 to 2014, these four major populations accounted for 40 percent of the known rangewide breeding population. The difference in percentage suggests the black-capped vireo's distribution is wider than was understood in 2000 to 2005. These same data also indicate that additional unknown populations likely exist on private lands throughout the breeding range. The largest increase in known abundance is an additional large population documented in Val Verde County, Texas. The four regularly surveyed areas and the Val Verde site were estimated to consist of 14,418 adult males in 2013-2014.

The levels of gene flow between extant populations indicate adequate genetic diversity (Vazquez-Miranda et al. 2015, p. 9; Zink et al. 2010, entire). This is true despite some variation in studies with respect to genetic diversity, gene flow, and population structuring (e.g., Barr et al. 2008; Zink et al. 2010; Athrey et al. 2012).

Little is known about the habits of black-capped vireos during migration. Most evidence suggests that there is a southerly, central Mexican migratory route following the Sierra Madre Oriental (Marshall et al. 1985, p. 4; Farquhar and Gonzalez 2005, entire).

Vireos banded on the breeding grounds in the United States that return in following years suggest adequate availability of resources during wintering and migration. Survival rates (estimated from return rates) for black-capped vireos at Fort Hood are comparable to the rates of other passerines (Ricklefs 1973; Martin 1995; Kostecke and Cimprich 2008, p. 254).

Information on migration and wintering of black-capped vireos in Mexico is limited to a few studies that document the extent of the wintering range and estimate habitat areas. Winter habitat utilized is more general and diverse than that of the breeding grounds. While specific requirements of winter habitat are unknown, tropical dry forests (areas where arid and semi-arid winter habitats occur) exist in areas normally inaccessible to development. Habitat modelling has suggested wintering areas in Mexico occur across 103,000 to 141,000 square kilometers (km2) (39,769 to 54,440 square miles (mi2)) and extend farther than previous records have identified, including the states of Guerrero and Chiapas (Vega Rivera et al. 2010, p. 101; Powell 2013, pp. 34-38). Of this area, approximately 7.1 percent (1,000,000 ha (2,471,053 ac)) occurs on protected natural areas (national parks, reserves, etc.) (Vega Rivera et al. 2010, pp. 98-102). Additionally, there are approximately 1,492,400 ha (3,687,801 ac) of lands designated as “important bird areas” within the estimated winter range (Vega Rivera et al. 2011, p. 103). This designation as “important bird areas” provides some protection to the species. The level of protection varies by area (Vega Rivera et al. 2011, p. 103).

The U.S. portion of the black-capped vireo's range is comprised of a diversity of landownerships, from private lands to several forms of public ownership. Various conservation actions and programs have been developed and implemented in an effort to conserve the species. These conservation actions implemented on publicly managed and private lands throughout the species' current range have reversed black-capped vireo declines within several populations. Ongoing active management on publicly managed lands and those under conservation easements has resulted in 40 populations in Oklahoma and Texas, varying in size from a single adult male to an estimated 7,478 adult males. Of these, 9 are considered likely resilient populations and another 10 are considered manageable populations. Although information on breeding vireos in Mexico is limited, the vireo is currently afforded protected status (SEMARNAT 2015, p. 79), known threats appear to be of less magnitude than those in the United States, and densities of known populations have been documented up to six times as high as populations in the United States (Farquhar and Gonzalez 2005, p. 25; Wilkins et al. 2006, p. 28).

The contribution of prescribed fire and wildfire to the development of suitable breeding habitats in Oklahoma and the eastern portion of the species' Texas range is well documented (USFWS 1991, p. 22; Campbell 1995, p. 29; Grzybowski 1995, p. 5). In the western portion of the species' breeding range in Texas and in Mexico, fire is not as essential in maintaining habitat suitability. The use of prescribed fire as a habitat management tool is increasing or remains constant across most of the United States (Melvin 2015, p. 10). More than 3,156 ha (7,800 ac) in Oklahoma and more than 48,562 ha (120,000 ac) in Texas have been burned annually (2004-2014) with prescribed fire. In addition, large amounts of additional acreage is burned each year by unplanned wildfire: Oklahoma's annual average is approximately 63,940 ha (158,000 ac) and Texas' annual average is approximately 322,939 ha (798,000 ac)) (NIFC 2014). Although the majority of these burns were on Federal lands outside of the black-capped vireo's range, there has been an overall increase in the use of prescribed fire as a cost effective tool for range and wildlife management.

Reduction of brood parasitism by brown-headed cowbirds through management programs increases black-capped vireo breeding success (Eckrich et al. 1999, pp. 153-154; Kostecke et al. 2005, p. 57; Wilkins et al. 2006, p. 84; Campomizzi et al. 2013, pp. 714-715). Brown-headed cowbird brood parasitism rates below 40 percent are vital to sustaining and expanding black-capped vireo populations. The continuation of brown-headed cowbird trapping on Federal and private properties and expansion of this practice to other properties would help reduce brood parasitism rates and improve black-capped vireo breeding success. In an effort to manage the brown-headed cowbird populations in Texas, the Texas Parks and Wildlife Department has implemented a cowbird trapping program, which provides participating landowners a training and certification process.

When the proposed rule was completed, there were eight Service-approved Habitat Conservation Plans addressing the “incidental take” of black-capped vireos for project-related impacts since the species was listed, all of which are in Texas. In total, approximately 7,843.2 ha (19,381 ac) of black-capped vireo habitat may be impacted, either directly or indirectly, resulting from activities authorized through HCPs. To mitigate black-capped vireo habitat loss, the permittees must preserve and provide funding for approximately 8,239.4 ha (20,360 ac) of habitat restoration and management for off-site black-capped vireo habitats as conservation actions under these HCPs. Since the publishing of the December 15, 2016, proposed rule (81 FR 90762), an additional HCP was completed in June of 2017 for a wind energy project in McCulloch County, Texas. This project documented a previously unknown locality of more than 150 male black-capped vireos, and provides a permanently protected preserve for vireos on over 500 acres.

Section 4(f) of the Act directs us to develop and implement recovery plans for the conservation and survival of endangered and threatened species unless we determine that such a plan will not promote the conservation of the species. Recovery plans identify site-specific management actions that will achieve recovery of the species and objective, measurable criteria that set a trigger for review of the species' status. Methods for monitoring recovery progress may also be included in recovery plans.

Recovery plans are not regulatory documents; instead they are intended to establish goals for long-term conservation of listed species and define criteria that are designed to indicate when the threats facing a species have been removed or reduced to such an extent that the species may no longer need the protections of the Act. There are many paths to accomplishing recovery of a species, and recovery may be achieved without all criteria being fully met. Recovery of a species is a dynamic process requiring adaptive management that may, or may not, fully follow the guidance provided in a recovery plan.

The black-capped vireo recovery plan was approved by the Service on September 30, 1991 (USFWS 1991). Specific details of recovery for delisting the species was indeterminable 27 years ago; therefore, an interim objective of reclassification from endangered to threatened status was used to develop recovery criteria (USFWS 1991, p. 36). The recovery plan includes the following reclassification criteria:

(1) All existing populations are protected and maintained.

(2) At least one viable breeding population exists in each of the following six locations: Oklahoma, Mexico, and four of six Texas regions.

(3) Sufficient and sustainable area and habitat on the winter range exist to support the breeding populations outlined in (1) and (2).

(4) All of the above have been maintained for at least 5 consecutive years and available data indicate that they will continue to be maintained.

When the recovery plan was approved in 1991, a viable population was estimated, using population viability analysis, to be at least 500 pairs of breeding black-capped vireos. The recovery plan was intended to protect and enhance the populations known at that time, while evaluating the possibility of recovery and developing the necessary delisting criteria if recovery is found to be feasible. The rangewide population was unknown, but the Oklahoma population was thought to be fewer than 300 individual birds.

Comparing the current status of the species to the reclassification criteria provides some information about the health of the populations. Regarding the first criterion, we would not expect that all known populations described in the recovery plan would exist in the same locations today because suitable habitat becomes unsuitable over time while other unsuitable areas become suitable (e.g. following shrub encroachment or fire). Regardless, many of the populations identified in the recovery plan continue to thrive, and approximately 67% of known populations of greater than 30 birds are under some form of protection. From 2009 to 2014, the total black-capped vireo counts and estimates in each of the recovery areas, with the exception of Mexico where we have limited information, exceeds 500 males, with four recovery areas numbering in the thousands (Service 2016, p. 85). Multiple populations are present in each of the recovery areas and at least one breeding population with more than 500 males is known from three of the four Texas recovery areas and from Oklahoma (Service 2016, p. 77-79), indicating that criterion (2) has largely been met. Regarding Criterion (3), we can evaluate the numbers of birds banded on the breeding grounds that return in following years as an indicator of the availability of resources on the wintering grounds. In general, black-capped vireo return rates suggest sufficient resources are available during migration and wintering (Service 2016, pp. 88-89). Finally, regarding criterion (4), it appears that those criteria were met at the time of the 2007 5-yr review and continue to be met today.

During the 2007 5-year review of the status of the species, it was determined that the 1991 recovery plan was outdated and did not reflect the best available information on the biology of the species and its needs (USFWS 2007, p. 5). Therefore, rather than use the existing outdated recovery criteria, the Service assessed the species' viability, as summarized in the SSA report (Service 2016; see ADDRESSES, above, for information on how to obtain a copy of the SSA report) to inform the process of making the determination that the black-capped vireo has recovered.

Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for listing species, reclassifying species, or removing species from listed status. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. A species may be reclassified or delisted on the same basis. Consideration of these factors was incorporated in the SSA report (Service 2016; see ADDRESSES, above, for information on how to obtain a copy of the SSA report) as “causes and effects,” and projected in future scenarios to evaluate viability of the black-capped vireo. The effects of conservation measures currently in place were also assessed as part of the current condition of the species in the SSA report, and those effects were projected in future scenarios.

When the black-capped vireo was listed in 1987, the known threats influencing its status were the loss of suitable breeding habitat (Factor A) and brood parasitism by brown-headed cowbirds (Factor E). These continue to be the primary factors affecting the species' viability. The loss of breeding habitat in the United States has been linked to changes in vegetation due to fire suppression (vegetational succession), grazing and browsing from livestock and native and nonnative ungulates, and the conversion of breeding habitat to other land uses. In addition, we considered the effects of climate change on available breeding and wintering habitat and other potential habitat impacts in the winter range in order to assess the status of the species throughout its range.

Black-capped vireo breeding habitat is most likely to occur on lands categorized in the U.S. Department of Agriculture (USDA) Agricultural Census data by landowners as “rangeland.” Therefore, trends in lands categorized as rangeland is a useful indirect measure for estimating the effects of land use changes on the black-capped vireo. There has been a general increasing trend since 1987 for occurrence of rangeland within the black-capped vireo's U.S. breeding range, based on available Agricultural Census data. That is, there has been an increase in the amount of lands reported as rangeland. Since 2002, Oklahoma has reported a 36 percent increase and Texas has reported a 4.4 percent increase in rangeland (USDA 2002a, 2002b, 2012a, and 2012b).

The prevalence of goats in Texas in counties where the black capped vireo was known to occur was specifically considered a threat to the black-capped vireo in 1987. Goat browsing can eliminate shrub foliage necessary for black-capped vireo nest concealment. Since that time, goats within the U.S. range of the vireo have dramatically decreased, largely attributed to the repeal of the National Wool Act of 1954 (7 U.S.C. 1781 et seq.; repealed by Pub. L. 103-130 (dated November 1, 1993), with an effective date of December 31, 1995, under section 3(a) of Pub. L. 103-130). From 1987 to 2012, reported numbers of goats decreased by 46.8 percent in counties where black-capped vireos are known to occur (USDC 1987a, 1987b; USDA 2012a, 2012b).

Cattle, white-tailed deer, and nonnative ungulates are also known to impact black-capped vireo habitat by browsing and eliminating shrub foliage necessary for nest concealment; however, this impact is to a lesser extent than the impacts of goats (Graber 1961, p. 316; Shaw et al. 1989, p. 29; Guilfoyle 2002, p. 8; Wilkins et al. 2006, pp. 52-54). Cattle numbers have also decreased across the black-capped vireo's range from 1987 to 2012 by 37.2 percent (USDC 1987a, 1987b; USDA 2012a, 2012b). While livestock numbers have decreased, rangeland acres have increased. Wilcox et al. (2012) attribute this apparent discrepancy to reductions in stocking density. This overall decline in livestock density has been driven by changing land ownership and the increase in wildlife conservation (Wilcox et al. 2012). White-tailed deer densities in the species' range in Texas have increased by 18.3 percent from 2005 to 2014 (TPWD 2015, p. 27), leading to increased deer browsing, but this increase is considerably less than the decreases in goats and cattle. In Mexico, a primary economic activity is livestock ranching within the breeding range (Morrison et al. 2014, p. 37), although trend data are not available. In some areas of Mexico, livestock appears to be at low densities (Morrison et al. 2014, p. 37) and may be separated from breeding vireos by elevation and, therefore, may not be in direct contact with habitat (Farquhar and Gonzalez 2005, p. 30).

Vegetational succession, or the change in plant species composition over time, continues to affect the black-capped vireo habitat in the eastern portion of the range in Texas and in Oklahoma. Habitat that is considered to be early successional in the eastern portion of the range is created naturally or artificially by disturbance, usually by fire. In the absence of wildfire or prescribed fire, early successional habitats in the eastern portion of the range grow into wooded habitat that provides unsuitable structure for vireo nesting. In the western portion of the range in Texas and Mexico, suitable black-capped vireo habitat does not typically grow into wooded habitat, and succession management is less important (Hayden et al. 2001, p. 32; Farquhar and Gonzalez 2005, p. 32; McFarland et al. 2012, p. 5).

Overall, the reduction in numbers of goats and cattle compensates for unanticipated increases in deer browsing and contributes to a net increase in available breeding habitat. Likewise, the increasing amount of reported rangeland acres since listing have likely improved habitat conditions within the breeding range. In the eastern portion of the range, breeding habitat is considered early successional habitat and associated with disturbance such as fire. Because land managers in the eastern portion of the range are increasingly using fire as a management tool, available breeding habitat has likely increased in this portion of the range. In the western portion of the range, such disturbance is not necessary to maintain suitable habitat, and much of the available breeding habitat is more stable in the long term.

Black-capped vireos are more general in habitat selection for wintering, and can use scrub, disturbed habitats, secondary growth habitats, and tropical dry forests as well as shrubs. Although threats to the species on its wintering grounds were not identified at the time of listing (1987) or during the 2007 5-year review, they were considered as part of the species status assessment process to determine whether winter habitat availability could be a limiting factor. Dry forests in Mexico are a conservation concern (Miles et al. 2006, p. 502) and have historically been modified for agricultural and other purposes (Powell 2013, p. 100). The majority of impacts (greater than 55 percent) to tropical dry forests occurred prior to the listing of the black-capped vireo (Powell 2013, pp. 101-102). Habitat loss still occurs (Powell 2013, pp. 101-102), but the extent of habitat specifically important to wintering vireos is unknown, but likely diverse, considering the variety of habitats used. Habitat models have suggested the winter range may be as large as 141,000 km2 (54,440 mi2) in size (Vega Rivera et al. 2010, p. 101). Much of this habitat occurs on canyons and slopes and may be inaccessible to most anthropogenic impacts.

Brown-headed cowbirds are brood parasites; females remove an egg from a host species nest, lay their own egg to be raised by the adult hosts, and the result usually causes the death of the remaining host nestlings (Rothstein 2004, p. 375). Brood parasitism by brown-headed cowbirds has been documented to affect more than 90 percent of black-capped vireo nests in some Texas study areas (Grzybowski 1991, p. 4). Control of cowbirds through trapping has been shown to significantly reduce brood parasitism and increase population productivity of vireos (Eckrich et al. 1999, pp. 153-154; Kostecke et al. 2005, p. 28). An evaluation of Breeding Bird Survey data shows brown-headed cowbird detections have been decreasing in Texas and Oklahoma since 1967, specifically in ecoregions where black-capped vireos are known to occur (Sauer et al. 2014, entire).

Furthermore, available data suggest geographic differences in the impact cowbirds have on breeding vireos. Cowbird abundance and brood parasitism appears to be less prevalent on the western portion of the black-capped vireo's range and in Mexico (Bryan and Stuart 1990, p. 5; Farquhar and Maresh 1996, p. 2; Farquhar and Gonzalez 2005, p. 30; Smith et al. 2012, p. 281; Morrison et al. 2014, p. 18).

Although cowbird abundance appears to be declining and the effects of brood parasitism are reduced in portions of the vireo's range, cowbird control continues to be necessary to maintain the current number of black-capped vireo populations and individuals in the eastern portion of the range in Texas and in Oklahoma. Since the completion of the SSA report, a study was published on the effects of brood parasitism and local populations, which provided additional information indicating some sites with low brood parasitism rates have insufficient reproduction to balance mortality and rely on immigration of individuals from other areas to avoid extirpation (Walker et al. 2016). There are many other factors apart from cowbird brood parasitism that may influence resiliency of localities; however, cowbird management still remains the most effective means of improving reproductive success at numerous localities. We have updated the SSA report to reflect this study, and we address the study's implications below, under Summary of Comments and Recommendations.

The effects of climate change are a concern in ecosystems that are sensitive to warming temperatures and decreased precipitation, such as arid and semi-arid habitats where the black-capped vireo resides. In Texas, climate change models generally predict a 3 to 4 degree Fahrenheit (1.6 to 2.2 degree Celsius) increase in temperature between 2010 and 2050 (Nielsen-Gammon 2011, p. 2.23; Banner et al. 2010, p. 8, Alder and Hostetler 2013, entire). Predictions on precipitation trends over Texas are not as clear (Nielsen-Gammon 2011, p. 2.28), but the models indicate that Texas weather will likely become drier (Banner et al. 2010, p. 8, Alder and Hostetler 2013, entire; Runkle et al. 2017, entire).

Although the impact from the effects of climate change on shrubland habitat required by the black-capped vireo for breeding is uncertain, shrub encroachment into grasslands in North America, primarily due to fire suppression and livestock grazing, is well documented (Van Auken 2000, entire; Briggs et al. 2005, entire; Knapp et al. 2007, p. 616). Projected warming temperatures and dry conditions will likely influence future shrubland dominance (Van Auken 2000, p. 206). Evidence suggests that within the far west portion of the black-capped vireo's range, the effects of climate change and fire suppression would result in a shrubland-dominated landscape (White et al. 2011, p. 541). In this scenario, the availability of shrub habitat would be the least affected, and potentially more prevalent on the landscape, which may increase the available amount of suitable breeding habitat. Following the publication of the December 15, 2016, proposed rule (81 FR 90762), an additional study was published on the effects of extreme drought on a black-capped vireo location in Texas (Colón et al. 2017). This study provides evidence that extreme conditions of drought may reduce reproductive success, increase cowbird brood parasitism, and influence choice of vegetation substrate. The effects appear to be regional, since another well-studied Texas population did not suffer these effects; impacts to the affected population appear to be limited to the specific drought year, that is, the affected population appears to have recovered the following year. We have updated the SSA report to reflect this information, and we address its relevance to this rule below, under Summary of Comments and Recommendations.

We evaluated overall viability of the black-capped vireo in the SSA report (Service 2016; revised 2017 based on information provided during the comment period and included in the docket for the final rule; see ADDRESSES, above, for information on how to obtain a copy of the SSA report) in the context of resiliency, redundancy, and representation. Species viability, or the ability to sustain populations long term, is related to the species' ability to withstand catastrophic events (redundancy), the ability to adapt to changing environmental conditions (representation), and the ability of populations to withstand disturbances of varying magnitude and duration (resiliency). The viability of a species is also dependent on the likelihood of new stressors (processes or events with a negative impact on the species) or continued threats (a stressor and its source) now and in the future that act to reduce a species' redundancy, representation, and resiliency and the species overall ability to withstand such stressors.

In the SSA report, we forecast the viability of known populations of black-capped vireos over the next 50 years. We chose 50 years to reflect specific climate change models that are relevant to the black-capped vireo and its habitat. The 50 year timeframe also reflects our ability to project land management decisions. We developed multiple future conditions scenarios for the known manageable and likely resilient populations based on both continued management (i.e., continuing the current conditions of habitat and cowbird management) and decreased management. For the decreased management scenarios, populations on private lands were considered to have no management in the future, while habitat and cowbird management on publicly managed lands was projected to diminish in scale or frequency that would not continue to provide for the needs of the species. The decreased management scenario projected the future conditions of the species without the continued protections of the Act. All of the scenarios are considered to be within the realm of reasonable possibility. Even in the worst case scenario, at least 26 of the 34 known manageable and likely resilient populations have a moderate to high (i.e., greater than 50 percent) likelihood of persisting over the next 50 years, indicating adequate resiliency of those populations and redundancy across the species' range. Likewise, those populations projected in the worst case scenario are distributed throughout the range as multiple populations within each of the different areas of representation, indicating adequate redundancy within each of the representative areas (as described below).

We evaluated several studies with respect to representation in the black-capped vireo, mostly involving genetic diversity. Although there is discrepancy between studies, there is evidence that adequate gene flow for healthy genetic diversity exists across known breeding populations. Additionally, there is a diversity of habitat types utilized within both the breeding and wintering ranges. For these reasons, the black-capped vireo appears to have adequate representation both genetically and ecologically to allow for adaptability to environmental changes.

Resiliency, in terms of habitat capable of supporting greater than 100 adult males, for the eastern portion of the black-capped vireo's breeding range is dependent on vegetation and cowbird management. In the western portion of the range, population resiliency is higher, because management is not required to maintain suitable breeding habitat and threats related to cowbirds are less severe. Since 2005, resiliency, in terms of population size, has increased in regularly monitored populations, and under future scenarios, the number of likely resilient populations either increases or remains close to current levels (Service 2016); therefore, we expect that trend in increasing resiliency to continue into the future.

The recovery of the black-capped vireo is due, in part, to conservation actions, in the form of habitat and cowbird management in parts of the species' breeding range. Many localities of vireo habitat, especially in the eastern portion of the breeding range, will require continued management activities to persist. In considering its management needs, the forecast of future conditions includes scenarios based on the needs of the species, stressors, identification of additional populations, and restoration efforts. Our forecasts that produce stable or increasing resiliency and redundancy reflect the differences in the current and projected future conditions of the species compared to the status assessment that was conducted to support the 1987 listing decision.

The future persistence of the species in some places will require active management of threats. Prescribed fire as a management tool is a cost effective way to restore prairies and shrublands and to reduce impacts of invasive juniper, and is often used to benefit game species (e.g., deer, wild turkey). Such management actions may directly and indirectly benefit black-capped vireos when they occur within the breeding range. The Service has obtained commitments from our key Federal, State, and private conservation partners (included in the docket with this final rule), who are largely responsible for the recovery of the species, to continue to manage black-capped vireo populations on publicly managed lands and to promote management actions across the breeding range of the species. For example, the Integrated Natural Resource Management Plans for Fort Hood and Fort Sill will continue management actions that directly benefit black-capped vireos. Likewise, prescribed fire is being used as a management tool for a variety of species at most publicly managed areas within the current breeding range of the black-capped vireo, and those management actions will continue regardless of the listing status of black-capped vireos. Black-capped vireo populations existing on properties under management through public ownership (Federal, State, municipal) or easement are generally projected to persist under short- and long-term conditions. Even under diminished management specific to black-capped vireos, many of these locations are expected to be better suited than unmanaged lands to provide resources for the black-capped vireo, often due to the conservation mission of the property (e.g., state parks).

As discussed in this rule, two recent studies have been published relevant to the status of the black-capped vireo. We have updated the SSA report (included in the docket with this final rule) to reflect this information. Additionally, we corrected errors in Table 14 of the SSA report. This table summed the forecasted scenarios of Table 13, which was correct.

Based on comments received, we have clarified the role of management for the species as it pertains to “conservation reliance” and worked with our Federal, State and private partners to develop the post-delisting monitoring (PDM) plan and commitments to managing the species on lands under their authority. Specifically, in the SSA report, as well as the December 15, 2016, proposed rule (81 FR 90762), the impact of brown-headed cowbird brood parasitism on certain locations was expressed in terms of sustainability and expansion of populations. Additionally, the species was identified as “conservation-reliant” due to successful recovery actions, largely cowbird management, being implemented. The Service concludes that cowbird management was a major factor leading to the recovery of the species. Thus, the importance of cowbird management was discussed in the SSA report and proposed rule. Particularly, the black-capped vireo population in Oklahoma and localities in the eastern portion of the Texas range may be reliant on cowbird management periodically, or perpetually, to ensure minimal losses of current population numbers. In this regard, we believe the species may be “conservation reliant,” due to efforts necessary to retain healthy shrublands and reduce brown-headed cowbird brood parasitism under certain conditions in portions of the range. However, the proposal to remove the species from the Federal List of Endangered and Threatened Wildlife was not made on the condition of continued management. The future scenarios forecast in the SSA report included a “worst case” scenario in which all management for the species would cease. In the worst case scenario, we acknowledge that the species' resiliency, redundancy, and representation over the next 50 years would likely decline, but would not meet the definition of endangered or threatened. We therefore proposed to delist the species.

Based on the comprehensive information collected for the SSA report, there is inherent uncertainty in forecasting future threats and population status scenarios over a 50-year timeframe. To address this uncertainty and ensure that the black-capped vireo continues to prosper, the SSA report and proposed rule noted the importance of continued management of known populations of the species. To further this recommendation, the Service has obtained mutual commitments with many of our partners in the form of cooperative management agreements or other strategies to continue to manage known populations of the black-capped vireo and implement the PDM plan (see draft PDM plan: 83 FR 11162; March 14, 2018). These cooperative management agreements are included the docket with this final rule and in the PDM plan, and provide assurances that post-delisting monitoring will detect trends in the black-capped vireo's status and threats. Please see ADDRESSES, above, for information on how to obtain a copy of the PDM plan.

In the proposed rule published on December 15, 2016 (81 FR 90762), we requested that all interested parties submit written comments on the proposal by February 13, 2017. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. Newspaper notices inviting general public comment were published in the San Angelo Standard-Times, Alpine Avalanche, Lawton Oklahoma Constitution, and the Austin American Statesman. We did not receive any requests for a public hearing. All substantive information provided during comment periods has either been incorporated directly into this final determination or is addressed below.

Section 4(b)(5)(A)(ii) of the Act states that the Secretary must give actual notice of a proposed regulation under section 4(a) to the State agency in each State in which the species is believed to occur, and invite the comments of such agency. Section 4(i) of the Act directs that the Secretary will submit to the State agency a written justification for his failure to adopt regulations consistent with the agency's comments or petition. We solicited and received comments from both the Oklahoma Department of Wildlife Conservation (ODWC) and the Texas Parks and Wildlife Department (TPWD). Both agencies supported the delisting of the black-capped vireo, acknowledged the significant progress on private lands that have improved range conditions, and offered to continue to assist in post-delisting monitoring and other partnership opportunities.

TPWD expressed concern about the lack of information from Mexico, and suggested that the species continues to be threatened in that country by development and some forms of incompatible agriculture. However, TPWD stated that the extent of impact to the vireo is essentially unknown. Even with the limited information available, the SSA analysis indicated continued persistence over the 50-yr projected timeframe. Black-capped vireo return rates generally suggest sufficient resources are available during migration and wintering, but we agree with TPWD that additional study in this portion of the species' range is important and support efforts to obtain information related to the status of the vireo from Mexico.

In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinion from three knowledgeable individuals regarding the scientific data and interpretations contained in the SSA report supporting this final rule. We received responses from all three of the peer reviewers.

We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding the black-capped vireo. The peer reviewers had no significant objection to the analysis provided in the SSA report. In general, the peer-review comments were largely minor (editorial) or easily addressed. Substantive comments were specifically addressed, and did not involve changes to the viability analysis of the SSA report. A summary of the substantive peer reviewer comments and responses are available at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0110.

We received comments from 32 respondents. We reviewed all comment letters provided and addressed the substantive comments. Those substantive comments are grouped together in related categories below.

(1) Comment: Two commenters suggested the use of resiliency, redundancy, and representation (the 3Rs) to characterize viability for the black-capped vireo is not appropriate. They noted the lack of citations and methodology in the SSA report, as well as the 3R model being insufficiently tested for use in assessing species' viability.

Our Response: There are many publications in the scientific literature that explore the use of the conservation biology principles of resiliency, redundancy, and representation to characterize viability (e.g., Shaffer and Stein 2000; Svancara et al. 2005; Carroll et al. 2010; Redford et al. 2011; Waples et al. 2013; Neel et al. 2014; Wolf et al. 2015). We have often used this conservation planning framework in our recovery plans, and this is a fundamental concept applied explicitly in our species status assessments. We consider our reliance on the 3Rs to be use of the best available scientific and commercial information. We recognize that appropriate citations were not initially included in the SSA report and have now added them to the updated report.

(2) Comment: One commenter stated that the threat of climate change should include increasing frequency and severity of drought, wildfires, and flooding.

Our Response: We evaluated the concern of climate change on the species by reviewing relevant studies on the species and potential habitat factors that could occur in the next 50 years. Flooding does not appear to be a stressor for black-capped vireos, with the possible exception of the population occurring near Independence Creek in Texas, which, unlike most other localities, utilizes the riparian corridor for nesting.

In the SSA report, we discuss the issue of wildfire largely in terms of historical suppression leading to the threat of vegetational succession in habitats within the eastern portion of the species' range. We acknowledge that wildfire is a stressor to the species; however, it generally results in temporary impacts and is generally believed to have an overall positive effect to the species over time. As a result of historical fire suppression, land managers use prescribed fire to promote ecosystem health, and in the case of the black-capped vireo, as a tool to sustain high-quality breeding habitat.

We discuss drought effects within the SSA report, specifically regarding a future model that suggests an increase in shrubland habitats within the breeding range of the species, which may be beneficial since the black-capped vireo nests in shrubland habitats.

The ability to predict and associate drought with climate change is complicated. A new study was published in 2017 (Colón et al. 2017) that evaluated the effects of the extreme drought of 2011 on a large population of black-capped vireos in Texas. This study provides evidence that extreme conditions of drought may reduce reproductive success, increase cowbird brood parasitism, and influence choice of vegetation substrate. The effects appear to be localized, since another well-studied Texas population did not suffer these effects; impacts to the affected population appear to have been limited to the specific drought year, that is, the affected population appears to have recovered the following year.

A study evaluating the 2011 drought, which is the driest consecutive 12-month period in Texas records, surmises that the heatwave and drought were not consistent with regional trends (since the mid-1900s) and were largely attributed to anomalous sea surface temperatures related to La Niña conditions in the Pacific Ocean, rather than anthropogenic effect on climate (Hoerling et al. 2013, entire). Global climate models do predict increasing drought severity and frequency for most of North America; however, past trends over the central United States, including portions of Texas, have shown decreasing frequency and intensity of droughts (Pan et al. 2004, entire; Hoerling et al. 2013, p. 2812). Regional-scale feedback processes that lead to replenishment of seasonally depleted soil moisture, thereby increasing late-summer evapotranspiration and suppressing daytime maximum temperatures may partly explain the observed late 20th century temperature trend in the central U.S. and these effects may reduce the magnitude of climate change effects within the species' range (Pan et al. 2004, p. L17109). We have updated the SSA report to reflect the new study (Colón et al. 2017); however, the information does not change the analysis.

(3) Comment: Several commenters discussed the issue of brown-headed cowbird brood parasitism. The majority commented that cowbird management continues to be necessary and will likely be curtailed following the black-capped vireo's delisting. A recently published study was also provided (Walker et al. 2016), with new information regarding vireo populations and brood parasitism.

Our Response: The SSA report identifies the threat of brown-headed cowbird brood parasitism, as well as the management actions that have been successfully implemented to reduce the impacts on populations of black-capped vireos. We recognize the efforts of our conservation partners in managing the threat, which is partly responsible for the recovery of the species. Our analysis in the SSA report includes a scenario in which cowbird management did not occur and the effect it may have on vireo populations up to 50 years in the future. Based on the criteria we established under several assumptions, we predict the scenario would result in the reduction of known populations across the breeding range. However, the status of the species still would not meet the definition of endangered or threatened.

The assumptions of this analysis, as with any forecast of future conditions, are accompanied by uncertainty, which we acknowledge in the SSA report. To reduce uncertainty, the Service has obtained commitments from key conservation partners to continue to manage localities for the benefit of the black-capped vireo under their authorities. These commitments, included in the PDM plan, further acknowledge the partnerships of State and Federal entities who have worked to recover the species.

A recently published paper (Walker et al. 2016) was submitted with comments on the effectiveness of cowbird management and resiliency. In addition to reaffirming the importance of cowbird management on reproductive success, several study sites with low brood parasitism rates were determined to be sites that have insufficient reproduction to balance mortality and rely on immigration of individuals from other areas to avoid extirpation in the 4-year period of observation. The commenter suggests that some populations with cowbird management and low brood parasitism rates may still not be sustainable. Additionally, it was recommended that resiliency for black-capped vireo populations would be better measured by reproductive success and survival. We agree that there are many other factors apart from cowbird brood parasitism that may influence resiliency of localities; however, cowbird management still remains the most effective means of improving reproductive success at numerous localities. We encourage additional study of other factors that contribute to increased resiliency, including those that influence brood parasitism effects on reproductive success. We also agree that demographic factors, such as reproductive success and survival are good metrics for resiliency; unfortunately, those metrics are only available for a small portion of localities within the breeding range.

(4) Comment: Two commenters addressed the issue of white-tailed deer browsing in vireo habitat. One provided a different perspective of the deer densities given in the SSA report, while the other stated there was no evidence to indicate deer browsing is less of a threat than goats and cattle.

Our Response: The SSA report includes deer densities in Texas, which are reported on an annual basis by TPWD. While we acknowledge the differing methodology provided by the commenter for calculating the change in these figures, we believe that weighting the average of deer densities would not substantially change the average percent change provided in the SSA report, because of the relatively similar sizes of the Resource Management Units within ecoregions. The SSA report shows the positive trend of estimated deer density numbers in central Texas, which is of concern to black-capped vireos. However, deer are game animals regulated by the States, which provide monitoring and management options similar to other threats to the species that have been managed. The potential impact of deer versus livestock on browse (and thus potential black-capped vireo habitat) is appropriately addressed in the SSA report (Graber 1961, p. 316; Guilfoyle 2002, p. 8).

(5) Comment: One commenter noted the lack of records from the vireo's northern range in Kansas and Nebraska, suggesting permanent habitat loss or other issues in those States.

Our Response: The prevalence of the black-capped vireo in Kansas has been reported in only a few publications, notably a regular occurrence in Comanche County. However, the Service noted in its 2007 black-capped vireo 5-year review that the species has not been documented in Kansas since the 1950s, and its range no longer extends past central Oklahoma. The Nebraska records are even more limited, and the species may have only been an accidental summer visitor in that State (Graber 1961, p. 313). For these reasons, the 1991 recovery plan only included the States of Oklahoma and Texas, as well as Mexico, as part of the recovery strategy. The SSA report for the black-capped vireo fully acknowledges the limited northern extent of the breeding range; however, the species has had an increasing population and distribution over the last 10 to 15 years.

(6) Comment: One commenter provided an article indicating there could be millions of exotic herbivores within the range.

Our Response: The article cited by the commenter (Texotics, Texas Parks & Wildlife Magazine, April 2007) is not peer reviewed and does not meet the standard for using the best available scientific information. We understand that the prevalence of exotic ungulates within the range of the vireo may have an influence on habitat availability. However, we are unaware of any evidence of their influence or scientific studies that have specifically addressed the impacts of exotic ungulates on habitats used by the black-capped vireo. During development of the SSA report, we reached out to our State partners for information related to trends and estimates of exotics across the region, and were informed that the States did not track this information and were unaware of reliable estimates.

(7) Comment: Two commenters stated that feral hogs are a threat to the species and were not considered in the SSA report.

Our Response: Feral hogs are a problem for land managers across the black-capped vireo's range. They may influence oak recruitment, increase erosion, and damage individual trees. However, there is no evidence suggesting that feral hog prevalence is a threat to the species.

(8) Comment: One commenter indicated there were no assurances that Fort Hood Military Installation will incorporate vireo management actions into its integrated natural resources management plan (INRMP).

Our Response: The Army continues to be an important partner in the conservation of the black-capped vireo. In particular, Fort Hood has provided a substantial amount of research and management toward the black-capped vireo, which has had a profoundly positive effect on the population. The Army's commitment to the species has resulted in the largest known population under a single management authority at Fort Hood. The Army strives to sustain native ecosystems at its installations to support military activities, which includes shrubland habitat utilized by the black-capped vireo at Forts Hood and Sill. Therefore it is reasonable to expect that the numerous years of research and management of this species is an investment the Army would maintain. However, to further address this issue, we have obtained a written commitment from the Army that both Fort Hood and Fort Sill will utilize their authorities under the Sikes Act (16 U.S.C. 670 et seq.) to ensure the species continues to thrive at those installations after it is delisted. This commitment is included in the PDM plan.

(9) Comment: Three commenters stated that the information regarding genetic diversity and structure presented in the SSA report does not reflect the intent or findings of the Vasquez-Miranda et al. 2015 research.

Our Response: We disagree with the commenters. Our SSA report summarizes the available and relevant studies on the genetic variability in the black-capped vireo. The Vasquez-Miranda et al. (2015) paper was the most recent study on the subject, and is summarized to support similar hypotheses that genetic structuring within the breeding range is not apparent, or biologically significant. We contacted the authors of the study and received affirmation that our interpretation of their study is appropriately summarized in the SSA report.

(10) Comment: Three commenters stated that, contrary to the data provided in the SSA report, goat densities in Texas are not declining.

Our Response: The data provided in the SSA report were collected from the USDA's Agricultural Census. These statistics show goat densities across the vireo's range have declined since 1992. Another study (Wilcox et al. 2012) of livestock densities in Texas arrives at a similar conclusion. The goat population numbers reported from Texas have continually declined since the repeal of the National Wool Act of 1954.

(11) Comment: We received two comments that state that the SSA report does not adequately address habitat loss caused by development in central Texas.

Our Response: The SSA report indirectly addresses habitat loss through an accounting of reported rangeland/pastureland statistics across the breeding range of the black-capped vireo. Black-capped vireo habitat can occur on small patches on undeveloped land throughout the breeding range in the United States. Using the USDA Agricultural Census of land use within the species' range, an indirect measure of land use changes can be tracked over time. The SSA report indicates that reported land use changes within a majority of the species' range do not appear to threaten the availability of habitat. When the species was evaluated in 1985, a population of black-capped vireos in central Texas near Austin, which consisted of approximately 33 pairs, was thought to be the largest known to exist. Currently, it is estimated that more than 200 pairs occur in the area just west of Austin.

(12) Comment: One commenter stated that the SSA report provides misinformation concerning juniper trees in relation to black-capped vireo habitat.

Our Response: We believe the SSA report accurately describes the importance of juniper occurring within black-capped vireo habitat. In general, while juniper trees may be used for nesting and foraging, it is not a preferred nesting substrate for the species. Juniper is a problem in large portions of the species' range due to its invasive nature, which often renders breeding habitat unsuitable within just a few years. Except in some cases where preferred nesting substrates are sparse or limited suitable shrub cover exists, the invasive nature of juniper is a more important consideration in managing black-capped vireo breeding habitat.

(13) Comment: We received several comments related to livestock browsing of black-capped vireo habitat in the SSA report. Commenters suggested habitat loss would not decrease or be reversed due to a decrease in livestock. Commenters also suggested cattle presence is projected to increase, and drought effects on cattle should be considered and evaluated under future conditions.

Our Response: The SSA report clarifies the influence of livestock on black-capped vireos, which is largely related to effects on habitat and presence of brown-headed cowbirds. Pertaining to direct impacts on habitat, goats are the most detrimental to the species because they browse shrub foliage necessary for nesting. While portions of the breeding range are still influenced by the presence of goats, trends show a decline in goat density across the U.S. portion of the range. Based on this trend and the expiration of previous subsidies for goat ranching in the United States, we did not see a reasonable scenario of expanding goat pressure on black-capped vireo habitat under long-term future conditions.

Cattle decreases are also shown in trend data across the species' range. Cattle have less of an overall impact on habitat, because they generally do not browse on shrub vegetation where vireos nest. In fact, the Service allows cattle grazing on lands approved as compensatory mitigation for the black-capped vireo. Other public lands that manage populations of vireos, such as Fort Hood Military Installation, also manage cattle operations with little impact to the birds nesting in the same area. The primary factor associated with cattle is the presence of brown-headed cowbirds, which can be controlled relatively easily and inexpensively.

Additionally, our analysis addressed cattle on reported acres of rangeland within the breeding range of the black-capped vireo, which is where influence on the species would be expected. These data were collected from the USDA Agricultural Census, which is conducted every 5 years, with the most recent available in 2012. General predictions of cattle increases do not target areas where vireos would be expected to occur.

While our SSA report does not attempt to forecast cattle presence in our future conditions, we believe we captured the primary drivers influencing the species, including cowbird and habitat management, within our predictions influencing the known population. We disagree with the comment that habitats previously impacted by livestock would not revert back to suitable conditions following a decrease in livestock. Healthy rangeland condition and habitat enhancement is greatly influenced by appropriate grazing management.

(14) Comment: Several comments addressed the issue of long-term land management for the black-capped vireo. Commenters stated that management currently occurring on both private and public lands would not continue should the species be delisted. Two commenters suggested we obtain long-term commitments from public land-managing authorities.

Our Response: The recovery of the black-capped vireo is due in large part to our conservation partners, and we are pleased to report that we have those long-term commitments in the PDM plan. The SSA report discusses the effective management actions that have, in part, led to the recovery of the black-capped vireo. Most notably, vegetation and cowbird management within the eastern portion of the species' range has been important to expanding localities. Many such management actions have occurred due to the species being listed under the Act. However, some actions regarding habitat management on private lands are often implemented to improve range conditions for livestock and game animals. Managing for these resources through juniper and mesquite control and use of prescribed fire likely benefits the black-capped vireo when conducted in the species' breeding range. Often these actions are coordinated with the State fish and game agencies and the USDA Natural Resources Conservation Service, which are partners with the Service in conserving fish and wildlife resources. Technical assistance and management plans developed with these partners are largely focused on ecosystem health and native biodiversity, including federally listed species. To further our partnerships, the Service has obtained commitments from key land-managing entities to continue beneficial practices to ensure the black-capped vireo thrives.

(15) Comment: We received comments regarding the black-capped vireo's range in Mexico. In general, commenters noted the lack of information from that portion of the range and stated that additional threats should be addressed.

Our Response: We provide a discussion of the importance of the black-capped vireo's range in Mexico in the SSA report, acknowledging the paucity of data available from that country. There is much anecdotal information on threats to the breeding and wintering ranges; however, little quantitative or qualitative data or information exist. Under the Act, we are required to use the best available scientific and commercial information in implementing our responsibilities under the Act. Even in situations where there is little or no information, a determination of a species' status must be made. In this case, our SSA analysis indicates continued persistence over the 50-yr projected timeframe and black-capped vireo return rates generally suggest sufficient resources are available during migration and wintering.

(16) Comment: Two commenters stated that the SSA report and proposed rule should provide assurances that existing populations and habitat would be protected in the event the species is delisted.

Our Response: The purpose of the SSA report is to provide a science-based risk assessment of the viability of the black-capped vireo. Following a peer-review process, as well as review of the draft by our State partners, the Service used the SSA report to evaluate the species' status under the Act. There is no direct mechanism for assurances to protect known populations when the species is delisted. However, most known populations occur on lands that are provided some degree of management and protection (e.g., State and Federal lands). Additionally, due to the outstanding efforts of our conservation partners toward recovery of this species and to provide assurances for the species' continued success, the Service has obtained commitments for the largest populations that will further conservation and management of the species. These commitments are included in the docket with this final rule and provided in the PDM plan.

(17) Comment: One commenter stated that the Service did not adequately address a peer review comment involving the adequacy of addressing future conditions of habitat loss within the SSA report.

Our Response: We thoroughly and carefully evaluated the responses to the draft SSA report provided by the peer reviewers. We clarified that the SSA report used four criteria to assess the future conditions of the species. While habitat loss was the primary reason the black-capped vireo was listed in 1987, the major sources identified were browsing by goats and vegetational succession. These threat sources, and other relevant threats, have been reduced and managed to the point that we consider the species recovered.

(18) Comment: We received several comments regarding the population data provided in the SSA report. Some simply noted that no population estimate is provided. One believed the species could not be delisted without a population estimate. Other comments stated that the census data used are unreliable and not sufficient to support an increase in vireo abundance. One comment suggested Breeding Bird Survey (BBS) data should be used in the SSA report.

Our Response: In the SSA report, we provide a history of population information for the black-capped vireo and the most recent data to summarize the current conditions of the species. We acknowledge that there are no rangewide estimates of the breeding population available; thus, we use the best available information to evaluate the species. A determination regarding the status of a species under the Act does not require a population estimate; under section 4 of the Act, species are assessed under five factors, often referred to as “threats” to the species, using the best available information. The census data we used span a 6-year period across the breeding range. While the survey methods used to collect these data vary, we believe this information is of much higher quality than the census data collected in 1985 and used for the original listing determination. Our SSA report also analyzed the species status on the basis of analysis of the 3 R's—resiliency, redundancy, and representation. By that measure as well, we believe the black-capped vireo has recovered to the point the protections of the ESA are no longer necessary. The SSA report also acknowledges the potential for reported increases in the known population under current conditions to be, in part, related to an increase in survey effort generated by the listing. However, it is clear that threats to the species have been reduced and managed, which is the reason the species has recovered.

We do not use BBS data for the black-capped vireo, because only the raw data were available. To estimate population change and annual indexes of species abundance, the U.S. Geological Survey (USGS) statistically analyzes the raw BBS data using a hierarchical model analysis (Sauer et al. 2011, p. 7-9). Although the raw data show a slight increase in black-capped vireo detections since the species was listed, population trends are not available and should not be inferred from the raw data without further statistical analyses given the changes in the number of surveyed routes and other confounding factors.

(19) Comment: We received two comments regarding the use of prescribed fire and black-capped vireo habitat management. One comment suggested prescribed fire is used to promote grasses, not shrubs. The other comment stated fire is used to benefit game species, some of which are a threat to the black-capped vireo.

Our Response: Prescribed fire is used to promote habitat health in a variety of ecosystems, including grasslands, shrublands, and forests. Further, prescribed fire is the most important tool for managing black-capped vireo habitat within the eastern portion of the species' range because of its effectiveness at promoting hardwood shrub mottes and grasses important to breeding habitat. Prescribed fire benefits several game species, some of which may degrade nesting habitat if present in high densities. However, we believe the benefits of prescribed fire on private lands as a tool for ecosystem health within the breeding range of the species far outweigh the adverse effects of deer management, which is generally directed toward increasing animal quality, rather than numbers.

(20) Comment: One commenter noted the uncertainty regarding the extent of recovery occurring on private lands, and the limitation of known recovery in only a few well-managed areas.

Our Response: The SSA report for the black-capped vireo acknowledges the extent of information known about the species' numbers across its breeding range. The proportion of the species range and populations for which the data were available for the analysis was significant as compared to the overall range and populations of the species. The Act requires that we use the best available information when determining whether a species should or should not be included on the Federal List of Endangered and Threatened Wildlife. As a result, we provide the most current information known about the species' population across its breeding range.

(21) Comment: We received several comments on the use of rangeland as an indicator of habitat potential in the SSA report. Commenters stated that the use of USDA rangeland statistics is not an appropriate indicator for black-capped vireo habitat. One comment recommended the use of TPWD's Texas Ecosystem Analytical Mapper to identify habitat. Another commenter stated Texas A&M University's Institute of Renewable Natural Resources publication, “Texas Land Trends—Status update and trends of Texas rural working lands,” forecasts future losses of working lands.

Our Response: TPWD's Texas Ecosystem Analytical Mapper (TEAM) is a good tool for evaluating vegetative communities, but does not identify breeding habitat parameters for the black-capped vireo. Black-capped vireo habitat is characterized by shrub vegetation of irregular height, with foliage reaching ground level, which cannot be identified using TEAM. The data in Texas A&M University's Institute of Renewable Natural Resources publication, “Texas Land Trends—Status update and trends of Texas rural working lands,” considers additional data sources but is primarily based on USDA Agricultural Census, that is the same data used in the SSA report. Because of the need for a common data set for both Oklahoma and Texas, and the need to detect land trends across time, we decided to utilize the USDA Agricultural Census reports for both States. One comment referenced that the report, “forecasts future losses of working lands,” but did not provide a page number or cite specific information; it is possible that the comment is referring to the Texas Statewide trend, while our analysis focused on the land trends for the counties within the black-capped vireo's range.

(22) Comment: Several commenters believe the recovery plan for the black-capped vireo is not adequately addressed or that the SSA report is insufficient to support delisting. Some comments requested clarification of the recommendation for “threatened” status in the 2007 5-year review and the delisting proposal.

Our Response: Recovery plans under the Act are intended to establish goals for long-term conservation of listed species; however, they are not regulatory documents. As explained in the SSA report and December 15, 2016, proposed rule (81 FR 90762), the black-capped vireo recovery plan was developed in 1991, and has not been updated. In fact, a complete strategy for recovery had not been conceived at the time the plan was developed, and it only provided interim criteria to downlist the species, precluding any possibility of considering recovery criteria in the recovery plan as a contribution to the current status analysis for delisting the species. There are many paths to accomplishing recovery of a species, which may or may not involve all recovery criteria in a final plan being fully met, but comparing the current status of the species to the reclassification criteria provides some information about the health of the populations. In this case, the reclassification criteria have generally been met. Ultimately, the Service is required to evaluate a species' status with respect to the five factors set forth at section 4(a)(1) of the Act when receiving a petition to downlist or delist, as well as every 5 years for species currently on the List. Our current process uses the SSA framework, which is a comprehensive analysis to evaluate the biological status of the species with respect to its resource needs, current conditions, and forecasted future conditions. We believe this approach is well-suited for addressing the biological status of a species based on scientific information without applying regulatory definitions of the species' status under the Act, which is accomplished through the rulemaking process.

(23) Comment: One commenter indicated that Wilcox et al. (2012), cited in the December 15, 2016, proposed rule was not made available, and may have been used inappropriately.

Our Response: Wilcox et al. (2012) was cited in the SSA report and proposed rule, but was inadvertently omitted from the literature cited section in the SSA report. We have added the reference to this section in the SSA report and this rule. We disagree that this study is not applicable in the context in which it is cited in the proposed rule. The article, titled “Historical Stocking Densities on Texas Rangelands,” is cited in the discussion on rangelands and livestock. We simply paraphrase a conclusion in the study that references healthier changes in rangelands over time due in part to reduced livestock densities.

(24) Comment: We received three comments concerning the provisions of the Migratory Bird Treaty Act (MBTA; 16 U.S.C. 703-712) described in the proposed rule. Commenters stated that the MBTA would not be protective of the black-capped vireo after it is delisted.

Our Response: The reference to the MBTA in the proposed rule is to note that the removal of the black-capped vireo from the List would not affect its status under the MBTA. We did not imply that the MBTA would be a substitute for the Act. The black-capped vireo is being removed from the List due to recovery, not because it will be protected under the MBTA. It will remain listed under the MBTA.

(25) Comment: We received two comments on the definition of “manageable locality” in the proposed rule and SSA report. The comments stated that the definition is not supported.

Our Response: In the SSA report, we use the best available information to summarize the current conditions of the species across its breeding range. Rather than define what constitutes a population of black-capped vireos, for the purposes of evaluating redundancy, we define units that are reasonably expected to be manageable and resilient. One comment referred to the SSA report definition as a “population” and also refers to the 1991 recovery plan population estimate of 500 pairs for comparison. The SSA report uses the term “locality” and provides a definition in order to distinguish it from a “population,” similar to the term “population” in the recovery plan, which was estimated using a Population Viability Analysis model from data available in 1989. Contrary to the comments, we believe our designations of manageable locality and likely resilient locality are supported as described in the SSA report.

(26) Comment: Several commenters did not agree that the SSA report supports a delisting proposal.

Our Response: We disagree with the commenters. The SSA report is a science-based risk assessment. It compiles the best available information and includes a comprehensive analysis of past, present, and forecasted future scenarios of the availability of the resource needs of the species. The report was peer-reviewed, without significant comments on the quality of information or analysis provided.

(27) Comment: Several commenters stated that the proposed rule and SSA report do not address specific threats to the black-capped vireo. Commenters noted wind energy, urbanization, oak wilt, and oil and gas development as potential threats to the species.

Our Response: We recognize that there are a variety of stressors that may continue to affect individual black-capped vireos or their habitat. In the SSA report, we evaluate those stressors that are known, or appear to be a threat to the species, and therefore influence the viability of species. Included in our characterization of viability are conservation actions that are known to have a positive influence on viability. We address potential urbanization in another comment, noting that our evaluation of land use trends encompasses this stressor. Oil and gas development is most prominent in the western portion of the species' range; where overlap occurs, we have not identified or been provided information indicating there is a continuing or eminent threat to the species from oil and gas exploration. Wind energy also occurs largely in the western portion of the black-capped vireo's range. At the request of wind energy companies, the Service has reviewed numerous proposed projects in Texas for potential impacts to black-capped vireo. Through this coordination, several large, previously undocumented black-capped vireo localities were discovered and impacts frequently avoided or minimized. Wind energy projects are normally planned on a large landscape, but have a small overall footprint (ground disturbance). Collisions with rotors are expected to be rare, as vireos do not fly within the distance of rotors during the breeding season. Of the numerous projects reviewed for impacts to the species, only one has requested and received an incidental take permit authorizing impacts to the species. This facility also resulted in the documentation of a location with more than 150 male vireos previously unknown, offset the impacts of the project through permanent protection, and will monitor the site for the life of the facility. We do not have evidence that oak wilt is a significant threat to the black-capped vireo. Vegetation composition in areas used by vireos is variable, but the woody vegetation structure generally remains the same. While oak wilt may affect localized areas of habitat, vireos use a variety of hardwood species with the appropriate structure for nesting and foraging.

(28) Comment: One commenter stated that the short- and long-term timeframes utilized in the SSA report are not supported.

Our Response: The basis for the use of the short- and long-term timeframes is provided on page 12 of the SSA report. The short-term timeframe reflects the availability of past information for the species since the original assessment in 1985. The long-term timeframe is associated with specific climate change models relevant to the species and its habitat and also reflects our ability to project land management decisions.

(29) Comment: Two commenters disagreed with the analysis of the black-capped vireo's winter range in the SSA report. Comments stated that the information is not adequate and the use of return rates of wintering birds is insufficient to address winter range habitat availability.

Our Response: The use of return rates of banded black-capped vireos, by itself, is not an indicator of habitat availability on the winter range. We provided return rates as a part of the information collected to evaluate the potential threats to the winter range. The SSA report acknowledges the limited information available on potential threats to the winter range. There are recent studies on the winter range we summarized in the SSA report that we believe, along with the other information presented, indicate habitat within the winter range is not a limiting factor for species viability.

(30) Comment: We received information suggesting that BBS data show brown-headed cowbirds detections are increasing across the vireo's range, rather than decreasing as shown in the SSA report.

Our Response: The information provided to support the comment was USGS BBS raw data, the same source utilized in the SSA report. The difference is the Service's SSA report uses USGS's BBS Regional Trend Analysis data. As noted in an earlier comment response, USGS uses statistical analysis of the raw data to produce trend and annual indices, which is a better estimate of population change. The brown-headed cowbird hierarchical model analysis data we use in our SSA report are available at https://www.mbr-pwrc.usgs.gov/bbs/bbs.html and show a decreasing trend in Texas and Oklahoma.

Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to, or removing species from the Federal List of Endangered and Threatened Wildlife. Under section 4(a)(1) of the Act, we may list or delist 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.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the black-capped vireo. Our analysis indicates the known threats at the time of listing, habitat loss (Factor A) through land use changes, livestock grazing, and vegetation succession, and brown-headed cowbird brood parasitism (Factor E), are reduced or adequately managed. Under current management, these threats are mitigated such that vireo numbers are robust and increasing. Management actions by our partners on publicly managed and other protected lands will continue based on our shared conservation commitments, which are documented in the PDM plan and included in the docket associated with this final rule. We expect prescribed fire and other management actions to continue in the eastern portion of the U.S. range because the actions are necessary for landscape and rangeland management and are aligned with the conservation mission of many landowners where large populations of black-capped vireos currently exist. We find that the species has recovered so that it no longer meets the definition of endangered under the Act.

Since the black-capped vireo was listed (1987), its known abundance and distribution have increased. Currently, we know of 20 manageable and 14 likely resilient populations (as those terms are defined earlier in this rule and in the SSA report) across the species' breeding range. We assessed the likelihood of persistence of these populations over the next 50 years based on our ability to reasonably predict climate change outcomes and consistent land management activities. In the worst case scenario, the black-capped vireo would be expected to diminish in range and populations, but still remain above the level reported from 2000 to 2005. The black-capped vireo appears to have adequate redundancy, representation, and resiliency to persist over the next 50 years.

Over the foreseeable future, the primary threats to the species continue to be habitat loss through land use conversion and vegetational succession, and brown-headed cowbird brood parasitism. Most threats have decreased in magnitude or are adequately managed, particularly through the use of prescribed fire for various habitat restoration purposes not directly related to black-capped vireo management and we generally expect those trends to continue throughout the foreseeable future. The wintering area for the black-capped vireo occurs entirely in Mexico, but many of the existing habitat areas in Mexico are buffered from degradation due to limited accessibility and rugged terrain, so we do not anticipate significant reductions in habitat quality or quantity over the foreseeable future even without specific management assurances. We find that the species no longer meets the definition of threatened under the Act.

Based on the analysis in the SSA report (Service 2017; see ADDRESSES, above, for information on how to obtain a copy of the SSA report), and summarized above, the black-capped vireo does not currently meet the Act's definition of endangered in that it is not in danger of extinction throughout all of its range. In addition, the black-capped vireo is not a threatened species because it is not likely to become endangered in the foreseeable future throughout all of its range.

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

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

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

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

We identified portions of the black-capped vireo's range that may be significant, and examined whether any threats are geographically concentrated in some way that would indicate that those portions of the range may be in danger of extinction, or likely to become so in the foreseeable future. Within the breeding range, distinctions can be made between Mexico, Texas, and Oklahoma, based on vegetation types and, in Mexico, based on observed higher densities of birds. Additionally, a distinction could be made between the eastern and western portion of the breeding range, based on the importance of the threats of cowbird brood parasitism and vegetational succession (both more impactful in the eastern range). While these geographic distinctions may be significant, information and analysis indicates that the species is unlikely to be in danger of extinction or to become so in the foreseeable future in these portions, given that the increases in reported rangeland statistics, decreases in cattle and goats, and ongoing management of cowbirds have occurred across the range, including within the eastern portion of the range. Therefore, these portions do not warrant further consideration to determine whether they are a significant portion of its range.

We also evaluated representation across the black-capped vireo's range to determine if certain areas were in danger of extinction, or likely to become so, due to isolation from the larger range. Several studies have addressed genetic diversity of the black-capped vireo, particularly due to its fairly restricted breeding range both historically and currently, and due to the ephemeral nature of its habitat in portions of its range and its patchy distribution in the breeding range. Evidence exists that population differentiation has occurred over the black-capped vireo's breeding range due to limited gene flow between breeding populations (Barr et al. 2008, entire). However, other studies have shown no differentiation of populations and that adequate gene flow exists (Vazquez-Miranda et al. 2015, p. 9; Zink et al. 2010, entire). Adult black-capped vireos show strong site fidelity to territories between breeding seasons, especially in larger populations (USFWS 1991, p. 19). Gene flow between populations is largely dependent on the proximity of populations, in order to facilitate dispersal of breeding birds. Dispersal distances for adults is generally 0.14 to 0.41 kilometers (km) (0.09 to 0.25 miles (mi)) (DeBoer and Kolozar 2001, entire); however, long dispersal distances have been recorded up to 12.8 km (8 mi) (USFWS 1991, p. 19). Natal dispersal, the movement from hatch site to breeding site, is known to be much greater, generally from 21 to 30 km (13 to 19 mi) (Grzybowski 1995, p. 18; Cimprich et al. 2009, p. 46). The longest dispersal distance of a banded nestling re-sighted as a breeding adult was 78 km (48.5 mi) (Cimprich et al. 2009, entire). The known populations of black-capped vireos are geographically spread widely across the species' historical range and habitat types, ensuring that the global population is not singular and isolated. Additionally, the known distribution demonstrates robust representation when considering genetic heterozygosity and lack of genetic structuring across these populations.

Our analysis indicates that there is no significant geographic portion of the range that is in danger of extinction or likely to become so in the foreseeable future. Therefore, based on the best scientific and commercial data available, no portion warrants further consideration to determine whether the species may be endangered or threatened in a significant portion of its range.

We have determined that none of the existing or potential stressors causes the black-capped vireo to be in danger of extinction throughout all or a significant portion of its range, nor is the species likely to become endangered within the foreseeable future throughout all or a significant portion of its range. We may delist a species where the best available scientific and commercial data indicate that the species has recovered and is no longer endangered or threatened. 50 CFR 424.11(d)(2). On the basis of our evaluation, we conclude that, due to recovery, the black-capped vireo is not an endangered or threatened species.

This rule revises 50 CFR 17.11(h) to remove the black-capped vireo from the Federal List of Endangered and Threatened Wildlife. The prohibitions and conservation measures provided by the Act, particularly through sections 7 and 9, no longer apply to this species. Federal agencies are no longer required to consult with the Service under section 7 of the Act in the event that activities they authorize, fund, or carry out may affect the black-capped vireo. There is no critical habitat designated for this species; therefore, this rule does not affect 50 CFR 17.95.

Removal of the black-capped vireo from the List of Endangered and Threatened Wildlife does not affect the protection given to all migratory bird species under the MBTA (16 U.S.C. 703-712). The take of all migratory birds, including the black-capped vireo, is governed by the MBTA. The MBTA makes it unlawful, at any time and by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or eggs of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or part, of any such bird or any part, nest, or egg thereof (16 U.S.C. 703(a)). The MBTA regulates the taking of migratory birds for educational, scientific, and recreational purposes. Section 704 of the MBTA states that the Secretary of the Interior (Secretary) is authorized and directed to determine when, and to what extent, if at all, and by what means, the take of migratory birds should be allowed, and to adopt suitable regulations permitting and governing the take. In adopting regulations, the Secretary is to consider such factors as distribution and abundance to ensure that any take is compatible with the protection of the species. Modification to black-capped vireo habitat would constitute a violation of the MBTA only to the extent it directly takes or kills a black-capped vireo (such as removing a nest with chicks present).

Section 4(g)(1) of the Act requires us, in cooperation with the States, to implement a monitoring program for not less than 5 years for all species that have been recovered and delisted. The purpose of this requirement is to develop a program that detects the failure of any delisted species to maintain sufficient viability without the protective measures provided by the Act. If, at any time during the monitoring period, data indicate that protective status under the Act should be reinstated, we can initiate listing procedures, including, if appropriate, emergency listing.

The PDM plan for the black-capped vireo was developed in coordination with our Federal, State, and other partners. The PDM plan utilizes the results from current research and effective management practices that have improved the status of the species and led to its recovery. The PDM plan identifies measurable management thresholds and responses for detecting and reacting to significant changes in the black-capped vireo's populations, distribution, and viability. If declines are detected equaling or exceeding these thresholds, the Service, in combination with other PDM plan participants, will investigate causes of these declines, including considerations of habitat changes, substantial human persecution, stochastic events, or any other significant evidence. The investigation will be to determine if the black-capped vireo warrants expanded monitoring, additional research, additional habitat protection, additional cowbird trapping, or resumption of Federal protection under the Act. Additionally, the Service has obtained commitments from our key conservation partners to continue to manage for the species on lands under their authorities. We have included these written commitments in the docket along with this final rule, and as an appendix to the PDM plan. The final PDM plan will be made available at http://www.fws.gov/southwest/es/arlingtontexas/ after comments on the draft PDM have been considered and incorporated as appropriate.

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

A complete list of references cited in this rulemaking is available on the internet at http://www.regulations.gov at Docket No. FWS-R2-ES-2016-0110, and upon request from the Arlington, Texas, Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

The primary authors of this final rule are the staff members of the Service's Arlington, Texas, Ecological Services Field Office.

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