This rule is issued under Marketing Agreement No. 125 and Marketing Order No. 966, both as amended (7 CFR part 966), regulating the handling of tomatoes grown in certain designated counties in Florida, hereinafter referred to as the “order.” The marketing agreement and order are effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule adds a partial exemption to the minimum grade requirements prescribed under the order. Absent an exemption, Florida tomatoes covered by the order must meet at least a U.S. No. 2 grade before they can be shipped and sold outside the regulated area. This rule exempts Vintage Ripes TM from the shape requirements associated with the U.S. No. 2 grade. This change increases the volume of Vintage Ripes TM that will meet the order requirements, and will help increase shipments and availability of these tomatoes.

Section 966.52 of the order provides the authority for the establishment of grade and size requirements for Florida tomatoes. Form and shape represent part of the elements of grade. Section 966.323 of the order's rules and regulations specifies, in part, the minimum grade requirements for Florida tomatoes. The current minimum grade requirement for Florida tomatoes is a U.S. No. 2. The specifics of this grade requirement are listed under the U.S. Standards for Grades of Fresh Tomatoes (7 CFR 51.1855-51.1877).

The U.S. Standards for Grades of Fresh Tomatoes (Standards) specify the criteria tomatoes must meet to grade a U.S. No. 2, including that they must be reasonably well formed, and not more than slightly rough. These two elements relate specifically to the shape of the tomato. The definitions section of the Standards defines reasonably well formed as not decidedly kidney shaped, lopsided, elongated, angular, or otherwise decidedly deformed. The term slightly rough means that the tomato is not decidedly ridged or grooved. This rule amends § 966.323 to exempt Vintage Ripes TM from these shape requirements as specified under the grade for a U.S. No. 2.

Vintage Ripes TM are a trademarked tomato variety bred to look and taste like an heirloom-type tomato. One of the characteristics of this variety is its appearance. Vintage Ripes TM are often shaped differently from other round tomatoes. Depending on the time of year and the weather, Vintage Ripes TM are concave on the stem end with deep, ridged shoulders. They can also be very misshapen, appearing kidney shaped or lopsided. Because of this variance in shape and appearance, Vintage Ripes TM have difficulty meeting the shape requirements of the U.S. No. 2 grade.

In addition, the cost of production and handling for these tomatoes tends to be higher when compared to standard commercial varieties. The shoulders on Vintage Ripes TM are easily damaged, requiring additional care during picking and handling. These tomatoes are also more susceptible to disease. Consequently, Vintage Ripes TM require greater care in production to keep injuries and blemishes to a minimum. Still, when compared to standard commercial varieties, even with taking special precautions, larger quantities of these tomatoes are left in the field or need to be eliminated in the packinghouse to ensure a quality product. Losses can approach 50 percent or higher for Vintage Ripes TM . With the higher production costs and the reduced packout, these tomatoes tend to sell at a higher price point than standard round tomatoes.

Heirloom-type tomatoes have been gaining favor with consumers. Vintage Ripes TM were bred specifically to address this demand. However, with its difficulty in meeting established shape requirements, and its increased cost of production, producing these tomatoes for market may not be financially viable without an exemption. In order to make more of these specialty tomatoes available for consumers, the Committee agreed to exempt Vintage Ripes TM from the shape requirements of the U.S. No. 2 grade. This exemption is the same as previously provided for a similar type tomato (72 FR 1919, January 17, 2007).

This rule only provides Vintage Ripes TM with a partial exemption from the grade requirements under the order. Consequently, Vintage Ripes TM will be exempt from the shape requirements of the grade but will still be required to meet all other aspects of the U.S. No. 2 grade. Vintage Ripes TM also continue to be required to meet all other requirements under the order, such as size, pack and container, and inspection.

Prior to the 1998-99 season, the Committee recommended that the minimum grade be increased from a U.S. No. 3 to a U.S. No. 2. Committee members agree that increasing the grade requirement has been very beneficial to the industry and in the marketing of Florida tomatoes. It is important to the Committee that these benefits be maintained. There was some industry concern that providing a partial exemption for shape for an heirloom-type tomato could result in the shipment of U.S. No. 3 grade tomatoes of standard commercial varieties, contrary to the objectives of the exemption and the order.

To ensure this exemption does not result in the shipment of U.S. No. 3 grade tomatoes of other varieties, this exemption only applies to Vintage Ripes TM covered under the Agricultural Marketing Service's Identity Preservation (IP) program. The IP program was developed by the Agricultural Marketing Service to assist companies in marketing products having unique traits. The program provides independent, third-party verification of the segregation of a company's unique product at every stage, from seed, production and processing, to distribution. This exemption would be contingent upon the Vintage Ripes TM gaining positive program status under the IP program and continuing to meet program requirements. As such, this should help ensure that only Vintage Ripes TM are shipped under this exemption.

Therefore, this rule exempts Vintage Ripes TM from the shape requirements associated with the U.S. No. 2 grade. This change increases the volume of Vintage Ripes TM tomatoes that will meet order requirements, and will help increase shipments and availability of these tomatoes.

Section 8e of the Act provides that when certain domestically produced commodities, including tomatoes, are regulated under a Federal marketing order, imports of that commodity must meet the same or comparable grade, size, quality, and maturity requirements. Since this rule provides a partial exemption from the minimum grade requirements under the domestic handling regulations, a corresponding change to the import regulations is also needed. A rule providing a similar partial exemption to the minimum grade requirements under the import regulations will be issued as a separate action.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 100 producers of tomatoes in the production area and approximately 70 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $7,000,000 (13 CFR 121.201).

Based on industry and Committee data, the average annual price for fresh Florida tomatoes during the 2007-08 season was approximately $13.71 per 25-pound container, and total fresh shipments for the 2007-08 season were 45,177,457 25-pound cartons of tomatoes. Committee data indicates that around 25 percent of the handlers handle 94 percent of the total volume shipped outside the regulated area. Based on the average price, about 75 percent of handlers could be considered small businesses under SBA's definition. In addition, based on production data, grower prices as reported by the National Agricultural Statistics Service, and the total number of Florida tomato growers, the average annual grower revenue is below $750,000. Thus, the majority of handlers and producers of Florida tomatoes may be classified as small entities.

This rule provides a partial exemption to the minimum grade requirements for tomatoes grown in Florida. Absent an exemption, Florida tomatoes covered by the order must meet at least a U.S. No. 2 grade before they can be shipped and sold outside the regulated area. This rule exempts Vintage Ripes TM from the shape requirements associated with the U.S. No. 2 grade. This change increases the volume of Vintage Ripes TM that will meet the order requirements, and will help increase shipments and availability of these tomatoes. This rule amends the provisions of § 966.323. Authority for this action is provided in § 966.52 of the order.

This change represents a small increase in costs for producers and handlers of Vintage Ripes TM , primarily from costs associated with developing and maintaining the IP program. However, this rule will make additional volumes of Vintage Ripes TM available for shipment. This should result in increased sales of Vintage Ripes TM . Consequently, the benefits of this action are expected to more than offset the associated costs.

One alternative to this action that was considered was to not provide an exemption from shape requirements for Vintage Ripes TM . However, providing the exemption will increase the volume of Vintage Ripes TM that will meet the order requirements, and will help increase shipments and availability of these tomatoes for consumers. Further, the same exemption had been provided previously for a similar tomato. Therefore, this alternative was rejected.

This rule will not impose any additional reporting or recordkeeping requirements beyond the IP program on either small or large tomato handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

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

In addition, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.

Further, the Committee's meeting was widely publicized throughout the Florida tomato industry and all interested persons were invited to attend the meeting and participate in Committee deliberations. Like all Committee meetings, the September 4, 2008, meeting was a public meeting and all entities, both large and small, were able to express their views on this issue.

Finally, interested persons are invited to submit comments on this interim final rule, including the regulatory and informational impacts of this action on small businesses.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/AMSv1.0/ams.fetchTemplateData.do?template=TemplateN&page=MarketingOrdersSmallBusinessGuide . Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

This rule invites comments on a partial exemption to the minimum grade requirements prescribed under the order. A 60-day comment period is provided to allow interested persons to respond to this rule. All written comments timely received will be considered before a final determination is made on this matter.

After consideration of all relevant material presented, including the Committee's recommendation, and other information, it is found that this interim final rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) The shipment of Florida Vintage Ripes TM begins in November, 2008; (2) this rule relaxes requirements prescribed in the order; (3) the Committee unanimously recommended this change at a public meeting and interested parties had an opportunity to provide input; and (4) this rule provides a 60-day comment period and any comments received will be considered prior to finalization of this rule.

The Commodity Promotion, Research, and Information Act of 1996 (Act) (7 U.S.C. 7411-7425) authorizes USDA to establish generic programs of promotion, research, and information for agricultural commodities designed to strengthen an industry's position in the marketplace and to maintain and expand existing domestic and foreign markets and uses for agricultural commodities. Pursuant to the Act, a proposed Order on the Lamb Checkoff Program was published in the Federal Register on September 21, 2001 (66 FR 48764). The final Order was published in the Federal Register on April 11, 2002 (67 FR 17848). Collection of assessments began on July 1, 2002.

This program is funded primarily by those persons engaged in the production and feeding of lambs in the amount of one-half cent ($.005) per pound when live lambs are sold. For purposes of this program, the term “lamb” as defined in the Order means, “any ovine animal of any age, including ewes and rams.”

First handlers, which means the packer or other person who buys or takes possession of lambs from a producer or feeder for slaughter, including custom slaughter, are assessed an additional $.30 cents per head purchased for slaughter or slaughtered by such first handler pursuant to a custom slaughter arrangement. Each person who processes or causes to be processed lamb or lamb products of that person's own production and markets the processed products is assessed one-half cent ($.005) per pound on the live weight at the time of slaughter and is required to pay an additional assessment of $.30 per head. Assessment rates may be adjusted in accordance with applicable provisions of the Act and the Order. The Order also requires persons to collect and remit assessments to the American Lamb Board (Board). Each producer, feeder, or seedstock producer is obligated to pay that portion of the assessment that is equivalent to that producer's, feeder's, or seedstock producer's proportionate share and shall transfer the assessment to the subsequent purchaser. Additionally, a person who is a market agency ( i.e. , commission merchant, auction market, or broker in the business of receiving such lamb or lamb products for sale on commission for or on behalf of a producer, feeder, or seedstock producer) is required to collect an assessment and transfer the collected assessment on to the subsequent purchaser(s). Such persons will not be subject to the assessment and are not eligible to participate in a referendum. Any person who processes or causes to be processed lamb or lamb products of that person's own production and markets the processed products will be required to pay an additional assessment and remit the total assessment to the Board. Each first handler who buys or takes possession of lambs from a producer or feeder for slaughter is required to pay an additional assessment and remit the total assessment to the Board.

The Act requires that a referendum to ascertain approval of an Order must be conducted no later than 3 years after assessments first begin. Assessments began on July 1, 2002. A referendum of lamb producers, feeders, seedstock producers, and first handlers of lamb and lamb products was conducted from January 31, 2005, through February 28, 2005. A majority of the participants, who represented a majority of the volume of lambs, voted in favor of the continuation of the Order. The Act also requires a subsequent referendum on the Order be conducted no later than 7 years after assessments first begin. Thus, USDA is required to conduct a nationwide referendum among persons subject to the assessment by July 1, 2009. The Order will continue if a majority of those persons voting, who also represent a majority of the volume of lambs, voted in favor of continuing the program. If the continuation of the Order is not approved by eligible persons voting in the referendum, USDA will begin the process of terminating the program.

This final rule amends Web site addresses cited in sections 1280.626 and 1280.631 that are currently outdated. This final rule also amends the physical address cited in section 1280.626, as it is also outdated. This rule is implemented in preparation for the 2009 referendum.

This rule relates to internal agency management. Therefore, this rule is exempt from the provisions of Executive Orders 12866 and 12988, and for this same reason the notice of proposed rulemaking and opportunity for comment are also not required, and this rule may be effective less than 30 days after publication in the Federal Register . In addition, under 5 U.S.C. 804, this rule is not subject to congressional review under the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121). Finally, this rule is not a rule as defined by the Regulatory Flexibility Act (5 U.S.C. 601-612) (RFA). Therefore, this rule is exempt from the requirements of RFA.

EDA published an interim final rule (“IFR”) in the Federal Register (73 FR 62858) on October 22, 2008. In March 2007, the Office of the Inspector General published a report titled Aggressive EDA Leadership and Oversight Needed to Correct Persistent Problems in the RLF Program. In the time since the publication of this report, EDA has made significant improvements in the management and oversight of its revolving loan fund (“RLF”) program, including the issuance of written guidance that provides EDA staff with reasonable steps to help better ensure grantee compliance with RLF requirements. EDA published the interim final rule to synchronize the RLF regulations with that guidance. Additionally, EDA published the IFR to make changes to certain definitions in the Trade Adjustment Assistance for Firms Program regulations set out in 13 CFR part 315. The IFR also provided notice of other substantive and non-substantive revisions made to the EDA regulations.

This document extends the deadline for submitting public comments on the entire interim final rule from 5 p.m. (EST) on December 22, 2008 until 5 p.m. (EST) on January 22, 2009. The procedure for submitting public comments is set forth in the interim final rule and is not changed by this document. The extension of the public comment period is necessary to provide additional time for the submission of public comments and to allow for EDA's additional consideration of matters pertaining to the effective implementation of the interim final rule.

It has been determined that this final rule is not significant for purposes of Executive Order 12866.

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

Executive Order 13132 requires agencies to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in Executive Order 13132 to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” It has been determined that this document does not contain policies that have federalism implications.

Authority for This Rulemaking

The FAA Administrator has broad authority to regulate the safe and efficient use of the navigable airspace (Title 49 United States Code (U.S.C.) 40103). The Administrator is also obligated to issue air traffic rules and regulations to govern the flight of aircraft, the navigation, protection and identification of aircraft for the protection of persons and property on the ground, and for the efficient use of the navigable airspace. The Administrator is likewise authorized and obligated to issue regulations or orders assigning the use of the airspace to ensure the safety of aircraft as well as the efficient use of the airspace. Additionally, the Administrator is authorized and obligated to prescribe air traffic regulations for the flight of aircraft, to include mandating safe altitudes, for navigating, protecting, and identifying aircraft; protecting individuals and property on the ground; using the navigable airspace efficiently; and preventing collision of aircraft with other airborne objects, land or water vehicles, or other aircraft.

The Administrator is authorized and obligated to establish security provisions governing use of and access to the navigable airspace by civil aircraft, balancing the needs of national security and national defense with the mandate to allow and encourage maximum use of the navigable airspace by civil aircraft. Pursuant to 49 U.S.C. 40103(b)(3)(A), the Administrator is authorized as well as obligated to establish areas in the airspace if the Administrator, after consulting with the Secretary of Defense, determines doing so is necessary in the interest of national security. Since the Department of Homeland Security was established in 2002 after the enactment of the statute referred to above, the Administrator's need and responsibility to consult with the Secretary of Homeland Security in addition to the Secretary of Defense is consistent with the intent and purpose of the statute.

Before the attacks of September 11, 2001, aircraft operators in the Washington, DC National Capital Region (NCR) were subject to the General Operating and Flight Rules contained in 14 CFR part 91, including rules for operations in Class B airspace. Additionally, aircraft operators were not permitted to enter the prohibited areas already designated under 14 CFR part 73 for portions of the District of Columbia, including the White House, the U.S. Capitol building, and the U.S. Naval Observatory.

In immediate response to the September 11, 2001 attacks, the FAA implemented numerous temporary flight restrictions (TFRs) across the United States in the interest of national security under 49 U.S.C. 40103(b)(3). Civilian airports in the NCR were closed to commercial and general aviation operations while defense and law enforcement agencies assessed the risk of further terrorist activity. In addition, a 25-nautical-mile-radius (NM) TFR area, extending from the surface to 18,000 feet around Washington, DC, was established. Eventually, commercial flight activities were allowed to resume in graduated stages, and in December 2001, the 25-NM-radius TFR around Washington, DC was reduced to an approximately 15-NM radius centered on the Washington, DC very high frequency omni-directional range/distance measuring equipment (DCA VOR/DME).

After 2001, as part of its homeland defense mission, the North American Aerospace Defense Command (NORAD) was directed to expand its air defense mission to include combat air patrols throughout the United States, focusing primarily on major cities and major airports. This expanded U.S-Canada bi-national domestic defense mission is known as Operation Noble Eagle (ONE). In 2003, as part of the nation's preparation for the war in Iraq, DHS initiated an operation called Operation Liberty Shield to enhance homeland security. In support of that initiative, the FAA, in consultation with the Department of Homeland Security (DHS), the Department of Defense (DOD), and other Federal agencies, implemented TFRs around Washington, DC New York City, and Chicago. The restrictions around New York City and Chicago were later rescinded when Homeland Security Advisory System (HSAS) threat levels declined. Restrictions around Washington, DC, were retained for reasons of national security, as discussed in more detail below.

As part of a renewed focus on national security and national defense after September 11, 2001, the Federal government implemented numerous policy changes and initiatives as part of a coordinated, layered effort to identify, prevent, eliminate or minimize the vulnerabilities exploited by terrorists. For example, on June 20, 2006, the President issued National Security Presidential Directive-47/Homeland Security Presidential Directive-16, Aviation Security Policy, which led to the National Strategy for Aviation Security (NSAS). The NSAS Supporting Plans, which were issued on March 26, 2007, include such things as aviation transportation system security, aviation transportation system recovery, aviation operational threat response, air domain surveillance and intelligence integration, domestic outreach, and international outreach. The NSAS links all agencies with responsibilities across the spectrum of protecting and securing the aviation domain. Primary agencies include DHS, DOD, the Departments of Transportation (DOT), Justice (DOJ), State (DOS), and Energy (DOE), and the Office of the Director of National Intelligence (ODNI).

Another initiative after September 11, 2001, was the creation of the Transportation Security Administration (TSA) under DOT for aviation security. In November 2002, DHS was created, and TSA was transferred to that Department. The FAA did not and does not have the responsibility, authority or ability to independently identify and assess threats to national security. These functions are performed by other Executive Branch departments and agencies with authority to do so.

The FAA Administrator has responsibility for the management of the nation's airspace and Air Traffic Control (ATC) system. Pursuant to 49 U.S.C. 40103(b)(1) and (b)(2), the FAA Administrator has broad authority to regulate and manage national airspace in the interest of safety and efficiency. The FAA Administrator also has separate statutory authority under 40103(b)(3) to regulate and manage airspace solely for reasons of national security. That paragraph states the FAA Administrator, “in consultation with the Secretary of Defense” shall—“(A) establish areas in the airspace the Administrator decides are necessary in the interest of national defense; and (B) by regulation or order, restrict or prohibit flight of civil aircraft that the Administrator cannot identify, locate, and control with available facilities in those areas.” The FAA works closely with the Secretary of Defense as well as the U.S. Northern Command (NORTHCOM), NORAD, DHS, and DOJ to identify and evaluate aviation- or airport-related threats or incidents from around the country, facilitate the appropriate level and scope of any response, and ensure that potentially significant information is elevated immediately under existing reporting or emergency notification procedures.

The FAA is responsible for acting as the liaison with the DHS Office of National Capital Region Coordination (ONCRC). In creating the ONCRC, Congress recognized the unique and complex challenges that exist in the National Capital Region that is home to 12 local jurisdictions, two states, the District of Columbia, and all three branches of the Federal government. Actions taken by DHS, DOJ, DOT, DOD, DOS, DOE, ODNI, and the Office of the Director of the National Counterterrorism Center (NCTC) to effectively discharge their complementary responsibilities include, but are not necessarily limited to—

• Creation of the Regional Incident Communication and Coordination System (RICCS), implemented through Memorandum of Understanding of NCR agencies;

• Improvement to the Domestic Emergency Management System; and

• Establishment of the National Capital Region Coordination Center (NCRCC), the Freedom Center, and the National Intelligence Center (NIC) to facilitate better real-time communication sharing among all the responsible agencies.

One of the primary goals of the NCRCC was to enable all agencies to effectively carry out their respective roles and responsibilities, which are fully outlined in the NSAS Aviation Operational Threat Response Plan. The Secretary of Transportation is responsible for coordinating and managing the national airspace system, which includes, but is not limited to, supporting AOTR by expediting and deconflicting clearance and routing of DOD and DHS interdiction assets and providing air contact information to enhance airborne AOTR. The FAA also supports AOTR efforts and steady-state defense, security and other airborne law enforcement and crisis response missions through the planning and execution of a broad spectrum of airport and air traffic management related measures. These actions, including establishment of the DC SFRA, are taken by the FAA as the United States' civil aviation authority.

In February 2003, under 14 CFR 99.7, Special Security Instructions , the FAA established the Washington, DC Metropolitan Area Air Defense Identification Zone (DC ADIZ) through the issuance of a Flight Data Center (FDC) NOTAM. The NOTAM also identified the previously established 15-NM restriction centered on the DCA VOR/DME as the Washington, DC Metropolitan Area Flight Restricted Zone (FRZ). The NOTAM prescribed radio communication, transponder, and flight plan requirements for pilots to follow while operating under visual flight rules (VFR) within the ADIZ. The DC ADIZ was put in place to provide a means for law enforcement and security communities to track aircraft operating in the vicinity of the nation's capital. Some types of operations, such as U.S. military, law enforcement, and lifeguard or air ambulance operations under an FAA/TSA airspace authorization, were excluded from the requirements. NOTAMs, however, are intended to be short-term measures to address temporary or unanticipated situations until the appropriate modifications can be made to procedures, publications, or regulations. Considering the continued significance of the NCR as a potential target, the FAA determined that it was necessary to issue permanent restrictions for operating in the Washington, DC Metropolitan Area.

On August 4, 2005, the FAA published a Notice of Proposed Rulemaking (NPRM) proposing to codify flight restrictions that were implemented by various NOTAMs in effect at that time for certain aircraft operations in the Washington, DC Metropolitan Area (70 FR 45250; Aug. 4, 2005). The NPRM proposed to retain the two-way radio communication, transponder, and flight plan requirements found in the NOTAMs. In addition, although the Washington, DC airspace was referred to as an ADIZ in the NOTAMs, the NPRM proposed to rename the airspace as a Special Flight Rules Area (SFRA). Note that, except in contexts in which use of the term “DC ADIZ” or “ADIZ” is necessary, the term “DC SFRA” is used in the remainder of this document, even though most public comments and historical documents contain the term “ADIZ.” The term “DC SFRA” includes both the airspace configuration in existence at the time of the NPRM and the re-configured airspace reflected in an August 30, 2007 NOTAM (discussed under “I.H. The 2007 NOTAM”).

The comment period on the NPRM closed on November 2, 2005. However, in response to requests from Members of Congress, industry associations, and individual commenters, it was reopened until February 6, 2006 by notice published on November 7, 2005 (70 FR 67388; Nov. 7, 2005). In addition, the FAA held 4 public meetings on January 12 and 18, 2006, in Columbia, MD, and Dulles, VA, respectively.

The FAA received over 21,000 written comments in addition to the oral comments submitted during the public meetings (contained in transcripts placed in the docket for this rulemaking). Commenters included individual pilots, airport owners, professional associations, aviation-related business owners, and search and rescue and aeromedical operators. The FAA notes that each comment was individually written, not a form letter or pre-printed postcard. Many comments contained a high level of detail. The FAA read all comments and meeting transcripts in the development of this final rule. The agency appreciates the input of each commenter. Due to the large number of comments, however, the FAA is not able to respond in detail to each issue raised. Rather, the FAA has identified overall themes for discussion under “IV. Discussion of Public Comments.”

Many commenters acknowledged that some type of special security is necessary to protect the nation's capital; however, essentially all of the commenters objected to the proposed rule. Many asserted that the FAA was allowing other Federal agencies to force the FAA to make airspace decisions the FAA would not otherwise implement. The FAA disagrees. As discussed above, the FAA Administrator has a responsibility to consult with the Secretary of Defense in the interest of national security. In addition, the FAA participates in government-wide initiatives concerning the protection of the NCR. Many commenters also stated that the DC SFRA covered too large an area, and the specific measures implemented by NOTAM were unworkable. Commenters, therefore, were opposed to those measures being made permanent.

The NPRM proposed a larger DC SFRA with different operating procedures than currently exist. One of the many factors taken into account for establishing the original, larger, and more restrictive area, now known as the DC SFRA, was to enable sufficient time and space for NORAD, as well as other agencies or law enforcement officials with authority to use armed force to counter threats to national security or to protect national security assets, to interdict, or intercept an aircraft. With the benefit of experience gained since the September 11, 2001 attacks, the FAA, in consultation with defense, security, and law enforcement agencies, evaluated the comments to the 2005 NPRM and determined that some of the objections and concerns raised by the public had merit. The FAA and those agencies then considered the overall operational impact of the NCR airspace restrictions, HSAS threat levels, as well as the positive effects of additional controller support, pilot awareness training, security-related initiatives, and better information sharing and response coordination among responsible agencies. Based upon the above considerations, the FAA and the other agencies determined that national security, safety of flight, and safety of people on the ground would not be compromised with a reduced DC SFRA perimeter.

In response to public comments, the FAA modified the size and shape of the DC SFRA and its associated procedures through FDC NOTAMs 07/0206 and 07/0211, which became effective August 30, 2007. In addition, the FAA added 3 sectors at Potomac Terminal Radar Approach Control (Potomac TRACON) (PCT) to track aircraft in the DC SFRA and took steps to improve functions such as flight plan processing. These modifications are reflected in this final rule.

In the August 30, 2007 NOTAMs, the dimensions of the DC FRZ remained essentially the same, except that the western boundary was moved slightly eastward, while the size of the DC SFRA was reduced from the wide-ranging outer boundary of the Washington Tri-Area Class B Airspace Area to a much smaller 30-NM radius from the DCA VOR/DME. As a result, the number of airports affected by the restrictions was reduced, and more navigable airspace was made available to pilots conducting operations in the area. The requirement for pilots to establish two-way communication with ATC, be equipped with an operating transponder with altitude-reporting capability, and file a flight plan remained the same. However, the revised NOTAMs also added a “maneuvering area” for Leesburg Executive Airport, and imposed an indicated airspeed restriction of 180 knots or less (if capable) for all VFR operations within the DC SFRA/DC FRZ. For VFR aircraft operations conducted between 30- and 60-NM from the DCA VOR/DME, aircraft were restricted to an indicated airspeed of 230 knots or less (if capable).

The FAA is taking this final action to enhance security in Washington, DC, the nation's capital. As the nation's capital, it has a unique symbolic, historic, and political status. Washington, DC is the seat of all three branches of the United States government, and is the home of the President (who serves as the Commander in Chief of the Armed Forces) and the Vice President. Likewise, it is the home of the U.S. Congress and the U.S. Supreme Court, and thus is the residence and office location for the officials in the Constitutional order of succession. In addition, World Bank offices, foreign embassies, and the sovereign residences of foreign ambassadors credentialed to the United States are located in Washington, DC.

The FAA, in consultation with the Secretaries of Defense and Homeland Security, has determined that implementation of this rule is necessary to enable those officials in carrying out their responsibilities to lawfully identify, counter, prevent, deter, or, as a last resort, disable with non-lethal or lethal force, any airborne object that poses a threat to national security. The rule will assist air traffic controllers and NCRCC officials in monitoring air traffic by identifying, distinguishing, and, more importantly, responding appropriately when an aircraft is off course or is not complying with ATC instructions. In addition, the FAA is permanently codifying restrictions previously implemented via the NOTAM system. This action will reduce confusion regarding operations within the DC SFRA and DC FRZ.

The authority and obligation to use any type of armed force, deadly or otherwise, by the U.S. military is explained in Chairman of the Joint Chiefs of Staff Instruction (CJCSI), “Standing Rules of Engagement (SROE) for Armed Forces of the United States” 3121.01B, June 15, 2005. The introductory portion of the SROE is unclassified, and outlines the basic premise and basic guidance for any decision by the President or subordinate military commander or member of the armed forces to use force, deadly or otherwise, in individual self-defense or collective self-defense of the nation. The NSAS Aviation Operational Threat Response Plan further reinforces that conducting air defense of the United States and U.S. interests, including operations to interdict and, when necessary, defeat airborne threats, as part of the active, layered defense of the United States is a responsibility of the Secretary of Defense. Through its Combatant Commands and NORAD, as appropriate, DOD directs the necessary supporting measures to implement Emergency Security Control of Air Traffic procedures in extreme circumstances. Through NORAD and the Combatant Commands, DOD is the only department authorized to direct engagement using deadly force against airborne civilian aircraft presenting an imminent threat to the United States or U.S. interests, unless the President directs otherwise. Rules for the Use of Force (RUF) for those engaged in law enforcement or security duties also exist for military or civilian law enforcement officers authorized to use force, deadly or otherwise, to protect certain high priority national security assets, and to otherwise perform their law enforcement or security related duties. The FAA is including information regarding the possible use of force in its mandatory online training course for pilots who fly within a 60 NM radius of the DCA VOR/DME so that pilots are aware of the potential risk.

This final rule does not create any new class, type, or category of airspace. However, the Washington, DC SFRA is considered “national defense airspace” as referenced in 49 U.S.C. 46307, which states that a person who knowingly or willfully violates regulations or orders issued under 49 U.S.C. 40103(b)(3) may be subject to criminal prosecution. The Department of Justice is responsible for determining if such action is warranted.

As discussed in the “Authority for This Rulemaking” section above, 49 U.S.C. 40103 grants the Administrator broad authority to regulate the nation's airspace to ensure its safe and efficient use. Certain regulations currently issued by the Administrator control, designate, or assign airspace for national security and/or national defense purposes. These regulations include, but are not limited to, part 73, subpart C Prohibited Areas , and part 99, Security Control of Air Traffic . Part 73, subpart C provides for the designation of prohibited areas for national security purposes wherein no person may operate an aircraft without authorization from the agency, organization or military command that established the requirements for the prohibited area. (See 14 CFR 73.85, Using agency .) Part 99 states in part that any airspace of the contiguous United States that is not an ADIZ, in which the control of aircraft is required for reasons of national security, is a “defense area.” (See 14 CFR 99.3.) Part 99 further provides that each person operating an aircraft in a defense area or ADIZ must comply with special security instructions issued by the Administrator in the interest of national security. (See 14 CFR 99.7.)

This final rule establishes and defines the DC SFRA, which includes the DC FRZ. It also defines dimensions, procedures and required equipment for operating in the DC SFRA. These procedures include establishing two-way radio communication, filing flight plans, and using discrete transponder codes. In addition, the rule provides for traffic pattern operations at towered and non-towered airports within the DC SFRA, and provides relief from certain procedures for airports located near the boundary of the DC SFRA.

Since the proposed rule was published in 2005, the dimensions of the DC SFRA were reduced and procedures amended for aircraft operating within the DC SFRA. These modifications, largely relieving in nature, are reflected in this final rule. Consequently, there are some differences between the NPRM and this final rule. The significant differences are discussed below.

1. Regulatory text proposed as subpart B adopted as subpart V, with modification: At the time the 2005 proposed rule was published, the FAA intended to adopt the proposed regulatory text as 14 CFR part 93, subpart B, which was reserved at the time. In the intervening time, however, the agency adopted another rulemaking action as subpart B. In the final rule, therefore, regulations proposed as subpart B are adopted as subpart V, proposed sections designated as §§ 93.31 through 93.49 are redesignated as §§ 93.331 through 93.345 in the final rule, and proposed §§ 93.45 and 93.49 are removed from the final rule. Provisions proposed in those sections are removed from the final rule because they have become unnecessary due to modifications implemented since the publication date of the NPRM.

In addition, some proposed section headings are modified in the final rule. In the NPRM, certain section headings were in question format, while others were in caption format. In this final rule, section headings are in caption format. The following table provides a comparison between the NPRM and the final rule.

2. Dimensions of the DC SFRA: In the final rule, the dimensions of the DC SFRA are reduced to a 30-NM radius around the DCA VOR/DME. The NPRM proposed that the dimensions of the DC SFRA mirror those designated in the NOTAM in effect at that time. Those dimensions, with some exceptions, were based on the outer boundary of the Washington Tri-Area Class B Airspace Area, and included an area of 4,029 square miles. Since the NPRM was published, the FAA, along with other Federal agencies, has determined that the NCR can be protected with a reduced restricted airspace area of 2,837 square miles.

3. Fringe airports: Fringe airports are those airports located within just a few miles of the DC SFRA boundary established in this final rule. The FAA grants relief from certain DC SFRA procedures to pilots operating at fringe airports because departing aircraft penetrate the DC SFRA airspace for only a brief time. At the time of the NPRM, fringe airports included Airlie, VA, Albrecht, MD, Harris, VA, Martin, MD, Martin State, MD, Meadows, VA, and Mylander, MD, Stewart, MD, St. John, MD, Tilghman Whipp, MD, Upperville, VA, and Wolf, MD. With the reduction in the dimensions of the DC SFRA, those fringe airports are no longer within the DC SFRA; therefore, relief from DC SFRA procedures at those airports is no longer necessary. However, since implementation of the August 30, 2007 NOTAM, different airports (specifically, Barnes (MD47), Flying M Farms (MD77), Mountain Road (MD43), Robinson (MD14), and Skyview (51VA)) are now located just inside the boundary of the DC SFRA. These airports are defined as “fringe airports” in the final rule.

4. Opening/closing flight plans: In the NPRM, the FAA proposed that pilots open and close their flight plans by contacting an Automated Flight Service Station (AFSS). In response to public comments, the August 30, 2007 NOTAM modified this procedure. As reflected in this final rule, the flight plan is now opened when a pilot receives a discrete transponder code, and closed upon landing or exiting the DC SFRA.

5. Part 91 Operations at Ronald Reagan Washington National Airport (DCA Access Standard Security Program (DASSP)): On July 19, 2005, TSA issued an interim final rule to restore access to Ronald Reagan Washington National Airport for certain operations under the DCA Access Standard Security Program (DASSP). In this final rule, § 93.341 (proposed as § 93.41) is modified to permit aircraft operations under the DASSP.

6. Addition of definition of “national defense airspace” in 14 CFR part 1: In the preamble to the NPRM, the FAA stated that the DC SFRA would be classified as “national defense airspace” (NDA). It further stated that persons who knowingly or willfully violate the rules concerning operations in national defense airspace would be subject to criminal penalties as described in 49 U.S.C. 46307.

National defense airspace is any airspace established by regulation or order issued under 49 U.S.C. 40103(b)(3). An order or regulation issued under 49 U.S.C. 40103(b)(3) is appropriate when the Administrator, in consultation with the Secretary of Defense, has determined that it is necessary in the interest of national defense to restrict or prohibit flight of civil aircraft that cannot be identified, located, or controlled. The FAA realizes that most pilots consult FAA manuals and regulations for definitions of airspace terms, rather than Title 49 of the United States Code. In the final rule, therefore, the FAA is adding a definition of “national defense airspace” to § 1.1 General Definitions.

The FAA notes that, by adding this definition to 14 CFR part 1, the agency is not creating a new category of airspace, nor is it creating any new procedures or requirements. The FAA is simply clarifying that national defense airspace exists in those cases where it was designated under a regulation or order issued pursuant to 49 U.S.C. 40103(b)(3).

7. Change “aeromedical operations” references to “lifeguard or air ambulance operations under an FAA/TSA airspace authorization:” References to “aeromedical flight operations” and “aeromedical services” are changed to “lifeguard or air ambulance operations under an FAA/TSA airspace authorization.” This language is consistent with current terminology, and is used in the FAA's “Aeronautical Information Manual.” An air ambulance flight is performed by an operator that has been issued operations specifications to perform air ambulance operations in either an airplane or a helicopter. “Lifeguard” is the call sign used by air ambulance operators whose mission is of an urgent medical nature. A lifeguard call sign is used only for that portion of the flight requiring expeditious handling.

The August 30, 2007, NOTAM contains information that is not included in this final rule. Information likely to change (such as telephone numbers and individuals' names) is not included in this rule. Other pertinent information for DC SFRA operations will continue to apply through NOTAM, including warnings concerning potential consequences of violations. This information includes, but is not limited to—

• Requirement for any pilot flying under VFR within a 60-NM radius of the DCA VOR/DME to complete free online training provided by the FAA;

• The requirement for aircraft to operate at altitudes that ensure acceptable radar coverage;

• Waiver procedures;

• Action in the event of a transponder failure;

• Speed restrictions;

• Resource information;

• The definition and requirement for operations within the Leesburg Maneuvering Area; and

• Explanation of DC SFRA transponder and flight plan requirements.

1. 14 CFR parts 61 and 91: On August 12, 2008, the FAA issued a final rule entitled “Special Awareness Training for the Washington, DC Metropolitan Area” (73 FR 46797; Aug. 12, 2008). The final rule, intended to reduce the number of unauthorized flights into the Washington, DC SFRA and DC FRZ through education of the pilot community, focuses primarily on training pilots on the procedures for flying in and around the DC SFRA and DC FRZ. It requires any pilot who flies under VFR within a 60-NM radius of the DCA VOR/DME to complete free online training provided by the FAA on its http://www.FAASafety.gov Web site and retain a completion certificate. This training will also inform pilots of potential adverse consequences arising from violation of the airspace. More than 7,000 pilots have completed the online training course.

2. 49 CFR part 1562: On February 10, 2005, the TSA issued an interim final rule implementing ground security requirements and procedures at three Maryland airports (the “Maryland Three Airports”—College Park Airport, Potomac Airfield and Washington Executive/Hyde Field) located within the Washington, DC Metropolitan Area Flight Restricted Zone (70 FR 7150; Feb. 10, 2005). That interim final rule established security rules for all pilots operating aircraft to or from any of the Maryland Three Airports as regulated by 49 CFR Part 1562, Subpart A. The interim final rule replaced the Special Federal Aviation Regulation (SFAR) No. 94 previously issued by the FAA (67 FR 7538; Feb. 19, 2002).

3. 49 CFR parts 1520, 1540, and 1562: On July 19, 2005, TSA issued an interim final rule establishing the DASSP to restore access to Ronald Reagan Washington National Airport for certain aircraft operations while maintaining the security of critical Federal government and other assets in the Washington, DC Metropolitan Area (70 FR 41586; July 19, 2005). The interim final rule applies to all passenger aircraft operations into or out of DCA, except U.S. air carrier operations operating under a full security program required by 49 CFR part 1544 and foreign air carrier operations operating under 49 CFR 1546.101(a) or (b). The interim final rule establishes security procedures for aircraft operators and gateway airport and fixed-base operators, and security requirements relating to crewmembers, passengers, and armed security officers onboard aircraft operating into or out of DCA as regulated by 49 CFR part 1562, subpart B.

The vast majority of commenters, while acknowledging that the FAA implemented the DC SFRA to enhance security in the Washington, DC Metropolitan Area, believed that the measures were overly burdensome to the aviation community and unnecessary. In addition, commenters repeatedly stated that the FAA had not adequately justified the airspace restrictions and procedures. As discussed in “I. Overview,” in response to these comments, the FAA modified, via NOTAM, the airspace restrictions and procedures that were proposed in the NPRM and made them less restrictive.

Commenters raised security, safety and operational, administrative, and regulatory concerns in response to the NPRM. These comments and the FAA's responses are discussed below. (Comments raised regarding the FAA's economic analysis are discussed in the full regulatory evaluation in the docket for this rulemaking.)

1. Restrictions on freedom are not justified: Numerous commenters said that the FAA did not provide sufficient justification for the existence of the DC SFRA itself. They felt that the government had, in effect, “let the terrorists win” as citizens' freedoms had been taken away in the name of security.

The FAA acknowledges that actions taken immediately following September 11, 2001, imposed new and significant limits on access to the Washington, DC airspace. Initially airspace restrictions were greater than those that currently exist. The FAA has since reduced restrictions for the Maryland Three Airports, has worked with DHS to provide waivers to the NOTAM for aircraft operators, and has amended procedures and reduced the size of the DC SFRA. Though there are more procedures and restrictions in place for operating in the DC SFRA than there are for the Washington Tri-Area Class B Airspace Area, access to the airspace is available to pilots who comply with appropriate procedures. The FAA believes it has provided a balance between security needs and the public's right of transit through the navigable airspace as provided in 49 U.S.C. 40103.

As discussed elsewhere in this preamble, the FAA took this action in consideration of the fact that Washington, DC is unique as a symbolic military and political target. Historically, in times of war, a nation's seat of government provides an inviting target for enemy attacks because of its great political, economic and psychological value.

Washington, DC is the seat of all three branches of the United States Government. The White House, the U.S. Capitol, the Supreme Court and other Federal court buildings are located in Washington, DC, as well other Executive-Legislative-, and Judicial-Branch buildings and the headquarters and operations facilities for the nation's domestic and international security apparatus. The nation's leaders (the President, the Vice President, Members of Congress, Cabinet members, and Supreme Court justices) are located in the NCR. In addition, American symbolic and historical sites (such as monuments and museums) are located in the NCR. World Bank offices, all foreign embassies, and the residences of foreign ambassadors to the United States are also located in the vicinity. The FAA notes that the United States has an obligation to protect other nations' sovereign spaces.

Establishing the DC SFRA was one of many steps that were taken to ensure the security of the nation's capital. The FAA acknowledges that no single procedure or requirement is fail-safe; however, the FAA believes that this rule adds a layer of additional security to minimize actual threats that may require a graduated response by other U.S. government agencies.

2. General aviation aircraft pose no threat: Many commenters said that general aviation aircraft do not pose a threat because their kinetic energy is low, their speeds are slow, and their cargo capacity is small.

The FAA understands the commenters' concerns; however, the Federal government is concerned that an aircraft, regardless of size, could be used to transport individuals with criminal intentions or dangerous materials that could do significant harm to the NCR.

An example of an incident that could have been avoided under this rule is that of the stolen Cessna 150, which on September 12, 1994, was deliberately crashed into the White House by a suicidal pilot. The plane had relatively little fuel on board and no explosive, radiological, biological, or chemical agents. Some commenters pointed to this 1994 incident as evidence that general aviation aircraft pose no real threat. However, had the aircraft been larger, or the pilot been carrying an explosive device or chemical/radiological/ biological agent, the impact could have resulted in the loss of life on the ground, or long term denial of access to the affected area.

Intelligence information gathered after September 11, 2001, while not specifying an imminent threat of attack in the NCR, suggests that some extremists have considered using small aircraft for terrorist activities. The FAA estimates that there are approximately 200,000 airplanes based at over 19,000 landing facilities within the United States. These facilities include both public- and private-use facilities, and, unlike air carrier operators, most are not subject to Federal security regulations. The government, therefore, remains concerned that terrorists launching attacks using stolen or hijacked planes remains a viable option.

3. General aviation pilots pose no threat: Commenters asked why the government believes that general aviation pilots are a threat when no DC SFRA or DC FRZ incursion to date had been terrorism-related. The commenters pointed out that the attacks of September 11, 2001, were carried out by individuals flying large aircraft.

The FAA notes that there is concern that terrorists may turn to general aviation as an alternative method for conducting operations, especially since the implementation of security enhancements for commercial aircraft and airports.

In addition, the Federal government considers it an unacceptable risk to allow aircraft in the vicinity of Washington, DC without knowing the pilot's intentions. The requirements to file a flight plan before operating in the DC SFRA and squawk a discrete transponder code provide the FAA and other Federal agencies with critical information (i.e., direction of flight, type and color of aircraft, and airspeed) regarding aircraft operating within the DC SFRA.

Commenters also stated that the requirements for operating in the DC SFRA, such as filing a flight plan, squawking a discrete transponder code, and maintaining two-way communications with ATC do nothing to ensure that a pilot entering the DC SFRA is not a terrorist.

The FAA acknowledges that these measures do not ensure that a pilot or a passenger is not a terrorist. However, the measures provide ATC and law enforcement/security officials with additional information that may be useful in identifying a compliant pilot versus a non-compliant pilot. A flight plan provides ATC with pilot information and the pilot's intended route of flight. Further, the use of a discrete transponder code enables ATC to observe and monitor the aircraft while in the airspace. In addition, maintaining two-way radio communication allows officials to communicate with the pilot, and when necessary, determine whether the pilot is experiencing an emergency or aircraft equipment failure, or whether the pilot has simply committed a navigation error. Should there be any aircraft operator in the DC SFRA who has not filed a flight plan or has deviated from the intended route of flight, steps can be taken to get the aircraft back on course and enable those with response or security duties to determine if a threat exists and the appropriate course of action (including use of deadly force).

4. Aviation, especially general aviation, is unfairly being regulated instead of other modes of transportation: Commenters believed the airspace restrictions were unfairly directed at aviation operations (most notably general aviation) while motor vehicles and rail traffic can still pass close to government buildings without much restriction.

The FAA does not have jurisdiction over modes of transportation other than aviation. The agency points out, however, that the modes of transportation mentioned above are in fact restricted in some manner from getting too close to the White House and the U.S. Capitol. For example, at the White House, barriers such as fences, checkpoints, gates, bollards, and other screening systems are designed so that if a detonation does occur, the blast will not result in the destruction of the building or serious harm to protected persons. Vehicular traffic is prohibited on Pennsylvania Ave and E Street between 15th and 17th Streets. Additionally, trucks are not allowed on 17th Street, NW., between Constitution Ave and Pennsylvania Ave. Likewise, there are vehicular restrictions near and around the U.S. Capitol. While motor vehicles must follow roads, and trains must stay on tracks, airplanes can maneuver without such restraints and are not constrained by ground-based barriers and restrictions.

In addition, though many general aviation operators are impacted by these airspace restrictions, the rule itself is not specifically directed at general aviation operations. General aviation operators can and do operate under IFR, and IFR requirements have not been changed. Rather, the rule requires additional procedures for VFR operators, who would otherwise not be required to make their intentions known to ATC.

5. An SFRA was established for Washington, DC, but not for other cities: Many commenters asked why only Washington, DC has permanent airspace restrictions. In addition, they pointed out that airspace restrictions around other places, such as New York City, have been discontinued since September 11, 2001, and said that those around Washington, DC also should be discontinued. Many commenters who lived outside the Washington, DC vicinity expressed concern that SFRAs would be put in place over their locales.

The FAA has received requests from various officials to impose SFRA-type restrictions or prohibitions at locations including New York City and Chicago. The FAA has evaluated these requests, in consultation with other agencies, and concluded that restrictions were not required. Federal agencies that share responsibility for security of the National Airspace System closely monitor the threat to the nation's cities, including the unique security environments of cities such as Washington, DC, New York City, Chicago, and others. When developing risk mitigation plans, TSA considers threats, vulnerabilities, the criticality of a location or transportation system, and the potential consequence of an attack on that location or system. Risk mitigation plans are intended to ensure the security of the location or transportation system while allowing the nation's transportation system to continue operating. Sustainability is a primary concern when developing and implementing a risk mitigation plan.

As previously discussed, Washington, DC is a high-value symbolic military and political target. The requirements of the DC SFRA allow ATC and law enforcement agencies to identify and track aircraft operating in the Washington, DC area and to focus on those targets of interest that may pose a hazard to the Washington, DC area.

The Transportation Security Administration continually reviews and refines risk assessments and mitigation plans in order to address the threat from terrorist groups. The FAA maintains a continuous dialogue with appropriate agencies regarding threat and security issues that may pertain to aircraft operations. In consultation with these agencies, the FAA may implement additional measures, not only in the Washington, DC area, but in other locations, as needed, based on specific, credible intelligence. For example, on March 17, 2003, the national HSAS threat level was raised to Orange (high). In response, the FAA took a number of actions including the issuance of flight restrictions over New York City and Chicago, and cancelled all waivers for operations at the Maryland Three Airports and for sporting events. On April 17, 2003, the HSAS threat level was lowered to Yellow (elevated), and the above-mentioned restrictions were cancelled. It should be noted that the HSAS threat level for the airline sector in the United States is currently at Orange (high).

6. The DC SFRA is not necessary now that other security measures are in place: Several commenters agreed that the DC FRZ is necessary, but objected to the existence of the DC SFRA. They believed that, with the introduction of new security measures since 2003 (such as ground-based missiles, better air interdiction capability, new technology to identify aircraft, laser warning systems, regulations that make it less likely that terrorists can go undetected, and improved security around general aviation airports), the DC SFRA was no longer necessary.

Commenters are correct that there are layers of security for aviation operations in addition to the DC SFRA. Other measures include vetting the FAA Airmen Certification Database, the joint TSA/industry Airport Watch Program, general aviation airport security guidelines, and mandatory flight school security awareness training, as well as regulatory programs for certain types of general aviation aircraft operators. These measures, when implemented together, provide improved protection of the airspace. In addition, the agency notes that heightened security measures for all aviation operations, not just general aviation, have been implemented.

The FAA acknowledges that new aircraft tracking technology, Automatic Detection and Processing Terminal (ADAPT), has been developed since 2005; however, that system supplies information only regarding the aircraft, not the pilot operating it. The protection of this airspace requires the FAA and other government personnel to identify and track those operating in the DC SFRA. Requiring pilots to file flight plans is the least intrusive method of identifying who is operating an aircraft, and enables the FAA and law enforcement and security agencies to more quickly identify anomalous flight behavior, which may indicate a potential threat to the NCR.

Some commenters asserted that there are better air defense capabilities, such as air interception and use of ground-based missiles, than restricting the airspace. The FAA notes that these measures are intended to be used only as a last resort. The airspace from 15- to 30-NM from the DCA VOR/DME provides a buffer area, which allows ATC and law enforcement/security officials to be aware of a non-compliant aircraft before it penetrates the boundary of the DC FRZ. By the time an aircraft is at the edge of the DC FRZ, it is only minutes away from targets in the nation's capital. Relying solely on air defense capabilities could lead to air interception or use of lethal measures that could result in the loss of innocent lives in instances where pilots made inadvertent navigation errors or experienced equipment failures. Also, the buffer provided by the DC SFRA provides additional warning time for law enforcement officials to take appropriate emergency actions on the ground.

Some pilots who operate in the Washington, DC Metropolitan Area, such as those who operate out of the Maryland Three Airports, those who apply for waivers to operate within the DC FRZ, and crewmembers with an approved DCA Access Standard Security Program are vetted through various databases; however, this is a small percentage of pilots who fly in and through the DC SFRA.

The FAA also acknowledges and appreciates the improved security programs in effect at some general aviation airports. For example, in 2003, the Aircraft Owners and Pilots Association (AOPA) partnered with TSA to deploy a national security enhancement program called “The Airport Watch Program.” That program is patterned after the “Neighborhood Watch” anti-crime program, and calls on members of the general aviation community to observe and report any suspicious activities at airports. The Aircraft Owners and Pilots Association has funded and distributed a wide range of educational materials, while TSA has provided a national, toll-free hotline (1-866-GA-SECURE). Programs like these add value to overall security efforts. However, they are voluntary and have not been implemented at all airports.

7. Factors determining the dimensions of the DC FRZ and the DC SFRA: Some commenters stated that they did not understand what factors were considered when determining the radii of the DC FRZ and the DC SFRA.

The purpose of the DC SFRA is to identify and track aircraft that may pose a threat to the NCR. Security agencies need enough time to take appropriate action if it is determined that a pilot may have harmful intentions. The FAA, DHS, and DOD determined the lateral limits based on a number of factors, such as launch response time and speed of intercept aircraft, and geographic dispersion of airfields, in addition to the locations of other critical infrastructure within the NCR.

The FAA notes that the agency, in consultation with military and law enforcement agencies, has made every effort to keep the dimensions of the DC FRZ and the DC SFRA as small as possible to reduce the impact on the aviation community while meeting security and safety requirements.

8. The FAA needs the flexibility to change these requirements in response to a verified threat: Many commenters expressed concern that, by codifying the substance of NOTAMs, the FAA would not be able to relax or tighten the Washington, DC Metropolitan Area airspace restrictions in response to changing HSAS threat levels.

The FAA understands the commenters' concerns and assures the public that the agency retains the capability to adjust the restrictions as necessary. The DC SFRA was instituted in 2003 by NOTAM, in lieu of rulemaking, because of the urgent need to implement security measures in the NCR. A NOTAM can be issued quickly, while issuing a codified regulation can take years. However, as stated in 49 U.S.C. 40103(b)(3), “* * * the Administrator, in consultation with the Secretary of Defense, shall—* * * by regulation or order, restrict or prohibit flight of civil aircraft that the Administrator cannot identify, locate, and control with available facilities in those areas.” Therefore, the appropriate method to implement permanent airspace restrictions is through the rulemaking process. When it became apparent that this airspace designation would be in effect indefinitely, the FAA initiated rulemaking action.

The FAA notes that only certain elements of the 2007 NOTAM are being adopted as regulations. Some procedural details for SFRA operations, as well as warnings concerning potential consequences of violations, will continue to be addressed through NOTAM. The agency also retains the ability to issue additional special security instructions by NOTAM action under 14 CFR part 99 if security or threat conditions warrant. Airspace restrictions or control measures can be adjusted in accordance with HSAS threat levels and specific intelligence. The Department of Homeland Security will continue to coordinate with other Federal agencies to establish appropriate measures in response to specific threats.

9. Alternatives considered prior to implementation of the DC SFRA: Numerous commenters wanted to know if the government considered any alternatives to the restrictions prior to establishing the SFRA in 2003.

Because of the need to protect the airspace around the Washington, DC Metropolitan Area quickly, the FAA did not publish alternatives for public notice and comment. However, the FAA and military and law enforcement agencies did discuss several alternatives before deciding on the requirements implemented in 2003. Those alternatives included establishing a 55-NM outer ring with a 15-NM inner ring, expanding the P-56 prohibited area above parts of Washington, DC to a radius of 30-NM, and establishing outer rings as large as 75 NM or 110 NM. In each case, factors such as numbers of airports impacted and air traffic procedures were considered. The FAA and Federal law enforcement and security agencies have determined that the DC SFRA provides the minimal spatial buffer consistent with the requirement to respond to aviation threats in the NCR.

In addition, prior to the August 2007 modifications, the FAA, in consultation with the law enforcement and security agencies, did consider several alternatives, which were discussed in detail in the “Regulatory Flexibility” section in the preamble to the NPRM.

10. Threat analysis for the Washington, DC area: Several commenters inquired whether a threat analysis had been done for the Washington, DC area, and whether such analysis was available to the public.

The Department of Homeland Security, in coordination with ODNI, has analyzed the threat, vulnerabilities, and consequences of an airborne attack against the NCR. They have concluded that the DC SFRA is a critical layer in the security and defense of the NCR. These analyses are classified and not available to the public.

11. Treating unintentional airspace incursions as security threats: Numerous commenters objected to the FAA's “zero tolerance” approach to unintentional incursions. Many said that they had no violations on their records until they accidentally violated the DC SFRA or DC FRZ. Some asked for an “amnesty” program to allow pilots to clear their names of inadvertent or minor violations.

The purpose of this rule is to provide security to the Washington, DC Metropolitan Area. Incursions into this airspace, whether intentional or not, or violations of any other procedures or rules applicable to this airspace, are taken very seriously, and may be enforced in accordance with the FAA's enforcement authority. The focus, emphasis, or level of penalties imposed by the FAA may vary, depending on the threat posture or HSAS threat levels in effect. The FAA's enforcement action does not mean that violations or violators will be categorized as “national security threats.” The FAA does not have authority to make such a determination or impose such a label on any violator.

Because airspace established under 49 U.S.C. 40103(b)(3) is, however, “national defense airspace,” that term will be used in connection with FAA enforcement actions, regardless of whether an incursion or violation was inadvertent or willful. No additional penalty imposed by the FAA will result from the status of the DC SFRA as “national defense airspace.” The status as “national defense airspace,” however, is important and relevant to the extent a pilot knowingly or willfully enters the DC SFRA in violation of the DC SFRA rules, procedures, or instructions of an air traffic controller or official while in flight. Unlike a willful violation of other airspace, knowing or willful violations of national defense airspace may subject the pilot to criminal liability under Federal criminal law. See 49 U.S.C. 46307. The exercise of any prosecutorial decision to file criminal charges for a knowing or willful violation is a decision that will be made by appropriate Federal prosecutors or law enforcement officials.

In addition, commenters expressed concern about the use of force by military or law enforcement personnel. The fact that a pilot is flying without permission into airspace designated for national security or without following the proper procedures may be one factor those officials take into account in determining the nature of the threat and what to do about it. As with any breach of a security perimeter, military or law enforcement officials with authority to defend the country may use lawful and appropriate force to do so. In the case of an aircraft incursion, interception, diversion, or other necessary means, force, up to and including deadly force, could be employed if an aircraft or airborne object is deemed to be an imminent or actual threat to national security. That determination will be made by appropriate military or command authority only on a case-by-case basis, specific to the situation. An incursion or violation of the DC SFRA, or any other airspace regulation, regardless of whether the airspace in question is “national defense airspace,” does not by itself authorize the use of force. It is however, one of the factors that should and will be considered along with all other relevant facts in existence at the time, in determining whether an aircraft or airborne object poses an imminent threat to national security.

Many commenters expressed concern that operating within the DC SFRA and the DC FRZ was unsafe for a number of reasons, which are discussed below. With the modifications adopted in the 2007 NOTAMs, the FAA has addressed a number of these concerns. In addition, however, the FAA notes that in accordance with 14 CFR 91.3, Responsibility and Authority of the Pilot in Command , the pilot in command is directly responsible for, and is the final authority on operation of the aircraft. Additionally, 14 CFR 91.103, Preflight action , requires that the pilot in command, before beginning a flight, become familiar with all available information concerning that flight. When operating under VFR, the pilot in command selects a destination, and makes a personal choice as to the course that will be flown. If the pilot desires to fly through the DC SFRA, he or she should always be prepared with an alternate flight plan in the event that ATC cannot accommodate his or her request, much as he or she would do in order to fly through other controlled airspace areas.

To enhance safety, the FAA has taken numerous actions to disseminate information about the DC SFRA dimensions and operating requirements. These include the development of a free online course entitled “Navigating the New DC ADIZ” (available at http://www.FAASafety.gov ), which includes several downloadable procedures guides. Since July 2007, over 7,000 pilots have completed this course.

Additionally, the FAA has depicted DC SFRA dimensions and communications frequencies on VFR sectional charts. The agency has also worked closely with pilot and aviation associations to inform the flying community. Since 2004, the Potomac Terminal Radar Approach Control (TRACON) (PCT) has hosted a DC SFRA seminar and Operation Raincheck briefings twice a year, with nearly 250 pilots attending each time. PCT personnel go out into the general aviation community to provide pilot briefings, typically conducting about 6 briefings a year with approximately 50 pilots attending each briefing. PCT personnel have staffed booths and conducted DC SFRA seminars at the AOPA annual open house at the Frederick Airport, MD with approximately 150 pilots in attendance.

The FAA works closely with AOPA to disseminate the latest NOTAM information to its members. AOPA includes information pertaining to flight operations in the DC SFRA on its Web site. In addition, AOPA sent out posters that warn of the DC SFRA airspace, as well as distributed hundreds of letters to pilots advising of the DC SFRA and recommending they familiarize themselves with the procedures and airspace dimensions. The FAA continues to meet with AOPA on a regular basis to discuss operations within the DC SFRA.

1. Frequencies are congested, and controllers are overburdened and distracted: Because a greater number of pilots must now establish two-way radio communications with ATC, some commenters said that frequencies were congested and that controllers were overburdened and distracted from their primary air traffic separation duties. In response to commenters' concerns about frequency congestion and air traffic controller workload, the FAA established several new procedures in connection with the August 30, 2007 NOTAM. First, the agency established three sectors (called “ADIZ West,” “ADIZ South,” and “ADIZ East” in the NOTAM) at PCT. Second, the FAA established a communications frequency dedicated to DC SFRA communications for each of PCT's three DC SFRA sectors. During periods of high workload, including weekends and other times when general aviation pilots are likely to be conducting VFR operations in and around the DC SFRA, PCT can staff the three DC SFRA sectors with PCT personnel whose sole responsibility is to handle DC SFRA traffic. These steps have served to—(1) Mitigate PCT controller workload associated with DC SFRA traffic; (2) separate DC SFRA security identification and tracking functions from air traffic control separation duties, and (3) reduce delays for pilots seeking to operate to, from, or through this airspace area.

The FAA also notes that the reduced dimensions of the DC SFRA, as defined in the August 30, 2007 NOTAM, along with establishment of a Leesburg Maneuvering Area with streamlined communications procedures, have served to reduce air traffic controller workload, frequency congestion, and delays for pilots. In addition, the FAA has further worked to reduce workload and frequency congestion by clarifying to both pilots and controllers that, unless specifically requested by a pilot and approved by ATC, radar services (e.g., traffic advisories, flight following) are not provided in association with DC SFRA security-related identification and tracking.

2. Too many aircraft congregate around the same fixes while awaiting assignment of a discrete transponder code: Numerous commenters expressed concerns about the potential safety hazard created when large numbers of aircraft operate in the vicinity of the same fixes while awaiting assignment of a discrete transponder code to enter the DC SFRA. Commenters noted that when filing a DC SFRA flight plan, pilots had to state a fix (exit or entry point) on their flight plans. Even though there is no requirement for pilots to operate directly to, from, or over these fixes while establishing two-way radio communications with ATC and obtaining a discrete transponder code, commenters stated that many pilots are nevertheless congregating in the vicinity of these fixes.

In response to these concerns, and in connection with the DC SFRA dimensional changes implemented in the August 30, 2007 NOTAM, the FAA made changes to the DC SFRA entry/exit points for flight plan filing purposes. Specifically, the agency established eight “gates” around the circumference of the DC SFRA. Pilots list the appropriate gate name on the DC SFRA flight plan, and enter or exit the DC SFRA at any point within the boundaries of that gate. The gate names and boundaries are now depicted on appropriate VFR charts. The FAA has also provided the online DC SFRA training course and its associated guidance materials and works with industry associations to educate pilots about these gates and boundaries.

While the FAA recognizes that any navigational fix tends to be a high-traffic area, the agency reminds pilots that when operating under VFR, the pilot in command is responsible to see and avoid other aircraft. Before the implementation of the DC SFRA, the Washington Tri-Area Class B Airspace Area was among the most congested in the nation, and extreme vigilance for other aircraft has been required. The DC SFRA has increased the number of pilots using air traffic services; however, the actual number of VFR aircraft operations has not changed significantly. What has changed is more awareness of aircraft in the area, which prior to the DC SFRA did not use ATC services; thus most pilots were not aware of the large number of VFR operations conducted.

3. The DC SFRA forces pilots to fly over water and mountainous areas: Commenters noted that the DC SFRA restricts available airspace. Therefore, when pilots were unable to obtain an authorization to fly in the DC SFRA, they were forced to fly over mountainous areas to the west or over water of the Chesapeake Bay to the east. Commenters claimed that flight over mountains and water was unsafe.

Flight over water or mountainous terrain is not inherently unsafe. The FAA acknowledges that when over mountains or water certain precautions should be taken in the event of an emergency, such as an engine failure. Carrying more fuel, identifying emergency landing locations, maintaining a higher altitude or carrying flotation devices are some steps a prudent pilot may take to mitigate any flight risk.

When flying VFR, a pilot must consider the class of airspace and special use airspace along the route, and the associated procedures or requirements that must be met to transit the airspace. For example, most of the DC SFRA is contained within the Washington Tri-Area Class B Airspace Area. In accordance with 14 CFR 91.131, Operations in Class B Airspace , no person may operate an aircraft within Class B airspace without a clearance from ATC, and the aircraft must be equipped with a two-way radio and an altitude-reporting transponder. In addition, student pilots must meet specific training provisions of 14 CFR part 61 prior to operating in a Class B airspace area. If a pilot intends to transit Class B airspace, the pilot must be able to meet the above conditions. In addition, a pilot must be prepared to circumnavigate the airspace if ATC is unable to provide a clearance into the airspace. In this area, this may mean a pilot would need to over fly the Blue Ridge Mountains or the Chesapeake Bay, and should always be prepared to do so. Implementation of the DC SFRA did not change this fact.

The FAA believes that the August 30, 2007 reduction in DC SFRA dimensions, along with the establishment of associated new frequencies, gates, and procedures, has created more navigable airspace, thus providing more routes for pilots to transit the area. That action reduces the likelihood of pilots having to fly over mountainous terrain or water.

4. Pilots are afraid to engage in training/proficiency flying activities around the DC SFRA: Many commenters stated that flight training and routine proficiency flying was reduced because of the fear of enforcement actions, thereby making it difficult to maintain the skills necessary to fly safely.

The FAA is aware that there have been some cases in which pilots have not complied with the DC SFRA requirements, and consequently have been escorted by military aircraft and/or been met by law enforcement personnel on the ground. The agency understands that such events can be intimidating and that some pilots may opt to cease or reduce their flying activities rather than risk making an error. The FAA acknowledges that the existence of the DC SFRA may create more of a challenging environment for pilots not accustomed to communicating with ATC and regrets that some pilots may choose not to fly. However, the agency encourages pilots to use the many resources available to learn about DC SFRA operations, including completing the FAA's mandatory Special Awareness Training.

5. Safety is compromised because the DC SFRA requires more complex skills: Commenters asserted that because more complex skills are required to operate within the DC SFRA, pilots have been challenged beyond their capabilities, which has placed them in an unsafe situation.

The airspace in which an aircraft operates dictates the equipment and communication requirements for those who operate within the designated airspace. Most of the DC SFRA lies within the boundaries of the Washington, DC Tri-Area Class B Airspace Area and as such, pilots have always been required to possess appropriate communication and navigation skills (see 14 CFR 91.131). If a pilot chooses to operate in the DC SFRA, it is imperative that he or she comply with § 91.103, Preflight action , which, in part, requires that each pilot in command become familiar with all available information concerning that flight. As stated previously, information pertaining to the DC SFRA is readily available, and should be reviewed by all pilots who operate in the area.

6. Delays in obtaining authorization to re-enter the DC SFRA cause safety problems: Commenters stated that they often encountered delays in obtaining authorization to re-enter the DC SFRA and noted that one pilot actually ran out of fuel while waiting.

When the DC SFRA was initially implemented, both pilots and controllers had to adapt to the new requirements and develop workable DC SFRA operational procedures that could be clearly understood by all concerned. The FAA acknowledges and regrets that many pilots encountered delays when entering and exiting the DC SFRA during that time. Since then, pilots and controllers have become more familiar with the DC SFRA and its operating requirements, and ATC has developed procedures to accommodate the increase in operations. The agency believes that the reduced DC SFRA dimensions and new procedures, dedicated frequencies, and gates have significantly reduced the kind of delays pilots may have encountered when the DC SFRA was initially established.

7. DC SFRA procedures are a distraction to pilots, who should be focused on scanning for other aircraft: AOPA expressed concern that DC SFRA procedures were a distraction to pilots engaged in other important operational activities, such as scanning for other aircraft.

Although flight operations to, from, and within the DC SFRA may increase a pilot's workload by requiring additional attention to communication and navigation, the FAA does not believe that this in itself is a significant distraction to pilots. Well before any pilot who opts to operate within or adjacent to the DC SFRA departs, he or she must obtain a thorough pre-flight briefing in accordance with 14 CFR 91.103. During the pre-flight briefing process, the pilot should resolve any questions or concerns so that when airborne, that pilot can concentrate on flying the aircraft, and scanning for other aircraft. The FAA also notes that in most cases, ATC radio transmissions to aircraft operating within the DC SFRA are minimal.

8. The configuration of the DC SFRA is difficult for pilots to navigate: AOPA asserted that the configuration of the DC SFRA, which includes many irregular boundaries, makes it difficult for pilots to navigate.

The FAA acknowledges that the initial boundaries of the DC SFRA, which were also proposed in the NPRM as dimensions for the DC SFRA, were not ideal. In response to these comments, in August 2007 the FAA reduced and reconfigured the DC SFRA to a 30-NM circle centered on the DCA VOR/DME. The FAA has also depicted these new boundaries on appropriate navigational charts. The agency believes that these steps have made it significantly easier for pilots to navigate in the NCR.

9. Reduced airport services reduce options available to pilots: Some commenters asserted that a DC SFRA-related reduction in general aviation flights resulted in reduced airport services (e.g., maintenance and repair, avionics services, flight instruction, etc.). They alleged that this development had led to even greater reductions in general aviation flights as well as potential compromise of safety because pilots do not have as many options if they need emergency services.

The FAA acknowledges that the existence and operating requirements of the DC SFRA have in some cases resulted in less traffic to some local airports, thus reducing revenue and services. The FAA has analyzed the impacts on local airports and businesses; this analysis is discussed in section “VII. Regulatory Impact Analysis.” The reduced size of the DC SFRA impacts fewer airports, so the FAA expects operations at those airports now located outside the DC SFRA to increase. The FAA has also established a maneuvering area to ease traffic flow in and out of the Leesburg Airport. In addition, three airports within the DC FRZ were provided some financial assistance from the Department of Transportation.

1. The FAA has not met statutory requirements to report to Congress the justification for keeping the DC SFRA: AOPA and some individual commenters said the FAA had not been sending regular reports to Congress, as mandated by the Vision 100—Century of Aviation Reauthorization Act (section 602).

Paragraph (a) of that legislation stated that every 60 days the Administrator must transmit to the Committee on Transportation and Infrastructure of the House of Representatives and to the Committee on Commerce, Science, and Transportation of the Senate, a report (in classified form) containing an explanation of the need for the DC ADIZ (now called the “DC SFRA”).

The commenters are correct that the FAA did not submit reports to Congress explaining the need for the DC SFRA. During the reorganization of agency functions after September 11, 2001, aviation intelligence responsibilities shifted from the FAA to DHS. The Secretary of DHS, therefore, briefed Congress on the need for the DC SFRA. In addition, in 2007, the Congressional Research Service performed its own research on the aviation security needs in the Washington, DC Metropolitan Area.

Paragraph (c) of the Vision 100 legislation called upon the FAA to transmit a report to Congress every 60 days describing changes in procedures or requirements that could improve operational efficiency or minimize operational impacts on pilots and controllers. The FAA has met this requirement and submits reports describing the changes to improve the operational efficiency or minimize operational impacts to the Committee on Transportation and Infrastructure of the House of Representatives and to the Committee on Commerce, Science, and Transportation of the Senate.

2. The DC SFRA was intended to be temporary and was put in place hastily, without public input: When the DC SFRA was established via the NOTAM system, it was not known how long the flight restrictions would be in place. In the first few months of its implementation, the DC SFRA and its procedures were changed several times in response to changes in the HSAS threat levels. For example, a cut-out was made around Freeway Airport, Mitchellville, MD; certain airports (known as gateway airports) were identified and used as locations where aircraft and crew could be vetted through various databases prior to entering the DC SFRA; and ingress/egress procedures were instituted for Bay Bridge and Kentmorr Airports, Kent Island, MD. Security, law enforcement and FAA officials have met regularly to discuss and assess the security needs of the Washington, DC Metropolitan Area. In August 2007, the dimensions of the DC SFRA were reduced, and procedures were amended, which has opened up more airspace to the aviation community and simplified procedures for pilots operating within the DC SFRA. The need to protect the nation's capital continues, and the FAA has determined that the most appropriate way to implement this special flight rules area is through the rulemaking process. The FAA also notes that prior to making this DC SFRA permanent, the agency published an NPRM requesting comments from the public. In response, the agency received over 21,000 comments, in addition to comments received at four public meetings.

3. Suggestions from commenters for alternatives to the DC SFRA: The Aircraft Owners and Pilots Association submitted alternatives to the proposal, and recommended retaining the FRZ but only for larger, faster aircraft. AOPA's plan would have excepted aircraft that weigh 6,000 pounds or less and that limit their speed to 160 knots or less from the DC SFRA requirements.

The Experimental Aircraft Association (EAA) also submitted numerous recommendations, including but not limited to reducing the FRZ from a 15-NM radius to a 10-NM radius from the DCA VOR/DME and reducing the DC SFRA to a 20-NM radius of the DCA VOR/DME. In addition, EAA suggested using a larger TFR when HSAS threat levels are elevated.

Many individual commenters suggested retaining the FRZ and eliminating the SFRA. The FAA appreciates these and other suggestions. The agency considered the recommendations but, in consultation with the Interagency Airspace Protection Working Group, determined that reducing the sizes of the FRZ and the SFRA to the degree the commenters suggested would not provide adequate warning time for law enforcement officials to take appropriate emergency actions on the ground. The FAA notes, however, that the size of the DC SFRA was reduced in August 2007.

As to the suggestion that smaller aircraft flying at slower speeds be exempted from meeting DC SFRA requirements, the FAA believes that such a measure would not allow the FAA to meet its objective of tracking all aircraft in the National Capital Region.

Several commenters suggested that aircraft operating in the DC SFRA be equipped with new technology, such as Automatic Dependent Surveillance-Broadcast technology (ADS-B), for monitoring. Use of such technology was not proposed and is therefore outside the scope of this rulemaking. However, the FAA notes that ADS-B has been selected as the preferred next generation technology for surveillance and broadcast services. It has been successfully deployed in Alaska and several other locations. On October 5, 2007, the FAA published in the Federal Register an NPRM, which proposed in part, requirements for aircraft operating in Class B and C airspace areas to be equipped with ADS-B technology (72 FR 56947; Oct. 5, 2007). As part of that rulemaking effort, the FAA established an Aviation Rulemaking Committee (ARC) under Order 1110.147. That committee was chartered to deliver a report on how to optimize operational benefits of the ADS-B system and to provide recommendations to the FAA on the development of a final rule.

4. The DC SFRA amounts to a “taking” (a seizure of private property without due process): Some commenters believed that the government is, in effect, practicing condemnation/seizure of private property without due process. Commenters alleged that the airspace restrictions have triggered a regulatory taking and, therefore, they deserve compensation. The commenters bolstered their argument by asserting that the decision to prohibit or restrict airspace indirectly results in a loss of business to airports or aviation-related businesses on the ground.

Airspace is not private property; therefore, it is not property that can be owned by any person, as the term “private property” is used within the meaning of the U.S. Constitution's Fifth Amendment. While the FAA's regulations or restriction imposed on any navigable, public airspace may interfere with, limit, or even prohibit the right of an individual to use that airspace, the restrictions do not constitute a taking of private property without due process or just compensation. The FAA acknowledges that establishing the DC SFRA will have an indirect impact on aviation-related businesses that may have an adverse economic effect due to a reduction of access to, or need for, their services. However, that indirect economic cost and personal inconvenience is not an impact unique to the general aviation community or the Washington, DC area. Rather, it is an impact experienced by many individuals and businesses in all areas of commerce as a result of the variety and scope of new security measures imposed by various levels of government after the September 11, 2001 attacks.

5. The FAA allowed other Federal agencies to direct its decision making: Numerous commenters asserted that the FAA “abdicated” its rulemaking authority to other Federal entities. The commenters believed that the FAA had allowed security and law enforcement agencies to direct civilian airspace policy.

As discussed in “I. Overview,” the FAA Administrator has statutory authority to manage the nation's airspace in the interest of national security. In carrying out this responsibility, the FAA consults with the Secretary of Defense and works closely with other Federal agencies to ensure the safety of civil aviation and to protect persons and property on the ground.

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the FAA submitted a copy of the new information collection requirement(s) in this final rule to the Office of Management and Budget for its review. OMB approved the collection of this information and assigned OMB Control Number 2120-0706.

In the preamble to the 2005 NPRM, in the “Paperwork Reduction Act” discussion, the FAA solicited comments on the information collection requirement for pilots operating under VFR to file flight plans. The FAA received numerous comments opposing the requirement. These comments, and the FAA's responses, are discussed elsewhere in this preamble.

Number of respondents: The FAA does not know exactly how many pilots will file flight plans to access the DC SFRA and DC FRZ on an annual basis. To calculate the number of respondents, the FAA has divided 256,461 estimated annual number of operations by 15 operations per pilot annually, which equals 17,097.

Cost: The FAA estimates the annual cost to comply with the information collection requirement of this final rule to be $1,831, 098 ($477,017 cost to activate a flight plan plus $1,354,081 cost to file a flight plan). The ten-year cost will be $18,310,980.

The cost to activate a flight plan ($477,017) was calculated as follows.

17,097—Respondents.

15—Number of flight plans filed by each respondent annually.

256,461—Annual number of flight plans.

0.05 hour—Time needed to activate a flight plan.

$37.20/hour—Value of pilot's time.

The cost to file a flight plan ($1,354,081) was calculated as follows.

17,097—Respondents.

256,461—Annual number of flight plans.

0.137 hour—Time (including wait time) needed to file a flight plan.

$37.20/hour—Value of pilot's time.

3.6%—Percent of pilots needing to refile a DC SFRA flight plan.

Hours: The FAA estimates the rule will require 49,223.07 hours (12,823.5 hours to activate a flight plan plus 36,400.02 hours to file a flight plan). The number of hours over 10 years will be 492,230.70.

An agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid Office of Management and Budget (OMB) control number.

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to comply with International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to these regulations.

Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 directs that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule. We suggest readers seeking greater detail read the full regulatory impact analysis, a copy of which we have placed in the docket for this rulemaking.

In conducting these analyses, the FAA has determined that this final rule: (1) Has benefits that justify its costs; (2) is an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866; (3) is “significant” as defined in DOT's Regulatory Policies and Procedures; (4) will have a significant economic impact on a substantial number of small entities; (5) will not create unnecessary obstacles to the foreign commerce of the United States; and (6) will not impose an unfunded mandate on state, local, or tribal governments, or on the private sector by exceeding the threshold identified above. These analyses are summarized below.

The FAA has analyzed the expected costs of this regulation for a 10-year period, from 2009 through 2018. As required by the Office of Management and Budget (OMB), the present value of this cost stream was calculated using discount factors of 7 and 3 percent. All costs in this analysis are expressed in 2007 dollars.

The FAA costed out four alternatives for this evaluation:

• Alternative 1 is what was contained in the NPRM, which mirrors the Washington Tri-Area Class B airspace area, with certain minor modifications. It also has a 15-NM FRZ. Its cost is $1.34 billion over ten years ($1.15 billion, discounted at 3 percent, and $942.26 million discounted at 7 percent).

• Alternative 2 is the final rule, with a 30-NM DC SFRA, 15-NM DC FRZ. Its cost is $1.04 billion over ten years ($886.34 million, discounted at 3 percent, and $756.98 million, discounted at 7 percent).

• Alternative 3 is the NPRM with enhanced procedures, such as ADS-B-equipped aircraft being exempt from the flight plan requirement and establishing two-way communication requirement, given certain conditions. Its cost is $1.30 billion over ten years ($1.11 billion, discounted at 3 percent, and $919.31 million, discounted at 7 percent).

• Alternative 4 contains a 15-NM DC FRZ, with the DC SFRA being determined by threat and air defense requirements, and established by NOTAM. For costing purposes, this alternative examined two scenarios, a 55-NM DC SFRA and a 20-NM DC SFRA. Its costs range from $3.29 billion over ten years ($2.80 billion, discounted at 3 percent, and $2.13 billion, discounted at 7 percent) to $4.47 billion ($3.82 billion, discounted at 3 percent, and $2.85 billion, discounted at 7 percent).

There are two major sets of cost components—public sector and private sector.

a. Public Sector: (1) A key component in defending the DC SFRA against attackers is the airplanes based at Andrews Air Force Base. Under most of the alternatives, given a 30-NM DC SFRA, the program depends on F-15s, F-16s, and helicopters to be ready to scramble to defend the DC SFRA; a scramble can range from pilots proceeding to battle stations, runway alerts, sending a helicopter to alert the errant aircraft, or sending out military aircraft to intercept the aircraft. The total cost of scrambles, including both F-15/F-16 and helicopter, is $324.64 million over ten years. Given a 20-NM DC SFRA, the program would depend on a fighter combat air patrol, 24 hours a day, 7 days a week (24/7 fighter CAP) instead; this CAP uses F-15s and F-16s as well as KC-135 tankers to refuel these aircraft; these costs sum to $356 million annually. When DOD assets are deployed, air traffic control suspends operations and there is a delay cost. The total cost of suspending operations is $1.93 million over ten years. This estimate only takes local delays into consideration, and does not account for secondary delays and ripple effects that may be imposed on the aviation system.

(2) The FAA installed additional radar facilities for support of the DC SFRA at Washington Dulles International Airport (IAD), Ronald Reagan Washington National Airport (DCA), Baltimore/Washington International Thurgood Marshall Airport (BWI), and PTC. Since these costs are “sunk”, they are not considered to be an incremental cost of the rule. However, there are recurring annual costs summing to $375,000.

(3) This rule requires additional controllers and flight service station specialists, as well as the cost of filing and activating DC SFRA-related flight plans. The FAA has dedicated 6 additional controller positions for 3 specific regions of the DC SFRA as a result of this rule. Over a ten-year period, the total cost of the additional controllers is $15.50 million. On average, about 4 full time equivalent positions are dedicated to filing flight plans at flight service stations; over a ten-year period, the total cost of the additional FSS specialists will be $6.45 million. The additional cost of filing and activating flight plans, over 10 years, sums to $59.33 million.

Total public-sector costs, over the 10-year period, sum to $411.60 million.

b. Private Sector: The DC SFRA impacts aircraft operators, airports, and aviation-related businesses in the Washington, DC region. DC SFRA requirements have created delays and other costs to operators and have caused some operators to reduce the number of flights they take, shift operations to airspace and airports outside of the DC SFRA, and even to cease operations altogether. DC SFRA-related delays impose costs on operators and aviation-related businesses. The reduced number of operations has reduced revenue at airports and aviation-related businesses.

(1) Operating Restrictions—The DC SFRA has created many delays to operators, including ground, flight, circumnavigation, and re-routing delays. VFR operators in the DC SFRA are required to file a DC SFRA flight plan and communicate with ATC, creating flight, ground, and re-routing delays. In an effort to avoid these delays, some pilots circumnavigate the DC SFRA, although this also imposes an additional cost. Over ten years, the cost of operating restrictions is $355.80 million.

(2) Airports—The DC SFRA impacts many airports in the Washington, DC region, including airports located outside of the DC SFRA boundaries. The DC SFRA affects the behavior of aircraft operators in the region and results in decreased levels of aviation activity at some airports. However, the DC SFRA will also cause aviation activity at some airports in the region to increase. Much of the negative economic impact at some airports will be offset by gains at other airports. Over ten years, the affected airports have net revenue losses of $25.35 million.

(3) Aviation-related business—The DC SFRA impacts aviation-related businesses in the Washington, DC region because it causes some aircraft operators to alter their behavior. Aviation-related businesses include fixed-base operators (FBOs), passenger or freight charter operators, aerial photography and mapmaking businesses, aircraft maintenance and repair facilities, flight schools, restaurants and transportation services located at airports, and other businesses dependent on aviation activity. A decrease in the number of operations and active aircraft directly results in a decrease in revenue at these businesses. Other aviation-related businesses incur additional costs as a consequence of DC SFRA requirements. Over ten years, the affected businesses have revenue losses of $246.86 million.

Total private sector costs, over ten years, sum to $628.00 million. Total public and private sector costs combined, over ten years, sum to $1.04 billion.

The FAA looked at five scenarios, and computed the estimated mean consequence resulting if each scenario were to occur once in a 10-year period. The estimated means ranged from $0.12 billion ($0.09 billion, discounted) to $9.81 billion ($6.89 billion, discounted). These were compared to the cost of the rule, which is $1.04 billion ($756.98 million, discounted). For three of these five scenarios, the required risk reduction could be less than 100 percent, and the rule would be cost beneficial.

The Regulatory Flexibility Act of 1980 (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objective of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the business, organizations, and governmental jurisdictions subject to regulation.” To achieve that principle, the RFA requires agencies to solicit and consider flexible regulatory proposals and to explain the rationale for their actions. The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations and small governmental jurisdictions.

Agencies must perform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number of small entities. If the determination is that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA. However, if an agency determines that a proposed or final rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the 1980 act provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

The FAA gathered data for airports and other aviation-related businesses that are located 60NM from the DCA VOR/DME. The U.S. Small Business Administration (SBA) classifies businesses as small based on size standards, typically expressed as annual revenue or number of employees. SBA publishes a table of small business size standards matched to North American Industry Classification System (NAICS) codes. The SBA defines privately owned airports as a small entity if annual revenue is less than $6.5 million. Publicly owned airports are defined as a small entity if annual revenue is less than $5 million. As Table 1 shows, all impacted airports (with the exception of BWI, DCA and IAD) are well below these annual revenue thresholds. Revenue data is for 2007.

The SBA size standards for aviation-related businesses at airports are listed in Table 2. The size standard for flight schools is annual revenue less than $23.5 million, for aircraft sales businesses it is annual revenue less than $9 million, and for other business types it is generally annual revenue less than $6.5 million. The SBA threshold for charter operators is less than 1,500 employees.

The FAA matched each DC SFRA-impacted aviation-related business to its appropriate NAICS code and compared it to the SBA size standard for that NAICS code. The FAA estimates that the majority of impacted businesses are considered small under the SBA size standards.

The FAA found that the impact of the DC SFRA on some of these businesses was positive, while for others, it was negative. “Congress considered the term ‘significant’ to be neutral with respect to whether the impact is beneficial or harmful to small businesses. Therefore, agencies need to consider both beneficial and adverse impacts in an analysis.”  1 The FAA estimated the annualized revenue impact of the rule on each of the small entities, and determined that the rule will have a significant economic impact on a substantial number of small entities. Except for two small entities which happen to be airports, the actual or estimated ratio of annualized revenue impacts to annual revenue was greater than 1 percent. Accordingly, the FAA prepared a regulatory flexibility analysis, as described below.

Under section 603(b) of the RFA (as amended), each final regulatory flexibility analysis is required to address the following points: (1) Reasons the agency considered the rule, (2) the objectives and legal basis for the rule, (3) the kind and number of small entities to which the rule will apply, (4) the reporting, recordkeeping, and other compliance requirements of the rule, and (5) all Federal rules that may duplicate, overlap, or conflict with the rule.

1. Reasons the FAA considered the rule —The FAA is taking this final action to enhance security in Washington, DC, the Nation's capital. As the Nation's capital, it has a unique symbolic, historic, and political status. Washington, DC is the seat of all three branches of the United States government, and is the home of the President and the Vice President. Likewise, it is the home of the U.S. Congress and the U.S. Supreme Court, and thus is the residence and office location for the officials in the Constitutional order of succession.

The FAA, in consultation with the Secretaries of Defense and Homeland Security, has determined that implementation of this rule is necessary to enable those officials in carrying out their responsibilities to lawfully identify, counter, prevent, deter, or, as a last resort, disable with non-lethal or lethal force, any airborne object that poses a threat to national security. The rule will assist air traffic controllers and National Capital Region Communications Center officials in monitoring air traffic by identifying, distinguishing, and, more importantly, responding appropriately when an aircraft is off course or is not complying with ATC instructions.

2. The objectives and legal basis for the rule —The objective of the rule is to codify the airspace restrictions within the Washington, DC Metropolitan Area. This effort is to assist DHS and DOD in their efforts to enhance security protection of vital national assets located within the National Capital Region. The legal basis for the rule is found in 49 U.S.C. 40103, et seq. The FAA and DHS must consider, as a matter of policy, maintaining and enhancing safety and security in air commerce as its highest priorities (49 U.S.C. 40101 (d)).

3. The kind and number of small entities to which the rule will apply —The FAA identified 34 small airports and 395 small aviation-related businesses that the rule will impact. Of the 34 small airports, 12 are in the DC SFRA. Of the 395 small aviation-related businesses, 274 are in the DC SFRA. Table 1 above lists the 34 small airports and Table 3 below shows the different types and number of small aviation-related businesses to which this rule will apply.

4. The reporting, recordkeeping, and other compliance requirements of the rule —As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the FAA submitted a copy of these sections to OMB for its review. However, there are no sections of the paperwork package that apply to the airports and aviation-related businesses. All of the economic impact discussed below deals with business gained or lost due to the requirements of the DC SFRA.

5. All federal rules that may duplicate, overlap, or conflict with the rule —The FAA is unaware of any Federal rules that duplicate, overlap, or conflict with the rule.

6. Other considerations —Affordability analysis—For the purpose of this analysis, the degree to which small entities can afford the reduction in revenue resulting from the final rule is predicated on the availability of financial resources. Costs can be paid from existing assets such as cash, by borrowing, through the provision of additional equity capital, by accepting reduced profits, by raising prices, or by finding other ways of offsetting costs.

One means of assessing the affordability is the ability of each of the small entities to meet its short-term obligations, such as looking at net income, working capital and financial strength ratios. According to financial literature, a company's short-run financial strength is substantially influenced by its working capital position and its ability to pay short-term liabilities, among other things. However, the FAA was unable to find sufficient financial information for the majority of affected entities, and so used an alternative way of analyzing affordability. The approach used by the FAA was to compare the rule's impact on entity revenues with estimated revenues in the absence of the rule.

The FAA was able to estimate the annual change in revenue and 2007 revenue for the airports. However, the FAA was unable to locate revenue data for the aviation-related businesses. This analysis first discusses the airports and then the aviation-related businesses.

(a) Airports—Table 38 in the full regulatory impact analysis lists the public use airports within the DC SFRA and between the DC SFRA and 60 nautical miles from the DCA VOR/DME that are small entities. Column A lists each airport's estimated annual revenue in the absence of the rule and 2007 NOTAM. 2 Column B lists each airport's estimated revenue in 2007 (with the NOTAM). Column C lists each airport's estimated change in revenue as a result of the DC SFRA, and was computed by subtracting Column A from Column B. A negative change in revenue implies that the airport is worse off because of this rule. Column D is the quotient of Column C and column A, or the ratio of annualized revenue change associated with the rule to the estimated non-NOTAM annualized revenue.

This information was used to assess the significance and affordability of this rule. Column E shows the airports for which the FAA expects this rule would have a significant impact, as described previously. Column F examines affordability using the alternative approach described above. The FAA considers that an airport would have trouble affording the rule if the change in its revenue is negative and exceeds 10 percent of its annualized change in revenue as a percentage of non-NOTAM revenue. The idea is that if a business has such a high loss in revenue, percentage-wise, it would likely have trouble affording the rule.

Table 4 summarizes Table 38 in the full regulatory impact analysis by showing the number of airports, the number of those airports that might have trouble affording this rule, and the resultant percentage.

(b) Other Aviation-Related Businesses—Aviation-related businesses less than 60nm from DCA were identified from Dun & Bradstreet reports, comments to the 2005 DC SFRA NPRM, airport Web sites, AOPA Pilot Guide, World Aerospace Directory, FAA Operating Specification Sub System (OPSS), FAA Vital Information System (VIS), and FAA Form 5010 database. Although there was not enough data for the FAA to estimate business-by-business revenue impacts, the agency was able to estimate aggregate revenue impacts for business within and outside of the DC SFRA. The aggregate data show that as a group, DC SFRA businesses will have trouble affording this rule, as shown in Table 22 in the full regulatory impact analysis, whereas non-SFRA businesses will benefit from this rule, as shown in Table 23 in the full regulatory impact analysis. Thus, from the perspective of affordability, the FAA expects that a number of aviation-related businesses based at airports inside the DC SFRA will have trouble affording this rule. (See Table D-1 in Appendix D in the full regulatory impact analysis for a list of SFRA and non-SFRA businesses.)

7. Liquidity analysis/profitability analysis —As explained earlier, except for aggregate revenue data, the FAA was unable to find enough financial data for the impacted small businesses both inside and outside the DC SFRA to perform a liquidity analysis or a profitability analysis.

8. Disproportionality analysis —The FAA considered whether small entities will be disadvantaged relative to large entities due to disproportionate impacts. There was no need for the FAA to conduct a disproportionality analysis for the airports because all airports affected by this rule are small businesses, so none would be advantaged over any other. For the aviation-related businesses, as can be seen in Table 5, the estimated revenue impact per aircraft operation is larger for the large businesses than for the small businesses; thus, there will be no disproportionate impact.

9. Competitiveness analysis —For the airports outside the DC SFRA, the average net increase in revenue as a percentage of estimated non-NOTAM revenue was 4.9 percent. For those airports inside the DC SFRA, the average net decrease in revenue as a percentage of non-NOTAM revenue was 44.9 percent. Much of this decrease comes from the three airports within the DC FRZ—College Park, Potomac Airfield, and Washington Executive/Hyde Field; without these three airports, the average net decrease in revenue as a percentage of revenue resulting from the rule would be about 19.7 percent. The FAA expects that based on the results of this analysis, this rule will improve the competitiveness of small businesses outside the DC SFRA vis-á-vis those inside the DC SFRA, since the revenue of most aviation-related businesses is dependent on the number of aircraft operations taking place at that airport.

10. Business closure analysis —It is difficult for the FAA to determine the extent to which airports significantly impacted by this rule might have to cease operations. There are too many variables and some of the airports within the DC SFRA are already in serious financial difficulty; the information shown in the affordability analysis can be indicators of airport business closures. The FAA has no comparable financial information on the aviation-related businesses. To what extent the final rule makes the difference in whether these entities remain in business is difficult to answer. The FAA believes that there is a likelihood of business closure for some of these businesses as a result of this rule.

The FAA considered alternatives to the rule for both airports and aviation-related businesses. A discussion of these alternatives follows. The third alternative is the final rule. For each alternative, the FAA first states the alternative, followed by a discussion, and why the FAA believes that the alternative would not enhance security.

Alternative 1—Retain the DC FRZ, eliminate the rest of the DC SFRA —Under this alternative, airspace in the Washington DC Metropolitan area with flight restrictions would be reduced considerably. The only flight restrictions remaining would be within approximately 15 NM of the DCA VOR/DME, restricting all aircraft operations except part 121 operators, DOD operations, law enforcement operations and authorized emergency medical services operations. This removes the requirement for filing flight plans for aircraft operators in airspace outside the DC FRZ, resulting in reduced pilot and controller workload. This alternative would provide relief to those VFR operators that will operate in the DC SFRA area but not into the DC FRZ. It would restore former air traffic control procedures and air space configurations for some of the area. The FAA estimates that implementation of this alternative would have a positive effect for all of the impacted airports except for College Park, Washington Executive/Hyde Field, and Potomac.

Conclusion: This alternative is not preferred because it does not meet the safety and security requirements of those security agencies responsible for the safety of the Washington DC Metropolitan area. Thus, the FAA does not consider this to be a significant alternative in accordance with 5 U.S.C. 603(d).

Alternative 2—Rescind the FAA's NOTAM and the DC SFRA/DC FRZ immediately —This alternative would provide immediate relief to these airports and aviation-related businesses by removing security provisions and restoring former air traffic control procedures and airspace configurations. Implementation of this alternative would facilitate the return of pilots who, for the sake of operating simplicity and reduced flying costs, relocated to other airports. This would be the option with the least impact.

Conclusion: The FAA believes that the threat of terrorists must be guarded against, and this option would not adequately achieve that goal. Rescinding these actions would increase the vulnerability and diminish the level of protection now in place to safeguard vital national assets located within the NCR. This alternative is rejected because it would compromise the security of vital national assets and increase their vulnerability. Thus, the FAA does not consider this to be a significant alternative in accordance with 5 U.S.C. 603(d).

Alternative 3—Codify existing flight restrictions over the Washington, DC Metropolitan Area (Final Rule) —Under this alternative, the government would maintain the present security and air traffic operational restrictions. The rule enhances security measures in that it requires any aircraft operating to and from the affected airports and transiting the DC SFRA to be properly identified and cleared. This alternative would affect all airports and aviation-related businesses.

Conclusion: This alternative is preferred because it balances the security concerns against the impact on the airports and aviation-related businesses.

Alternative 4—Exempt small, slow aircraft —This alternative would exempt small, piston-driven aircraft. The rationale behind this alternative is that these aircraft are slower than turbine-driven aircraft and are much less likely to be a threat. Most general aviation aircraft fall into this category, and so most aircraft operators would not be subject to this rule. However, the FAA's air traffic controllers cannot distinguish between piston-drive and turbine-drive aircraft from radar or from transponder codes, making this alternative difficult to enforce, thus having the potential to compromise security.

Conclusion: This alternative would increase the vulnerability of and diminish the level of protection now in place to safeguard vital national assets located within the National Capital Region. This alternative is rejected because it would compromise the security of vital national assets and increase their vulnerability. Thus, the FAA does not consider this to be a significant alternative in accordance with 5 U.S.C. 603(d).

The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this final rule and determined that it will have only a domestic impact and therefore no effect on international trade.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $136.1 million in lieu of $100 million.

This final rule does not contain such a mandate. The requirements of Title II do not apply.

The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. The FAA has determined that this action will not have a substantial direct effect on the States, or the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, does not have federalism implications.

FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 312f and involves no extraordinary circumstances.

The FAA has analyzed this final rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). We have determined that it is not a “significant energy action” under the executive order because, while it is a “significant regulatory action” under Executive Order 12866, it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

You can get an electronic copy of rulemaking documents using the Internet by—

1. Searching the Federal eRulemaking Portal ( http://www.regulations.gov );

2. Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies/ ; or

3. Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html .

You can also get a copy by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to identify the amendment number or docket number of this rulemaking.

Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit or you may visit http://DocketsInfo.dot.gov .

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. If you are a small entity and you have a question regarding this document, you may contact your local FAA official, or the person listed under the FOR FURTHER INFORMATION CONTACT heading at the beginning of the preamble. You can find out more about SBREFA on the Internet at http://www.faa.gov/regulations_policies/rulemaking/sbre_act/ .

This action amends Title 14 Code of Federal Regulations (14 CFR) part 73 by changing the using agency for R-4806W, R-4807A & B, and R-4809 currently shown as, “U.S. Air Force, Commander, Tactical Fighter Weapons Center, Nellis AFB, NV” to “USAF Warfare Center, Nellis AFB, NV”. This is an administrative change and does not affect the boundaries, designated altitudes, or activities conducted within the restricted areas. Therefore, notice and public procedures under 5 U.S.C. 553(b) is unnecessary.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends restricted areas in Nevada.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with 311d., FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures.” This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

This document amends 26 CFR part 301. On December 8, 2005, the Treasury Department and the IRS published a notice of proposed rulemaking (REG-137243-02) in the Federal Register (70 FR 72954) proposing amendments to the regulations under section 7216 (regarding the use or disclosure of tax return information by income tax return preparers). On January 3, 2008, the Treasury Department and the IRS issued final regulations under section 7216 (TD 9375) applicable to disclosures or uses of tax return information occurring on or after January 1, 2009. Thus, TD 9375 replaced previously issued final regulations that remain applicable to disclosures or uses of tax return information occurring prior to January 1, 2009.

TD 9375 included a revision of § 301.7216-3(b)(4) which, for disclosures and uses of tax return information occurring on or after January 1, 2009, provided that an income tax return preparer located in the United States may not disclose the taxpayer's social security number (SSN) to a tax return preparer located outside of the United States even if the taxpayer consents to the disclosure.

On July 1, 2008, a temporary regulation (TD 9409) was published in the Federal Register (73 FR 37804) that created a limited exception to the rule prohibiting the disclosure of a taxpayer's SSN outside of the United States. This temporary regulation modified the rules under § 301.7216-3(b)(4). A notice of proposed rulemaking (REG-121698-08) cross-referencing the temporary regulations was published in the Federal Register for the same day (73 FR 37910), requesting comments and setting a public hearing date.

The IRS and the Treasury Department requested written or electronic comments by September 30, 2008. Persons wishing to present oral comments at the public hearing scheduled for October 6, 2008, were to submit an outline of the topics to be discussed at the hearing by September 15, 2008, and written or electronic comments by September 30, 2008. No written or electronic comments or requests to speak at the hearing, together with the required outline of topics, were submitted, and the hearing was cancelled (73 FR 56534).

The final regulations adopt the rules published in the proposed regulations without substantial change. The final regulations maintain the general rule in § 301.7216-3(b)(4) providing that an income tax return preparer located in the United States may not disclose the taxpayer's SSN to a tax return preparer located outside of the United States even if the taxpayer consents to the disclosure. The final regulations create a limited exception to the general rule providing that a tax return preparer located within the United States, including any territory or possession of the United States, may obtain consent to disclose the taxpayer's SSN to a tax return preparer located outside of the United States or any territory or possession of the United States only if the tax return preparer discloses the SSN through the use of an adequate protection safeguard as described in guidance published in the Internal Revenue Bulletin and verifies the maintenance of the adequate data protection safeguards in the request for the taxpayer's consent pursuant to the specifications described in guidance published in the Internal Revenue Bulletin.

The rules adopted in the final regulations are substantially identical to those proposed in the notice of proposed rulemaking with the exception that § 301.7216-3T(d), which set forth the effective date for the rules contained in the temporary regulations, was removed and not adopted in the final regulations because the identical effective date is currently set forth in § 301.7216-3(d). In addition, minor and non-substantive edits were made to provide grammatical consistency and clarity throughout the regulations. Additional guidance regarding the adequate data protection safeguard set forth in the regulations may be found in Revenue Procedure 2008-35, 2008-29 I.R.B. 132. See § 601.601(d)(2)(ii)(b).

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, the notice of proposed rulemaking preceding these regulations were submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business.

The principal author of these regulations is Molly K. Donnelly, Office of the Associate Chief Counsel (Procedure and Administration).

This action affects states and local air quality agencies and may also affect Tribal air quality agencies that have implemented air quality monitoring networks or have authority to implement air quality programs.

The EPA issued “The Treatment of Data Influenced by Exceptional Events (Exceptional Event Rule): Revised Exceptional Event Data Flagging Submittal and Documentation Schedule for Monitoring Data Used in Designations for the 2008 Ozone NAAQS” as a direct final rule on October 6, 2008, 73 FR 58042. The direct final rule revises the schedule for the flagging and submission of documentation of data impacted by exceptional events that may be used for designations under the 2008 ozone National Ambient Air Quality Standards (NAAQS). For a detailed description of the ozone NAAQS and the Exceptional Events Rule, please see the rulemaking actions which are available at EPA's Web sites at http://www.epa.gov/groundlevelozone/actions.html and http://www.epa.gov/EPA-AIR/2008/October/Day-06/a23520.htm and also in the Federal Register at 73 FR 16436 and 73 FR 58042.

We stated in the direct final rule amendments that if we received adverse comment by November 20, 2008, we would publish a timely notice of withdrawal in the Federal Register . We received an adverse comment on the direct final rule amendments on November 20, 2008. Because EPA received adverse comment, we are withdrawing the direct final rule amendments to “The Treatment of Data Influenced by Exceptional Events (Exceptional Event Rule): Revised Exceptional Event Data Flagging Submittal and Documentation Schedule to Support Initial Area Designations for the 2008 Ozone NAAQS” published in the Federal Register on October 6, 2008 (73 FR 58042), as of December 16, 2008. EPA will address adverse comments received in a subsequent final action based on the parallel proposal also published on October 6, 2008. As stated in the parallel proposal, we will not institute a second comment period on this action.

Regulated Entities . The eight regulated industrial source categories that are the subject of this final action are listed in Table 2 to this preamble.

Table 2 is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by the final action for the source categories listed. To determine whether your facility would be affected, you should examine the applicability criteria in the appropriate NESHAP. If you have any questions regarding the applicability of any of these NESHAP, please contact the appropriate person listed in Table 1 of this preamble in the preceding FOR FURTHER INFORMATION CONTACT section.

Worldwide Web (WWW) . In addition to being available in the docket, an electronic copy of this final action will also be available on the WWW through the Technology Transfer Network (TTN). Following signature, a copy of the final action will be posted on the TTN's policy and guidance page for newly proposed and promulgated rules at the following address: http://www.epa.gov/ttn/oarpg/ . The TTN provides information and technology exchange in various areas of air pollution control.

Judicial Review . Under section 307(b)(1) of the Clean Air Act (CAA), judicial review of this final action is available only by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit within 60 days of publication of this action in the Federal Register , i.e. , by February 17, 2009. Under section 307(b)(2) of the CAA, the requirements established by this final action may not be challenged separately in any civil or criminal proceedings brought by EPA to enforce the requirements.

Section 307(d)(7)(B) of the CAA further provides that “[o]nly an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review.” This section also provides that EPA shall convene a proceeding for reconsideration, “[i]f the person raising an objection can demonstrate to the Administrator that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule.” Any person seeking to make such a demonstration should submit a Petition for Reconsideration to the Office of the Administrator, U.S. EPA, Room 3000, Ariel Rios Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460, with a copy to both the person(s) listed in the preceding FOR FURTHER INFORMATION CONTACT section, and the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), U.S. EPA, 1200 Pennsylvania Ave., NW., Washington, DC 20460.

Outline . The information presented in this preamble is organized as follows:

Section 112 of the CAA establishes a two-stage regulatory process to address emissions of hazardous air pollutants (HAP) from stationary sources. In the first stage, after EPA has identified categories of sources emitting one or more of the HAP listed in section 112(b) of the CAA, section 112(d) of the CAA calls for us to promulgate NESHAP for those sources. “Major sources” are those that emit or have the potential to emit any single HAP at a rate of 10 tons or more per year of a single HAP or 25 tons per year of any combination of HAP. For major sources, these technology-based standards must reflect the maximum degree of emission reductions of HAP achievable (after considering cost, energy requirements, and non-air quality health and environmental impacts) and are commonly referred to as maximum achievable control technology (MACT) standards.

The MACT “floor” is the minimum control level allowed for MACT standards promulgated under CAA section 112(d)(3). For new sources, the MACT floor cannot be less stringent than the emission control that is achieved in practice by the best-controlled similar source. The MACT standards for existing sources can be less stringent than standards for new sources, but they cannot be less stringent than the average emission limitation achieved by the best-performing 12 percent of existing sources in the category or subcategory (or the best-performing five sources for categories or subcategories with fewer than 30 sources). In developing MACT standards, we must also consider control options that are more stringent than the floor. We may establish standards more stringent than the floor based on the consideration of the cost of achieving the emissions reductions, any non-air quality health and environmental impacts, and energy requirements.

EPA is then required to review these technology-based standards and to revise them “as necessary (taking into account developments in practices, processes, and control technologies)” no less frequently than every 8 years, under CAA section 112(d)(6). In this final rule, we are publishing the results of our 8-year technology review for the eight industrial source categories listed in Table 3, which we have collectively termed “Group 1.”

The second stage in standard-setting focuses on reducing any remaining “residual” risk according to CAA section 112(f). This provision requires, first, that EPA prepare a Report to Congress discussing (among other things) methods of calculating risk posed (or potentially posed) by sources after implementation of the MACT standards, the public health significance of those risks, the means and costs of controlling them, actual health effects to persons in proximity of emitting sources, and recommendations as to legislation regarding such remaining risk. EPA prepared and submitted this report (Residual Risk Report to Congress, EPA-453/R-99-001) in March 1999. Congress did not act in response to the report, thereby triggering EPA's obligation under CAA section 112(f)(2) to analyze and address residual risk.

CAA section 112(f)(2) requires us to determine for source categories subject to certain CAA section 112(d) standards whether the emissions limitations provide an ample margin of safety to protect public health. If the MACT standards for HAP “classified as a known, probable, or possible human carcinogen do not reduce lifetime excess cancer risks to the individual most exposed to emissions from a source in the category or subcategory to less than 1-in-1 million,” EPA must promulgate residual risk standards for the source category (or subcategory) as necessary to provide an ample margin of safety to protect public health. In doing so, EPA may adopt standards equal to existing MACT standards ( NRDC v. EPA, No. 07-1053, slip op. at 11, District of Columbia Circuit, decided June 6, 2008). EPA must also adopt more stringent standards, if necessary, to prevent an adverse environmental effect, 1 but must consider cost, energy, safety, and other relevant factors in doing so. Section 112(f)(2) of the CAA expressly preserves our use of a two-step process for developing standards to address any residual risk and our interpretation of “ample margin of safety” developed in the National Emission Standards for Hazardous Air Pollutants: Benzene Emissions from Maleic Anhydride Plants, Ethylbenzene/Styrene Plants, Benzene Storage Vessels, Benzene Equipment Leaks, and Coke By-Product Recovery Plants (Benzene NESHAP) (54 FR 38044, September 14, 1989).

The first step in this process is the determination of acceptable risk. The second step provides for an ample margin of safety to protect public health, which is the level at which the standards are set (unless a more stringent standard is required to prevent, taking into consideration costs, energy, safety, and other relevant factors, an adverse environmental effect).

The terms “individual most exposed,” “acceptable level,” and “ample margin of safety” are not specifically defined in the CAA. However, CAA section 112(f)(2)(B) directs us to use the interpretation set out in the Benzene NESHAP. See also, A Legislative History of the Clean Air Act Amendments of 1990, volume 1, p. 877 (Senate debate on Conference Report). We notified Congress in the Residual Risk Report to Congress that we intended to use the Benzene NESHAP approach in making CAA section 112(f) residual risk determinations (EPA-453/R-99-001, p. ES-11).

In the Benzene NESHAP, we stated as an overall objective:

In the Benzene NESHAP, we stated that “EPA will generally presume that if the risk to [the maximum exposed] individual is no higher than approximately 1-in-10 thousand, that risk level is considered acceptable.” 54 FR at 38045. We discussed the maximum individual lifetime cancer risk (MIR) as being “the estimated risk that a person living near a plant would have if he or she were exposed to the maximum pollutant concentrations for 70 years.” Id. We explained that this measure of risk “is an estimate of the upperbound of risk based on conservative assumptions, such as continuous exposure for 24 hours per day for 70 years.” Id. We acknowledge that MIR “does not necessarily reflect the true risk, but displays a conservative risk level which is an upperbound that is unlikely to be exceeded.” Id.

Understanding that there are both benefits and limitations to using MIR as a metric for determining acceptability, we acknowledged in the 1989 Benzene NESHAP that “consideration of maximum individual risk * * * must take into account the strengths and weaknesses of this measure of risk.” Id. Consequently, the presumptive risk level of 100-in-1 million (1-in-10 thousand) provides a benchmark for judging the acceptability of MIR, but does not constitute a rigid line for making that determination.

The Agency also explained in the 1989 Benzene NESHAP the following: “In establishing a presumption for MIR, rather than rigid line for acceptability, the Agency intends to weigh it with a series of other health measures and factors. These include the overall incidence of cancer or other serious health effects within the exposed population, the numbers of persons exposed within each individual lifetime risk range and associated incidence within, typically, a 50 kilometer (km) exposure radius around facilities, the science policy assumptions and estimation uncertainties associated with the risk measures, weight of the scientific evidence for human health effects, other quantified or unquantified health effects, effects due to co-location of facilities, and co-emission of pollutants.” Id.

In some cases, these health measures and factors taken together may provide a more realistic description of the magnitude of risk in the exposed population than that provided by MIR alone.

As explained in the Benzene NESHAP, “[e]ven though the risks judged “acceptable” by EPA in the first step of the Vinyl Chloride inquiry are already low, the second step of the inquiry, determining an “ample margin of safety,” again includes consideration of all of the health factors, and whether to reduce the risks even further. In the second step, EPA strives to provide protection to the greatest number of persons possible to an individual lifetime risk level no higher than approximately 1-in-1 million. In the ample margin decision, the Agency again considers all of the health risk and other health information considered in the first step. Beyond that information, additional factors relating to the appropriate level of control will also be considered, including costs and economic impacts of controls, technological feasibility, uncertainties, and any other relevant factors. Considering all of these factors, the Agency will establish the standard at a level that provides an ample margin of safety to protect the public health, as required by section 112.” 54 FR 38046.

The eight industrial source categories and four NESHAP that are the subject of this action are listed in Table 3 to this preamble. The NESHAP limit and control HAP that are known or suspected to cause cancer or have other serious human health or environmental effects. The NESHAP for these eight source categories generally required implementation of technologies such as steam strippers and incineration.

The Polymers and Resins I NESHAP regulates HAP emissions from major sources in nine source categories. In this action, we address four of the Polymer and Resins I sources categories—Polysulfide Rubber Production, Ethylene Propylene Rubber Production, Butyl Rubber Production, and Neoprene Production. The other five source categories are addressed in RTR Group 2A (73 FR 60432, October 10, 2008). HAP emissions from these processes can be released from storage tanks, process vents, equipment leaks, and wastewater operations.

a. Polysulfide Rubber Production. Polysulfide rubber is a synthetic rubber produced by the reaction of sodium sulfide and p-dichlorobenzene (1,4-dichlorobenzene) at an elevated temperature in a polar solvent. Polysulfide rubber is resilient, resistant to solvents, and has low temperature flexibility, facilitating its use in seals, caulks, automotive parts, rubber molds for casting sculpture, and other products.

b. Ethylene Propylene Rubber Production. Ethylene propylene elastomer is an elastomer prepared from ethylene and propylene monomers. Common uses for these elastomers include radiator and heater hoses, weather stripping, door and window seals for cars, construction plastics blending, wire and cable insulation and jackets, and single-ply roofing membranes.

c. Butyl Rubber Production. Butyl rubber is comprised of copolymers of isobutylene and isoprene and is very impermeable to common gases and resists oxidation. A specialty group of butyl rubbers are halogenated butyl rubbers, which are produced commercially by dissolving butyl rubber in hydrocarbon solvent and contacting the solution with gaseous or liquid elemental halogens such as chlorine or bromine. Halogenated butyl rubber resists aging to a higher degree than the nonhalogenated type and is more compatible with other types of rubber. Uses for butyl rubber include tires, tubes, and tire products; automotive mechanical goods; adhesives, caulks, and sealants; and pharmaceutical uses.

d. Neoprene Production. Neoprene is a polymer of chloroprene. Neoprene was originally developed as an oil-resistant substitute for natural rubber, and its properties allow its use in a wide variety of applications, including wetsuits, gaskets and seals, hoses and tubing, plumbing fixtures, adhesives, and other products.

The Polymers and Resins II NESHAP regulates HAP emissions from major sources in two source categories—epoxy resins and non-nylon polyamides production. In this action, we address both of the Polymer and Resins II sources categories—Epoxy Resins Production and Non-nylon Polyamides Production. HAP emissions from these source categories can be released from storage tanks, process vents, equipment leaks, and wastewater operations.

a. Epoxy Resins Production. The Epoxy Resins Production source category involves the manufacture of basic liquid epoxy resins used in the production of glues, adhesives, plastic parts, and surface coatings. This source category does not include specialty or modified epoxy resins.

b. Non-Nylon Polyamides Production. The Non-Nylon Polyamides Production source category involves the manufacture of epichlorohydrin cross-linked non-nylon polyamides used primarily by the paper industry as an additive to paper products. Natural polymers, such as those contained in paper products, have little cross-linking, which allows their fibers to change position or separate completely when in contact with water. The addition of epichlorohydrin cross-linked non-nylon polyamides to these polymers causes the formation of a stable polymeric web among the natural fibers. Because the polymeric web holds the fibers in place even in the presence of water, epichlorohydrin cross-linked non-nylon polyamides are also referred to as wet-strength resins.

The GMACT set national emission standards for certain source categories consisting of five or fewer facilities. The basic purpose of the GMACT approach was to use public and private sector resources efficiently, and to promote regulatory consistency and predictability in the MACT standards development.

Acetal resins are characterized by the use of formaldehyde in the polymerization process to manufacture homopolymers or copolymers of alternating oxymethylene units. Acetal resins, also known as polyoxymethylenes, polyacetals, or aldehyde resins, are a type of plastic possessing relatively high strength and rigidity without being brittle. They have good frictional properties and are resistant to moisture, heat, fatigue, and solvents. Acetal resins are used as parts in a variety of industrial applications, e.g., gears, bearings, bushings, and various other moving parts in appliances and machines, and in a range of consumer products, e.g., automotive door handles, seat belt components, plumbing fixtures, shaver cartridges, zippers, and gas tank caps.

The Hydrogen Fluoride Production source category includes any facility engaged in the production and recovery of hydrogen fluoride by reacting calcium fluoride with sulfuric acid. Hydrogen fluoride is used in the production of other compounds, including pharmaceuticals and polymers. In aqueous solution hydrogen fluoride can be a strong acid.

On December 12, 2007  2 , based on the findings from our RTR, we proposed no revisions to the four NESHAP regulating the eight source categories listed in Table 3 and requested public comment.

As required by section 112(f)(2) of the CAA, we prepared a risk assessment for each of the eight source categories addressed in this action to determine the residual risk posed after implementation of the respective NESHAP. To evaluate the residual risk for each source category, EPA conducted an inhalation risk assessment  3 that provided estimates of MIR, cancer risk distribution within the exposed populations, cancer incidence, hazard indices (HI) for chronic exposures to HAP with non-cancer health effects, and hazard quotients (HQ) for acute exposures to HAP with non-cancer health effects. The risk assessment consisted of six primary activities: (1) Establishing the nature and magnitude of emissions from the sources of interest, (2) identifying the emissions release characteristics (e.g., stack parameters), (3) conducting dispersion modeling to estimate the concentrations of HAP in ambient air, (4) estimating long-term and short-term inhalation exposures to individuals residing within 50 km of the modeled sources, (5) estimating individual and population-level risks using the exposure estimates and quantitative dose-response information, and (6) characterizing risk. In general, the risk assessment followed a tiered, iterative approach, beginning with a conservative (worst case) screening-level analysis and, where the screening analysis indicated the potential for non-negligible risks, following that with more refined analyses.

The Federal Emergency Management Agency (FEMA) makes the final determinations listed below of the modified BFEs for each community listed. These modified BFEs have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Mitigation Division Director of FEMA resolved any appeals resulting from this notification.

The modified BFEs are not listed for each community in this notice. However, this final rule includes the address of the Chief Executive Officer of the community where the modified BFEs determinations are available for inspection.

The modified BFEs are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq. , and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified BFEs are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities.

These modified BFEs are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings. The changes in BFEs are in accordance with 44 CFR 65.4.

National Environmental Policy Act. This final rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This final rule involves no policies that have federalism implications under Executive Order 13132, Federalism.

Executive Order 12988, Civil Justice Reform. This final rule meets the applicable standards of Executive Order 12988.

The modified BFEs are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection is provided.

Any request for reconsideration must be based on knowledge of changed conditions or new scientific or technical data.

The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq. , and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified BFEs are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by the other Federal, State, or regional entities. The changed BFEs are in accordance with 44 CFR 65.4.

National Environmental Policy Act. This interim rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Regulatory Classification. This interim rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This interim rule involves no policies that have federalism implications under Executive Order 13132, Federalism.

Executive Order 12988, Civil Justice Reform. This interim rule meets the applicable standards of Executive Order 12988.

The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Assistant Administrator of the Mitigation Directorate has resolved any appeals resulting from this notification.

This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community.

The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.

National Environmental Policy Act. This final rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This final rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This final rule meets the applicable standards of Executive Order 12988.

As published, the amendatory instruction for 46 CFR 56.30-10 was incorrect and could not be given effect in the Code of Federal Regulations.

On May 15, 2008, we published the final rule to list the polar bear as a threatened species (73 FR 28212) under the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq. ). Additional information regarding previous Federal actions for the polar bear can be found in the combined 12-month petition finding and proposed listing rule (72 FR 1064; January 9, 2007) or by consulting the species' regulatory profile found at: http://ecos.fws.gov/speciesProfile/SpeciesReport.do?spcode=A0IJ .

Concurrent with the listing rule, we issued an interim final special rule (73 FR 28306; May 15, 2008). In the interim final rule, we opened a 60-day public comment period for all interested parties to submit comments that might contribute to the development of the final determination on the special rule. The interim rule with applicable modifications is finalized with the publication of this final special rule.

In the United States, the polar bear is protected and managed under three laws: the ESA, the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361 et seq. ), and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES; 27 U.S.T. 1087). A brief description of these laws, as they apply to polar bear conservation, is provided below.

The purposes of the ESA are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth in the ESA. The ESA is implemented through regulations found in the Code of Federal Regulations (CFR). When a species is listed as endangered, certain actions are prohibited under section 9 of the ESA, as specified in § 17.21 of title 50 of the Code of Federal Regulations (50 CFR). These include, among others, take within the United States, within the territorial seas of the United States, or upon the high seas; import; export; and shipment in interstate or foreign commerce in the course of a commercial activity. Additionally, the consultation process under section 7 of the ESA requires that Federal agencies ensure actions they authorize, fund, permit, or carry out are not likely to jeopardize the continued existence of any endangered or threatened species.

The ESA does not specify particular prohibitions and exemptions to those prohibitions for threatened species. Instead, under section 4(d) of the ESA, the Secretary of the Interior (Secretary) was given the discretion to specify the prohibitions and any exceptions to those prohibitions that are appropriate for the species, provided that those prohibitions and exceptions are necessary and advisable to provide for the conservation of the species. Exercising this discretion, the Service has developed general prohibitions (50 CFR 17.31) and exceptions to those prohibitions (50 CFR 17.32) under the ESA (i.e., provisions) that apply to most threatened species. Under § 17.32, permits may be issued to allow persons to engage in otherwise prohibited acts.

Alternately, for other threatened species we develop specific prohibitions and exceptions that are tailored to the specific conservation needs of the species. In such cases, some of the prohibitions and authorizations under 50 CFR 17.31 and 17.32 may be appropriate for the species and incorporated into the special rule under section 4(d) of the ESA, but the special rule will also include provisions that are tailored to the specific conservation needs of the threatened species and which may be more or less restrictive than the general provisions at 50 CFR 17.31.

The MMPA was enacted to protect and conserve marine mammal species or population stocks of those species so that they continue to be significant functioning elements in the ecosystem of which they are a part. Consistent with this objective, management should have a goal to maintain or return marine mammals to their optimum sustainable population. The MMPA provides a moratorium on the taking and importation of marine mammals and their products, unless exempted or authorized under the MMPA. Prohibitions also restrict:

• Take of marine mammals on the high seas;

• Take of any marine mammal in waters or on lands under the jurisdiction of the United States;

• Use of any port, harbor, or other place under the jurisdiction of the United States to take or import a marine mammal;

• Possession of any marine mammal or product taken in violation of the MMPA;

• Transport, purchase, sale, export, or offer to purchase, sell, or export any marine mammal or product taken in violation of the MMPA or for any purpose other than public display, scientific research, or enhancing the survival of the species or stock; and

• Import of certain categories of animals.

Signed in 1973, CITES protects species at risk from international trade and is implemented by more than 170 countries, including the United States. The CITES regulates commercial and noncommercial international trade in selected animals and plants, including parts and items made from the species, through a system of permits. Under CITES, a species is listed at one of three levels of protection, each of which have different document requirements. Appendix I species are threatened with extinction and are or may be affected by trade; CITES directs its most stringent controls at activities involving these species. Appendix II species are not necessarily threatened with extinction now, but may become so if not regulated. Appendix III species are listed by a range country to obtain international cooperation in regulating and monitoring international trade. Polar bears were listed in Appendix II of CITES on July 7, 1975. Trade in CITES species is prohibited unless exempted or accompanied by the required CITES documents, and CITES documents cannot be issued until specific conservation and legal findings have been made. The CITES does not itself regulate take or domestic trade of polar bears; however, it contributes to the conservation of the species by monitoring international trade in polar bears and polar bear parts or products.

We assessed the conservation needs of the polar bear in light of the extensive protections already provided to the species under the MMPA and CITES. This final special rule, in most instances, synchronizes the management of the polar bear under the ESA with management provisions under the MMPA and CITES. A special rule under section 4(d) of the ESA can only specify ESA prohibitions and available authorizations for this species. All other applicable provisions of the ESA and other statutes such as the MMPA and CITES are unaffected by this special rule.

Under this final special rule, if an activity is authorized or exempted under the MMPA or CITES, we will not require any additional authorization under the ESA regulations associated with that activity. However, if the activity is not authorized or exempted under the MMPA or CITES and the activity would result in an act that would be otherwise prohibited under the ESA regulations at 50 CFR 17.31, the prohibitions of § 17.31 apply, and permits would be required under 50 CFR 17.32 of our ESA regulations. The special rule further provides that any incidental take of polar bears that results from activities that occur outside of the current range of the species is not a prohibited act under the ESA.

Finally, the special rule does not remove or alter in any way the consultation requirements under section 7 of the ESA.

This rulemaking revises our May 15, 2008, special rule at 50 CFR 17.40 that, in most instances, adopts the conservation provisions of the MMPA and CITES as the appropriate regulatory provisions for this threatened species. These MMPA and CITES provisions regulate incidental take, non-incidental take (including take for self-defense or welfare of the animal), import, export, transport, purchase and sale or offer for sale or purchase, pre-Act specimens, and subsistence handicraft trade and cultural exchanges. The special rule further provides that any incidental take of polar bears that results from activities that occur outside of the current range of the species is not a prohibited act under the ESA. Finally, we have also clarified the operation of the consultation process under section 7 of the ESA and how it will continue to contribute to the conservation of the polar bears.

In the following sections, we provide explanation of how the various provisions of the ESA, MMPA, and CITES interrelate and how the regulatory provisions of this special rule are deemed necessary and advisable to provide for the conservation of the polar bear.

Take of protected species is prohibited under both the ESA and MMPA; however, the definition of “take” differs somewhat between the two Acts. Take is defined in the ESA as meaning to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or attempt to engage in any such conduct. The MMPA defines take as meaning to harass, hunt, capture, or kill, or to attempt to harass, hunt, capture, or kill any marine mammal. A number of terms appear in both definitions; however, the terms harm, pursue, shoot, wound, trap, and collect are included in the ESA definition but not in the MMPA definition. Nonetheless, the ESA prohibitions on pursue, shoot, wound, trap, and collect are covered within the scope of the MMPA definition. A person who pursues, shoots, wounds, traps, or collects an animal, or attempts to do any of these acts, has harassed (which includes injury), hunted, captured, or killed—or attempted to harass, hunt, capture, or kill—the animal in violation of the MMPA.

The term “harm” is also included in the ESA definition, but is less obviously related to take under the MMPA definition. Under our ESA regulations, harm is defined at 50 CFR 17.3 as “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.” While the term harm in the take definition addresses negative effects through habitat modifications, it requires evidence that the habitat modification or degradation will result in specific effects on identifiable wildlife: Actual death or injury. As noted by Supreme Court Justice O'Connor in her concurrence in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon , 515 U.S. 687 (1995), application of the definition requires actual, as opposed to hypothetical or speculative, death or injury to identifiable animals. Thus, the definition of harm under the ESA requires demonstrable effect ( i.e. , actual injury or death) on actual, individual members of the species.

The term “harass” is also defined in the MMPA and our ESA regulations. Under our ESA regulations, harass refers to an “intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering.” With the exception of the activities mentioned below, harassment under the MMPA means any act of pursuit, torment, or annoyance that “has the potential to injure a marine mammal or marine mammal stock in the wild” (Level A harassment), or “has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering” (Level B harassment).

Section 319 of the National Defense Authorization Act for Fiscal Year 2004 (NDAA; Pub. L. 108-136) revised the definition of harassment under section 3(18) of the MMPA as it applies to military readiness or scientific research conducted by or on behalf of the Federal Government. Section 319 defined harassment for these purposes as “(i) any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild; or (ii) any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered.”

In most cases, the definitions of “harassment” under the MMPA encompass more activities than the same term under the Service's ESA regulations. While the statutory definition of harassment under the MMPA that applies to all activities other than military readiness and scientific research conducted by or on behalf of the Federal Government includes any act of pursuit, torment, or annoyance that has the “potential to injure” or the “potential to disturb” marine mammals in the wild by causing disruption of key behavioral patterns, the Service's ESA definition of harassment applies only to an act or omission that creates the “likelihood of injury” by annoying the wildlife to such an extent as to significantly disrupt key behavioral patterns. Even the more narrow definition of harassment for military readiness activities or research by or on behalf of the Federal Government includes an act that injures or has “the significant potential to injure” or an act that disturbs or is “likely to disturb,” compared to the “likelihood of injury” standard under the ESA. The potential to injure or disturb is a stricter standard than the likelihood of injury. The one area where the ESA definition is broader than the MMPA definition is that the ESA definition includes acts or omissions whereas the MMPA definition includes only acts. However, we cannot foresee circumstances under which the management of polar bears would differ due to this difference in the two definitions.

In addition, although the ESA includes “harm” in the definition of take and the MMPA does not, the differing definitions of take do not result in a difference in management of polar bears. As discussed earlier, application of the harm definition requires evidence of demonstrable injury or death to actual, individual polar bears. The breadth of the MMPA harassment definition requires only potential injury or potential disturbance, or, in the case of military readiness activities, likely disturbance causing disruption of key behavioral patterns. Thus, the evidence required for harm under the ESA would provide the evidence to show potential injury or potential or likely disturbance that causes disruption of key behavioral patterns under the MMPA.

In summary, the definitions of take under the MMPA and ESA differ in terminology; however, they are similar in application. We find the definitions of take under the Acts to be comparable and where they differ, due to the breadth of the MMPA's definitions of harassment, the MMPA definitions of take are, overall, more protective. Therefore managing polar bears under the MMPA definition provides for the conservation of polar bears. Where a person or entity does not have authorization for an activity that causes take under the MMPA, or is not in compliance with their MMPA take authorization, the definition of take under the ESA will be applied.

The take restrictions under the MMPA and those typically provided for threatened species under the ESA through our regulations at 50 CFR 17.31 or a special rule under section 4(d) of the ESA also apply to incidental take. Take restrictions under both Acts have the same geographic scope. Incidental take refers to the take of a protected species that is incidental to, but not the purpose of, an otherwise lawful activity. This special rule under section 4(d) of the ESA aligns the ESA incidental take provisions for polar bears with the incidental take provisions of the MMPA and its implementing regulations as those necessary and advisable to provide for the conservation of the species.

Section 7(a)(2) of the ESA requires Federal agencies to ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of designated critical habitat. Regulations that implement section 7(a)(2) of the ESA (50 CFR part 402) define “jeopardize the continued existence of” as to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.

If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with the Service, subject to the exceptions set out in 50 CFR 402.14(b) and the provisions of 402.03. It is through the consultation process under section 7 of the ESA that incidental take is identified and Federal agencies receive authorization for incidental take. The section 7 consultation requirements also apply to the Service and require that we consult with ourselves to ensure actions we authorize, fund, or carry out are not likely to result in jeopardy to the species. This type of consultation, known as intra-Service consultation, would, for example, be applied to the Service's issuance of authorizations under the MMPA and ESA. Further, regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law). These requirements under the ESA remain unchanged under this rule regardless of whether the action occurs inside or outside the current range of the polar bear. This special rule does not negate the need for a Federal action agency to consult with the Service to ensure that any action being authorized, funded, or carried out is not likely to jeopardize the continued existence of the polar bear. Further, in the event critical habitat is designated for the polar bear in the future, nothing in this special rule affects the prohibition against destruction or adverse modification of any critical habitat through a Federal action, and Federal agencies would be required to consider the destruction or adverse modification standard in the consultation process under section 7 of the ESA.

As a result of consultation, we document compliance with the requirements of section 7(a)(2) of the ESA through our issuance of a concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat, or issuance of a biological opinion for Federal actions that may adversely affect listed species or critical habitat. In those cases where the Service determines an action that is likely to adversely affect polar bears will not likely result in jeopardy but is anticipated to result in incidental take, the biological opinion will describe the amount and nature of incidental take that is reasonably certain to occur. Under section 7(b)(4) of the ESA, an incidental take statement for a marine mammal such as the polar bear cannot be issued until the applicant has received incidental take authorization under the MMPA. If such authorization is in place, the Service will also issue a statement that specifies the amount or extent of such take; any reasonable and prudent measures considered appropriate to minimize such effects; terms and conditions to implement the measures necessary to minimize effects; and procedures for handling any animals actually taken. Nothing in this special rule affects the issuance or contents of the biological opinions for polar bears or the issuance of an incidental take statement, although incidental take resulting from activities that occur outside of the current range of the polar bear is not subject to the taking prohibition of the ESA.

The regulations at 50 CFR 17.32(b) provide a mechanism for non-Federal parties to obtain authorization for the incidental take of threatened wildlife. This process requires that an applicant specify effects to the species and steps to minimize and mitigate such effects. If the Service determines that the mitigation measures will minimize effects of any potential incidental take, and that take will not appreciably reduce the likelihood of survival and recovery of the species, we may grant incidental take authorization. This authorization would include terms and conditions deemed necessary or appropriate to insure minimization of take, as well as monitoring and reporting requirements. Incidental take restrictions both inside and outside the current range of the polar bear under this special rule are described below.

Under this special rule, if incidental take has been authorized under section 101(a)(5) of the MMPA for take of a polar bear by commercial fisheries, or by the issuance of an Incidental Harassment Authorization (IHA) or through incidental take regulations for all other activities, we will not require an additional incidental take permit under the ESA issued in accordance with 50 CFR 17.32(b) for non-Federal parties since we have determined that the MMPA restrictions are more protective or as protective as permits issued under 50 CFR 17.32(b). In addition, while an incidental take statement under section 7 of the ESA will be issued, any take will be covered through the MMPA authorization. However, any incidental take that does occur from activities within the current range of the polar bear that has not been authorized under the MMPA, or is not in compliance with the MMPA authorization, remains prohibited under 50 CFR 17.31 and subject to full penalties under both the ESA and MMPA. Further, the ESA's citizen suit provision is unaffected by this special rule anywhere within the current range of the species. Any person or entity that is allegedly causing the incidental take of polar bears as a result of activities within the range of the species without appropriate MMPA authorization can be challenged through this provision as that would be a violation of 50 CFR 17.31. The ESA citizen suit provision also remains available for alleged failure to consult under section 7 of the ESA regardless of whether the agency action occurs inside or outside the current range of the polar bear.

Sections 101(a)(5)(A) and (D) of the MMPA give the Service the authority to allow the incidental, but not intentional, taking of small numbers of marine mammals, in response to requests by U.S. citizens (as defined in 50 CFR 18.27(c)) engaged in a specified activity (other than commercial fishing) in a specified geographic region. Incidental take cannot be authorized under the MMPA unless the Service finds that the total of such taking will have no more than a negligible impact on the species or stock.

If any take that is likely to occur will be limited to nonlethal harassment of the species, the Service may issue an Incidental Harassment Authorization (IHA) under section 101(a)(5)(D) of the MMPA. The IHAs cannot be issued for a period longer than 1 year. If the taking may result in more than harassment, regulations under section 101(a)(5)(A) of the MMPA must be issued, which may be in place for no longer than 5 years. Once regulations making the required findings are in place, we issue Letters of Authorization (LOAs) that authorize the incidental take for specific projects that fall under the provisions covered in the regulations. The LOAs expire after 1 year and contain activity-specific monitoring and mitigation measures that ensure that any take remains at the negligible level. In either case, the IHA or the regulations must set forth: (1) Permissible methods of taking; (2) means of effecting the least practicable adverse impact on the species and their habitat and on the availability of the species for subsistence uses; and (3) requirements for monitoring and reporting.

While a determination of negligible impact is made at the time the regulations are issued based on the best information available, each request for an LOA is also evaluated to ensure it is consistent with this determination. The evaluation consists of the type and scope of the individual project and an analysis of all current species information, including the required monitoring reports from previously issued LOAs, and considers the effects of the individual project when added to all current LOAs in the geographic area. Through these means, the type and level of take of polar bears is continuously evaluated throughout the life of the regulations in order to ensure that any take remains at the level of negligible impact.

Incidental take of threatened or endangered marine mammals, such as the polar bear, that results from commercial fishery operations is regulated separately under the MMPA through sections 101(a)(5)(E) and 118. Section 101(a)(5)(E) requires that for marine mammals from a species or stock designated as depleted because of its listing as an endangered or threatened species under the ESA, a finding must be made that any incidental mortality or serious injury from commercial fisheries will have a negligible impact on such species or stock. In essence, section 101(a)(5)(E) applies the same “negligible impact” standard to the authorization of incidental take due to commercial fishery activities that is applied to incidental take from other activities. In addition, an ESA recovery plan must be developed, unless otherwise excepted, and all requirements of MMPA section 118 must be met. These authorizations may be in place for no longer than 3 years, when new findings must be made.

Negligible impact under the MMPA, as defined at 50 CFR 18.27(c), is an impact that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival. This is a more protective standard than standards for issuing incidental take under the ESA, which are: (1) For non-Federal actions, that the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild; and, (2) for Federal actions, that the activity is not likely to jeopardize the continued existence of the species. In addition, the authorizations under the MMPA are limited to 3 years for commercial fisheries authorizations, 1 year for IHAs, and 5 years for incidental take regulations, thus ensuring that activities that are likely to cause incidental take of polar bears are periodically reviewed and mitigation measures that ensure that take remains at the negligible level can be updated. Incidental take permits and statements under the ESA have no such statutory time limits. Incidental take statements remain in effect for the life of the Federal action, unless reinitiation of consultation is triggered. Incidental take permits for non-Federal activities can be for various durations ( see 50 CFR 17.32(b)(4)), with some permits valid for up to 50 years. Therefore, the incidental take standards under the MMPA because of their stricter standards and mandatory periodic re-evaluation, provide a greater level of protection for the polar bear than adoption of the standards under the ESA at 50 CFR 17.31 and 17.32. As such, this special rule adopts the MMPA standards for authorizing Federal and non-Federal incidental take as necessary and advisable to provide for the conservation of the polar bear.

As stated above, when the Service issues authorizations for otherwise prohibited incidental take under the MMPA, we must determine that those activities will result in no more than a negligible impact on the species or stock. The distinction of conducting the analysis at the species or stock level may be an important one in some cases. Under the ESA, the “jeopardy” standard, for Federal incidental take, and “appreciably reduce the likelihood of survival and recovery” standard, for non-Federal take, are always applied to the listed entity (i.e., the listed species, subspecies, or distinct population segment). The Service is not given the discretion under the ESA to assess “jeopardy” and “appreciably reduce the likelihood of survival and recovery” at a smaller scale (e.g., stock) unless the listed entity is in fact smaller than the entire species or subspecies (e.g., a discrete population segment). Therefore, because avoiding greater than negligible impact to a stock is tighter than avoiding greater than negligible impact to an entire species, the MMPA may be much more protective than the ESA for activities that occur only within one stock of a listed species. In the case of the polar bear, it is listed as a threatened species throughout its range under the ESA, while multiple stocks are recognized under the MMPA. Therefore, a variety of activities that may impact polar bears will be assessed at a finer scale under the MMPA than they would have been otherwise under the ESA.

In addition, during the process of authorizing any MMPA incidental take under section 101(a)(5), we must conduct an intra-Service consultation under section 7(a)(2) of the ESA to ensure that providing an MMPA incidental take authorization to an applicant is an act that is not likely to jeopardize the continued existence of the polar bear. Since the standard for approval under MMPA section 101(a)(5) is no more than “negligible impact” to the affected marine mammal species or stock, we believe that any MMPA-compliant authorization or regulation would meet the ESA section 7(a)(2) standards of avoiding jeopardy to the species. Under this special rule, any incidental take that could not be authorized under section 101(a)(5) of the MMPA would remain subject to the prohibitions of 50 CFR 17.31.

To the extent that any Federal actions are found to comport with the standards for MMPA incidental take authorization, we fully anticipate that any such section 7 consultation under the ESA would result in a finding that the proposed action is not likely to jeopardize the continued existence of the polar bear. In addition, we anticipate that any such proposed actions would augment protection and enhance agency management of the polar bear through the application of site-specific mitigation measures contained in an authorization issued under the MMPA. Therefore, we do not anticipate, in light of the ESA jeopardy standard and the maximum duration of these MMPA authorizations that there could be a conservation basis for requiring any entity holding incidental take authorization under the MMPA and in compliance with all measures under that authorization (e.g., mitigation) to implement further measures under the ESA section 7 process, as long as the action does not go beyond the scope and duration of the MMPA take authorization.

For example, affiliates of the oil and gas industry have requested, and we have issued regulations since 1991 for, incidental take authorization for activities in occupied polar bear habitat. This includes regulations issued for incidental take in the Beaufort Sea from 1993 to the present, and regulations issued for incidental take in the Chukchi Sea for the period 1991-1996 and, more recently, regulations for similar activities and potential incidental take in the Chukchi Sea for the period 2008-2013. A detailed history of our past regulations for the Beaufort Sea region can be found in the final regulations published on November 28, 2003 (68 FR 66744), August 2, 2006 (71 FR 43926), and June 11, 2008 (73 FR 33212).

The mitigation measures that we have required for all oil and gas projects include a site-specific plan of operation and a site-specific polar bear interaction plan. Site-specific plans outline the steps the applicant will take to minimize effects on polar bears, such as garbage disposal and snow management procedures to reduce the attraction of polar bears, an outlined chain-of-command for responding to any polar bear sighting, and polar bear awareness training for employees. The training program is designed to educate field personnel about the dangers of bear encounters and to implement safety procedures in the event of a bear sighting. Most often, the appropriate response involves merely monitoring the animal's activities until they move out of the area. However, personnel may be instructed to leave an area where bears are seen. When necessary, and under specific authorization separate from the incidental take authorization, bears can be displaced by using forms of deterrents, such as vehicles, vehicle horns, vehicle sirens, vehicle lights, spot lights, or, if necessary, pyrotechnics (e.g., cracker shells). The intent of the interaction plan and training activities is to allow for the early detection and appropriate response to polar bears that may be encountered during operations, which eliminates the potential for injury or lethal take of bears in defense of human life. By requiring such steps be taken, we ensure that any impacts to polar bears will be minimized and will remain negligible.

Additional mitigation measures are also required on a case-by-case basis depending on the location, timing, and specific activity. For example, we may require trained marine mammal observers for offshore activities; pre-activity surveys (e.g., aerial surveys, infra-red thermal aerial surveys, or polar bear scent-trained dogs) to determine the presence or absence of dens or denning activity; measures to protect pregnant polar bears during denning activities (den selection, birthing, and maturation of cubs), including incorporation of a 1-mile (1.6-kilometer) buffer surrounding known dens; and enhanced monitoring or flight restrictions. These mitigation measures are implemented to limit human-bear interactions and disturbances to bears and have ensured that industry effects on polar bears have remained at the negligible level.

Data provided by the required monitoring and reporting programs in the Beaufort Sea and in the Chukchi Sea show that mitigation measures successfully minimized effects on polar bears. For example, since 1991, when the incidental take regulations became effective in the Chukchi and Beaufort Seas, there has been no known instance of a polar bear being killed or of personnel being injured by a bear as a result of oil and gas industry activities in the areas covered by the incidental take regulations.

This special rule includes a separate provision (paragraph (4)) that addresses take under the ESA that is incidental to an otherwise lawful activity that occurs outside the current range of the polar bear. Under paragraph (4), incidental take of polar bears that results from activities that occur outside of the current range of the species is not subject to the prohibitions found at 50 CFR 17.31. This provision has been modified from the version of paragraph (4) that appeared in the interim final rule to more precisely delineate where the ESA prohibition against incidental take is necessary and advisable to provide for the conservation of the polar bear.

Under paragraph (4), any incidental take that results from activities within the current range of the polar bear remains subject to the prohibitions found at 50 CFR 17.31, although, as explained in the previous section, any such incidental take that has already been authorized under the MMPA will not require additional ESA authorization.

Any incidental take of a polar bear caused by an activity that occurs outside of the current range of the species, however, would not be a prohibited act under the ESA, regardless of whether a causal connection has been made between the conduct of the activity and effects on the species. But nothing in paragraph (4) modifies the prohibitions against taking, including incidental taking, under the MMPA, which continue to apply regardless of where the activity occurs. If it is shown that a particular activity conducted outside the current range of the species is reasonably likely to cause the incidental taking of a polar bear, whether lethal or nonlethal, any incidental take that occurs is a violation of the MMPA unless authorization for the take under the MMPA has been issued by the Service.

Any incidental take caused by an activity outside the current range of the polar bear and covered by the MMPA would be a violation of that law and subject to the full array of the statute's civil and criminal penalties unless it was authorized. Any person, which includes businesses, States, and Federal agencies as well as individuals, who violates the MMPA's takings prohibition or any regulation may be assessed a civil penalty of up to $10,000 for each violation. A person or entity that knowingly violates the MMPA's takings prohibition or any regulation will, upon conviction, be fined for each violation, imprisoned for up to 1 year, or both. Please refer to the “Penalties” discussion below for additional discussion of the penalties under the ESA and the MMPA.

Any individual, business, State government, or Federal agency subject to the jurisdiction of the United States that is likely to cause the incidental taking of a polar bear under the MMPA, regardless of the location of their activity, must therefore seek incidental take authorization under the MMPA or risk such civil or criminal penalties. As explained earlier, while the Service will work with any person or entity that seeks incidental take authorization, such authorization can only be granted if any take that is likely to occur will have no more than a negligible impact on the species. If the negligible impact standard cannot be met, the person or entity will have to modify their activities to meet the standard, modify their activities to avoid the taking altogether, or risk civil or criminal penalties.

In addition, nothing in paragraph (4) of this final rule affects section 7 consultation requirements outside the current range of the polar bear. Any Federal agency that intends to engage in an agency action that “may affect” polar bears must comply with 50 CFR part 402, regardless of the location of the agency action. This includes, but is not limited to, intra-Service consultation on any MMPA incidental take authorization proposed for activities located outside the current range. Paragraph (4) does not affect in any way the standards for issuing a biological opinion at the end of that consultation or the contents of the biological opinion, including an assessment of the nature and amount of take that is likely to occur. An incidental take statement would also be issued under any opinion where the Service finds that the agency action and the incidental taking are not likely to jeopardize the continued existence of the species or result in the destruction or adverse modification of any polar bear critical habitat that may be designated, provided that the incidental taking has already been authorized under the MMPA, as required under section 7(b)(4) of the ESA. The Service will, however, inform the Federal agency and any applicants in the biological opinion and any incidental take statement that the take identified in the biological opinion and the statement is not a prohibited act under the ESA, although any incidental take that actually occurs and that has not been authorized under the MMPA would remain a violation of the MMPA.

One difference between the MMPA and the ESA is the applicability of the ESA citizen suit provision. Under section 11 of the ESA, any person may commence a civil suit against a person, business entity, State government, or Federal agency that is allegedly in violation of the ESA. Such lawsuits have been brought by private citizens and citizen groups where it is alleged that a person or entity is taking a listed species in violation of the ESA. The MMPA does not have a similar provision. So while any unauthorized incidental take caused by an activity outside the current range of the polar bear would be a violation of the MMPA, legal action against the person or entity causing the take could only be brought by the United States and not by a private citizen or citizen group. However, operation of the citizen suit provision remains unaffected for any restricted act other than incidental take, such as non-incidental take, import, export, sale, and transport, regardless of whether the activity occurs outside the current range of the polar bear. Further, the ESA's citizen suit provision is unaffected by this special rule when the activity causing incidental take is anywhere within the current range of the species. Any person or entity that is allegedly causing the incidental take of polar bears as a result of activities within the range of the species without appropriate MMPA authorization can be challenged through the citizen suit provision as that would be a violation of the ESA implementing regulations at 50 CFR 17.31. The ESA citizen suit provision also remains available for alleged failure to consult under section 7 of the ESA regardless of whether the agency action occurs inside or outside the current range of the polar bear. Further, any incidental taking caused by an activity outside the current range of the polar bear that is connected, either directly or in certain instances indirectly, to an action by a Federal agency could be pursued under the Administrative Procedure Act of 1946 (5 U.S.C. 706), which allows challenges to final agency actions.

When setting restrictions for threatened species, the Service has generally adopted prohibitions on their import; export; take; transport in interstate or foreign commerce in the course of a commercial activity; sale or offer for sale in interstate or foreign commerce; and possession, sale, delivery, carrying, transportation, or shipping of unlawfully taken species, either through a special rule or through the provisions of 50 CFR 17.31. For the polar bear, these same activities are already strictly regulated under the MMPA. Section 101 of the MMPA provides a moratorium on the taking and importation of marine mammals and their products. Section 102 of the MMPA further prohibits activities unless exempted or authorized under subsequent sections.

Prohibitions in section 102(a) include take of any marine mammal on the high seas; take of any marine mammal in waters or on lands under the jurisdiction of the United States; use of any port, harbor, or other place under the jurisdiction of the United States to take or import a marine mammal; possession of any marine mammal or product taken in violation of the MMPA; and transport, purchase, sale, export, or offer to purchase, sell, or export any marine mammal or product taken in violation of the MMPA or for any purpose other than public display, scientific research, or enhancing the survival of the species or stock. Under sections 102(b) and (c) of the MMPA, it is unlawful to import a pregnant or nursing marine mammal; an individual taken from a depleted species or population stock; an individual taken in a manner deemed inhumane; any marine mammal taken in violation of the MMPA or in violation of the law of another country; or any marine mammal product if it was made from any marine mammal taken in violation of the MMPA or in violation of the law of another country, or if it was illegal to sell in the country of origin.

The MMPA then provides specific exceptions to these prohibitions under which certain acts are allowed only if all statutory requirements are met. Under section 104 of the MMPA, these otherwise prohibited activities may be authorized for purposes of public display (section 104(c)(2)), scientific research (section 104(c)(3)), enhancing the survival or recovery of a species (section 104(c)(4)), or photography (where there is level B harassment only; section 104(c)(6)). In addition, section 104(c)(8) specifically addresses the possession, sale, purchase, transport, export, or offer for sale of the progeny of any marine mammal taken or imported under section 104, and section 104(c)(9) sets strict standards for the export of any marine mammal from the United States. In all of these sections of the MMPA, strict criteria have been established to ensure that the impact of an authorized activity, if a permit were to be issued, would successfully meet Congress's finding in the MMPA that species “should not be permitted to diminish beyond the point at which they cease to be a significant functioning element in the ecosystem of which they are a part.”

Under the general threatened species regulations at 50 CFR 17.31 and 17.32, authorizations are available for a wider range of activities than under the MMPA, including permits for any special purpose consistent with the ESA. In addition, for those activities that are available under both the MMPA and the general threatened species regulations, the MMPA issuance criteria are often more strict. For example, in order to issue a permit under the general threatened species regulations at 50 CFR 17.32, the Service must consider, among other things:

(1) Whether the purpose for which the permit is required is adequate to justify removing from the wild or otherwise changing the status of the wildlife sought to be covered by the permit;

(2) The probable direct and indirect effect which issuing the permit would have on the wild populations of the wildlife;

(3) Whether the permit would in any way directly or indirectly conflict with any known program intended to enhance the survival probabilities of the population; and

(4) Whether the activities would be likely to reduce the threat of extinction facing the species of wildlife.

These are all “considerations” during the process of evaluating an application, but none set a standard that requires denial of the permit under any particular set of facts. However, in order to obtain an enhancement permit under the MMPA, the Service must find that any taking or importation: (1) Is likely to contribute significantly to maintaining or increasing distribution or numbers necessary to ensure the survival or recovery of the species or stock, and (2) is consistent with any conservation plan or ESA recovery plan for the species or stock or, if no conservation or ESA recovery plan is in place, with the Service's evaluation of actions required to enhance the survival or recovery of the species or stock in light of factors that would be addressed in a conservation plan or ESA recovery plan. In order to issue a scientific research permit under the MMPA, in addition to meeting the requirements that the taking is required to further a bona fide scientific purpose, any lethal taking cannot be authorized unless a nonlethal method of conducting the research is not feasible. In addition, for depleted species such as the polar bear, permits shall not be issued for any lethal taking unless the results of the research will directly benefit the species, or fulfill a critically important research need.

Further, all permits issued under the MMPA must be consistent with the purposes and policies of the Act, which includes maintaining or returning marine mammals to their optimum sustainable population. Also, now that polar bears have depleted status under the MMPA, no MMPA permit may be issued for taking or importation for the purpose of public display, whereas § 17.32 allows issuance of permits for zoological exhibition and educational purposes. As the MMPA does not contain a provision similar to a special rule under section 4(d) of the ESA, the more restrictive requirements of the MMPA apply.

Thus, the existing statutory provisions of the MMPA allow fewer types of activities than does 50 CFR 17.32 for threatened species, and the MMPA's standards are generally stricter for those activities that are allowed than standards for comparable activities under 50 CFR 17.32. Because, for polar bears, an applicant must obtain authorization under the MMPA to engage in an act that would otherwise be prohibited, and because both the allowable types of activities and standards for those activities are generally stricter under the MMPA than the general standards under 50 CFR 17.32, we find that the MMPA provisions are necessary and advisable to provide for the conservation of the species and adopt these provisions as appropriate conservation protections under the ESA. Therefore, under this special rule, as long as an activity is authorized or exempted under the MMPA, and the appropriate requirements of the MMPA are met, then the activity does not require any additional authorization under the ESA. All authorizations issued under section 104 of the MMPA will continue to be subject to section 7 consultation requirements of the ESA.

In addition to the MMPA restrictions on import and export discussed above, CITES provisions that apply to the polar bear also ensure that import into or export from the United States is carefully regulated. Under CITES and the U.S. regulations that implement CITES at 50 CFR part 23, the United States is required to regulate and monitor the trade in legally possessed CITES specimens over an international border. Thus, for example, CITES would apply to tourists driving from Alaska through Canada with polar bear handicrafts to a destination elsewhere in the United States. As an Appendix II species, the export of any polar bear, either live or dead, and any polar bear parts or products requires an export permit supported by a finding that the specimen was legally acquired under international and domestic laws. Prior to issuance of the permit, the exporting country must also find that export will not be detrimental to the survival of the species. A valid export document issued by the exporting country must be presented to the officials of the importing country before the polar bear specimen will be cleared for importation.

Some limited exceptions to this permit requirement exist. For example, consistent with CITES, the United States provides an exemption from the permitting requirements for personal and household effects made of dead specimens. Personal and household effects must be personally owned for noncommercial purposes, and the quantity must be necessary or appropriate for the nature of the trip or stay or for household use. Not all CITES countries have adopted this exemption, so persons who may cross an international border with a polar bear specimen should check with the Service and the country of transit or destination in advance as to applicable requirements. Because for polar bears any person importing or exporting any live or dead animal, part, or product into or from the United States must comply with the strict provisions of CITES as well as the strict import and export provisions under the MMPA, we find that additional authorizations under the ESA to engage in these activities would not be necessary and advisable to provide for the conservation of the species. Thus, under this rule, if an import or export activity is authorized or exempted under the MMPA and the appropriate requirements under CITES have been met, no additional authorization under the ESA is required. All export authorizations issued by the Service under CITES will continue to be subject to the consultation requirements under section 7 of the ESA.

Both the MMPA and the ESA prohibit take of protected species. However, both statutes provide exceptions when the take is either exempted or can be authorized for self-defense or welfare of the animal.

In the interest of public safety, both the MMPA and the ESA include provisions to allow for take, including lethal take, when this take is necessary for self-defense or to protect another person. Section 101(c) of the MMPA states that it shall not be a violation to take a marine mammal if such taking is imminently necessary for self-defense or to save the life of another person who is in immediate danger. Any such incident must be reported to the Service within 48 hours of occurrence. Section 11(a)(3) of the ESA similarly provides that no civil penalty shall be imposed if it can be shown by a preponderance of the evidence that the defendant committed an otherwise prohibited act based on a good faith belief that he or she was protecting himself or herself, a member of his or her family, or any other individual from bodily harm. Section 11(b)(3) of the ESA provides that it shall be a defense to prosecution if the defendant committed an offense based on a good faith belief that he or she was protecting himself or herself, a member of his or her family, or any other individual from bodily harm. The ESA regulations in 50 CFR 17.21(c)(2), which reiterate that any person may take listed wildlife in defense of life, clarify this exemption. Reporting of the incident is required under 50 CFR 17.21(c)(4). Thus, the self-defense provisions of the ESA and MMPA are comparable. However, under this special rule, where unforeseen differences between these provisions may arise in the future, any activity that is authorized or exempted under the MMPA does not require additional authorization under the ESA.

Concerning take for defense of property and for the welfare of the animal, the provisions in the ESA and MMPA are not clearly comparable. The provisions provided under the ESA regulations at 50 CFR 17.21(c)(3) authorize any employee or agent of the Service, any other Federal land management agency, the National Marine Fisheries Service (NMFS), or a State conservation agency, who is designated by the agency for such purposes, to take listed wildlife when acting in the course of official duties if the action is necessary to: (i) Aid a sick, injured, or orphaned specimen; (ii) dispose of a dead specimen; (iii) salvage a dead specimen for scientific study; or (iv) remove a specimen that may constitute a threat to human safety, provided that the taking is humane or, if lethal take or injury is necessary, that there is no other reasonable possibility to eliminate the threat. Further, the ESA regulations at 50 CFR 17.31(b) allow any employee or agent of the Service, of NMFS, or of a State conservation agency which is operating a conservation program under the terms of a Cooperative Agreement with the Service in accord with section 6 of the ESA, when acting in the course of official duty, to take those species of threatened wildlife which are covered by an approved cooperative agreement to carry out conservation programs.

Provisions for similar activities are found under sections 101(a), 101(d), and 109(h) of the MMPA. Section 101(a)(4)(A) of the MMPA provides that a marine mammal may be deterred from damaging fishing gear or catch (by the owner or an agent or employee of the owner of that gear or catch), other private property (by the owner or an agent or employee of the owner of that property), and, if done by a government employee, public property so long as the deterrence measures do not result in death or serious injury of the marine mammal. This section also allows for any person to deter a marine mammal from endangering personal safety. Section 101(a)(4)(D) clarifies that this authority to deter marine mammals applies to depleted stocks, which would include the polar bear. The nonlethal deterrence of a polar bear from fishing gear or other property is not a provision that is included under the ESA; however, this provision would not result in injury to the bear or removal of the bear from the population and could, instead, prevent serious injury or death to the bear by preventing escalation of an incident to the point where the bear is killed in self-defense. Therefore, we find it necessary and advisable to continue to manage polar bears under this provision of the MMPA and, as such, an activity conducted pursuant to this provision under the MMPA does not require additional authorization under the ESA.

Section 101(d) of the MMPA provides that it is not a violation of the MMPA for any person to take a marine mammal if the taking is necessary to avoid serious injury, additional injury, or death to a marine mammal entangled in fishing gear or debris, and care is taken to prevent further injury and ensure safe release. The incident must be reported to the Service within 48 hours of occurrence. If entangled, the safe release of a polar bear from fishing gear or other debris could prevent further injury or death of the animal. Therefore, by adopting this provision of the MMPA, this special rule provides for the conservation of polar bears in the event of entanglement with fishing gear or other debris and could prevent further injury or death of the bear. The provisions under the ESA at 50 CFR 17.31 provide for similar activities; however, the ESA provision only applies to an employee or agent of the Service, any other Federal land management agency, NMFS, or a State conservation agency, who is designated by the agency for such purposes. The provisions under section 101(d) apply to any individual, including private individuals. Although the provisions under the MMPA are broader in this case, we find them necessary and advisable to provide for the conservation of the polar bear; therefore, an activity conducted pursuant to this provision of the MMPA does not require additional authorization under the ESA.

Further, section 109(h) of the MMPA allows the humane taking of a marine mammal by specific categories of people (i.e., Federal, State, or local government officials or employees or a person designated under section 112(c) of the MMPA) in the course of their official duties provided that one of three criteria is met—the taking is for: (1) The protection or welfare of the mammal; (2) the protection of the public health and welfare; or (3) the nonlethal removal of nuisance animals. The MMPA regulations at 50 CFR 18.22 provide the specific requirements of the exception. Section 112(c) of the MMPA allows the Service to enter into cooperative agreements with other Federal or State agencies and public or private institutions or other persons to carry out the purposes of section 109(h) of the MMPA. The ability to designate non-Federal, non-State “cooperators,” as allowed under sections 112(c) and 109(h) of the MMPA but not provided for under the ESA, has allowed the Service to work with private groups to retrieve carcasses, respond to injured animals, and provide care and maintenance for stranded or orphaned animals. This has provided benefits by drawing on the expertise and allowing the use of facilities of non-Federal and non-State scientists, aquaria, veterinarians, and other private entities. Additionally, the ability for non-Federal, non-State cooperators to haze polar bears from oil and gas facilities in Alaska has provided for the conservation of the polar bear by allowing nonlethal techniques to deter them from property and away from people before situations escalate, thereby preventing unnecessary injury to, or lethal take of, polar bears. Therefore, the adoption of these MMPA provisions is necessary and advisable to provide for the conservation of the polar bear.

The ESA, MMPA, and CITES all have provisions for the regulation of specimens, both live and dead, that were acquired or removed from the wild prior to application of the law or the listing of the species, but the laws treat these specimens somewhat differently. Section 9(b)(1) of the ESA provides an exemption for threatened species held in a controlled environment as of the date of publication of their listing provided that the holding and any subsequent holding or use is not in the course of a commercial activity. Additionally, section 10(h) of the ESA provides an exemption for certain antique articles. Polar bears held in captivity prior to the listing of the polar bear as a threatened species under the ESA and not used or subsequently held or used in the course of a commercial activity, and all items containing polar bear parts that qualify as antiques under the ESA, would qualify for these exemptions.

Section 102(e) of the MMPA contains a pre-MMPA exemption that provides that none of the restrictions shall apply to any marine mammal or marine mammal product composed from an animal taken prior to December 21, 1972. In addition, Article VII(2) of CITES provides a pre-Convention exception that exempts a pre-Convention specimen from standard permitting requirements in Articles III, IV, and V of CITES when the exporting or re-exporting country is satisfied that the specimen was acquired before the provisions of CITES applied to it and issues a CITES document to that effect (see 50 CFR 23.45). The special rule does not affect requirements under CITES, therefore, these specimens continue to require this pre-Convention documentation for any international movement. Pre-Convention certificates required by CITES and pre-MMPA affidavits and supporting documentation required under the Service's regulations at 50 CFR 18.14 ensure that trade in pre-MMPA and pre-Convention specimens meet the requirements of the exemptions.

This rule adopts the pre-Act provisions of the MMPA and CITES. The MMPA has been in force since 1972 and CITES since 1975. In that time, there has never been a conservation problem identified regarding pre-Act polar bear specimens. While under this special rule, polar bear specimens that were obtained prior to the date that the MMPA went into effect (December 21, 1972) are not subject to the same restrictions as other threatened species under the general regulations at §§ 17.31 and 17.32, the number of specimens and the nature of the activities to which these restrictions would apply is limited. There are very few live polar bears, either in a controlled environment within the United States or elsewhere, that would qualify as “pre-Act” under the MMPA. Therefore, the standard MMPA restrictions apply to virtually all live polar bears. Of the dead specimens that would qualify as “pre-Act” under the MMPA, very few of these specimens would likely be subject to activities due to the age and probable poor physical quality of these specimens. Furthermore, under CITES these specimens would continue to require documentation for any international movement, which would verify that the specimen was acquired before CITES went into effect in 1975 for polar bears. While the general ESA regulations would provide some additional restrictions, such activities have not been identified as a threat in any way to the polar bear. Thus, CITES and the MMPA provide appropriate protections that are necessary and advisable to provide for the conservation of the polar bear in this regard, and additional restrictions under the ESA are not necessary.

Section 10(e) of the ESA provides an exemption for Alaska Natives for the taking and importation of listed species if such taking is primarily for subsistence purposes. Nonedible by-products of species taken in accordance with the exemption, when made into authentic native articles of handicraft and clothing, may be transported, exchanged, or sold in interstate commerce. The ESA defines authentic native articles of handicraft and clothing as items composed wholly or in some significant respect of natural materials, and which are produced, decorated, or fashioned in the exercise of traditional native handicrafts without the use of pantographs, multiple carvers, or other mass copying devices (section 10(e)(3)(ii)). That definition also provides that traditional native handicrafts include, but are not limited to, weaving, carving, stitching, sewing, lacing, beading, drawing, and painting. Further details on what qualifies as authentic native articles of handicrafts and clothing are provided at 50 CFR 17.3. This exemption is similar to one in section 101(b) of the MMPA, which provides an exemption from the moratorium on take for subsistence harvest and the creation and sale of authentic native articles of handicrafts or clothing by Alaska Natives. The definition of authentic native articles of handicrafts and clothing in the MMPA is identical to the ESA definition, and our MMPA definition in our regulations at 50 CFR 18.3 is identical to the ESA definition at 50 CFR 17.3. Both statutes require that the taking may not be accomplished in a wasteful manner.

Under this special rule, any exempt activities under the MMPA associated with handicrafts or clothing or cultural exchange using subsistence-taken polar bears will not require additional authorization under the ESA, including the limited, noncommercial import and export of authentic native articles of handicrafts and clothing that are created from polar bears taken by Alaska Natives. Under this special rule, all such imports and exports involving polar bear parts and products will need to conform to what is currently allowed under the MMPA, comply with our import and export regulations found at 50 CFR parts 14 and 23, and be noncommercial in nature. The ESA regulations at 50 CFR 14.4 define commercial as related to the offering for sale or resale, purchase, trade, barter, or the actual or intended transfer in the pursuit of gain or profit, of any item of wildlife and includes the use of any wildlife article as an exhibit for the purpose of soliciting sales, without regard to the quantity or weight.

Another activity covered by the special rule is cultural exchange between Alaska Natives and Native inhabitants of Russia, Canada, and Greenland with whom Alaska Natives share a common heritage. The MMPA allows the import and export of marine mammal parts and products that are components of a cultural exchange, which is defined under the MMPA as the sharing or exchange of ideas, information, gifts, clothing, or handicrafts. Cultural exchange has been an important exemption for Alaska Natives under the MMPA, and this special rule ensures that such exchanges will not be interrupted.

This special rule also adopts the registered agent and tannery process from the current MMPA regulations. In order to assist Alaska Natives in the creation of authentic native articles of handicrafts and clothing, the Service's MMPA implementing regulations at 50 CFR 18.23(b) and (d) allow persons who are not Alaska Natives to register as an agent or tannery. Once registered, agents are authorized to receive or acquire marine mammal parts or products from Alaskan Natives or other registered agents. They are also authorized to transfer (not sell) hides to registered tanners for further processing. A registered tannery may receive untanned hides from Alaska Natives or registered agents for tanning and return. The tanned skins may then be made into authentic articles of clothing or handicrafts. Registered agents and tanneries must maintain strict inventory control and accounting methods for any marine mammal part, including skins; they provide accountings of such activities and inventories to the Service. These restrictions and requirements for agents and tanners allow the Service to monitor the processing of such items while ensuring that Alaska Natives can exercise their rights under the exemption. Adopting the registered agent and tannery process aligns ESA provisions relating to the creation of handicrafts and clothing by Alaska Natives with the current process under the MMPA and allows Alaska Natives to engage in the subsistence practices provided under the ESA's section 10(e) exemptions.

Nonetheless, the provisions in this special rule regarding creation, shipment, and sale of authentic native articles of handicrafts and clothing apply only to items to which the subsistence harvest exemption applies under the MMPA. The exemption in section 10(e)(1) of the ESA applies to “any Indian, Aleut, or Eskimo who is an Alaskan Native who resides in Alaska” but also applies to “any non-native permanent resident of an Alaskan native village.” However, the exemption under section 101 of the MMPA is limited to only an “Indian, Aleut, or Eskimo who resides in Alaska and who dwells on the coast of the North Pacific Ocean or the Arctic Ocean.” Because the MMPA is more restrictive, only a person who qualifies under the MMPA Alaska Native exemption may legally take polar bears for subsistence purposes, as a take by nonnative permanent residents of Alaska native villages under the broader ESA exemption is not allowed under the MMPA. Therefore, all persons, including those who qualify under the Alaska Native exemption of the ESA, should consult the MMPA and our regulations at 50 CFR part 18 before engaging in any activity that may result in a prohibited act to ensure that their activities will be consistent with both laws.

Although a few of these provisions of the MMPA may be less strict than the ESA provisions, these provisions are the appropriate regulatory mechanisms for the conservation of the polar bear. Both the ESA and the MMPA recognize the intrinsic role that marine mammals have played and continue to play in the subsistence, cultural, and economic lives of Alaska Natives. The Service, in turn, recognizes the important role that Alaska Natives play in the conservation of marine mammals. Amendments to the MMPA in 1994 acknowledged this role by authorizing the Service to enter into cooperative agreements with Alaska Natives for the conservation and co-management of subsistence use of marine mammals (section 119 of the MMPA). Through these cooperative agreements, the Service has worked with Alaska Native organizations to better understand the status and trends of polar bear throughout Alaska. For example, Alaska Natives collect and contribute biological specimens from subsistence-harvested animals for biological analysis. Analysis of these samples allows us to monitor the health and status of polar bear stocks.

Further, as discussed in our proposed and final rules to list the polar bear as a threatened species (72 FR 1064; January 9, 2007, and 73 FR 28212; May 15, 2008), the Service cooperates with the Alaska Nanuuq Commission, an Alaska Native organization that represents interests of Alaska Native villages whose members engage in the subsistence hunting of polar bears, to address polar bear subsistence harvest issues. In addition, for the Southern Beaufort Sea population, hunting is regulated voluntarily and effectively through an agreement between the Inuvialuit of Canada and the Inupiat of Alaska (implemented by the North Slope Borough) as well as being monitored by the Service's marking, tagging, and reporting program. In addition, in the Chukchi Sea, the Service will be working with Alaska Natives through the recently implemented Agreement between the United States of America and the Russian Federation on the Conservation and Management of the Alaska-Chukotka Polar Bear Population (Bilateral Agreement), under which one of two commissioners representing the United States will represent the Native people of Alaska and, in particular, the Native people for whom polar bears are an integral part of their culture. Thus, we recognize the unique contributions Alaska Natives provide to the Service's understanding of polar bears, and their interest in ensuring that polar bear stocks are conserved and managed to achieve and maintain healthy populations.

The Service recognizes the significant conservation benefits that Alaska Natives have already made to polar bears through the measures that they have voluntarily taken to self-regulate harvest that is otherwise exempt under the MMPA and the ESA and through their support of measures for regulation of harvest. This contribution has provided significant benefit to polar bears throughout Alaska, and will continue by maintaining and encouraging the involvement of the Alaska Native community in the conservation of the species. This special rule provides for the conservation of polar bears, while at the same time accommodating the subsistence, cultural, and economic interests of Alaska Natives, which are interests recognized by both the ESA and MMPA. Therefore, the Service finds that aligning provisions under the ESA relating to the creation, shipment, and sale of authentic native handicrafts and clothing by Alaska Natives with what is already allowed under the MMPA contributes to a regulation that is necessary and advisable to provide for the conservation of polar bears.

This aspect of the special rule is limited to activities that are not already exempted under the ESA. The ESA itself provides a statutory exemption to Alaska Natives under section 10(e) of the ESA for the harvesting of polar bears from the wild as long as the taking is for primarily subsistence purposes. The ESA then specifies that polar bears taken under this provision can be used to create handicrafts and clothing and that these items can be sold in interstate commerce. Thus, this rule does not regulate the taking or importation of polar bears or the sale in interstate commerce of authentic native articles of handicrafts and clothing by qualifying Alaska Natives; these have already been exempted by statute. This special rule addresses only activities relating to cultural exchange and limited types of travel, and to the creation and shipment of authentic native handicrafts and clothing that are currently allowed under section 101 of the MMPA that are not already clearly exempted under section 10(e) of the ESA.

In addition, in our final rule to list the polar bear as threatened (73 FR 28212; May 15, 2008), while we found that polar bear mortality from harvest and negative bear-human interactions may be approaching unsustainable levels for some populations, especially those experiencing nutritional stress or declining population numbers as a consequence of habitat change, subsistence take by Alaska Natives does not currently threaten the polar bear throughout all or any significant portion of its range. Range-wide, continued harvest and increased mortality from bear-human encounters or other reasons are likely to become more significant threats in the future. The Polar Bear Specialist Group (Aars et al. 2006, p. 57), through resolution, urged that a precautionary approach be instituted when setting harvest limits in a warming Arctic environment, and continued efforts are necessary to ensure that harvest or other forms of removal do not exceed sustainable levels. However, the Service has found that standards for subsistence harvest in the United States under the MMPA and the voluntary measures taken by Alaska Natives to manage subsistence harvest in the United States have been effective, and that, range-wide, the lawful subsistence harvest of polar bears and the associated creation, sale, and shipment of authentic handicrafts and clothing currently do not threaten the polar bear throughout all or a significant portion of its range and are not affected by the provisions of this special rule.

Section 319 of the NDAA amended section 101 of the MMPA to provide a mechanism for the Department of Defense (DOD) to exempt actions or a category of actions necessary for national defense from requirements of the MMPA provided that DOD has conferred, for polar bears, with the Service. Such an exemption may be issued for no more than 2 years. This special rule provides that an exemption invoked as necessary for national defense under the MMPA will require no separate authorization under the ESA. The MMPA exemption requires DOD to confer with the Service, the exemptions are of limited duration and scope (only those actions “necessary for national defense”), and no actions by the DOD have been identified as a threat to the polar bear throughout all or any significant portion of its range.

As discussed earlier, the MMPA provides substantial civil and criminal penalties for violations of the law. These penalties, regardless of whether a violation occurs inside or outside the current range of the species, remain in place and are not affected by this rule. Because CITES is implemented through the ESA, any trade of polar bears or polar bear parts or products contrary to CITES and possession of any polar bear specimen that was traded contrary to the requirements of CITES is a violation of the ESA and remains subject to its penalties.

Under this special rule, however, certain acts not related to CITES violations also remain subject to the penalties of the ESA. Under paragraph (2) of this special rule, any act prohibited under the MMPA that would also be prohibited under the ESA regulations at 50 CFR 17.31 and that has not been authorized or exempted under the MMPA would be a violation of the ESA as well as the MMPA. In addition, even if an act is authorized or exempt under the MMPA, failure to comply with all applicable terms and conditions of the statute, the MMPA implementing regulations, or an MMPA permit or authorization issued by the Service would likewise constitute a violation of the ESA. Under paragraph (4) of this rule, the ESA penalties also remain applicable to any incidental take of polar bears that is caused by activities within the current range of the species, if that incidental take has not been authorized under the MMPA consistent with paragraph (2) of this rule. While ESA penalties would not apply to any incidental take caused by activities outside the current range, as explained above, all MMPA penalties remain in place in these areas. A civil penalty of $12,000 to $25,000 is available for a knowing violation (or any violation by a person engaged in business as an importer or exporter) of certain provisions of the ESA, the regulations, or permits, while civil penalties of up to $500 are available for any other violation. Criminal penalties and imprisonment for up to one year, or both, are also available for certain violations of the ESA. In addition, all fish and wildlife taken, possessed, sold, purchased, offered for sale or purchase, transported, delivered, received, carried, shipped, exported, or imported contrary to the provisions of the ESA or any ESA regulation or permit or certificate issued under the ESA are subject to forfeiture to the United States. There are also provisions for the forfeiture of vessels, vehicles, and other equipment used in committing unlawful acts under the ESA upon conviction of a criminal violation.

As discussed earlier, even where MMPA penalties provide the sole deterrence against unlawful activities under this rule, these penalties are substantial. A civil penalty of up to $10,000 for each violation may be assessed against any person, which includes businesses, States, and Federal agencies as well as private individuals, who violates the MMPA or any MMPA permit, authorization, or regulation. Any person or entity that knowingly violates any provision of the statute or any MMPA permit, authorization, or regulation will, upon conviction, be fined for each violation, be imprisoned for up to 1 year, or both. The MMPA also provides for the seizure and forfeiture of the cargo (or monetary value of the cargo) from any vessel that is employed in the unlawful taking of a polar bear, and additional penalties of up to $25,000 can be assessed against a vessel causing the unlawful taking of a polar bear. Finally, any polar bear or polar bear parts and products themselves can be seized and forfeited upon assessment of a civil penalty or a criminal conviction.

While there are differences between the penalty amounts in the ESA and the MMPA, the penalty amounts are comparable or stricter under the MMPA. The Alternative Fines Act (18 U.S.C. 3571) has removed the differences between the ESA and the MMPA for criminal penalties. Under this Act, unless a Federal statute has been exempted, any individual found guilty of a Class A misdemeanor may be fined up to $100,000. Any organization found guilty of a Class A misdemeanor may be fined up to $200,000. The criminal provisions of the ESA and the MMPA are both Class A misdemeanors and neither the ESA nor the MMPA are exempted from the Alternative Fines Act. Therefore, the maximum penalty amounts for a criminal violation under both statutes is the same: $100,000 for an individual and $200,000 for an organization.

While the maximum civil penalty amounts under the ESA are for the most part higher than the maximum civil penalty amounts under the MMPA, other elements in the penalty provisions mean that, on its face, the MMPA provides greater deterrence. Other than for a commercial importer or exporter of wildlife or plants, the highest civil penalty amounts under the ESA require a showing that the person “knowingly” violated the law. The penalty for other than a knowing violation is limited to $500. The MMPA civil penalty provision does not contain this requirement. Under section 105(a) of the MMPA, any person “who violates” any provision of the MMPA or any permit or regulation issued there under, with one exception for commercial fisheries, may be assessed a civil penalty of up to $10,000 for each violation.

Section 4(d) of the ESA states that the “Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation” of species listed as threatened. Conservation is defined in the ESA to mean “to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary.” In Webster v. Doe, 486 U.S. 592 (1988), the U.S. Supreme Court noted that similar language “fairly exudes deference” to the agency when the court interpreted the authority to terminate an employee when the Director of the Central Intelligence Agency “shall deem such termination necessary or advisable in the interests of the United States”.

Thus, the regulations promulgated under section 4(d) of the ESA provide the Secretary the discretion to determine what prohibitions, exemptions, or authorizations are necessary and advisable for a species, as long as the regulation provides for the conservation of that species. In such cases, some of the prohibitions and authorizations of the ESA implementing regulations at 50 CFR 17.31 and 17.32 may be appropriate for the species and incorporated into the special rule, but the special rule may also include provisions tailored to the specific conservation needs of the listed species, which may be more or less restrictive than the general provisions. Section 4(d) specifies that “[t]he Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 9(a)(1) * * * with respect to endangered species.”

The courts have recognized the extent of the Secretary's discretion under this standard to develop rules that are appropriate for the conservation of a species. For example, the Secretary may find that it is necessary and advisable not to include a taking prohibition, or to include a limited taking prohibition. See Alsea Valley Alliance v. Lautenbacher, 2007 U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council v. National Marine Fisheries Service, and 2002 U.S. Dist. Lexis 5432 (W.D. Wash. 2002). In addition, as affirmed in State of Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988), the rule need not address all the threats to the species. As noted by Congress when the ESA was initially enacted, “once an animal is on the threatened list, the Secretary has an almost infinite number of options available to him with regard to the permitted activities for those species. He may, for example, permit taking, but not importation of such species, or he may choose to forbid both taking and importation but allow the transportation of such species,” as long as the measures will “serve to conserve, protect, or restore the species concerned in accordance with the purposes of the Act (H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973).”

This special rule provides the appropriate prohibitions, and exceptions to those prohibitions, to provide for the conservation of the species. Many provisions provided under the MMPA and CITES are comparable to or stricter than similar provisions under the ESA, including the definitions of take, penalties for violations, and use of marine mammals. As an example, concerning the definitions of harm under the ESA and harassment under the MMPA, while the terminology of the definitions is not identical, we cannot foresee circumstances under which the management for polar bears under the two definitions would differ. In addition, the existing statutory exceptions that allow use of marine mammals under the MMPA (e.g., research, public display) allow fewer types of activities than does the ESA regulation at 50 CFR 17.32 for threatened species, and the MMPA's standards are generally stricter for those activities that are allowed than those standards for comparable activities under the ESA regulations at 50 CFR 17.32. Provisions for take for self-defense are comparable under the ESA and MMPA and clearly provided for under both statutes. Finally, due to the enactment of the Alternative Penalties Act and the provisions therein, the criminal penalties provided under the ESA and MMPA are equivalent.

Additionally, the process for authorization of incidental take under the MMPA is more restrictive than the process under the ESA. The standard for issuing incidental take under the MMPA is “negligible impact.” Negligible impact under the MMPA, as defined at 50 CFR 18.27(c), is an impact that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival. This is a more protective standard than standards for issuing incidental take under the ESA, which are, for non-Federal actions, that the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild and, for Federal actions, that the activity is not likely to jeopardize the continued existence of the species. A proposed Federal action being independently evaluated under the MMPA and the ESA would have more than a negligible impact before, and in some cases well before, a jeopardy determination would be made.

Where the provisions of the MMPA and CITES are comparable to, or even more strict than, the provisions under the ESA, we find that it provides for the conservation of the polar bear to continue to manage the species under the provisions of the MMPA and CITES. As such, these mechanisms have a demonstrated record as being appropriate management provisions. Further, it would not contribute to the conservation of the polar bear and would be inappropriate for the Service to require people to obtain an ESA authorization (including paying application fees) for activities authorized under the MMPA or CITES where protective measures for polar bears under the ESA authorization would be equivalent or less restrictive than the MMPA or CITES requirements.

There are a few activities for which the prohibitions under the MMPA are less restrictive than the prohibitions for the same activities under the ESA, including use of pre-Act specimens, subsistence use, military readiness activities, and take for defense of property and welfare of the animal. Concerning use of pre-Act specimens and military readiness activities, the general ESA regulations would provide some additional restrictions beyond those provided by the MMPA; however, such activities have not been identified as a threat in any way to the polar bear or its conservation. Therefore, the additional restrictions under the ESA would not contribute to the conservation of the species. Concerning subsistence use and take for defense of property and welfare of the animal, the MMPA allows a greater breadth of activities than would be allowed under the general ESA regulations; however, these additional activities clearly provide for the conservation of the polar bear by fostering cooperative relationships with Alaska Natives who participate with us in conservation programs for the benefit of the species, limiting lethal bear-human interactions, and providing immediate benefits for the welfare of individual animals.

We find that for activities within the current range of the polar bear, overlay of the incidental take prohibitions under 50 CFR 17.31 is an important component of polar bear management because of the timing and proximity of potential take of polar bears. Within the range of the polar bear there are currently ongoing lawful activities that result in the incidental take of the species such as those associated with oil and gas exploration and development. Any incidental take from these activities is currently authorized under the MMPA. However, we recognize that there may be future development or activities that may cause incidental take of the species. Because of this, we find that it is important to have the overlay of ESA incidental take prohibitions in place for several reasons. In the event that a person or entity was causing the incidental take of polar bears that has not been authorized under the MMPA, or they are not in compliance with the terms and conditions of their MMPA incidental take authorization, the overlay will provide that the person or entity is in violation of the ESA as well as the MMPA. In such circumstances, the person can alter his or her activities to eliminate the possibility of incidental take, seek or come into compliance with their MMPA authorization, or be subject to the penalties of the ESA as well as the MMPA. In this situation, the citizen suit provision of section 11 of the ESA would allow any citizen or citizen group to pursue an incidental take that has not been authorized under the MMPA. As such, we have determined that the overlay of the ESA incidental take prohibitions at 50 CFR 17.31 in the current range of the polar bear is important for the conservation of the species.

However, we find that for activities outside the current range of the polar bear, overlay of the incidental take prohibitions under 50 CFR 17.31 is not necessary for polar bear management and conservation. Even though incidental take of polar bears from activities outside the current range of the species is not prohibited under this special rule, the consultation requirements under section 7 of the ESA remain fully in effect. Any biological opinion associated with a consultation will identify any incidental take that is reasonably certain to occur. Any incidental take identified through a biological opinion or otherwise remains a violation of the MMPA unless appropriately authorized. In addition, the citizen suit provision under section 11 of the ESA is unaffected by this rule for challenges to Federal agencies that are alleged to be in violation of the consultation requirement under section 7 of the ESA. Further, the Service will pursue any violation under the MMPA for incidental take that has not been authorized, and all MMPA penalties would apply. As such, we have determined that not having the additional overlay of incidental take prohibitions under 50 CFR 17.31 resulting from activities outside the current range of the polar bear does not impede the conservation of the species.

Our 36-year history of implementation of the MMPA, 33-year history of implementation of CITES, and our analysis in the ESA final listing rule for the species, which shows that none of the activities currently regulated under the MMPA and CITES are factors that threaten the polar bear throughout all or a significant portion of its range, demonstrate that these laws provide appropriate regulatory protection to polar bears for activities that are regulated under these laws. In addition, the threat that has been identified in the final ESA listing rule—loss of habitat and related effects—would not be alleviated by the additional overlay of provisions in the general threatened species regulations at 50 CFR 17.31 and 17.32, or even the full application of the provisions in section 9 and 10 of the ESA. Nothing within our authority under section 4(d) of the ESA, above and beyond what we have already required in this final special rule, would provide the means to resolve this threat.

Therefore, this special rule under section 4(d) of the ESA adopts existing conservation regulatory requirements under the MMPA and CITES as the appropriate regulatory provisions for this threatened species. Under this rule, if an activity is authorized or exempted under the MMPA or CITES, no additional authorization will be required. But if an activity is not authorized or exempted under the MMPA or CITES and the activity would result in an act that would be otherwise prohibited under 50 CFR 17.31, the protections provided by the general threatened species regulations will apply. In such circumstances, the prohibitions of 50 CFR 17.31 would be in effect, and authorization under 50 CFR 17.32 would be required. In addition, any action authorized, funded, or carried out by the Service that may affect polar bears, including the Service's issuance of any permit or authorization described above, will require consultation under section 7 of the ESA to ensure that the action is not likely to jeopardize the continued existence of the species. Section 7 is a powerful tool in the conservation of listed species as it allows the Service to have a role in both the project-by-project planning and the larger development of regulations, guidelines, and restrictions that other Federal agencies may implement. The application of provisions in 50 CFR 17.31 provides an additional overlay of protection for the species. ESA civil and criminal penalties will continue to apply to any situation where a person has not obtained MMPA or CITES authorizations or has obtained their authorizations or is operating under an MMPA or CITES exemption or authorization but has failed to comply with all terms and conditions of the authorization or exemption.

We find that this final special rule is necessary and advisable to provide for the conservation of the polar bear because the MMPA and CITES have proven effective in managing polar bears for more than 30 years. The comparable or stricter provisions of the MMPA and CITES, along with the application of the ESA regulations at 50 CFR 17.31 and 17.32 for any activity that has not been authorized or exempted under the MMPA and CITES or for which a person or entity is not in compliance with the terms and conditions of any MMPA or CITES authorization or exemption, address those negative effects on polar bears that can foreseeably be addressed under sections 9 and 10 of the ESA. It would not contribute to the conservation of the polar bear to require an unnecessary overlay of redundant authorization processes that would otherwise be required under the general ESA threatened species regulations at 50 CFR 17.31 and 17.32.

Nothing in this special rule changes in any way the recovery planning provisions of section 4(f) and consultation requirements under section 7 of the ESA, including consideration of adverse modification to any critical habitat that may be designated in the future, or the ability of the Service to enter into domestic and international partnerships for the management and protection of the polar bear.

In preparing the final special rule for the polar bear, we reviewed and considered comments from the public on the May 15, 2008, interim final special rule (73 FR 28306). As a result of comments received, we made the following changes to the interim rule:

(1) Removed discussion of section 4(a)(3) of the ESA from the preamble to the special rule. This section discussed exemptions available to the Department of Defense in the ESA's critical habitat designation process that are not relevant to this rule-making.

(2) Revised paragraph (2) to more clearly define which activities are subject to the prohibitions under the ESA regulations at 50 CFR 17.31.

(3) Revised paragraph (4) to clarify that incidental take from activities located outside the current range of the polar bear is not prohibited, rather than incidental take from activities located outside the State of Alaska.

(4) Reorganized the preamble language and inserted clarifying language to address substantive comments.

In our May 15, 2008, interim final rule to amend the 50 CFR part 17 regulations of the ESA to create a special rule under section 4(d) of the ESA for the polar bear, we opened a 60-day public comment period for all interested parties to submit comments that might contribute to the development of a final determination on the 4(d) rule. The public comment period closed on July 14, 2008.

In response to the public comment period, we received approximately 29,700 comments on our interim final 4(d) rule. To accurately review and incorporate the publicly provided information in our final rule, we worked with the eRulemaking Research Group, an academic research team at the University of Pittsburgh that has developed the Rule-Writer's Workbench analytical software. The Rule-Writer's Workbench enhanced our ability to review and consider the large numbers of comments, including large numbers of similar comments, on our interim final rule, allowing us to identify similar comments as well as unique ideas, data, recommendations, or suggestions on the interim final rule.

All substantive information provided during the public comment period has been considered and either incorporated directly into this final rule or consolidated into key issues in this section.

1. Issue: Several commenters expressed concerns about the appropriate listing status of the polar bear, causes of global climate change, the designation of critical habitat, and the development of a recovery plan.

Response: These issues are outside the scope and authority of this special rule. Please see the final listing rule (73 FR 2821; May 15, 2008) for discussion of these topics.

2. Issue: Several commenters indicate that the interim final special rule lacks justification for and does not meet the “necessary and advisable to provide for the conservation” of the species standard required in a special rule because it does not address the threats of loss of sea-ice habitat due to climate change or the potential for oil spills. Further, a new proposed rule should be published for additional public comments that includes provisions specific to these threats. Other commenters supportive of the special rule assert that the Secretary has the authority to issue such a rule and that the interim final special rule meets the appropriate standards. These commenters suggest that the Secretary has broad discretion through rulemaking to allow or not allow “take” of threatened species, without a conservation constraint.

Response: Section 4(d) of the ESA states that the “Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation” of species listed as threatened. For the reasons provided in the preamble, we find that this rule meets this standard. For example, all trade in polar bears or their parts and products made from polar bears will continue to be analyzed under CITES to ensure that the trade is not detrimental to the survival of the species. All activities that may cause incidental take of polar bears will continue to be reviewed and analyzed under the MMPA to ensure that they would not cause more than a “negligible impact” at the species or stock level before being authorized. This includes analysis of the potential for oil spills that may cause the taking of polar bears. Please see the “Necessary and Advisable Finding” section above for additional explanation of why this rule meets the legal standard.

Nothing within our authority under section 4(d) of the ESA, above and beyond what we have required in this final special rule, would address the threat to polar bears from loss of sea-ice habitat. Therefore, there is no need for additional rulemaking. In addition, nothing in this special rule, the MMPA, or CITES precludes us from developing and implementing a recovery plan or entering into a treaty or conservation agreement that addresses the specific threats to the polar bear as outlined in the listing rule (73 FR 28212).

3. Issue: Several commenters expressed concern that, by adopting the MMPA regulations to manage the polar bear, the interim final special rule is not protective enough. These concerns include that the MMPA has different “take” provisions than the ESA, including a lack of means to protect habitat and to consider cumulative impact, and as such, the final special rule should include any elements of taking defined under the ESA that are not covered under the MMPA. Other commenters stated that the MMPA and CITES are sufficient and appropriate standards for the conservation and management of the species since there is well-documented evidence that the oil and gas industry in Alaska, as regulated and monitored under the MMPA, does not injure or otherwise have more than a negligible effect on polar bears.

Response: We disagree that the polar bear will not be adequately protected by the adoption of the MMPA and CITES regulations under this special rule. The preamble explains how, for polar bears, the definition of take under the MMPA is comparable to or stricter than the definition of take under the ESA.

While the direct protections of the MMPA apply to the animals themselves, as explained in the “Applicable Laws” section above, the MMPA includes consideration of habitat and ecosystem protection. The terms “conservation” and “management” in the MMPA are specifically defined to include habitat acquisition and improvement. Protection of essential habitats, including rookeries, mating grounds, and areas of similar significance is addressed in incidental take authorizations issued under section 101(a)(5) of the MMPA. Cumulative effects are also part of the MMPA incidental take evaluation, as explained in our final rule for Incidental Take of Endangered, Threatened and Other Depleted Marine Mammals (September 29, 1989; 54 FR 40338); “In determining [cumulative] impact, the Service must evaluate the “total taking” expected from the specified activity in a specific geographic area. The estimate of total taking involves the accumulation of impacts from all anticipated activities that are expected to be covered by the specific regulations. In other words, the applicant's anticipated taking from its own activities is only one part of the story; the total taking expected from all persons conducting the activities to be covered by the regulations must be determined.” In addition, cumulative effects to the species and its habitat are evaluated during the intra-Service ESA section 7 consultation required for the issuance of incidental take authorizations under section 101(a)(5).

4. Issue: One commenter noted that the MMPA provides no citizen suit provision and therefore argued that enforcement of the protections provided under the special rule is left entirely to the discretion of the agency. This commenter also stated that the Service has failed to pursue past incidental take violations.

Response: We agree that the MMPA contains no citizen suit provision. However, as explained in the preamble, under this special rule the ESA citizen suit provision will continue to allow a citizen or citizen group to bring a lawsuit against any individual, business or organization, State or local government, or Federal agency that is alleged to be in violation of this rule or other applicable provisions of the ESA. Thus, for example, the provision is available for any Federal action that may affect polar bears where the Federal agency has failed to satisfy the consultation requirements under section 7 of the ESA, regardless of whether the Federal action is located inside or outside the current range of the species. Although the citizen suit provision does not apply to allegations of ESA incidental take outside the current range of the species as that is not a prohibited act under this rule, the ESA citizen suit provision will otherwise continue to allow any citizen or citizen group to pursue a lawsuit alleging that an activity has resulted or will result in a prohibited act under 50 CFR 17.31 and the person conducting the activity has failed to obtain the necessary MMPA or CITES authorization, is not in compliance with their MMPA or CITES authorization or exemption, or, if the activity is not covered under the MMPA or CITES, has failed to obtain the proper authorization under 50 CFR 17.32. Otherwise, for any violations of this rule and any violations of the MMPA or CITES, the Service will use the full range of its legal authorities to pursue violations of the law. The commenter has not identified any examples where take has occurred, including nonlethal harassment, where the take was not authorized under the MMPA with appropriate protections for the species in place or the take was a violation of the MMPA that was not pursued as a violation of law by the Service.

5. Issue: The Service's previous attempts to rely upon alternative management regimes that provide similar but not identical protections to species have been rejected by the courts.

Response: While Congress laid out the prohibitions, authorizations, and exemptions that are appropriate for endangered species, it expressly did not do so for threatened species. Instead it left to the discretion of the agency to determine what measures would be necessary and advisable to provide for the conservation of the species. There is no indication that Congress intended that management regimes for threatened species be identical to management regimes for endangered species. In fact, by stating that regulations for a threatened species “may” prohibit any act prohibited for endangered species under section 9 of the ESA, Congress made clear that it may not be appropriate to include section 9 prohibitions for some threatened species. As discussed in the preamble of this rule, the case law supports the discretion of the agency to develop regulations appropriate for the conservation needs of the species, while neither of the cases cited by the commenter is relevant to the development of a special rule under section 4(d) of the ESA. Both cases cited by the commenter challenged critical habitat determinations by the Service, which are covered by different standards than the development of threatened species regulations under section 4(d).

6. Issue: Concerning activities that are prohibited by the ESA, several commenters suggested that the Service should remove the possible ambiguity between the wording in the special rule itself exempting actions “consistent with” the MMPA and CITES, and the language in the preamble exempting actions “authorized or exempted by” the MMPA and CITES.

Response: Although there is no change in meaning from the interim final rule, we accept this suggestion and have changed paragraph (2) in the regulatory language to clarify that actions “authorized or exempted” under the MMPA and CITES do not require additional ESA authorization. We have further revised paragraph (2) to clarify that an authorization or exemption is needed under the MMPA or CITES, or both, to qualify for the exception, such that if both statutes are relevant to any particular activity, both statutes must be complied with.

7. Issue: One commenter stated that the use of the term “depleted” with reference to polar bears is inappropriate because the term does not accurately describe the facts with regard to polar bears.

Response: The term “depleted” is not used in this rulemaking in the dictionary sense. Section 3 of the MMPA defines “depleted” as: (1) A species or population stock that is below its optimum sustainable population as determined by the Secretary in consultation with the Marine Mammal Commission and the Committee of Scientific Advisors on Marine Mammals; (2) a species or population stock that is below its optimum sustainable population as determined by a State to which authority for the conservation and management of that species has been transferred under section 1379 of the MMPA; or, (3) a species or population stock that is listed as endangered or threatened under the Endangered Species Act of 1973, as amended. Thus, when the polar bear was listed as a threatened species under the ESA on May 15, 2008, it obtained depleted status as a matter of law under the MMPA.

8. Issue: The rule should clarify that a waiver of the MMPA moratorium on taking and importing polar bears under sections 101(a)(3)(A) and 103 is no longer available since the polar bear is now considered a depleted species under the MMPA.

Response: Section 101(a)(3)(A) authorizes the Service, in consultation with the Marine Mammal Commission, to waive the MMPA moratorium on taking and importation of marine mammals so as to allow taking or importing of any marine mammal or marine mammal product as long as a determination to do so is made based on the best scientific evidence and takes into consideration the distribution, abundance, breeding habits, and time and lines of migratory movements and is compatible with the MMPA. In making such a determination, the Service must be assured that the taking is in accord with sound principles of resource protection and conservation. We agree that the waiver of the moratorium is no longer available for polar bears as the species now has depleted status under the MMPA. See Committee for Humane Legislation v. Richardson, 414 F.Supp. 297 (D.DC. 1976).

9. Issue: The preamble to the final rule should provide clarification about importation of polar bears for commercial and educational photography.

Response: Under section 104(c)(6) of the MMPA, a permit may be issued for commercial and educational photography of marine mammals in the wild provided the taking is limited to Level B harassment. Although section 104(a) allows permits to be issued for taking or importation, section 104(c)(6) clearly limits photography permits to taking in the wild; thus importation of polar bears for photography is not allowed. In the interim special rule, we mistakenly included photography in the list of activities under section 101(a)(3)(B) of the MMPA that qualify as exceptions to the prohibition on import for species with depleted status. Section 101(a)(3)(B), when read in conjunction with section 104(c)(6), allows us to issue a permit only for Level B harassment take for photography of polar bears for educational or commercial purposes, and not for importation. We have removed the language in the preamble that was confusing.

10. Issue: The discussion of public display permits needs to be clarified to specify that such permits are no longer allowed for polar bears since they are now considered a depleted species under the MMPA.

Response: With the listing of the polar bear under the ESA and the concurrent designation of polar bears as a depleted species under the MMPA, new permits for the take and import of polar bears for public display under section 104(c)(2) of the MMPA are no longer available.

Before being listed as threatened under the ESA, a polar bear that was permitted for the purpose of public display (or its progeny) could be transferred, transported, exported, or re-imported without additional MMPA authorization, provided the receiving institution met the specific housing and display criteria or comparable standards (if an export was involved). Now that the species is listed under the ESA, only polar bears or their progeny that qualified as public display animals prior to May 15, 2008, can continue to be displayed and transferred within the United States consistent with the MMPA requirements for notification outlined in section 104(c)(2)(E). Further, such animals, or their progeny, can be exported provided they meet the requirements for comparable standards under section 104(c)(9) of the MMPA and all requirements under CITES. However, any animals that have been exported cannot be re-imported for the purpose of public display, and no permit may be issued for the taking or importation of a polar bear for purposes of public display. A waiver of the MMPA's moratorium on taking or importing polar bears under section 101(a)(3)(A) and 103 of the Act is not available now that the species has depleted status under the MMPA. As specified in section 17 of the ESA, nothing in a special rule under section 4(d) of the ESA can override these more restrictive measures of the MMPA.

11. Issue: The summary of requirements for obtaining an enhancement of survival permit is discussed under the MMPA but a discussion is not included under the ESA for comparison.

Response: We have added a description of the issuance criteria for ESA enhancement permits under the general threatened species regulation found in 50 CFR 17.32 to the “Import, Export, Non-Incidental Take, Transport, Purchase, and Sale or Offer for Sale or Purchase” section above.

12. Issue: Authorizations for scientific research and enhancement of survival permits issued under the MMPA should be subject to review under the ESA.

Response: As discussed in the “Import, Export, Non-Incidental Take, Transport, Purchase, and Sale or Offer for Sale or Purchase” section above, the standards for issuing scientific research and enhancement permits are stricter under the MMPA than those under the general threatened species regulations under the ESA. Thus, we believe that the MMPA criteria are the appropriate provisions for the conservation of the polar bear. In addition, as mentioned above, we must conduct an intra-Service section 7 consultation for any activity that we authorize, fund, or carry out that may affect a listed species. The issuance of an MMPA scientific research or enhancement of survival permit is a Federal action that would require a section 7 consultation under the ESA.

13. Issue: The interim final special rule failed to discuss section 101(a)(4)(B) of the MMPA in which the Service is directed to recommend specific measures that can be used to nonlethally deter a listed marine mammal.

Response: Section 101(a)(4)(B) of the MMPA provides a mechanism for the Service to publish specific measures that may be used to nonlethally deter marine mammals that are listed as endangered or threatened under the ESA. The Service has committed to develop such measures for polar bear deterrence in consultation with appropriate experts. These measures will be published in the Federal Register for public review and comment prior to finalization.

14. Issue: The Service should clarify discussion in the preamble of the interim final special rule to explain that, for listed marine mammals, ESA incidental take is authorized under section 7(b)(4) instead of a section 10(a)(1)(B) permit.

Response: Absent this special rule, incidental take under the ESA is authorized under section 7(b)(4) and (o)(2) of the ESA through the consultation process for Federal activities, through a section 10(a)(1)(B) permit for non-Federal activities for endangered species, and, if applicable, through a 50 CFR 17.32 permit for non-Federal activities for threatened species. Under this special rule, incidental take authorized under the MMPA does not require additional authorization under the ESA regardless of whether the activity is Federal or non-Federal. However, the section 7 consultation requirements continue to apply to any Federal activity that may affect a listed species. Please see the “Incidental Take” section above for additional discussion of incidental take authorizations.

15. Issue: The Secretary was correct to conclude that there is no causal link between greenhouse gas (GHG) emissions and take of specific polar bears. Service regulations, policies, and handbooks should be revised to further emphasize this conclusion.

Response: For listed species, section 7(a)(2) of the ESA requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species. If a Federal action may affect a listed species, the responsible Federal action agency must enter into consultation with us subject to the provisions of 50 CFR 402.14(b) and 402.03. In addition, as a Federal agency, the Service must conduct an intra-Service section 7 consultation for any action it authorizes, funds, or carries out that may affect polar bears. This requirement does not change with the adoption of this special rule.

Nonetheless, the determination of whether consultation is triggered is based on the discrete effects of the proposed agency action. This is not to say that other factors affecting listed species are ignored. Initially, however, a Federal agency evaluates whether consultation is necessary by analyzing what will happen to listed species “with and without” the proposed action. This analysis considers the direct effects and indirect effects of the action under consultation (including the direct and indirect effects that are caused by interrelated and interdependent activities) to determine if the proposed action “may affect” listed species. For indirect effects, our regulations at 50 CFR 402.02 require that they both be “caused by the action under consultation” and “reasonably certain to occur.” That is, the consultation requirement is triggered only if there is a causal connection between the proposed action and a discernible effect to the species or critical habitat that is reasonably certain to occur. One must be able to “connect the dots” between an effect of proposed action and an impact to the species and there must be a reasonable certainty that the effect will occur. Direct effects are the immediate effects of the action and are not dependent on the occurrence of any additional intervening actions for the impacts to species or critical habitat to occur.

While there is no case law directly on point, in Arizona Cattlegrowers' Association v. U.S. Fish and Wildlife Service, 273 F.3d 1229 (9th Cir. 2001), the 9th Circuit ruled that in preparing incidental take statements for section 7 consultations the Service must demonstrate the connection between the action under consultation and the actual resulting take of the listed species, which is one form of effect. In that case, the court reviewed grazing allotments and found several incidental take statements to be arbitrary and capricious because the Service did not connect the action under consultation (grazing) with an effect on (take of) specific individuals of the listed species. The court held that the Service had to demonstrate a causal link between the action under consultation (issuance of grazing permits with cattle actually grazing in certain areas) and the effect (take of listed fish in streams), which had to be reasonably certain to occur. The court noted that “speculation” with regard to take “is not a sufficient rational connection to survive judicial review.”

We have specifically considered whether a Federal action that produces GHG emissions is a “may affect” action that requires section 7 consultation with regard to any and all species that may be impacted by climate change. As described above, the regulatory analysis of indirect effects of the proposed action requires the determination that a causal linkage exists between the proposed action, the effect in question (climate change), and listed species. There must be a traceable connection from one to the next, and the effect must be “reasonably certain to occur.” This causation linkage narrows section 7 consultation requirements to listed species in the “action area” rather than to all listed species. Without the requirement of a causal connection between the action under consultation and effects to species, literally every agency action that contributes greenhouse gases to the atmosphere would arguably result in consultation with respect to every listed species that may be affected by climate change. This would render the regulatory concept of “action area” meaningless.

There is currently no way to determine how the emissions from a specific action both influence climate change and then subsequently affect specific listed species, including polar bears. As we now understand them, the best scientific data currently available do not draw a causal connection between GHG emissions resulting from a specific Federal action and effects on listed species or critical habitat by climate change.

Since the development of the interim final special rule for the polar bear, additional guidance has been issued concerning consultation requirements in relation to GHG emissions. A policy memorandum titled “Expectations for Consultations on Actions that Would Emit Greenhouse Gases” was issued by the Director of the Service on May 14, 2008. This memorandum speaks to the issues discussed above and establishes a framework for consultation on GHG emissions. The memorandum clarifies that, while direct impacts from oil and gas development operations would undergo consultation, the future indirect impacts of individual GHG emitters cannot be shown to result in “take” based on the best available science at this time and that “the Service does not anticipate that the mere fact that a Federal agency authorizes a project that is likely to emit GHG will require the initiation of section 7 consultation.”

Furthermore, on August 15, 2008, the Service and NMFS proposed to amend regulations governing interagency consultation under section 7 of the ESA (73 FR 47868). The Service and NMFS proposed these changes to clarify several definitions, to clarify when the section 7 regulations are applicable and the correct standards for effects analysis, and to establish timeframes for the informal consultation process. We have not yet taken final action on this proposed rule.

Finally, on October 3, 2008, the Department of the Interior's Solicitor issued a legal memorandum on the applicability of consultation requirements to proposed actions involving the emission of GHGs. That memorandum noted that the causal link cannot currently be made between emissions from a proposed action and specific effects on a listed species. Therefore, the Solicitor concluded that, given the current state of science, a proposed action that will involve the emission of GHGs cannot pass the “may affect” test for those GHGs as they relate to climate change, and is not subject to consultation on those effects under the ESA and its implementation regulations.

16. Issue: Paragraph (4) of the interim final special rule should be revised to explicitly exempt GHG emissions from section 9 “take” prohibitions and section 7 consultations.

Response: As discussed in the response to issue 15, since the publication of the interim final special rule, the Director has issued a policy memorandum, the Department of the Interior's Solicitor has issued a legal memorandum, and the Service and NMFS have published proposed revisions to the general section 7 regulations under the ESA that address these issues more thoroughly.

17. Issue: Several commenters expressed concern or confusion about paragraph (4) of the interim final special rule, noting a lack of rationale for this paragraph in the preamble to the interim final special rule.

Response: We apologize for the confusion and lack of explicit rationale for paragraph (4) in the interim final special rule. Discussion of the operation of paragraph (4) in contributing to the conservation of the polar bear is found in the “Necessary and Advisable Finding” section above.

18. Issue: Several commenters noted that the use of the term “Alaska” in paragraph (4) was vague, inappropriate, or did not accurately reflect the range of the polar bear.

Response: This provision has been modified from the version of paragraph (4) that appeared in the interim final special rule to more precisely delineate where the ESA prohibition against incidental take is necessary and advisable to provide for the conservation of the polar bear. Under paragraph (4), incidental take of polar bears that results from activities that occur outside of the current range of the species is not subject to the prohibitions found at 50 CFR 17.31. The areas within the current range of the polar bear where ESA incidental take prohibitions at 50 CFR 17.31 apply include land or water that is subject to the jurisdiction or sovereign rights of the United States (including portions of lands and inland waters of the United States, the territorial waters of the United States, and the United States' Exclusive Economic Zone or the limits of the continental shelf) and the high seas.

19. Issue: The special rule should be revised to require that a polar bear used to create authentic native articles of handicrafts or clothing must be taken primarily for subsistence purposes, as defined in the Service's ESA regulations at 50 CFR 17.3.

Response: A polar bear that is lawfully taken by an Alaska Native under the exemption in section 101(b) of the MMPA meets the exemption requirements under section 10(e) of the ESA, and therefore no further taking authorization is needed under the ESA. Section 101(b) of the MMPA provides that, to qualify for this statutory exemption, the taking must be for subsistence purposes or for purposes of creating and selling authentic native articles of handicrafts and clothing. The ESA articulates the requisite purpose of the taking somewhat differently by stating that it must be “primarily” for subsistence purposes and expressly including the creation and sale of authentic native articles of handicrafts and clothing within the scope of the statutory exemption. In the regulations implementing both the MMPA and the ESA, the Service has clarified that subsistence includes not only use for food but also for clothing, shelter, heating, transportation, and other uses necessary to maintain the life of the taker of the animal or those who depend upon the taker to provide them with such subsistence. Thus, the taking of a polar bear to create authentic native articles of handicrafts and clothing that are, for example, used directly or bartered or sold to provide income for one of the above specific purposes, including a use “necessary to maintain the life of the taker,” qualifies as a taking for primarily subsistence purposes under section 10(e) of the ESA. Any such taking that meets the requirements of the subsistence provision is exempt under the ESA and requires no authorization.

20. Issue: Hunting of polar bears should not be allowed.

Response: Since 1972, only the subsistence hunting of polar bears by Alaska Natives has been allowed in the United States. Congress included specific exemptions for take by Alaska Natives under both the MMPA and the ESA. Harvesting of polar bears is an important cultural and economic activity for Native peoples throughout much of the Arctic. A management agreement is in place between the Inupiat of Alaska and the Inuvialuit of Canada which serves to help ensure that Beaufort Sea polar bear harvests remain at sustainable levels. The Bering-Chukchi polar bear stock is shared with Russia and implementation of the U.S.-Russia Agreement on the Conservation and Management of the Alaska-Chukotka Polar Bear population provides a framework for cooperatively managing subsistence harvest of this population. The final listing rule found that subsistence harvest in Alaska was not a threat to the species throughout all or a significant portion of its range. The Service will continue to work with the Alaska Native community to comanage subsistence-related issues.

Neither the ESA nor the MMPA restrict take in areas subject to the territorial jurisdiction of foreign countries. It is within the sovereign rights of other countries to establish the appropriate laws and regulations that govern take of polar bears in their countries.

21. Issue: The income from trophy hunts to native communities is a very important aspect of Nunavut economy. Since the special rule recognizes this activity is not a primary threat to the species, the final special rule should permit import of trophies. At a minimum, the Service should allow import of trophies that were actually taken before the polar bear became a threatened species on May 15, 2008.

Response: We recognize that polar bear sport trophy hunt incomes are a vital part of the economy of the native communities in the Northwest Territories and Nunavut, and that Canada's management system of harvest quotas is based on maintaining polar bear populations at sustainable levels. Native communities may choose to use their annual harvest quota tags to guide sport hunts. As described more fully in the interim final special rule (73 FR 28306; May 15, 2008), Congress amended the MMPA in 1994 to allow hunters to import their trophies into the United States provided certain criteria were met, including that the polar bears had been taken in a legal manner from sustainably managed populations.

Under section 3(1)(C) of the MMPA, marine mammals such as the polar bear are considered “depleted” species once they are listed as threatened or endangered species under the ESA; therefore, the polar bear was automatically considered a depleted species when it was listed as threatened under the ESA on May 15, 2008. The MMPA (sections 101(a)(3)(B) and 102(b)) sets restrictions on what activities are allowed for species that are depleted. For a depleted species, under section 101(a)(3)(B) of the MMPA only imports for purposes of scientific research or for the enhancement and survival of the species can be authorized or allowed. Importation of polar bear parts taken in sport hunts in Canada is not one of the exceptions to the restrictions on depleted species. However, section 104(c)(5)(D) of the MMPA continues to allow for the import of sport-hunted polar bear trophies that were legally taken in Canada prior to February 18, 1997.

Therefore, as of the effective date of the final listing of the polar bear under the ESA on May 15, 2008, importation of a sport-hunted polar bear trophy taken in Canada after February 18, 1997, is prohibited under the terms of the MMPA, even if the polar bear was taken in a hunt prior to May 15, 2008. A waiver of the MMPA's moratorium on importing polar bears under section 101(a)(3)(A) and 103 is not available because the species has depleted status. Section 17 of the ESA states that, unless expressly provided for, no provision in the ESA takes precedence over any more restrictive conflicting provision in the MMPA. Thus, nothing in a special rule under section 4(d) of the ESA can override the more restrictive provisions of the MMPA. A congressional amendment to the MMPA would be needed in order to allow the import of sport-hunted trophies taken in Canada after February 18, 1997.

22. Issue: The special rule should provide specific exemptions for the ongoing activities of the North Slope Borough and the native communities.

Response: Under the special rule, if an activity is authorized or exempted under the MMPA or CITES, it does not require additional authorization under the ESA. Therefore, the ongoing activities of the North Slope Borough and native communities that are authorized or exempt under the MMPA or CITES do not require additional authorization under the ESA. Such activities would include existing authorizations under incidental take regulations, LOAs, IHAs, and exemptions concerning subsistence use of handicrafts, cultural exchange, and defense of life and property.

23. Issue: The Service should include a severability clause in the final rule.

Response: We recognize that severability clauses are frequently used in legislation but have decided that such a clause would not be useful in the current rule. The rule is organized in a manner that reflects the connection among the different paragraphs while also indicating the distinctiveness of the different provisions. We would expect a court to take the discreteness of the various provisions into consideration during any judicial review of the rule.

24. Issue: The Service should invoke “Chevron” deference for the final rule.

Response: The Service agrees that the agency should receive deference during any judicial review of the rule regarding the conservation measures that are appropriate for the polar bear under the ESA. For threatened species, Congress left it to the Secretary's discretion to determine what measures are “necessary and advisable to provide for the conservation of [the] species.” We would expect a court to be particularly deferential given that development of appropriate conservation measures for threatened species is a technical matter. Nonetheless, the Service believes that it is unnecessary to specifically invoke such deference as part of the rulemaking process.

25. Issue: The interim final rule violated the APA because the public was not given the opportunity to comment on a proposed rule before the interim final rule went into effect.

Response: We disagree. Under section 553(b)(3)(B) of the APA, Federal agencies have the authority to issue interim final rules when “the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” We issued the interim final rule to ensure that the maximum regulatory protections would be in place for the polar bear from the time the species was listed as threatened until such time as we could promulgate a final special rule. We solicited public comment on the interim rule, and this final rule reflects the consideration of those comments and the appropriate modifications to the preamble and regulations section that resulted from those comments.

26. Issue: Some commenters stated that the interim final rule violated the National Environmental Policy Act (NEPA) because we failed to prepare an environmental impact statement. They assert that the special rule is substantially similar to an incidental take statement and permit for which courts have held that NEPA review is mandatory. Citing previous court decisions, other commenters stated that analysis under NEPA is not required for section 4(d) rules.

Response: This rule is exempt from NEPA procedures. In 1983, upon recommendation of the Council on Environmental Quality, the Service determined that NEPA documents need not be prepared in connection with regulations adopted pursuant to section 4(d) rules. A 4(d) rule provides the appropriate and necessary prohibitions and authorizations for a species that has been determined to be threatened under section 4(a) of the ESA. The NEPA procedures would confuse matters by overlaying its own matrix upon the section 4 decision-making process. The opportunity for public comment, one of the goals of NEPA, is also already provided through the rulemaking procedures. Although this rule is exempt from NEPA, any consultations conducted on activities covered by this 4(d) rule, as well as issuance of IHAs or LOAs, would be subject to the appropriate level of NEPA review.

Executive Order 12866 requires Federal agencies to submit proposed and final significant rules to the Office of Management and Budget (OMB) prior to publication in the FR. The Executive Order defines a rule as significant if it meets one of the following four criteria:

(a) The rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government;

(b) The rule will create inconsistencies with other Federal agencies' actions;

(c) The rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients; or

(d) The rule raises novel legal or policy issues.

If the rule meets criteria (a) above it is called an “economically significant” rule and additional requirements apply. It has been determined that this rule is “significant” but not “economically significant.” It was submitted to OMB for review prior to promulgation.

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq. , as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency must publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the RFA to require Federal agencies to provide a statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities.

Based on the information that is available to us at this time, we are certifying that this special rule will not have a significant economic impact on a substantial number of small entities. The following discussion explains our rationale.

According to the Small Business Administration (SBA), small entities include small organizations, including any independent nonprofit organization that is not dominant in its field, and small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents, as well as small businesses. The SBA defines small businesses categorically and has provided standards for determining what constitutes a small business at 13 CFR 121.201 (also found at http://www.sba.gov/size/ ), which the RFA requires all Federal agencies to follow. To determine if potential economic impacts to these small entities would be significant, we considered the types of activities that might trigger regulatory impacts. However, this special rule for the polar bear will, with limited exceptions, allow for maintenance of the status quo regarding activities that had previously been authorized or exempted under the MMPA. Therefore, we anticipate no significant economic impact on a substantial number of small entities from this rule. Therefore, a Regulatory Flexibility Analysis is not required.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ), we make the following findings:

(a) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or Tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or [T]ribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and [T]ribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or Tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”

(b) Because this special rule for the polar bear allows, with limited exceptions, for the maintenance of the status quo regarding activities that had previously been authorized or exempted under the MMPA, we do not believe that this rule will significantly or uniquely affect small governments. Therefore, a Small Government Agency Plan is not required.

In accordance with Executive Order 12630, this rule does not have significant takings implications. We have determined that the rule has no potential takings of private property implications as defined by this Executive Order because this special rule will, with limited exceptions, maintain the status quo regarding activities currently allowed under the MMPA. A takings implication assessment is not required.

In accordance with Executive Order 13132, this rule does not have significant Federalism effects. A Federalism assessment is not required. This rule will not have substantial direct effects on the State, on the relationship between the Federal Government and the State, or on the distribution of power and responsibilities among the various levels of government.

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

This special rule does not contain any new collections of information that require approval by the Office of Management and Budget (OMB) under 44 U.S.C. 3501 et seq. The rule does not impose new record keeping or reporting requirements on State or local governments, individuals, and businesses, or organizations. We may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number.

This rule is exempt from NEPA procedures. In 1983, upon recommendation of the Council on Environmental Quality, the Service determined that NEPA documents need not be prepared in connection with regulations adopted pursuant to section 4(a) of the ESA. The Service subsequently expanded this determination to section 4(d) rules. A section 4(d) rule provides the appropriate and necessary prohibitions and authorizations for a species that has been determined to be threatened under section 4(a) of the ESA. NEPA procedures would confuse matters by overlaying its own matrix upon the section 4 decision-making process. The opportunity for public comment—one of the goals of NEPA—is also already provided through section 4 rulemaking procedures. This determination was upheld in Center for Biological Diversity v. U.S. Fish and Wildlife Service, No. 04-04324 (N.D. Cal. 2005).

The Service, in accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175 and the Department of the Interior's manual at 512 DM 2, and Secretarial Order 3225, acknowledges our responsibility to communicate meaningfully with federally recognized Tribes on a government-to-government basis. During the public comment period following our proposal to list the polar bear as threatened (72 FR 1064), Alaska Native tribes and tribally authorized organizations were among those that provided comments on the listing action. In addition, public hearings were held at Anchorage (March 1, 2007) and Barrow (March 7, 2007), Alaska. For the Barrow public hearing, we established teleconferencing capabilities to provide an opportunity to receive testimony from outlying communities. The communities of Kaktovik, Gambell, Kotzebue, Shishmaref, and Point Lay, Alaska, participated in this public hearing via teleconference.

On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. For reasons discussed within this rule, we believe that the rule does not have any effect on energy supplies, distribution, and use. Therefore, this action is a not a significant energy action, and no Statement of Energy Effects is required.

Several of the background documents for the ALWTRP and the take reduction planning process can be downloaded from the ALWTRP web site at http://www.nero.noaa.gov/whaletrp/ .

The ALWTRP was developed pursuant to section 118 of the Marine Mammal Protection Act (MMPA) to reduce the incidental mortality and serious injury of three endangered species of whales (right, fin, and humpback) due to incidental interaction with commercial fishing activities. In addition, the measures identified in the ALWTRP would provide conservation benefits to a fourth species (minke), which are neither listed as endangered nor threatened under the Endangered Species Act (ESA). The ALWTRP, implemented through regulations codified at 50 CFR 229.32, relies on a combination of fishing gear modifications and time/area closures to reduce the risk of whales becoming entangled in commercial fishing gear (and potentially suffering serious injury or mortality as a result).

On January 9, 2002, NMFS published the final rule to implement the ALWTRP's DAM program (67 FR 1133). On August 26, 2003, NMFS amended the regulations by publishing a final rule, which specifically identified gear modifications that may be allowed in a DAM zone (68 FR 51195). The DAM program provides specific authority for NMFS to restrict temporarily on an expedited basis the use of lobster trap/pot and anchored gillnet fishing gear in order to protect right whales and is applicable to areas north of 42° 30' N. lat. Under the DAM program, NMFS may: (1) require the removal of all lobster trap/pot and anchored gillnet fishing gear for a 15-day period; (2) allow lobster trap/pot and anchored gillnet fishing within a DAM zone with gear modifications determined by NMFS to sufficiently reduce the risk of entanglement; and/or (3) issue an alert to fishermen requesting the voluntary removal of all lobster trap/pot and anchored gillnet gear for a 15-day period and asking fishermen not to set any additional gear in the DAM zone during the 15-day period.

A DAM zone is triggered when NMFS receives a reliable report from a qualified individual of three or more right whales sighted within an area (75 nm 2 (139 km 2 )) such that right whale density is equal to or greater than 0.04 right whales per nm 2 (1.85 km 2 ). A qualified individual is an individual ascertained by NMFS to be reasonably able, through training or experience, to identify a right whale. Such individuals include, but are not limited to, NMFS staff, U.S. Coast Guard and Navy personnel trained in whale identification, scientific research survey personnel, whale watch operators and naturalists, and mariners trained in whale species identification through disentanglement training or some other training program deemed adequate by NMFS. A reliable report would be a credible right whale sighting.

On December 6, 2008, an aerial survey reported an aggregation of 3 right whales in the general proximity of 42° 56 N. latitude and 69° 13' W. longitude. The position lies approximately 70nm east of Portsmouth, New Hampshire, in proximity to Cashes Ledge. After conducting an investigation, NMFS ascertained that the report came from a qualified individual and determined that the report was reliable. Thus, NMFS has received a reliable report from a qualified individual of the requisite right whale density to trigger the DAM provisions of the ALWTRP.

Once a DAM zone is triggered, NMFS determines whether to impose restrictions on fishing and/or fishing gear in the zone. This determination is based on the following factors, including but not limited to: the location of the DAM zone with respect to other fishery closure areas, weather conditions as they relate to the safety of human life at sea, the type and amount of gear already present in the area, and a review of recent right whale entanglement and mortality data.

NMFS has reviewed the factors and management options noted above relative to the DAM under consideration. As a result of this review, NMFS prohibits lobster trap/pot and anchored gillnet gear in this area during the 15-day restricted period unless it is modified in the manner described in this temporary rule.

This DAM zone overlaps with one other DAM zone that published in the Federal Register on December 12, 2008, and is in effect from 0001 hours December 14, 2008 through 2400 hours December 28, 2008. Effective from 0001 hours December 18, 2008, through 2400 hours December 28, 2008, the DAM zone is bounded by the following coordinates when it overlaps the previously established DAM zone:

43° 16' N., 69° 39' W. (NW Corner)

43° 16' N., 68° 57' W.

43° 04' N., 68° 57' W.

43° 04' N., 68° 49' W.

42° 39' N., 68° 49' W.

42° 39' N., 69° 39' W.

43° 16' N., 69° 39' W. (NW Corner)

Effective from 0001 hours December 29, 2008, through 2400 hours January 2, 2009, the DAM zone is bounded by the following coordinates:

43° 16' N., 69° 39' W. (NW Corner)

43° 16' N., 68° 57' W.

43° 04' N., 68° 57' W.

43° 04' N., 68° 49' W.

42° 39' N., 68° 49' W.

42° 39' N., 69° 39' W.

43° 16' N., 69° 39' W. (NW Corner)

In addition to those gear modifications currently implemented under the ALWTRP at 50 CFR 229.32, the following gear modifications are required in the DAM zone. If the requirements and exceptions for gear modification in the DAM zone, as described below, differ from other ALWTRP requirements for any overlapping areas and times, then the more restrictive requirements will apply in the DAM zone.

Fishermen utilizing lobster trap/pot gear within portions of Northern Nearshore Lobster Waters that overlap with the DAM zone are required to utilize all of the following gear modifications while the DAM zone is in effect:

1. Groundlines must be made of either sinking or neutrally buoyant line. Floating groundlines are prohibited;

2. All buoy lines must be made of either sinking or neutrally buoyant line, except the bottom portion of the line, which may be a section of floating line not to exceed one-third the overall length of the buoy line;

3. Fishermen are allowed to use two buoy lines per trawl; and

4. A weak link with a maximum breaking strength of 600 lb (272.4 kg) must be placed at all buoys.

Fishermen utilizing lobster trap/pot gear within the portion of the Offshore Lobster Waters Area that overlap with the DAM zone are required to utilize all of the following gear modifications while the DAM zone is in effect:

1. Groundlines must be made of either sinking or neutrally buoyant line. Floating groundlines are prohibited;

2. All buoy lines must be made of either sinking or neutrally buoyant line, except the bottom portion of the line, which may be a section of floating line not to exceed one-third the overall length of the buoy line;

3. Fishermen are allowed to use two buoy lines per trawl; and

4. A weak link with a maximum breaking strength of 1,500 lb (680.4 kg) must be placed at all buoys.

Fishermen utilizing anchored gillnet gear within the portions of the Other Northeast Gillnet Waters Area that overlap with the DAM zone are required to utilize all the following gear modifications while the DAM zone is in effect:

1. Groundlines must be made of either sinking or neutrally buoyant line. Floating groundlines are prohibited;

2. All buoy lines must be made of either sinking or neutrally buoyant line, except the bottom portion of the line, which may be a section of floating line not to exceed one-third the overall length of the buoy line;

3. Fishermen are allowed to use two buoy lines per string;

4. The breaking strength of each net panel weak link must not exceed 1,100 lb (498.8 kg). The weak link requirements apply to all variations in net panel size. One weak link must be placed in the center of the floatline and one weak link must be placed in the center of each of the up and down lines at both ends of the net panel. Additionally, one weak link must be placed as close as possible to each end of the net panels on the floatline; or, one weak link must be placed between floatline tie-loops between net panels and one weak link must be placed where the floatline tie-loops attach to the bridle, buoy line, or groundline at each end of a net string;

5. A weak link with a maximum breaking strength of 1,100 lb (498.8 kg) must be placed at all buoys; and

6. All anchored gillnets, regardless of the number of net panels, must be securely anchored with the holding power of at least a 22 lb (10.0 kg) Danforth-style anchor at each end of the net string.

The restrictions will be in effect beginning at 0001 hours December 18, 2008, through 2400 hours January 2, 2009, unless terminated sooner or extended by NMFS through another notification in the Federal Register .

The restrictions will be announced to state officials, fishermen, ALWTRT members, and other interested parties through e-mail, phone contact, NOAA website, and other appropriate media immediately upon issuance of the rule by the AA.

In accordance with section 118(f)(9) of the MMPA, the Assistant Administrator (AA) for Fisheries has determined that this action is necessary to implement a take reduction plan to protect North Atlantic right whales.

Environmental Assessments for the DAM program were prepared on December 28, 2001, and August 6, 2003. This action falls within the scope of the analyses of these EAs, which are available from the agency upon request.

NMFS provided prior notice and an opportunity for public comment on the regulations establishing the criteria and procedures for implementing a DAM zone. Providing prior notice and opportunity for comment on this action, pursuant to those regulations, would be impracticable because it would prevent NMFS from executing its functions to protect and reduce serious injury and mortality of endangered right whales. The regulations establishing the DAM program are designed to enable the agency to help protect unexpected concentrations of right whales. In order to meet the goals of the DAM program, the agency needs to be able to create a DAM zone and implement restrictions on fishing gear as soon as possible once the criteria are triggered and NMFS determines that a DAM restricted zone is appropriate. If NMFS were to provide prior notice and an opportunity for public comment upon the creation of a DAM restricted zone, the aggregated right whales would be vulnerable to entanglement which could result in serious injury and mortality. Additionally, the right whales would most likely move on to another location before NMFS could implement the restrictions designed to protect them, thereby rendering the action obsolete. Therefore, pursuant to 5 U.S.C. 553(b)(B), the AA finds that good cause exists to waive prior notice and an opportunity to comment on this action to implement a DAM restricted zone to reduce the risk of entanglement of endangered right whales in commercial lobster trap/pot and anchored gillnet gear as such procedures would be impracticable.

For the same reasons, the AA finds that, under 5 U.S.C. 553(d)(3), good cause exists to waive the 30-day delay in effective date. If NMFS were to delay for 30 days the effective date of this action, the aggregated right whales would be vulnerable to entanglement, which could cause serious injury and mortality. Additionally, right whales would likely move to another location between the time NMFS approved the action creating the DAM restricted zone and the time it went into effect, thereby rendering the action obsolete and ineffective. Nevertheless, NMFS recognizes the need for fishermen to have time to either modify or remove (if not in compliance with the required restrictions) their gear from a DAM zone once one is approved. Thus, NMFS makes this action effective 2 days after the date of publication of this document in the Federal Register . NMFS will also endeavor to provide notice of this action to fishermen through other means upon issuance of the rule by the AA, thereby providing approximately 3 additional days of notice while the Office of the Federal Register processes the document for publication.

NMFS determined that the regulations establishing the DAM program and actions such as this one taken pursuant to those regulations are consistent to the maximum extent practicable with the enforceable policies of the approved coastal management program of the U.S. Atlantic coastal states. This determination was submitted for review by the responsible state agencies under section 307 of the Coastal Zone Management Act. Following state review of the regulations creating the DAM program, no state disagreed with NMFS' conclusion that the DAM program is consistent to the maximum extent practicable with the enforceable policies of the approved coastal management program for that state.

The DAM program under which NMFS is taking this action contains policies with federalism implications warranting preparation of a federalism assessment under Executive Order 13132. Accordingly, in October 2001 and March 2003, the Assistant Secretary for Intergovernmental and Legislative Affairs, Department of Commerce, provided notice of the DAM program and its amendments to the appropriate elected officials in states to be affected by actions taken pursuant to the DAM program. Federalism issues raised by state officials were addressed in the final rules implementing the DAM program. A copy of the federalism Summary Impact Statement for the final rules is available upon request ( ADDRESSES ).

The rule implementing the DAM program has been determined to be not significant under Executive Order 12866.

Background

The Endangered Species Act of 1973, as amended (“ESA”; 16 U.S.C. 1531 et seq. ) provides that the Secretaries of the Interior and Commerce (the “Secretaries”) share responsibilities for implementing most of the provisions of the ESA. Generally, marine species are under the jurisdiction of the Secretary of Commerce and all other species are under the jurisdiction of the Secretary of the Interior. Authority to administer the Act has been delegated by the Secretary of the Interior to the Director of the Fish and Wildlife Service and by the Secretary of Commerce through the Administrator of the National Oceanic and Atmospheric Administration to the Assistant Administrator for National Marine Fisheries Service.

In this rule, we refer to the Fish and Wildlife Service as FWS and the National Marine Fisheries Service as NMFS. The word “Services” refers to both FWS and NMFS. We use the word “Service” when we describe a situation that could apply to either agency. We use the term “1986 regulations” to reference the 1986 section 7 regulations found at 50 CFR Part 402.

On August 15, 2008, the Services published the Proposed Rule. The public was given 30 days to comment. On September 15, 2008, that comment period was extended by 30 days. Approximately 235,000 comments were received; of these, approximately 215,000 were largely similar “form” letters.

After reviewing the public comments and further interagency discussion, the Services made certain clarifications and modifications in the final rule. The parts of the rule that were changed are set out immediately below. Those changes are discussed in more detail in a section-by-section analysis of comments set out later in this preamble.

The proposed rule set out a new definition for “Biological Assessment”. In the final rule, a sentence was added to the end of the definition. The additional sentence requires that the Federal agency provide the Services a specific guide or statement as to the location of the relevant consultation information, as described in 402.14, in any alternative document submitted in lieu of a biological assessment.

The proposed rule set out a new definition of “cumulative effects.” No changes were made to the definition of cumulative effects in the final rule.

The proposed rule set out a new definition of “Effects of the Action”. In the final rule, a definition of “direct effects” was added and the fourth sentence of the proposed rule was changed.

The proposed rule set out a new applicability section. In the final rule, paragraph (b)(2) and paragraph (b)(3)(i) were changed and paragraph (b)(3)(iii) was deleted. Specifically, paragraph (b)(2) deleted language that “such action is an insignificant contributor to any effects on a listed species or critical habitat” and replaced it with language that the effects of such action are manifested through global processes and cannot be reliably predicted or measured at the scale of a listed species' current range; or, would result at most in an extremely small, insignificant impact on a listed species or critical habitat; or, are such that the potential risk of harm to a listed species or critical habitat is remote. Paragraph (b)(3)(i) was changed by moving the word “meaningful” to directly before the word “evaluation.” Finally, paragraph (b)(3) was deleted in its entirety.

The proposed rule amended the informal consultation procedures. In the final rule, a sentence was added to the end of paragraph (b) and a paragraph (c) was added. Specifically, a sentence was added to the end of paragraph (b) to set out that if the Federal agency terminates consultation at the end of the 60-day period, or if the Service's extension period expires without a written statement whether it concurs with a Federal agency's determination provided for in paragraph (a) of this section, the consultation provision in section 7(a)(2) is satisfied. Paragraph (c) was added to the final rule to provide that notwithstanding the provisions of paragraph (b) the Service, the Federal agency, and the applicant, if one is involved, may agree to extend informal consultation for a specific time period.

The proposed rule made a change to the formal consultation procedures. In the final rule, we changed the “exception” language in § 402.14 to note that informal consultation may be concluded without the written concurrence of the Director under the circumstances set out in § 402.13(b).

Many of the comments received on the proposed rule focused on particular regulatory provisions of the proposed regulation or concepts captured in specific sections of the proposed regulation. These comments are discussed in a section-by-section analysis. Some commenters, however, expressed broad comments related to the proposed regulation. We discuss those comments below.

Comment: Some commenters question why this rule is being promulgated. Some of these commenters think that the 1986 regulations are working so there is no need for change.

Response: As discussed in the preamble to the proposed rule, we believe the narrow changes made in this rule will be beneficial for the consultation process. This rule is intended to accomplish several objectives. First, it is intended to clarify several definitions. Second, it is intended to assist the agencies in determining when consultation is necessary under section 7(a)(2). Since 1986, and continuing under this rule, action agencies are required to review their actions to determine if the effects of that action “may affect” listed species or critical habitat. Action agencies and agency personnel have struggled periodically to determine when informal and formal consultation is required. As part of this guidance on when consultation is required, this rule assists action agencies in determining when consultation is necessary in the very narrow circumstances of agency actions where no take is anticipated, and at least one of several other criteria are satisfied. This rule will provide greater guidance to help the action agencies and the Services negotiate the complexities of consultations in the 21st century, particularly with regard to global processes. Third, it is intended to introduce time frames into the informal consultation process, which, just as in formal consultation, can be waived. As discussed above, the standards for jeopardy and adverse modification remain the same, as do the protection provided to species by sections 4(d), 9, and ll.

Comment: Some commenters asserted that this rule changes standards and responsibilities under the ESA. Others assert that this rule is an attempt to weaken or repeal the ESA.

Response: This rule does not change the substantive standard for protection of listed species and critical habitat set out in section 7(a)(2) of the ESA. This rule is not intended to, nor does it, repeal or weaken the ESA. Only Congress can modify a statute. Federal action agencies are still required to use the best scientific and commercial data available to ensure that their actions are not likely to jeopardize listed species or adversely modify or destroy critical habitat. Further, the statutory definition of “take” and all prohibitions regarding “take” remain in place under this rule. Similarly, an action agency cannot proceed with a discretionary agency action that is anticipated to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect any listed species without consulting with the Services first.

All aspects of formal consultation, as found in the 1986 regulations, remain intact. Nothing in this final rule allows action agencies to adversely affect listed species or critical habitat without consultation with the Services. Action agencies remain obligated to review their actions to determine if they “may affect” a listed species. In formal consultation, the action agency continues to be required to produce a biological assessment for “major construction activities,” to produce a consultation initiation package that describes the action to be considered, the specific area that may be affected by the action, any listed species or critical habitat that may be affected by the action, the manner in which the action may affect listed species or critical habitat, and cumulative effects. An action agency must submit any relevant reports to the Services and the action agency is still required to provide the Services with the “best scientific and commercial data available.” Further, nothing in this final rule prevents an action agency from engaging in informal consultation or technical assistance from the Service.

Comment: One commenter expressed concern that the proposed regulation would affect the listing of species.

Response: There is no correlation between this rule and listing procedures set out in section 4 of the ESA. Listing decisions are made pursuant to section 4 of the ESA and regulations located in 50 CFR Part 424. This rule does not alter the listing process or the listing regulations.

Comment: Some commenters addressed matters that are beyond the scope of the proposal. For example, several commenters suggested that we amend several definitions (“environmental baseline”, “adverse modification”), which were not addressed in the proposed regulation. Some commenters suggested new regulatory language or concepts that were not part of the proposed rule or made budgetary suggestions. Specifically, there were suggestions to add regulatory language related to conservation banks and habitat conservation plans. Further there were comments that related to sections 4, 7(p), 7(a)(1), and 10 of the ESA.

Response: These comments were not considered as they were beyond the scope of the rule. The Services, however, may propose changes to address some of these issues at a future date.

Comment: A commenter asserted that the proposed regulations violate the Services' obligation under section 7(a)(1) to utilize their authorities to further the purposes of the ESA.

Response: We disagree. This rule does not violate section 7(a)(1). The first sentence of section 7(a)(1) requires the Secretaries of Interior and Commerce to review “other programs administered by him and utilize such programs in furtherance of the purposes of the Act.” The requirement that the Services utilize other programs to further the purposes of the ESA does not apply to this rulemaking, which involves implementation of the ESA itself. Nevertheless, the changes to the 1986 regulations made by this rule are to further the purposes of the ESA. That is, this rule will allow the Services to focus their resources on those actions that have adverse impacts to listed species or critical habitat.

Comment: Several commenters expressed concern that this rule is contrary to the “benefit of the doubt to the species” standard.

Response: The phrase “benefit of the doubt to the species” originated in a Conference Report that accompanied the 1979 amendments to the ESA. Relevant to section 7, those amendments changed the statutory text at 7(a)(2) from “will not jeopardize” to the current wording of “is not likely to jeopardize.” The Conference Report explained that the change in the statutory language was necessary to prevent the Services from having to issue jeopardy determinations whenever an action agency could not “guarantee with certainty” that their action would not jeopardize listed species. The Conference Report explained that the amendment permitted the Services to render biological opinions based on the “best available evidence” or evidence that “can be developed during consultation.” The Conference Report sought to explain that this change in language would not have a negative impact on species:

The use of the words “benefit of the doubt to the species” in the Conference Report appears to have been offered as reassurance that the statutory language, as amended, would remain protective of the species. At most, this language seems to indicate that the statutory language “is not likely to jeopardize” continues to provide protections to listed species by requiring action agencies to insure that their actions are not likely to jeopardize listed species. This rule does not change any statutory requirements found in section 7(a)(2) of the ESA and nothing in this rule is contrary to the statutory standard.

Comment: There were several comments related to administrative matters. Some commenters requested public hearings on this rule. Others stated there was not enough time allowed for adequate public comments. Others objected to not being able to submit e-mails or faxes as a method of commenting and some found the Federal Docket Management System difficult to navigate. Finally, some objected to the potential lack of privacy with regard to their comments.

Response: In promulgating this rule, the Services acted in accordance with the Administrative Procedure Act (APA). The APA sets forth procedures to be followed by Federal agencies for rulemaking, and the Services have complied with the APA. The APA does not require public hearings for this type of rulemaking, although the Secretary of the Interior held 25 “listening sessions” about cooperative conservation prior to the publishing of the proposed rule. The APA does not set forth specific time frames for a public comment period. The Services initially considered a thirty day comment period to strike an appropriate balance between providing the public an opportunity to address the limited changes in the proposed rule and the Services' desire for prompt action. However, we extended the comment period to provide a total of sixty days in response to comments that more time was needed. The proposed rule stated that e-mails and faxes would not be accepted. However, the Service provided public opportunity to comment electronically via the Federal eRulemaking Portal. Section 206 of the E-Government Act of 2002, Public Law 107-347, and 116 Stat. 2899 directs the use of the Federal eRulemaking Portal for posting public comments electronically. The Office of Management and Budget (OMB) issued “Implementation Guidance for the E-Government Act of 2002” in August 2003 which directs Federal agencies to utilize regulations.gov in order to accept electronic submissions related to rulemaking proposals. The rulemaking portal has proven to be an extremely useful tool for the public to efficiently provide comment and insight on Federal rulemaking efforts. The rulemaking portal also assists Federal agencies in managing electronic records so they can efficiently review and respond to comments submitted by the public on rulemaking documents. In most circumstances, we no longer accept comments from the public over facsimile since doing so often caused fax machines to become overwhelmed with incoming documents and because the documents received by fax are usually in paper form and must then be scanned into an electronic form for storage and review. Additionally, the proposed rule generated over 235,000 comments. Therefore, there is no indication that commenters did not have time to submit comments or that the Federal Docket Management System posed difficulty for commenters or last minute submitters.

Finally, with regard to the privacy of commenters, a commenter may request that their personal identifying information be withheld from public review. However, the Services cannot guarantee that they will be able to do so. The Services must comply with the provisions of the Freedom of Information Act, Privacy Act and other applicable laws. Under such laws, the Service may be required to release this information. As a result, the Services advise commenters (as we did in the proposed rule) that, before including addresses, phone numbers, e-mail addresses or other personal identifying information in their comments, they should be aware that the entire comment, including all personal identifying information, may be made publicly available. The Services cannot guarantee that they will be able to withhold this information given a lawful request.

Comment: There were several comments related to various economic issues. Some commenters asserted that there would be a major increase in costs or prices to consumers, state and local governments and geographic regions because Federal agencies are “ill-prepared” to implement this rule. These commenters argued that this rule would “significantly and adversely affect” employment, investments, and productivity.

Response: There is no basis to conclude that this rule will have any negative economic impacts that will result in major increases in costs or prices to consumers, state and local governments or geographic regions, or that community economies will be weakened by the proposed rule. Additionally, commenters provided no credible evidence that the proposed rule will significantly and adversely affect employment, investments and/or productivity of U.S. based enterprises. The Services believe that the proposed rule will improve the overall consultation process and make it less burdensome, which should benefit Federal agencies and the regulated entities that seek permits, approvals, or funding from them. Moreover, action agencies already must have the wherewithal to determine if their action “may affect” listed species or critical habitat. Further, the proposed rule does not require action agencies to bypass informal consultation. Finally, action agencies can choose to continue to take advantage of informal consultation procedures if they believe that their resources would be strained by making unilateral applicability determinations.

Comment: A commenter asserted that without the requirement to obtain Service concurrence, the burden of species protection will fall on state, local, tribal governments and private industry.

Response: The proposed rule does not change the protections, standards or obligations under the Endangered Species Act. Under the proposed rule, Federal agencies still have a responsibility to ensure that their action is not likely to jeopardize the continued existence of listed species or adversely modify or destroy critical habitat. This rule does not preclude informal consultation, and formal consultation is still required where the action is likely to adversely affect listed species and critical habitat. Therefore, no new responsibilities for species protection will be transferred to non-Federal entities by this rule.

Comment: Several commenters suggested the proposed rule is a “major rule” as defined by the Small Business Regulatory Enforcement Fairness Act.

Response: Subtitle E of the Small Business Regulatory Enforcement and Fairness Act (also known as the “Congressional Review Act” or CRA) establishes procedures for Congressional review of Federal agency final rules. Under the CRA, a rule cannot take effect until a copy of the rule and various supporting documentation have been submitted to both GAO and Congress. For “major” rules, the rule cannot take effect until 60 days after it has been submitted, in order to allow Congress time to consider and take action on the rule if it so chooses. This waiting period does not apply to rules not designated as major. The CRA defines “major” as any rule that the Administrator of the Office of Information and Regulatory Affairs finds has resulted in or is likely to result in: (A) An annual effect on the economy of $100 million or more; (B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or (C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. This rule is not a major rule as that term is defined in the CRA. It will become effective 30 days after it has been published in the Federal Register .

Comment: Several commenters suggested the proposed rule is a significant rule under Executive Order 12866.

Response: We agree that this rule is a significant rule. As such, it has been submitted to the Office of Management and Budget for review. We note that while the rule is “significant” under the definition provided in EO 12866, it is not “economically significant.”

This section sets out definitions of terms. As noted above, the proposed rule altered only three definitions. Only comments that specifically addressed the definitions used in this rule are discussed in this section.

A sentence was added to the definition of biological assessment. As delineated above, this additional regulatory text requires action agencies to describe with specificity where the relevant information can be found in an alternative document submitted in lieu of a biological assessment.

Comment: We received several comments that expressed concern that the proposed change to the definition of biological assessment would create more work for the Services and therefore be less efficient. These commenters thought that action agencies might not describe where the relevant analyses for initiation of consultation could be found in the alternative document. Another commenter thought that documents prepared for other purposes may not properly analyze all the potential effects. Finally, we received a comment that this change is more efficient.

Response: We agree with the comment that the consultation process will be more efficient if the rule expressly allows for flexibility in the format of the information submitted by the action agency. However, it would not be more efficient and could add unnecessary delays if action agencies simply attached the alternate document to the request for consultation. Thus, in the preamble to the proposed rule we noted that it was the action agency's responsibility to identify the relevant information from the alternate document being used in place of a biological assessment. To strengthen this message, a final sentence has been added to the regulatory text in the final rule to make it clear that the action agency must provide a guide or statement as to where the relevant information can be found. The requirements for initiation of consultation set out at 402.14(c) remain unchanged. If the document prepared for “other purposes” does not include all required information, then consultation is not initiated and the action agency may have to provide supplemental information.

Comment: Action agencies are likely to rely on documents other than their biological assessments to analyze the impacts to species and critical habitat, which will increase the complexity of environmental analyses performed by an action agency.

Response: The Services intend for this modification to recognize current practice and disagree that it will increase the complexity of environmental analysis. Currently only Federal “major construction activities” require preparation of biological assessments. Other Federal actions may be subject to environmental reviews under other environmental laws, in particular the National Environmental Protection Act (NEPA). Most Environmental Impact Statements (EISs) include analyses of effects of proposed actions on threatened and endangered species; these analyses can be as robust as those presented in biological assessments. In circumstances where Federal agencies have conducted sufficient analysis, they should be able to benefit by relying on that analysis in the interagency consultation process. As discussed above, however, the Services have added language to the final rule to ensure that the information requirements for a consultation specified in 50 CFR 402.14(c) are identified.

Cumulative effects.

There were no changes between the proposed rule and this final rule.

Comment: Several commenters questioned exclusion of future Federal actions from consultations, claiming either there is no basis for the exclusion or that it provided a way for Federal agencies to not consult on future actions. Some commenters stated that they believed this clarification is consistent with the Services' practice.

Response: The amendment to the cumulative effects language is to clarify and distinguish the term “cumulative effects” under the ESA from the term “cumulative impacts” under the NEPA. Nothing in the rephrasing of the definition of cumulative effects changes the Services current practice. That is, the effects analysis in consultations under the 1986 regulations does not include future Federal actions that have not undergone consultation. Future Federal actions that have already undergone consultation are added to the environmental baseline; they are weighed, therefore, in the calculus of how the action under consultation is likely to affect listed species. Federal actions that have not undergone consultation will have to do so before they could proceed in compliance with section 7(a)(2). The effects from those actions, therefore, will be considered in a separate consultation and it would not be appropriate to include them as cumulative effects.

Comment: Some commenters thought that informal grouped actions may contribute to cumulative effects and should be considered. Other commenters thought the proposed definition would encourage or allow agencies to move forward with multiple, small-scale projects. A commenter noted that cumulative effects omitted Tribal activities.

Response: Any effect or activity that was considered as a cumulative effect under the 1986 regulations, will be considered under this rule. This rule clarifies the current regulatory definition of cumulative effects and distinguishes it from the definition of “cumulative impact” in NEPA. It does not change any requirements or factors to be considered from the 1986 regulations. As set out in the standardized paragraph in the Consultation Handbook, cumulative effects include the effects of “future State, tribal, local or private actions that are reasonably certain to occur in the action area.* * *” Joint Endangered Species Consultation Handbook, p.4-30 (March 1998 Final), (hereafter “Consultation Handbook”). The change to the definition in the 1986 regulations will not exclude any contributions to cumulative effects that would be appropriately reviewed under the 1986 regulations and should not encourage action agencies to move forward with “small-scale” and/or grouped projects. The change in definition of cumulative effects does not change any evaluations, procedures, obligations, or responsibilities for the action agency or the Service.

We made several changes in the definition of “effects of the action” in response to public comments. First, we have added a sentence defining “direct effects” in order to clarify the distinction between “direct effects” and “indirect effects.” In addition, we have modified the sentence that, in the proposed rule, read as follows: “If an effect will occur whether or not the action takes place, the action is not a cause of the direct or indirect effect.” In the final rule, the sentence reads: “If an effect will occur whether or not the action takes place, the action is not an essential cause of the indirect effect.” These changes were intended to clarify the manner in which direct and indirect effects are identified and analyzed, which has been an area of confusion since these terms were created in the 1986 regulations. The removal of the reference to “direct effects” from the original sentence in the proposed rule is intended to clarify that the quoted sentence provides further clarification of the term “essential cause” as applied to indirect effects. By focusing the regulatory revision on indirect effects we do not intend to suggest that an effect that will occur whether or not the action takes place is a direct effect of the action. To the contrary, in most instances such an effect would not be considered a direct effect unless, as discussed below, it is one that inevitably will result from the action. Rather, our purpose is to emphasize that the causal connection between a proposed action and indirect effects must be examined closely.

Comment: The Services received a wide range of comments regarding the proposed modification of the definition of “effects of the action.” Several commenters stated that the Services should better explain the appropriate standard of causation with respect to direct and indirect effects. Many comments recommended no change to the existing definition of “effects of the action.” Other commenters recommended the use of proximate cause instead of essential cause. Alternatively, one commenter suggested that the appropriate standard for causation is that there needs to be a “close causal connection.”

Response: The ESA does not specify the nature of the causal relationship that must be examined when considering whether a Federal agency action is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat. Nevertheless, an analysis under section 7(a)(2) necessarily requires examining the causal connection between the agency action and the ultimate biological effects on a species. In the 1986 regulations, the Services recognized three categories of effects: Direct, indirect, and cumulative. Each category is distinguished, in part, from the other two by the degree of causal connection it has to the proposed Federal action—i.e., by the degree to which the taking of the Federal action can be said to be responsible for the cause of the effect occurring to the species. These categories remain intact in the regulations the Services are adopting today.

At one end of the spectrum are direct effects. As the Services have explained in the Consultation Handbook, direct effects are the direct, immediate effects on the species or its habitat from the taking of the action itself, or from interdependent or interrelated activities. These are the effects that will inevitably occur if the action is taken. For example, if permission or funding is provided for the construction of a road, constructing the road will result in direct, easily identifiable modifications to the landscape. The modifications are inescapable; if the action is taken as proposed, they will occur. As the revised definition of “effects of the action” explains, direct effects are not dependent upon the occurrence of any additional intervening actions for the impact to listed species or critical habitat to occur. Thus, there is no question that the action agency is responsible for these effects. Conversely, if the road is not constructed, the modifications would not occur (or at least not as a result of the construction), so any effects that would occur anyway are caused by something else, not the permission of or funding for the construction of the road. This does not mean that if a Federal action will cause a direct change to the landscape that impacts listed species or critical habitat it can avoid consultation merely because another private or non-Federal public actor would take a similar action if the Federal agency did not. Thus, using the road example, if a private developer were expected to build the road if the action agency does not fund, permit, or build the road, the action agency could not avoid analyzing the direct effects of the road construction solely because somebody else would build the road anyway.

At the other end of the spectrum are cumulative effects. They are the effects of other entities' actions in the action area of the proposed Federal action that are reasonably certain to occur, but that have no causal connection to the proposed Federal action. In other words, they are effects that would be reasonably certain to occur in the action area even if the proposed Federal action was never taken. There is no question that for these effects within the action area, the agency is not responsible, even though these effects are taken into account when analyzing the likelihood a particular Federal action might jeopardize the continued existence of a listed species or destroy or adversely modify its critical habitat.

Located along the spectrum between the direct effects and cumulative effects are other effects that are more difficult to define precisely. These effects are distinguished from direct effects in that they depend on the occurrence of some intervening factors to bring them about. It is more difficult in these situations to determine where to precisely draw a line as to whether the Federal agency should be considered responsible for those effects within the application of section 7(a)(2). In the 1986 regulations the Services determined that action agencies should be responsible for what was termed “indirect effects,” which were defined as those effects that are “caused by” the proposed Federal action and are “reasonably certain to occur,” and are “later in time.” The level of causal connection that must exist for an effect to be considered to be “caused by” the taking of the proposed Federal action and the degree of certainty that must exist for an effect to be considered “reasonably certain to occur” has not been clearly explained previously.

In the preambles for the proposed and final rules for the 1986 regulations, the Services described indirect effects as those that are “induced by” the Federal action, but did not elaborate further. The Services also referred to National Wildlife Federation v. Coleman , 529 F.2d 359 (5th Cir. 1976), in which the U.S. Court of Appeals for the Fifth Circuit found a need to look at the total impacts of a Federal agency action, not simply those direct effects that occur within the project's footprint. A close read of the Coleman case reveals its consistency with the understanding the Services are articulating here. In particular, the court's decision in Coleman was based on consideration of facts reflected in the particular record before the court; and, that record indicated that it was virtually certain that future development would follow construction of the highway interchange that was proposed by the Federal agency and that this development would impact the species.

The Services have also referenced a “but for” standard of causation in a number of contexts. Under a “but for” test, any effect that would not occur “but for” the proposed action is considered to be caused by the proposed action. See Consultation Handbook 4-27 (interrelated and interdependent); 4-47 (amount or extent of incidental take); 1986 preamble (interrelated and interdependent) 51 FR 19932 (1986). However, neither the 1986 rule nor the Consultation Handbook specifically articulate the “but for” standard as applicable to determining whether something is an indirect effect.

At all times, the Services have understood there to be a requirement for a close causal connection between a Federal agency action and an effect on the species. In seeking to clarify what is meant by indirect effects, in the context of ESA section 7, it is important to keep the purpose of the section 7(a)(2) in mind. The purpose is to require Federal agencies to ensure that their actions are not likely to jeopardize listed species or adversely modify or destroy critical habitat. The ESA does not seek to bring the otherwise beneficial and necessary actions of those agencies to a halt based on speculation about what could conceivably happen in the future as the result of the taking of an action. Thus, the 1986 regulations appropriately imposed constraints on the extent of the effects analysis by incorporating causation and foreseeablity standards.

This rule clarifies the terms “caused by” and “reasonably certain to occur” in order to capture the appropriate practice of the Services to require a close causal connection. Essential cause is the standard used to determine whether a close causal connection exists between the action and the effect. Reasonably certain to occur is the standard used to determine the requisite confidence that an activity, which will result in an indirect effect, will occur. The changes are intended to promote consistency in section 7 consultations.

The Services have chosen not to specifically employ, as suggested by some, the concept of “proximate cause,” which developed in the law of torts. Utilizing proximate cause would only complicate matters further as there is no commonly accepted, easily applied definition of proximate cause. Instead, we clarified the term “caused by” by incorporating new language that looks to whether the action is an “essential cause” of a particular effect. The phrase “essential cause” denotes that the action is necessary or indispensable for the effect to occur. The addition of the term “essential” is meant to emphasize and reaffirm that the effects analysis is limited to those effects for which it is appropriate to hold the Federal agency responsible because there is a close causal connection between the Federal action under consultation and the effects on the species in question.

The concept of “essential cause” is not a new one. The Services have previously recognized that to cause an effect under the ESA, the proposed Federal action “must be essential in causing the effect to the species and also reasonably certain to occur.” A 2003 joint agreement among BLM, Forest Service, FWS and NMFS explains that a proposed agency action must be “essential” in causing the effect to the species and also reasonably certain to occur in order to be recognized as an “indirect effect” under the Department's regulations. Application of the Endangered Species Act to proposals for access to non-Federal lands across lands administered by the Bureau of Land Management and the Forest Service , January 2003, at 2 (2003 Joint Agreement). On July 1, 2005, this memorandum was clarified by the Director, U.S. Fish and Wildlife Service. In that policy clarification, the Director again reiterated that the correct standard to determine if an indirect effect is caused by an action is whether that action is “essential” for the effect to occur. Policy Clarification of March 10, 2005 memo on Regarding Consultation on Requests for Access Across National Forest and Bureau of Management Lands , July 2005.

Essential cause focuses on both the nature and degree of the connection between the agency action and the effect to the species. For example, if an indirect effect would occur regardless of the action, then the action is not an essential cause of that effect, and it would not be appropriate to consider its effects as an effect of the action. Similarly, when the agency action merely helps to facilitate an effect it is not necessarily an essential cause of the effect. In such circumstances, it is appropriate to consider the nature of intervening factors and whether and the extent to which the potential effect to the species requires independent action by someone other than the Federal agency or the entity it funded or authorized. Depending upon the particular factual circumstances, the proposed Federal action may not be essential in causing the effect to the species. Of course, when the effects to the species are caused by such independent activities they may be considered as cumulative effects, provided they are within the action area. The courts have long recognized the requirement for there to be a close causal relationship between an environmental effect and an alleged cause for that effect. See, Metropolitan Edison Co. v. People Against Nuclear Energy , 460 U.S. 766, 777 (1983) (in the context of examining cumulative effects under NEPA).

Comment: We received several comments regarding the use of the term “reasonably certain to occur” and the addition of the term “clear and substantial” information. Some commenters asserted that these terms as defined in the proposed rule were appropriate and reasonable. Some commenters disagreed that the term “reasonably certain to occur” was an appropriate standard while others questioned why the standard was not “reasonably foreseeable.”

Response: As noted above, the final rule also clarifies the term “reasonably certain to occur.” Reasonably certain to occur is the standard used to determine the requisite confidence that an action, which will result in an effect, will occur. Like the phrase “caused by”, the existing regulations do not define the phrase “reasonably certain to occur.”

The phrase “reasonably certain to occur” was first used in a 1981 opinion issued by Department of the Interior's Office of the Solicitor as it related to cumulative impacts. The 1981 opinion was focused upon cumulative impacts and explained that:

Additionally, the preamble to the 1986 regulation explained the Services' interpretation of the phrase “reasonably certain to occur.” 51 FR 19,926, 19,932 (June 3, 1986). The preamble notes that some commenters “believed that the proposed [definition] of ‘cumulative effects’ and ‘effects of the action,' ” both of which were defined to include only effects that are “reasonably certain to occur,” “were too narrow.” Id. As described in the preamble, the commenters “suggested that cumulative effects should include the effects of all reasonably foreseeable future Federal, State and private actions,” because to do so “would be more in line with that mandated under NEPA,” and “any lesser review could detrimentally affect endangered species.” Id. While the focus of the comments, and the Service's response, was on “cumulative effects,” rather than “indirect effects,” the Service's reasoning in rejecting the suggestion that the regulations rely on a broader or more lenient standard than “reasonably certain to occur” applies equally to the use of the phrase in the definition of “indirect effects.”

The Service noted that “NEPA is procedural in nature, rather than substantive, which would warrant a more expanded review of * * * effects” than the ESA, which imposes “a substantive prohibition.” Id. at 19933. In other words, NEPA is designed to insure that a decision maker has a full complement of information about the possible environmental effects of the decision before making it; it does not, however, require that any particular decision be made. The theory is that the more information the decision maker has, the better the decision is likely to be. For that reason, requiring the consideration of all “reasonably foreseeable” environmental effects makes sense in the NEPA context. The ESA, on the other hand, is designed to insure the accomplishment of a particular substantive objective—i.e., that Federal actions are not likely to jeopardize the continued existence of listed species or adversely modify or destroy critical habitat. Unlike NEPA, the prohibition in the ESA can stop an otherwise worthwhile Federal project from going forward. For that reason, it makes sense that the Service consider “indirect effects” to be only those “reasonably certain to occur,” rather than merely “reasonably foreseeable.” As the Service put it, “[o]therwise, in a particular situation, the jeopardy prohibition [of the ESA] could operate to block ‘nonjeopardy' actions,” id. , based on mere speculation about the effects that might occur to listed species or critical habitat. In the Service's view, “Congress did not intend that Federal actions be precluded” based on speculative effects. Id.

The discussion in the 1986 preamble makes clear that “reasonably certain to occur” focuses on the probability that a future action will occur and is a stricter standard than “reasonably foreseeable.” As the Service explained, “reasonably certain to occur” requires “more than a mere possibility that the action may proceed.” Id. At the same time, however, the Service recognized that “ ‘reasonably certain to occur' does not mean that there is a guarantee that the action will occur. [Agencies should consider the] effects of those actions that are likely to occur, bearing in mind the economic, administrative, or legal hurdles which remain to be cleared.” Id.

The Consultation Handbook provides additional illustration of the exacting nature of determining whether a future action, which may cause an effect, is “reasonably certain to occur.” The Services emphasized in the discussion of cumulative effects that when looking at future actions, the “action agency and the Services should consider the economic, administrative, and legal hurdles remaining before an action proceeds.” Id. at 4-30. The Services further explained that:

In the context of cumulative effects, the discussion of “reasonably certain to occur” necessarily focused on the certainty of activities occurring because by definition the effects at issue do not derive from the Federal action but from activities of others operating in the action area of the action under consultation. In similar fashion, some indirect effects of the action ultimately may occur only after subsequent activities of others, which themselves are caused by the Federal action under consultation. In the context of indirect effects, the Consultation Handbook notes that “reasonably certain to occur may be evidenced by appropriations, work plans, permits issued, or budgeting; they follow a pattern of activity undertaken by the agency in the action area, or they are the logical extensions of the proposed action.” Id. at 4-28. Just as with cumulative effects, then, evaluating and establishing the reasonable certainty that those activities will occur and produce the indirect effect of concern is appropriate where indirect effects also depend on a subsequent actor to bring about their outcome. If the subsequent activity is not reasonably certain to occur then the indirect effect is not reasonably certain to occur. Reasonably certain to occur allows for a possibility that the activity will not occur, but that possibility has to be low.

Finally, the 2003 Joint Agreement among BLM, Forest Service, FWS and NMFS provides guidance on the “reasonably certain to occur” standard:

Comment: Several commenters asked questions about how the use of the word “essential” will impact baseline analysis with regard to jeopardy opinions. Specifically, they questioned how “essential cause” would be employed in cases where a species status is seriously imperiled.

Response: Nothing in this rule changes the jeopardy analysis. The term “essential” clarifies the term “caused by” as used in the definition of indirect effects. After the effects of the action are determined, the impacts of those effects are then analyzed to determine if the effects of the action (combined with cumulative effects) are likely to jeopardize the continued existence of listed species or adversely modify or destroy critical habitat. The status of the species is part of that analysis but the action under consultation must still impact the species in a negative fashion in order for there to be a jeopardy determination.

Paragraph (b)(2) was amended and now only pertains to effects that are “manifested through global processes.” The subparagraphs of (b)(2) are clarified and further limit the application of this paragraph. Paragraph (b)(3)(iii) was deleted.

Initially, we will address the general comments on this section as a whole. Comments specific to various subparts of this section are discussed below.

Comment: While some commenters supported the change in the applicability section under the proposed rule, many commenters asserted the Services cannot allow action agencies to make applicability determinations as set out in the rule. That is, they asserted that action agencies cannot decide, without formal or informal consultation with the Services, that their action has no effect or is essentially not likely to adversely affect listed species or critical habitat. These commenters relied on the wording of section 7(a)(2) of the ESA that states “Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action* * *.” The commenters read these words to be absolute. That is, they read the words “in consultation with” to mean that action agencies must enter into formal or informal consultation with the Secretary to insure that any of their actions will not violate the prohibitions set out in the remainder of section 7(a)(2).

Response: The existing regulations recognize that there are a variety of ways that action agencies can meet their procedural obligations under section 7(a)(2). The 1986 regulations, the thousands of interactions between the Services and the action agencies over the past thirty years, and these revisions are, in addition to the formal and informal consultation procedures established under the regulations, part of the framework for “consultation” and “assistance” provided to action agencies to allow them to determine the steps they must take to insure that their actions are not likely to jeopardize the continued existence of listed species or adversely modify or destroy critical habitat.

Section 7 does not define the term “consultation.” While Congress has provided certain requirements for what should happen after consultation, the statute does not provide any direction or criteria as to how consultation is to be carried out. In relevant part, section 7 provides that:

An interpretation that requires “consultation” under 7(a)(2) on each and every action ignores both the 1986 regulations, and the Services practice since then. The Services established the current process as a regulatory mechanism for efficient implementation of the mandate to provide their expertise to the action agencies. The 1986 regulations recognized that case-by-case consultation on certain actions was not necessary or beneficial. The Services devised off-ramps to eliminate those actions from case-by-case consultation.

The 1986 regulations provided that action agencies need only consult case-by-case on those actions that are “discretionary.” Section 7(a)(2) does not specifically recognize such an exception, but the Services recognized that there was no benefit in consulting case-by-case on actions that the action agencies were powerless to modify for the benefit of listed species. The Supreme Court recently upheld the Services' regulatory interpretation that non-discretionary agency actions could be excluded from case-by-case consultation. National Association of Home Builders v. Environmental Protection Agency , 127 S. Ct. 2518 (2007).

Similarly, the Services have long implemented section 7(a)(2) through regulations that exclude from case-by-case consultation those actions that the action agency determines will have “no effect” on listed species or critical habitat even though the statute makes no express exception for such actions. The original section 7 regulations, promulgated in 1978, specified that “[i]f a Federal agency decides that its activities or programs will not affect listed species or their habitat, consultation shall not be initiated unless required by the Service.” 43 FR 870, 875 (Jan. 4, 1978). Subsequently, when the Services modified the regulatory scheme in 1986, we implicitly retained the no effect/may affect threshold for consultation. Thus, section 402.14 requires consultation for any action that “may affect” listed species or critical habitat. The courts have routinely upheld action agency “no effect” determinations, notwithstanding that they have been made without consultation with the Services. See , e.g., Southwest Center for Biological Diversity v. U.S. Forest Service , 100 F.3d 1443 (9th Cir. 1996) (upholding Forest Service determination that salvage timber sale would have “no effect” on listed species and concluding that formal consultation was not necessary); Ground Zero Center for Non-Violent Action v. United States Department of Navy , 383 F.3d 1082 (9th Cir. 2004); Pacific Rivers Council v. Thomas , 30 F.3d 1050, 1054 n.8 (9th Cir. 1994); and, Defenders of Wildlife v. Kempthorne , at 60. In addition, Congress has amended the ESA several times and never made any changes to section 7 that would express their disapproval with this interpretation.

The rule that is being published today is an incremental change that builds upon the existing regulatory framework and attempts to address the increased burden of informal consultations, case-by-case, as well as the new challenge the agencies and Services confront regarding case-by-case consultation as it relates to greenhouse gas emissions and climate change.

The Services have seen steady increases in section 7 consultations since adoption of the 1986 regulations. For example, the number of consultations completed by FWS doubled between fiscal year 1996 and fiscal year 2002. Although NMFS' workload has also increased significantly due to new listings and court decisions, it has not collected these statistics. As the number of section 7 consultations has increased, the workload for the Services has grown. For example, requests to the Services for technical assistance or section 7 consultations increased from 41,000 requests in 1999 to over 68,000 requests in fiscal year 2006. In 2006, there were 39,346 requests for technical assistance, 26,762 requests for informal consultations, and 1,936 requests for formal consultations.

To meet these challenges, the Services have developed several carefully crafted and narrow categories of actions for which they believe case-by-case consultation would not be necessary or beneficial. The pre-existing “may affect” trigger for formal consultation is retained, except in the case of projects where no take is anticipated and the effects are: Wholly beneficial; or cannot be measured or detected in a manner that permits meaningful evaluation; or are manifested through global processes (and meet one of several additional criteria). The Services have determined that such actions are far removed from any potential for jeopardy or destruction or adverse modification of critical habitat, and consultation in these limited circumstances is therefore not required. In 1986, the Services recognized the key concern was to set thresholds for consultation (there speaking of formal consultation) that are “sufficiently low to allow Federal agencies to satisfy their duty to `insure' under Section 7(a)(2).” 51 FR 199926. The applicability criteria established in the final rule do that. As noted, the action agencies already make no effect/may affect determinations without assistance from the Services. Clearly such actions do not violate the substantive standard of section 7(a)(2). The Services have also determined that no further consultation and advice on specific actions is necessary for those agency actions that are wholly beneficial. Because of the threshold requirement that no take is anticipated and the requirement that the action be beneficial in its entirety, such actions also inherently are not likely to jeopardize listed species or adversely modify or destroy critical habitat. The threshold of no take being anticipated also applies for those effects that are so insignificant that they cannot be measured or detected in a manner that permits meaningful evaluation. These effects were previously determined to be “not likely to adversely affect.” Consultation Handbook, at XV. By definition, then these effects are not likely to adversely affect and cannot be likely to jeopardize listed species or adversely modify critical habitat and, therefore, no further consultation on the specific action is necessary. Finally, section 402.03(b)(2) provides that effects that are manifested through global processes (and meet one or more of the additional criteria) do not require further consultation. As discussed in more detail below, the Services believe that section 7(a)(2) simply was not intended to deal with global processes at individual project level consultations. Further, the threshold requirement of no anticipated take and the additional criteria set out in 402.03(b)(2) limit the use of this subparagraph to only those effects from an action that would not be likely to jeopardize listed species.

The Services' determination that case-by-case consultation is not necessary or beneficial in these instances is consistent with the latitude Congress has granted the Services to implement the procedural aspects of section 7(a)(2), including the development of appropriate triggers for case-by-case consultation. In addition, through this regulation we provide our advice and guidance to action agencies with regard to those narrow categories set out in section 402.03. Thus, we have determined that compliance with this rule by action agencies satisfies the procedural requirements of section 7(a)(2) for those narrow categories of actions set out in section 402.03. Moreover, the change from prior practice is an appropriate response to the burden of increased informal consultations.

Comment: Some commenters asserted that all agency actions must undergo the process set out in the 1986 regulations as “formal consultation.”

Response: We disagree and conclude that these commenters read far more into section 7(a)(2) of the ESA than exists. Simply put, under section 7(a)(2), Federal agencies must insure their action “is not likely to jeopardize the continued existence of any endangered species or threatened species,” and the Services must provide expert advice and help (“consultation and assistance”) to the action agencies. The precise form and manner in which this expert advice and help is provided is not specifically prescribed by Congress; instead, the Services and action agencies can “fine tune” the regulations as appropriate.

Moreover, such an assertion flies in the face of many years of agency practice. Indeed, a district court recently noted, “the Services play no role whatsoever in that threshold determination.” Defenders of Wildlife v. Kempthorne , at 60 (referencing the initial determination as to whether a proposed action ‘may affect’ listed species or critical habitat). Since 1978, if an action agency concludes that a proposed action will have no effect on a listed species, it is under no obligation to consult with the Services.

The Services have provided guidance to action agencies in the past with regard to when formal or informal consultation on specific actions is required. The 1986 regulations determined that action agencies need only consult on those actions that are “discretionary.” The statutory language found in section 7(a)(2) of the ESA does not make such an exception. Rather, the Services, by regulation, determined that neither formal nor informal consultation on specific actions was required for non-discretionary actions. The Supreme Court recently upheld the Services' determination that no further consultation is required once an agency determines that their action is non-discretionary. National Association of Home Builders v. Environmental Protection Agency , 127 S. Ct. 2518 (2007).

The Services have also interpreted section 7(a)(2) to not require formal or informal consultation on specific actions for those instances when the action agency determines that its action will have “no effect” on listed species or critical habitat. Consultation Handbook, p. 3-12. Statutory language does not specifically make such an exception; rather, the determination that consultation is not necessary was made at the Secretaries' discretion. Since 1978, Federal agencies have been making their own determinations about whether a project would result in no effect to a listed species. The original section 7 regulations issued in 1978 specified that “[i]f a Federal agency decides that its activities or programs will not affect listed species or their habitat, consultation shall not be initiated unless required by the Service.” 43 FR 870, 875 (January 4, 1978). Congress confirmed this regulatory approach when it reviewed, with approval, the 1978 regulations when deliberating over the 1978 amendments to the ESA. See e.g. 1978 U.S.C.C.A.N. 9484, 9486. Later, in 1986, Congress had the ability to require section 7 consultation for each and every action carried out by a Federal action agency, but it chose not to make any changes to the section 7 consultation process in its amendments to the ESA in 1986. 51 FR at 19,927.

In summary, we do not believe section 7(a)(2) mandates Federal action agencies to undertake a separate ESA formal or informal consultation with the Services for each and every action they take. No definition of “consultation” is provided in section 7(a)(2) or elsewhere in the ESA. Congress left it to the Services to craft the consultation process, including the interpretation of the reach of the statute and the development of an appropriate trigger for formal and informal consultation. See Sweet Home v. Babbitt 515 U.S. 687, 708 (1995). This interpretation is not new. As discussed above, the Services have already identified two situations where no further consultation on specific actions has been required once a threshold determination was met.

Comment: Several commenters suggested that action agencies are not equipped to make their own determinations either because they lack the requisite expertise, lack funding, will not be able to find qualified reviewers, or do not have a mission compatible with resource protection.

Response: The Services disagree that agencies with other missions are not equipped to make the determinations required to implement the new applicability provisions. Most major action agencies already have well-qualified staff that support their ESA compliance. And, agencies regularly make their own consultation determinations on a number of issues under the 1986 regulations. As under the 1986 regulations, this rule does not preclude an action agency from seeking the expertise of the Services or taking advantage of expertise that may be available from State or local agencies, universities, non-governmental organizations or other sources, which often work cooperatively with Federal agencies on species conservation matters. Finally, nothing in the applicability section requires that action agencies bypass informal consultation. If action agencies have any limitations in their ability to make their determinations under the ESA, the rule explicitly recognizes that the action agencies retain the ability to seek informal consultation with the Services. If an action agency believes that it does not have the scientific expertise to make an accurate assessment of its project's impacts on listed species and critical habitat, it may avail itself of the expertise offered by the Services under the current regulatory procedures.

In this regard, we note that the final rule represents an incremental change regarding the extent to which the action agencies will make their own determinations about the effects of their actions on listed species. Under the 1986 regulations, and continuing under this rule, action agencies presently are responsible for determining if their action may affect listed species and critical habitat. They need not engage in case-by-case consultation where they determine that the proposed action will have no effect on listed species. The final rule adds several narrow additional categories in which they will also not need to consult case-by-case where they determine that their actions will not result in take and satisfy the criteria in 402.03(b).

The types of actions that we believe will fall into the “wholly beneficial” or incapable of meaningful evaluation categories are ones for which we have routinely concurred on action agency NLAA determinations in the past. For example, these have included, but are not limited to:

We have engaged in many thousands of informal consultation on these types of activities over the past thirty years. We have routinely agreed with the action agencies' conclusions (supported by their biologists' opinions) that the projects are not likely to adversely affect the species because the actions will occur at a time when listed species are not present and habitat will not be affected or will recover prior to species returning to the area, or they enhance the biological value of the habitat without any short term risk to species or harm to the habitat. Also, based on years of consulting informally, many agencies have developed best management practices for these types of actions to ensure adverse effects are avoided. Based on this lengthy experience, we believe that action agencies are well equipped to make and document appropriate determinations under the applicability provisions.

As a legal matter, action agencies cannot assert that lack of resources or that contrary missions excuse them from compliance with their ESA obligations. Indeed, the action agencies have a strong incentive to ensure that they are equipped to make appropriate determinations. If they fail to do so, they will be subject to lawsuits challenging those determinations and their actions could be delayed or enjoined.

Comment: Several commenters pointed to the report from the Healthy Forest Counterpart regulations to support the assertion that action agencies will not make credible effects determinations.

Response: We do not agree that this report requires such a conclusion. In our view this report demonstrates the importance of action agencies developing administrative records that demonstrate the soundness of their conclusions with respect to the potential effects of a project and reflect the information available to them.

Comments: Several other commenters believe that there needs to be an “oversight” role for the Services. One commenter believed that action agencies needed to set up internal procedures to assure funding for biologists and to require an independent decision-maker. Another commenter suggested that action agencies should enter into alternate consultation procedures with the Services to suit their individual needs. Several commenters believed the Services should offer guidance to the action agencies as to how to make effects determinations.

Response: The Services have determined that a formal oversight process is not necessary or consistent with the purposes of this rule. The objective of this rule, in part, is to provide for a more efficient process for certain very narrow situations where the Services have determined no further consultation on specific actions is necessary or beneficial, as discussed above. Action agencies, however, can create any internal procedures they deem necessary to establish a credible administrative record to support their determinations. Further, nothing in this rule prevents action agencies from entering into agreements or promulgating counterpart regulations with the Services. Finally, the Services do offer training courses on section 7, which have been well-attended by action agency personnel. And, the Services' Consultation Handbook is available for guidance.

Comment: Several commenters questioned how “contested determinations” among agencies would be resolved. Another commenter noted there was no mechanism for the Services to “overturn” an incorrect determination made by an action agency.

Response: It is not clear what is meant by “contested determinations.” Currently, there is no mechanism for the Services to “overturn” decisions made by action agencies. The Services can exercise, and have exercised, their authority under 402.14(a) to request that an action agency consult on an agency action. This option continues to be available to the Services.

Comment: Some commenters questioned how the rule will impact applicants.

Response: This rule does not affect the level of involvement an applicant may have either before or during informal consultation or formal consultation, except to the extent any applicant must agree to the extension of informal consultation beyond 120 days. Action agencies may involve applicants to any extent they choose, beyond the minimum requirements for applicant involvement established in the 1986 regulations.

Comment: Other commenters noted that action agencies already may face an increased litigation risk if they make determinations under the applicability section of this rule.

Response: As discussed above, action agencies already have a potential litigation risk when making the “no effect” determination as well as the ultimate liability with regard to jeopardy and adverse modification. Action agencies that determine that an action fits under the applicability section of this rule and forgo informal consultation on that basis should, as appropriate, develop an administrative record that supports the determination and should be prepared to defend it.

Comment: Some commenters believe this regulation will reduce collaboration between the action agencies and the Services, which they believe could result in an increase in adverse effects to listed species.

Response: In light of the narrow provisions set out in the applicability section, it is difficult to surmise when there would be likely adverse effects that would not be subject to formal consultation under this rule. Further, nothing in this rule prevents action agencies from consulting with the Services informally. Nor does this rule change an action agency's obligation to consult formally if there are likely to be adverse effects to listed species or critical habitat. Typically, in those consultations, the action agency and the Services collaborate to reduce impacts.

Comment: Several commenters questioned how this rule would impact listed plants and some believed the applicability section (402.03) of this rule would lessen protection for listed plants.

Response: This rule does not lessen protections for plants. The applicability section of this final rule sets a threshold for an off-ramp from consultation whereby no take is anticipated to result from the agency action. The ESA defines take to include “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect any listed species.” While some of these terms are more appropriate to listed wildlife, many of them would apply to plants. We recognize that take of listed plants is not prohibited under section 9 of the ESA; nevertheless, under section 7(a)(2) and the regulations, Federal agencies are still responsible for assessing whether their actions are likely to adversely affect (which may include take) listed plant species. Under this rule, even once the threshold of “no take is anticipated” has been met, the action agency must still demonstrate that its action is either wholly beneficial to listed plants, will have no effect on listed plants, or will have effects that are so insignificant they cannot be measured or detected in a manner that would permit meaningful evaluation of those effects. If the effect will be manifested through global processes, the remaining conditions set out in paragraph (b)(2) must also be met. Nothing in this rule changes the manner in which plants are dealt with in informal or formal consultation; listed plants, therefore, will continue to be protected under this rule.

Comment: Several commenters agreed that the rule should formalize the long-standing practice of the Services to not require consultation on “no effects” determinations made by action agencies. On the other hand, a few commenters thought consultation was required even for “no effects.”

Response: As discussed above, case-by-case consultation is not required on every action taken by an action agency. Paragraph 402.03(b)(1) of the rule makes explicit the guidance to the action agencies inherent in the 1986 regulations that no consultation is required in those instances when an action poses no effects to listed species or critical habitat. We determined that consultation is not required because an action that has no effect on listed species or critical habitat inherently meets the section 7(a)(2) statutory requirement that agencies ensure their actions are not likely to jeopardize a listed species or adversely modify or destroy critical habitat. Moreover, requiring consultation when an action is determined to have no effect on listed species or critical habitat is an unnecessary diversion of scarce resources.

Comment: Many commenters were troubled by paragraph 402.03(b)(2) as set out in the proposed rule. The proposed rule stated that consultation was not required when no take was anticipated and “such action is an insignificant contributor to any effects on a listed species or critical habitat.” Some commenters were concerned how broad the language appeared and that it would be used to avoid reviewing effects that were simply “not significant.”

Response: After considering those comments, we determined that this portion of the rule should be revised. Accordingly, paragraph 402.03(b)(2) now is limited in scope to those effects that are “manifested through global processes” and: (i) The effects cannot be reliably predicted or measured at the scale of a listed species' current range; or (ii) would result at most in a small, insignificant impact on a listed species or critical habitat; or (iii) are such that the potential risk of harm to a listed species or critical habitat is remote.

We have revised section 402.03(b)(2) to establish a very narrow applicability exception to consultation for certain effects that are manifested through “global processes.” This exception would apply where the effects of an action are manifested through such processes and at least one of the following applies: The effects cannot be reliably predicted or measured at the scale of a listed species' current range; or the effects would result at most in an extremely small, insignificant impact on a listed species or critical habitat; or the effects are such that the potential risk of harm to a listed species or critical habitat is remote. The phrase “manifested through global processes” covers those effects that are the result of a specific source but become well mixed and diffused at the global scale such that they lose their individual identity. The combined effect of any particular source and other sources then becomes a potential contributor to a separate phenomenon with possible global impacts. Typically, however, the contribution of any particular source to the global process that then affects the local environment is very, very small. The most topical example of effects that would be manifested only through a global process is the effects of individual sources of greenhouse gas emissions and their contribution to global climate change and warming. “Manifested through global processes” does not refer to effects that can be evaluated for the immediate effects on the surrounding area caused by their primary physical and chemical characteristics. In that context, they would be traced and measured to the extent possible. It is also possible that an action might have some effects that are manifested through global processes and others that are not. In this case, consultation would be required with respect to those other effects, but under revised section 402.03(c) consultation would not be required with respect to those effects manifested through global processes, provided at least one of the other criteria of section 402.03(b)(2) is met. These revisions reflect our conclusion that section 7(a)(2) is not an appropriate or effective mechanism to assess individual Federal actions as they relate to global issues such as global climate change and warming. We do not believe that Congress designed or intended the ESA to be utilized as a tool to regulate global processes, nor is it appropriate to hold an agency responsible for global processes.

Comment: Some commenters questioned why it was appropriate to exclude effects that contribute to climate change.

Response: This very narrow type of effect is generally beyond the scope of section 7(a)(2) because of the inability to separate out the effect of a specific Federal action from a multitude of other factors that contribute through global processes. In addition, the case-by-case consultation on specific effects that would fall under this provision would not be necessary or beneficial. As discussed above, the exclusion applies only to those effects that lose their individual identity and only produce the potential to have an impact when they combine with other factors through a global process.

Even after the threshold of the effect being manifested through global processes, there are other limiting factors. The effects under this section must also be of such a nature that they cannot be reliably predicted or measured at the scale of a listed species' current range or would result at most in a small, insignificant impact on a listed species or critical habitat, or are of the nature that the potential risk of harm to a listed species or critical habitat is remote. In the context of greenhouse gases, current models, though capable of quantifying the contribution to changes in global atmospheric greenhouse gas concentrations and temperature, do not allow us to quantitatively link an individual action to localized climate impacts relevant to consultation. However, based on the best scientific information available, we are presently able to conclude that the impacts of a particular source are likely to be extremely small. For example, in a recent exchange of letters, EPA provided a model-based analysis that projected that even the emissions of a very large coal-fired power plant would likely result in a rise in the maximum global mean temperature of less than one-thousandth of a degree.

Finally, to attempt to regulate effects at a global scale would have the untenable consequence of transforming the “action area” for consultation into the globe itself, which would eviscerate any meaningful limit on the concept of “action area” and defy analysis. The concept of “action area,” as established in the 1986 regulations and unchanged by this rule, is an important and necessary tool to keep consultations manageable and tied to the particular action under consultation. In a global context, the concept of “action area” would be rendered meaningless.

Comment: Several commenters asked for a further explanation of “remote”. One commenter suggested that we clarify that remote applies to effects that are remote “in time, space, or in probability of occurrence.”

Response: This comment was originally submitted with regard to paragraph 402.03(b)(3)(iii), which has been withdrawn, but we will respond because of the use of the word “remote” in paragraph 402.03(b)(2). We agree with the commenter that remote can qualify an effect with regard to time, space, or in probability of occurrence, among other things.

Comment: Some commenters expressed concern that this regulation would prevent review of climate change in all consultations, even when the best available science indicates that climate change may impact a species.

Response: Paragraph (b)(2) is intended to deal with effects that are manifested through a global process. For example, under this paragraph consultation would not be required for actions involving the emission of greenhouse gases so long as they met the threshold of no anticipated take and one of the three criteria specified in paragraph (b)(2). This paragraph does not preclude the appropriate consideration of climate change, generally, for purposes of establishing the environmental baseline and the status of the species in the action area. For example, if, based upon the best available information it is determined that an action area will face a different precipitation pattern than it had experienced in the past (from the effects of climate change overall rather than from the project under consultation) that information would be appropriately evaluated for purposes of establishing the environmental baseline.

The proposed regulation set out three types of effects that would not require consultation: Those effects that are wholly beneficial, those effects that are “not capable of being meaningfully identified or detected in a manner that permits evaluation,” and those effects for which the “potential risk of jeopardy to the listed species or adverse modification or destruction of the critical habitat is remote.”

Comment: There were limited comments on the concept of “wholly beneficial” as set out in paragraph (b)(3)(ii). One commenter acknowledged that it would be a waste of time and resources to consult on such an action, but stated the ESA would still require it. One commenter preferred the words “clearly beneficial.”

Response: As discussed above, we disagree that the ESA requires consultation on every action taken by an action agency. The final rule continues the use of the words “wholly beneficial” to establish clearly that the action can have no adverse effects on listed species or habitat in order to be deemed “wholly beneficial.” This subparagraph does not allow a balancing of beneficial against detrimental. We believe the term “wholly beneficial” better captures that concept than “clearly beneficial.” Further this language tracks language in the Consultation Handbook, which defined “beneficial effects” as effects that are “contemporaneous positive effects without any adverse effects to the species.” We believe that no consultation is required for these effects because there is no question that an action agency can ensure that its action does not violate section 7(a)(2) with effects that are wholly beneficial.

Comment: Some commenters objected to proposed rule paragraph (b)(3)(i), which does not require further consultation on effects that are “not capable of being meaningfully identified or detected in a manner that permits evaluation.”

Response: After review of several comments, we concluded that the language set out in the proposed rule should be amended to better reflect the language contained in the Consultation Handbook. We made two technical changes to lend more precision to this applicability criterion. First, we changed the term “identified” to “measured.” The terms “identified” and “detected” are so similar in meaning that using both terms diminished the clarity of the provision. The term “measured,” however, is clearly distinct and provides an independent basis for examining whether an effect is suitable for consultation. The second change we made was to move the word “meaningfully” to the end of the sentence to modify “evaluated.” If an effect cannot be measured or detected in a manner that permits meaningful evaluation, we do not think consultation is beneficial or necessary.

We think the language in this rule captures the intent of language used to describe insignificant effects as defined in the Consultation Handbook under “is not likely to adversely affect.” That language reads, “Based on best judgment, a person would not: (1) Be able to meaningfully measure, detect, or evaluate” such effects. We think these effects were properly excluded from formal consultation by the determination that they were “not likely to adversely affect.” Consultation Handbook, p. xv. If an effect cannot be measured or detected to the point that it cannot be meaningfully evaluated, there is simply no point in requiring consultation on such an effect. We believe they are properly placed in the category of effects that do not require consultation once a determination has been made that no take is anticipated and any effects satisfy the criterion of section 402.03(b)(3)(i). However, this provision is not meant to suggest that consultation is not required merely because the predicted effect of an action is small in magnitude. Even though the magnitude of an effect is small, if the effects on the environment can be measured or detected in a manner that permits meaningful evaluation, then informal consultation may be necessary.

Comment: Many commenters objected to the language set out in the proposed rule at paragraph (b)(3)(iii) that consultation was not required for those effects that “are such that the potential risk of jeopardy to the listed species or adverse modification or destruction of the critical habitat is remote.” Primarily, the commenters thought this required or allowed action agencies to make a jeopardy determination, without consultation with the Services. Several commenters asked for clarification of the difference between “potential risk of jeopardy” with the jeopardy determination made as part of formal consultation. Another commenter noted that they did not see how this evaluation meshed with the threshold requirement for this entire paragraph that no take is anticipated.

Response: After considering the comments, we decided to remove paragraph (b)(3)(iii) from the final rule. Although, as discussed above, we have incorporated the concept of “remoteness” in the specialized global processes exception (402.03(b)(2)), we have delinked it from the statutory jeopardy standard.

A sentence was added to the end of paragraph 402.13(b) to explain when consultation has been satisfied. A new paragraph, 402.13(c), was added to establish that consultations, by mutual agreement, could be extended beyond the 120 day time period.

Comment: Several commenters expressed concerns about the new time frames for informal consultation and the provision that allows action agencies to terminate informal consultation. One commenter stated that the provisions to allow up to 120 days for informal consultation are not authorized by law. Other comments stated that the new time line allows action agencies to terminate informal consultation and move forward with the project without Service concurrence, which seriously weakens the consultation process, and that the proposed deadline for informal consultation is arbitrary and counterproductive. Other commenters supported the proposed establishment of a time limit for informal consultation as appropriate.

Response: The ESA does not require an informal consultation procedure. Rather, the informal consultation process as it has been implemented was created by regulation as part of the mechanism for streamlining consultations when an action agency does not need an incidental take statement and the effects are not expected to be adverse. The Services retain the authority to adapt the procedure based on their experience with implementation. Experience has shown that under the existing regulations informal consultations can be prolonged, sometimes lasting longer than formal consultations. This delay affects the action agencies' execution of their actions and fulfillment of their missions. Adding a time frame to this process is expected to contribute to achieving the efficiencies that were anticipated when the concept of informal consultation was introduced. The sixty-day period we have added (with a sixty-day extension) emphasizes the need for the Services to conduct timely review of requests for informal consultation and provides the Services an adequate opportunity to raise any concerns they may have. At the same time, the time frames provide action agencies with greater certainty by allowing them to terminate consultation and move forward after an established time. However, the action agency may move forward with the action only if the action agency concludes that the action will not result in take and is not likely to adversely affect listed species or critical habitat.

Comment: The proposed regulations fail to provide for at least a pro forma written opinion of the Secretary, which is contrary to the statutory duty.

Response: Section 7(b)(3) requires that “[p]romptly after conclusion of consultation” under either section 7(a)(2) or (3), “the Secretary shall provide to the Federal agency and applicant, if any, a written statement setting forth the Secretary's opinion.” Under the 1986 regulations, the Services provide a biological opinion only after formal consultation. This rule does not change that requirement. We assume that the commenter refers to the concurrence letter in the informal consultation process as a pro forma written opinion of the Secretary. Although the Services expect that in many cases informal consultation will conclude in a letter of concurrence or a request for formal consultation, the final rule permits action agencies to move forward without one. Neither informal consultation nor concurrence with “not likely to adversely affect” determinations are set forth in the ESA. The Services are exercising their discretion under the ESA by concluding that in certain narrow circumstances a written statement from the Services is neither required nor beneficial.

Comment: Revise the proposed section 402.13(b) to clearly state that termination means that the action agency has fulfilled its procedural obligation to consult with the Services.

Response: The Services have modified the proposed text to clarify that if the action agency terminates consultation at the end of the sixty-day period established under section 402.13(b) (or the end of an extension pursuant to that section), or if the appropriate period has expired without a written statement from the Service, the action agency will be considered to have satisfied its procedural duty to consult under section 7(a)(2) of the ESA. However, we have also added a provision to the final rule to clarify that the Service, the action agency, and the applicant, if any, may agree to extend informal consultation for a specified period of time. This provision will allow the relevant parties to continue informal consultation in situations where progress has been made so that the Service's written concurrence will still be a possible outcome. Because the purpose of the time limit is to expedite informal consultation, we expect that extensions beyond 120 days will be rare.

Comment: The requirement to consult when the action agency is unable to find that its action is “not likely to adversely affect” a species has not changed.

Response: We agree, in this circumstance the Federal agency would proceed to formal consultation.

Comment: Some comments supported the use of informal consultation for review of batched, similar, or grouped actions.

Response: We agree this is appropriate provided that the group of actions or batched actions meet the threshold criterion of “no take is anticipated.”

Comment: Several commenters questioned what the implications are if an action agency chooses to proceed without a concurrence from the Services.

Response: In the final rule the Services have clarified that a Federal agency may consider lack of a response at the end of 60 days (unless extended by the Services to 120 days) as satisfying their procedural obligations under 7(a)(2). The action agency can choose to proceed with the action. The Services have determined that this approach has little risk of adverse affect on species, because the threshold requirement of informal consultation is that no take is expected to occur and because the Service has ample opportunity in 60 or 120 days to raise issues with the action agency if adverse effects are likely and move the action into formal consultation.

Comment: Several commenters noted that it is sometimes helpful to have extended informal consultations that allow the action agencies and the Services to work together to lessen impacts to species and critical habitat. Some of those commenters requested additional language be added to clarify that consultations could proceed past 120 days.

Response: The Services also have considered that circumstances may arise in which the informal consultation is proceeding but is not likely to conclude in 120 days. If the action agency wishes to continue informal consultation, then Services may agree with the action agency on an extension, provided the applicant also agrees. Although the Services have incorporated this provision into the regulation, as noted above, we expect that it will be rarely utilized.

We also note that the Services may indicate that they do not concur when they have not been provided adequate information to consider the action agency's not likely to adversely affect determination. In such circumstances, the Services should specify in detail the supplemental information they think is necessary to consider the action agency's determination.

We made a minor change to this section to reflect changes in the informal consultation section of the rule. Specifically, we changed the “exception” language in § 402.14 to note that informal consultation may be concluded without the written concurrence of the Director under the circumstances in § 402.13(b).

Comment: Some commenters thought that the exception language in 402.14 appeared to require formal consultation even when the action agency chooses to conclude consultation.

Response: We agree that there could be some confusion as to whether formal consultation was required when an action agency chooses to conclude consultation without receiving a concurrence from the Services. We think the rule makes it clear that under those circumstances, consultation under section 7(a)(2) is satisfied.

Executive Order 12866 requires Federal agencies to submit proposed and final significant rules to the Office of Management and Budget (OMB) prior to publication in the FR. The EO defines a rule as significant if it meets one of the following four criteria:

(a) The rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government;

(b) The rule will create inconsistencies with other Federal agencies' actions;

(c) The rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients; or

(d) The rule raises novel legal or policy issues.

If the rule meets criteria (a) above, it is called an “economically significant” rule and additional requirements apply. It has been determined that this rule is “significant” but not “economically significant.” It was submitted to OMB for review prior to promulgation.

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. , as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions), unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The Regulatory Flexibility Act requires Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.

Pursuant to the Regulatory Flexibility Act, the Secretaries of the Interior and Commerce certify that this regulation will not have a significant economic impact on a substantial number of small entities. This rule applies only to Federal agencies and does not regulate, either directly or indirectly, any small entities.

This rule is not a major rule under 5 U.S.C. 804(2), Subpart E of the Small Business Regulatory Enforcement Fairness Act, also known as the Congressional Review Act. This rule:

a. Does not have an annual effect on the economy of $100 million or more;

b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions;

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

As discussed above, this rule makes narrow changes to the section 7 consultation process. As such, the impacts are relatively narrow and limited to the Federal action agencies. A copy of the rule and required supporting documentation will be provided to the Comptroller General and both Houses of Congress before the rule goes into effect.

On May 18, 2001, the President issued an Executive Order (E.O. 13211) on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. The rule is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.

In accordance with the Unfunded Mandates Reform Act:

(1) The rule will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required. We expect that these regulations will not result in any significant additional expenditure by entities that develop formalized conservation efforts.

(2) The rule will not produce a Federal mandate on State, local, or tribal governments or the private sector of $100 million or greater in any year; and so is not a “significant regulatory action” under the Unfunded Mandates Reform Act. The rule imposes no obligations on State, local, or tribal governments.

In accordance with Executive Order 12630, this rule does not have significant takings implications. The rule has no impact on personal property rights. A takings implication assessment is not required.

In accordance with Executive Order 13132, this rule does not have significant Federalism effects. A Federalism Assessment is not required.

In accordance with Executive Order 12988, this rule does not unduly burden the judicial systems and meets the requirements of sections 3(a) and 3(b)(2) of the Order. We promulgate this rule consistent with the Executive Order.

This rule will not impose any new requirements for collection of information that require approval by the OMB under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ). This rule will not impose new recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. We may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

In developing this rule we did not conduct or use a study, experiment, or survey requiring peer review under the Data Quality Act (Pub. L. 106-554).

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. In compliance with the requirements of the National Environmental Policy Act of 1969 (NEPA), and the Council on Environmental Quality's regulation for implementing NEPA (40 CFR 1500-1508), we published the availability of a draft environmental assessment on October 27, 2008 (73 FR 63667), followed by a 10-day comment period. The final environmental assessment is available to the public (see ADDRESSES ). The action falls within the scope of the final environmental assessment and accompanying Finding of No Significant Impact. The FWS and NMFS are considered the lead Federal agencies for the preparation of this rule, pursuant to 40 CFR part 1501.

In accordance with the Secretarial Order 3206, “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and Endangered Species Act” (June 5, 1997); the President's memorandum of April 29, 1994, “Government-to-Government relations with Native American Tribal Governments” (59 FR 22951); E.O. 1315; and the Department of the Interior's 512 DM 2, we understand that we must relate to recognized Federal Indian Tribes on a Government-to Government basis. The rule applies only to Federal agencies, not to Indian Tribes. To the extent that Federal actions requiring consultation may indirectly affect the Tribes, the rule is intended only to streamline the administration of the ESA and clarify definitions; the rule does not change any substantive requirements concerning protections of listed species or critical habitat. Any indirect effect to Tribes, therefore, would be minimal.