This rule is issued under Marketing Order No. 946, as amended (7 CFR part 946), regulating the handling of Irish potatoes grown in Washington, hereinafter referred to as the “order.” The order is 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 Orders 12866, 13563, and 13175.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect.

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 entry of the ruling.

This rule extends the temporary exemption of yellow fleshed and white types of potatoes from the order's handling regulations through the 2014-2015 and subsequent fiscal periods. Without this action, the temporary exemption currently in effect would end on June 30, 2014. This rule allows the Washington potato industry to continue to market yellow fleshed and white types of potatoes without regard to the minimum quality, maturity, pack, marking, and inspection requirements prescribed under the order.

The order authorizes the establishment of handling regulations for all varieties or varietal types of potatoes grown in the production area. These regulations can include minimum grade, size, quality, or maturity requirements. They can also stipulate the size, capacity, weight, dimensions, pack, marking, or labeling of containers used in the handling of such potatoes. The handling regulations may be modified, suspended, or terminated upon the recommendation of the Committee and the approval of the Secretary. When handling regulations are in effect, regulated potatoes must be inspected and certified by the Federal-State Inspection Service (FSIS).

The above-described authorities are found in §§ 946.51, 946.52, and 946.60 of the order. Supporting rules and regulations for these authorities are found in § 946.336.

The Committee meets regularly to consider the effectiveness of regulatory requirements in place for Washington potatoes. These requirements are issued on a continuing basis and may be modified, suspended, or terminated upon recommendation of the Committee and approval by USDA. Committee meetings are open to the public, and interested persons may express their views at these meetings. USDA reviews recommendations made by the Committee, along with any additional information submitted by the Committee and other available information, and determines whether such recommendations would tend to effectuate the declared policy of the Act.

The Committee met on July 16, 2013, and unanimously recommended exempting yellow fleshed and white types of potatoes from the handling regulations through June 30, 2014. This recommendation was implemented by USDA in an interim rule published in the Federal Register on October 23, 2013 [78 FR 62967], and finalized on May 2, 2014 [79 FR 24997].

During the temporary exemption, yellow fleshed and white types of potatoes were able to be handled without regard for the order's handling and inspection requirements. The Committee initiated this action to evaluate the potential cost savings, and the corresponding impact on the market, that might result from such an exemption.

Since October 24, 2013, initiation of the exemption period, handlers have called upon FSIS only intermittently to inspect and certify yellow fleshed and white types of potatoes prior to shipment in order to meet their customers' needs or market requirements. With full-time inspection no longer mandatory, handlers were able to coordinate the timing and utilization of inspection services to meet the needs of their individual operations, resulting in reduced costs. No negative market impacts were experienced as a result of the temporary exemption of yellow fleshed and white types of potatoes from the handling regulations. Handlers have continued to meet their customers' specifications, either with voluntary inspection or no inspection, during the temporary exemption. Therefore, the Committee believes that the temporary exemption of yellow fleshed and white types of potatoes has reduced industry costs without negatively impacting the market.

At its December 10, 2013, meeting, the Committee unanimously recommended indefinitely extending the temporary exemption for yellow fleshed and white types of potatoes from the handling regulations past the previously established end date of June 30, 2014. Therefore, this rule modifies § 946.336 to exempt yellow fleshed and white types of potatoes from handling regulations through the 2014-2015 and subsequent fiscal periods.

As a result of this exemption, yellow fleshed and white types of potatoes will not be subject to the minimum grade, size, quality, maturity, pack, marking, and inspection requirements of the order for the 2014-2015 fiscal period and subsequent fiscal periods. However, assessments on all fresh yellow fleshed and white types of potatoes handled under the order will remain in effect during the exemption period. Also during this interval, handlers will continue to be required to submit reports of their shipments of fresh yellow fleshed and white types of potatoes to the Committee for the purposes of collecting assessments and compiling industry statistics.

Although this rule continues to provide handlers of yellow fleshed and white types of potatoes the opportunity to decrease their total costs by eliminating the expenses associated with mandatory inspection, it does not restrict handlers from seeking inspection on a voluntary basis. In addition, the Committee will continue to monitor and evaluate the effects of the exemption on marketing and producer returns at future Committee meetings.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), 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 businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and 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 43 handlers of Washington potatoes subject to regulation under the order and approximately 267 producers in the regulated production area. Small agricultural service firms are defined by the Small Business Administration as those having annual receipts of less than $7,000,000, and small agricultural producers are defined as those having annual receipts of less than $750,000. (13 CFR 121.201)

For the 2011-2012 marketing year, the Committee reports that 11,018,670 hundredweight of Washington potatoes were shipped into the fresh market. Based on average f.o.b. prices estimated by the USDA's Economic Research Service and Committee data on individual handler shipments, the Committee estimates that 42, or approximately 98 percent of the handlers, had annual receipts of less than $7,000,000.

In addition, based on information provided by the National Agricultural Statistics Service, the average producer price for Washington potatoes for 2011-2012 was $7.90 per hundredweight. The average gross annual revenue for the 267 Washington potato producers is therefore calculated to be approximately $326,021. In view of the foregoing, the majority of Washington potato handlers and producers may be classified as small entities.

This rule extends the temporary exemption of yellow fleshed and white types of potatoes from the handling regulations through the 2014-2015 and subsequent fiscal periods. The industry is concerned that the cost of mandatory inspection, which has increased, outweighs the benefits of having quality regulations in place. The extension of the temporary exemption is expected to further reduce overall industry expenses and continue to provide the industry with the opportunity to explore alternative marketing strategies.

The authority for regulation is provided in § 946.52 of the order. In addition, the handling regulations are specified under § 946.336 of the order's administrative rules and regulations.

The Committee does not anticipate that this rule will negatively impact small businesses. This rule will exempt yellow fleshed and white types of potatoes from minimum quality, maturity, pack, marking, and inspection requirements. Though inspections are not mandatory for such potatoes during the exemption period, handlers may voluntarily choose to have their potatoes inspected. Handlers are thus able to control costs based on the demands of their customers.

The Committee discussed alternatives to this recommendation, including taking no action and allowing the temporary exemption to lapse on June 30, 2014. However, the Committee believes that the temporary exemption for yellow fleshed and white types of potatoes has been successful, and recommended extending the exemption of yellow fleshed and white types of potatoes from the handling regulation indefinitely.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0178, Generic Vegetable and Specialty Crops.

During the exemption period, handlers will continue to be required to report fresh shipments of yellow fleshed and white types of potatoes monthly. While this rule requires a reporting requirement for shipments of yellow fleshed and white types of potatoes, their exemption from handling regulations also eliminates the more frequent reporting requirements imposed under the order's special purpose shipment exemptions (§ 946.336(d) and (e)). Under these paragraphs, handlers are required to provide detailed reports whenever they divert regulated potatoes for livestock feed, charity, seed, prepeeling, processing, grading and storing in specified counties in Oregon, and experimentation.

Therefore, any additional reporting or recordkeeping requirements on either small or large handlers of yellow fleshed and white types of potatoes are expected to be offset by the elimination of the other reporting requirements currently in effect. In addition, the exemption from handling regulations and inspection requirements for yellow fleshed and white types of potatoes is expected to reduce industry expenses.

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.

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

The Committee's meetings were widely publicized throughout the Washington potato industry, and all interested persons were invited to participate in Committee deliberations. Like all Committee meetings, the December 10, 2013, meeting was a public meeting. All entities, both large and small, were able to express views on this issue. Further, interested persons are invited to submit comments on this interim 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/MarketingOrdersSmallBusinessGuide . Any questions about the compliance guide should be sent to Jeffrey Smutny at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

This interim rule invites comments on the exemption of yellow fleshed and white types of potatoes from the handling regulations for the 2014-2015 and subsequent fiscal periods. Any comments received will be considered prior to finalization of this rule.

After consideration of all relevant material presented, including the Committee's recommendation, and other information, it is found that this interim 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) Any changes resulting from this rule should be effective July 1, 2014, because the temporary exemption for Washington yellow fleshed and white types of potatoes from the handling regulations ends on June 30, 2014; (2) the Committee discussed and unanimously recommended these changes at a public meeting, and all interested parties had an opportunity to provide input; (3) potato handlers are aware of this action and want to take advantage of this handling regulation relaxation; and (4) this rule provides a 60-day comment period, and any comments received will be considered prior to finalization of this rule.

For the reasons set forth in the preamble, 7 CFR part 946 is amended as follows:

On February 3, 2011, Extra GmbH applied for an amendment to Type Certificate No. A67EU to include the model number, EA-300/LC. The EA- 300/LC, which is a derivative of the EA-300/L, currently approved under Type Certificate No. A67EU, is a single engine, two-place tandem canopy cockpit, low wing aerobatic monoplane with conventional landing gear.

Its maximum takeoff weight is 2095 pounds (950 kilograms). V NE is 219 knots, V NO is 138 knots, and V A is 154 knots, indicated airspeed. Maximum altitude is 10,000 feet. The engine is a Lycoming AEIO-580-B1A with a rated power of 315 Horsepower (Hp) at 2,700 revolutions per minute (rpm). The airplane is proposed to be approved for Day-VFR operations with no icing approval. The EA-300/LC is certified under European Aviation Safety Agency (EASA) authority (Type Certificate Data Sheet EASA.A.362) as a dual category (normal/acrobatic) airplane.

Acrobatic airplanes previously type certificated by the FAA did comply with the stability provisions of part 23, subpart B. However, airplanes like the EA-300/LC are considered as “unlimited” acrobatic aircraft because they can perform at the highest level of aerobatic competition and can perform any maneuvers listed in the Aresti Catalog. The evolution of the “unlimited” types of acrobatic airplanes with very low mass, exceptional roll rates, and very high G capabilities, in addition to power to mass ratios that are unique to this type of airplane, have led to airplanes that cannot comply with the regulatory stability requirements. These airplanes can still be type-certificated, but in the acrobatic category only and with special conditions and limitations.

The FAA will only consider certifying the EA-300/LC in the acrobatic category. Extra GmbH will not be able to offer a normal category-operating envelope to accommodate the increased fuel load designed for cross-country operations. The FAA does recognize that fuel exhaustion is one of the top accident causes associated with this class of aircraft. For this reason, the FAA proposes to allow Extra to seek certification of a limited acrobatic envelope at a higher weight that will still meet the minimum load requirements of +6/−3 g associated with § 23.337. The EA-300/LC airplane would be approved for unlimited maneuvers at or below its designed unlimited acrobatic weight. The airplane would also be approved, at some higher weight (for fuel/passenger), that would still meet the requirements of § 23.337 for acrobatic category and may have restrictions on the maneuvers allowed.

Under the provisions of 14 CFR 21.101, Extra GmbH must show that the EA-300/LC meets the applicable provisions of part 23, as amended by Amendment 23-34 effective September 14, 1987 and Special Condition 23-ACE-65, published in the Federal Register (57 FR 175), September 9, 1992. These regulations will be incorporated into Type Certificate No. A67EU after type certification approval of the EA-300/LC. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in A67EU are as follows:

14 CFR part 36, effective December 1, 1969, as amended by Amendments 36-1 through 36-28.

Not approved for ditching; compliance with provisions for ditching equipment in accordance with 14 FR 23.1415(a)(b) has not been demonstrated.

Approved for VFR-day only. Flight in known icing prohibited.

In addition, the certification basis includes other regulations, special conditions and exemptions that are not relevant to these special conditions. Type Certificate No. A67EU will be updated to include a complete description of the certification basis for this model airplane.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 23) do not contain adequate or appropriate safety standards for the EA-300/LC because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

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

In addition to the applicable airworthiness regulations and special conditions, the EA-300/LC must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under § 21.101.

The Extra GmbH EA-300/LC will incorporate the following novel or unusual design features:

For acrobatic category airplanes with unlimited acrobatic capability: Neutral longitudinal and lateral static stability characteristics

The Code of Federal Regulations states static stability criteria for longitudinal, lateral, and directional axes of an airplane. However, none of these criteria is adequate to address the specific issues raised in the flight characteristics of an unlimited aerobatic airplane. Therefore, the FAA has determined after a flight-test evaluation that, in addition to the requirements of parts 21 and 23, special conditions are needed to address these static stability characteristics.

Notice of proposed special conditions No. 23-14-01-SC for the Extra Flugzeugproduktions and Vertriebs (Extra) GmbH, EA-300/LC airplane was published in the Federal Register on March 18, 2014 (79 FR 15062). No comments were received, and the special conditions are adopted as proposed.

As discussed above, these special conditions are applicable to the EA-300/LC. Should Extra GmbH apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.

Under standard practice, the effective date of final special conditions would be 30 days after the date of publication in the Federal Register ; however, as the certification date for the Extra GmbH EA-300/LC is imminent, the FAA finds that good cause exists to make these special conditions effective upon issuance.

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

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Extra GmbH EA-300/LC airplanes.

SC23.171 Flight—General: Acrobatic category airplanes must be neutrally or positively stable in the longitudinal, directional, and lateral axes under Secs. SC23.173 through SC23.177. Additionally, the airplane must show suitable stability and control “feel” (static stability) in any condition normally encountered in service, if flight tests show it is necessary for safe operation.

SC23.173 Static longitudinal stability: Under the conditions specified in SC23.175 and with the airplane trimmed as indicated, the characteristics of the elevator control forces, positions, and the friction within the control system must be as follows:

(a) A pull on the yoke must be required to obtain and maintain speeds below the specified trim speed and a push on the yoke required to obtain and maintain speeds above the specified trim speed. This must be shown at any speed that can be obtained, except that speeds requiring a control force in excess of 40 pounds or speeds above the maximum allowable speed or below the minimum speed for steady unstalled flight need not be considered.

(b) The stick force or position must vary with speed so that any substantial speed change results in a stick force or position clearly perceptible to the pilot.

SC23.175 Demonstration of static longitudinal stability:

(a) Climb. The stick force curve must have, at a minimum, a neutrally stable to stable slope at speeds between 85 and 115 percent of the trim speed, with—

(1) Maximum continuous power; and

(2) The airplane trimmed at the speed used in determining the climb performance required by § 23.69(a).

(b) Cruise. With the airplane power and trim set for level flight at representative cruising speeds at high and low altitudes, including speeds up to V NO , except the speed need not exceed V H —

(1) The stick force curve must, at a minimum, have a neutrally stable to stable slope at all speeds within a range that is the greater of 15 percent of the trim speed plus the resulting free return speed range, or 40 knots plus the resulting free return speed range above and below the trim speed, except the slope need not be stable—

(i) At speeds less than 1.3 V S1 ; or

(ii) For airplanes with V NE established under § 23.1505(a), at speeds greater than V NE .

(c) Landing. The stick force curve must, at a minimum, have a neutrally stable to stable slope at speeds between 1.1 V S1 and 1.8 V S1 with—

(1) Landing gear extended; and

(2) The airplane trimmed at—

(i) V REF , or the minimum trim speed if higher, with power off; and

(ii) V REF with enough power to maintain a 3-degree angle of descent.

SC23.177 Static directional and lateral stability:

(a) The static directional stability, as shown by the tendency to recover from a wings level sideslip with the rudder free, must be positive for any landing gear and flap position appropriate to the takeoff, climb, cruise, approach, and landing configurations. This must be shown with symmetrical power up to maximum continuous power, and at speeds from 1.2 V S1 up to the maximum allowable speed for the condition being investigated. The angle of sideslip for these tests must be appropriate for the airplane type. At larger angles of sideslip, up to where full rudder is used or a control force limit in § 23.143 is reached, whichever occurs first, and at speeds from 1.2 V S1 to V O , the rudder pedal force must not reverse.

(b) In straight, steady slips at 1.2 V S1 for any landing gear and flap positions, and for any symmetrical power conditions up to 50 percent of maximum continuous power, the rudder control movements and forces must increase steadily, but not necessarily in constant proportion, as the angle of sideslip is increased up to the maximum appropriate to the type of airplane. The aileron control movements and forces may increase steadily, but not necessarily in constant proportion, as the angle of sideslip is increased up to the maximum appropriate for the airplane type. At larger slip angles, up to the angle at which the full rudder or aileron control is used or a control force limit contained in § 23.143 is reached, the aileron and rudder control movements and forces must not reverse as the angle of sideslip is increased. Rapid entry into, and recovery from, a maximum sideslip considered appropriate for the airplane must not result in uncontrollable flight characteristics.

The collection of information contained in these regulations has been reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under control number 1545-2232.

The collection of information in these final regulations is in § 1.36B-5 and will be reported on Form 1095-A. The collection of information is necessary to compute the premium tax credit and to reconcile the amount of the premium tax credit with advance payments of the premium tax credit (advance credit payments) made under section 1412 of the Patient Protection and Affordable Care Act (42 U.S.C. 18082). The collection of information is needed for compliance with the provisions of section 36B(f)(3) of the Internal Revenue Code (Code). The likely respondents are Exchanges established under section 1311 or 1321 of the Patient Protection and Affordable Care Act (42 U.S.C. 13031 or 42 U.S.C. 18041).

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by the Office of Management and Budget.

The estimated total annual reporting burden is 10,050 hours. The estimated annual burden per respondent is 670 hours. The estimated number of respondents is 15.

Comments concerning the accuracy of this burden estimate and suggestions for reducing this burden should be sent to the Internal Revenue Service, Attn: IRS Reports Clearance Officer SE:W:CAR:MP:TM:S, Washington, DC 20224, and to the Office of Management and Budget, Attn: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503.

Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and return information are confidential, as required by section 6103.

This document contains final regulations that amend § 1.36B-5 of the Income Tax Regulations (26 CFR part 1), providing detailed rules for information reporting by Exchanges on enrollments in qualified health plans. Section 36B(f)(3) directs Exchanges to report to the IRS and to taxpayers certain information necessary to reconcile the premium tax credit with advance credit payments and to administer the premium tax credit generally.

On July 2, 2013, a notice of proposed rulemaking (REG-140789-12) was published in the Federal Register (78 FR 39644). Written comments responding to the proposed regulations were received and considered. The comments are available for public inspection at www.regulations.gov or on request. No public hearing was requested or held. After consideration of all the comments, the proposed regulations are adopted as amended by this Treasury decision.

The proposed regulations required Exchanges to report information for all individuals who enroll in a qualified health plan. The proposed regulations used the terms taxpayer and responsible adult to describe, respectively, an individual who applies to enroll one or more members of the individual's family in a qualified health plan and who requests advance credit payments and to describe an individual who enrolls one or more members of the individual's family and does not request advance credit payments.

A commenter suggested that these terms do not accommodate nontraditional family structures because the definitions assume that the individual who claims a dependent also enrolled the dependent in coverage. Commenters also felt the terms were confusing.

The terms taxpayer and responsible adult in the proposed regulations were intended to describe the individual who is expected to file an income tax return for the year of coverage for the enrolling family. Whether that individual is the one who completes the enrollment application is not significant. Accordingly, the final regulations clarify that these terms describe the individual who is expected to file an income tax return for the year of coverage with respect to individuals enrolling in a qualified health plan.

To avoid confusion with other uses of the term taxpayer, the final regulations instead use the term tax filer to identify individuals on behalf of whose families advance credit payments are made. This term is used in regulations at 45 CFR 155.300 to describe a taxpayer and thus is more familiar to Exchanges.

The final regulations clarify that if more than one tax family enrolls in the same qualified health plan there is a tax filer or responsible adult for each family and that the tax filer or responsible adult may or may not enroll in coverage.

The final regulations clarify the information required to be reported for qualified health plan enrollments for which advance credit payments are made or not made. Because the primary difference in the information reported relates to whether or not advance credit payments are made on behalf of an individual, the final regulations distinguish the reporting categories based on whether or not advance credit payments are made on behalf of an individual, rather than on whether an individual requests advance credit payments.

The proposed regulations required Exchanges to report information concerning all individuals enrolled in qualified health plans. For each plan, the information includes the name, address, and taxpayer identification numbers (TINs), or dates of birth if a TIN is not available, for each individual covered under the plan; applicable benchmark plan premiums or the amount that would be the benchmark premium that would apply to all enrolled individuals (unless that information is made available to individuals through an alternative method that they can access at tax return filing); the amount of the premium for the qualified health plan the individuals enroll in; the name of the qualified health plan issuer and the issuer's employer identification number (EIN); the qualified health plan policy number; the Exchange's unique identification number; and the unique number that identifies the family's specific account to enable data association from month to month. For individuals enrolled in a plan for which advance credit payments were requested, the proposed regulations required Exchanges to report the amount of advance credit payments, whether the individuals enrolled are the taxpayer's dependents, and certain information concerning employers.

The final regulations generally require Exchanges to report the data elements identified in the proposed regulations but make several minor changes and clarifications in response to comments and based on what is needed to determine the premium tax credit.

Commenters requested that the final regulations omit certain data elements from the reporting requirements. A commenter expressed concern that it would not be able to report accurate information about the amount of advance credit payments. Another commenter questioned the need to report the family's specific account number. Other commenters advised that issuers often do not assign a policy number and that HHS regulations do not require issuers to report policy numbers to Exchanges.

The final regulations require Exchanges to report the policy identification number assigned by the Exchange instead of a policy number created by an issuer and clarify that the “specific account number” is the unique identifying number the Exchange uses to report data that enables the IRS to associate the data with the proper account. These data elements, including the amount of advance credit payments and the unique data association number, are available to Exchanges and essential for the IRS to properly administer the premium tax credit.

The proposed regulations required Exchanges to report whether an individual enrolled in a qualified health plan by a taxpayer is the taxpayer's dependent. A commenter suggested that Exchanges should not be required to report this information because Exchanges will obtain this information from the IRS as part of the verification of an applicant's information. The final regulations do not adopt this comment because information the IRS provides as part of the verification process is from the taxpayer's most recently filed tax return, which may be two years old. Accordingly, the final regulations retain the rule in the proposed regulations that, for plans for which advance credit payments are made, Exchanges will report which covered individuals a tax filer represented to the Exchange that he or she would claim as a dependent for the coverage year. This information is necessary because advance credit payments are based, in part, on information concerning the individuals whom a tax filer expects to claim as dependents for the taxable year for which the advance credit payments are made.

In addition, the final regulations make several minor changes to the data elements reported based on what is needed to determine the premium tax credit. The proposed regulations provided that Exchanges must report the issuer's EIN on both the annual statement and the monthly statements. The final regulations provide that Exchanges will report the issuer's EIN on a monthly basis only, as this information is not needed on the annual report. The proposed regulations provided that Exchanges must report an address for a taxpayer's spouse. The final regulations omit this information, as it is unnecessary. Finally, the proposed regulations provided that Exchanges must report the dates of each individual's coverage under the qualified health plan. The final regulations provide that Exchanges also must report the start and end dates for the qualified health plan itself, as this information may be needed to determine the amount of the premium tax credit.

The proposed regulations required Exchanges to report to the IRS information concerning the monthly premium for the applicable benchmark plan. For qualified health plans for which advance credit payments were approved, the proposed regulations provided that Exchanges must report the monthly premium for the applicable benchmark plan used to compute advance credit payments. For plans for which advance credit payments were not requested or were not approved, the proposed regulations required Exchanges to report the premium for the applicable benchmark plan that would apply to the individuals enrolled in a qualified health plan, unless the information is made available through an alternative method. Commenters requested clarification on the distinction between the benchmark premium information reported in each case.

The proposed and final regulations require Exchanges to report the monthly premium for the applicable benchmark plan that applies to the coverage family (the members of the family enrolling and eligible for a premium tax credit subsidy) that is used to compute advance credit payments. If no advance credit payments are made, Exchanges may not determine which individuals enrolled would be part of the coverage family and the applicable benchmark premium that would apply to that coverage family. Nonetheless, the final regulations, like the proposed regulations, require reporting the benchmark premium that would apply if the coverage family included everyone covered under the plan because individuals for whom advance credit payments are not made may claim the premium tax credit on the tax return for the year of coverage and must know the premium for the applicable benchmark plan to compute the amount of the credit. In lieu of reporting this benchmark premium, however, Exchanges may provide a reasonable method for taxpayers to use to determine at the time of filing the tax return the premium for the applicable benchmark plan that applies to a coverage family.

For individuals enrolled in a qualified health plan for which advance credit payments were requested, the proposed regulations required Exchanges to report information on employment, including the name, address, and EIN of each employer of each enrolled individual and whether the employer offered minimum essential coverage to the extent provided to the Exchange. A commenter requested confirmation that the requirement to report employment information does not obligate the Exchange to request or verify a taxpayer's employment information on a monthly basis or otherwise ensure the accuracy of the information supplied.

The proposed and final regulations provide that Exchanges must report employment information “to the extent this information is provided to the Exchange.” Thus, Exchanges must report only employment information provided to the Exchange and are not obligated to verify the accuracy, except to the extent required by Department of Health and Human Services regulations. However, if during the year an enrollee provides updated or corrected employment information to an Exchange, the Exchange must report that information to the IRS in its next monthly report. Exchanges must submit corrected monthly reports for the coverage year by April 15th following the year of coverage.

The proposed regulations required Exchanges to report certain information to the IRS annually by January 31 of the year following the calendar year of coverage. Exchanges must report certain information on a monthly basis by the 15th of the month for the previous month and all previous months in that calendar year. A commenter requested that the final regulations delete the amount of the advance credit payments made on a taxpayer's behalf each month from the annual report to the IRS. The commenter suggested that the IRS already will have this information from monthly reports.

The final regulations do not adopt this comment. The information provided on the annual report is identical to the information reported on the statement to individuals, discussed later in this preamble. It summarizes for the year the information submitted monthly that taxpayers claiming the premium tax credit must have to properly claim the credit on their returns and to reconcile the premium tax credit with advance credit payments. Accordingly, the final regulations do not omit this information from the annual report.

A commenter asked how Exchanges will identify the members of a tax household if the members enroll in, or receive minimum essential coverage exemptions from, different Exchanges. The final regulations clarify that an Exchange will report only information on enrollments and exemptions at that Exchange. The IRS will associate information reports from multiple Exchanges with the appropriate tax return.

Under § 1.36B-3(h), if more than one tax family enrolls in a single policy, each applicable taxpayer covered by the plan may claim a premium tax credit, computed using the applicable percentage, household income, and benchmark plan that applies to that taxpayer. Under these circumstances, each applicable taxpayer must have the information specific to that tax family to claim the premium tax credit on the income tax return. Accordingly, the final regulations clarify that Exchanges will report the specified information for each family enrolled in a qualified health plan, whether receiving advance credit payments or not, including multiple families submitting a single application or enrolled in a single qualified health plan.

Commenters asked whether Exchanges must report information for taxpayers obtaining health care coverage through a Small Business Health Options Program (SHOP) Exchange. The final regulations clarify that section 36B(f)(3) and these regulations do not require the reporting of information for taxpayers enrolling in health care coverage through a SHOP Exchange. However, under regulations at 45 CFR 155.720, SHOP Exchanges will report to the IRS information concerning employer participation, employer contribution, and employee enrollment in a time and format to be determined by the Department of Health and Human Services.

The proposed regulations required Exchanges to report certain information to the IRS on or before the 15th day following each month of coverage (monthly reporting), commencing in February, 2014. Commenters requested that the IRS delay the initial monthly report until June or July, 2014, to allow Exchanges sufficient time to develop the systems and processes necessary to support the monthly reporting requirements. In response to these comments, the final regulations provide that the Commissioner may establish an initial monthly reporting date in other guidance, see § 601.601(d), but no earlier than June 15, 2014. The report must include cumulative information for enrollments for the period January 1 through the end of the month preceding the initial monthly reporting date. For example, an initial report due June 15, 2014, must include cumulative information for the period January 1 to May 31, 2014.

The proposed regulations directed Exchanges to furnish to each individual who enrolled one or more family members in a qualified health plan through the Exchange a written statement that includes the information the Exchange must report to the IRS annually. Exchanges may use Form 1095-A for the statement and must furnish the statement on or before January 31 of the year following the calendar year of coverage.

The proposed regulations required that an Exchange furnish a statement only to the individual who enrolls one or more family members through the Exchange. Several commenters indicated that Exchange regulations allow an individual applying for coverage to designate another person as an authorized representative for dealing with the Exchange on the individual's behalf. They requested that the final regulations recognize an individual's authorization of a third person as a representative for Exchange purposes as sufficient authority to allow Exchanges to provide the statement required under these regulations to the authorized representative, or that the final regulations require Exchanges to do so. Other commenters asked that the final regulations accommodate nontraditional family arrangements by allowing Exchanges to provide statements to individuals such as a grandparent or noncustodial parent who may claim a child as a dependent and would require the information on the statement to claim the premium tax credit for that dependent's coverage.

The final regulations do not prohibit Exchanges from providing statements to third parties if permitted under other law. However, section 36B(f)(3) does not authorize the IRS to require Exchanges to do so. In addition, the IRS is not able to provide statements to third parties based on authorization to an Exchange because information obtained pursuant to section 36B(f)(3) is return information and, under section 6103, return information may be disclosed only under express authority of the Code.

Commenters recommended significantly limiting the information reported on the statement to protect victims of domestic violence and children they enroll in coverage. The final regulations require Exchanges to send statements only to the tax filer or responsible adult whom the Exchange identifies. This person is likely to be the individual enrolling the child in coverage. A person claiming an individual as a dependent who is not identified as a tax filer or responsible adult will not receive a statement reporting the dependent's coverage. Therefore, if a victim of domestic abuse enrolls, or enrolls a child, in coverage as a tax filer or responsible adult, the Exchange will send a statement only to that person, even if another taxpayer claims the child as a dependent. In addition, the statement will include an address only for the person to whom it is mailed. Accordingly, on this issue, the final regulations adopt the proposed regulations without change.

The proposed regulations provided that statements to individuals may be sent electronically only to individuals who affirmatively consent to the electronic format. Commenters requested that the final regulations permit electronic delivery of statements, paper delivery of statements, or both. Other commenters stated that the electronic statement rules are too complex and should be simplified.

The final regulations do not prohibit an Exchange from sending both paper and electronic statements to an individual. However, the final regulations retain the electronic statement procedures in the proposed regulations, which provide for affirmative consent to receive statements electronically, and clarify that the consent requirement is not satisfied if the recipient withdraws the consent. These procedures are the same as long-standing procedures that also apply in other information reporting contexts. The procedures are intended to ensure that all individuals, including those who do not have access to or are not fully comfortable with electronic technology, are able to access information necessary to prepare their tax returns.

The proposed regulations provided that if an Exchange furnishes a statement to an individual by mail, the statement must be sent to the individual's last known permanent address, or if no permanent address is known, to a temporary address. A commenter requested more definitive guidance on what constitutes the proper furnishing of a statement to an individual when the individual does not receive the statement, for example if the statement is returned undelivered. The commenter suggested that the final regulations adopt a rule that applies to other information reporting requirements that a first class mailing discharges the reporting entity's obligation to furnish a statement. To provide more certainty, the final regulations include this rule, which is consistent with other information reporting requirements.

These regulations apply to taxable years ending after December 31, 2013.

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required. It has also 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 requirement on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the 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 its impact on small business. The Small Business Administration did not submit comments.

The principal authors of these final regulations are Shareen S. Pflanz and Stephen J. Toomey of the Office of Associate Chief Counsel (Income Tax and Accounting). However, other personnel from the IRS and the Treasury Department participated in the development of the regulations.

Accordingly, 26 CFR part 1 is amended as follows:

This direct final rule makes non-substantive changes to the NGA rules. This will improve the efficiency and effectiveness of DoD's program by ensuring the integrity of the security and counterintelligence records by the NGA and the Department of Defense.

This rule is being published as a direct final rule as the Department of Defense does not expect to receive any adverse comments, and so a proposed rule is unnecessary.

National Geospatial-Intelligence Agency (NGA) is updating the NGA Privacy Act Program by adding the (k)(1) and (k)(5) exemptions to NGA-004, NGA Threat Mitigation Records. Additionally, NGA initiated a rulemaking to exempt this system of records from a number of provisions of the Privacy Act, because this system may contain records or information recompiled from or created from information contained in other systems of records, which are exempt from certain provisions of the Privacy Act. For these records or information only, in accordance with 5 U.S.C. 552a(j)(2), (k)(2), (k)(1), and (k)(5), NGA will also claim the original exemptions for these records or information from subsections (c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (4)(G) through (I), (5), and (8); (f), and (g) of the Privacy Act of 1974, as amended, as necessary and appropriate to protect such information. Such exempt records or information may be law enforcement or national security investigation records, law enforcement activity and encounter records.

DoD has determined this rulemaking meets the criteria for a direct final rule because it involves nonsubstantive changes dealing with DoD's management of its Privacy Programs. DoD expects no opposition to the changes and no significant adverse comments. However, if DoD receives a significant adverse comment, the Department will withdraw this direct final rule by publishing a notice in the Federal Register . A significant adverse comment is one that explains: (1) Why the direct final rule is inappropriate, including challenges to the rule's underlying premise or approach; or (2) why the direct final rule will be ineffective or unacceptable without a change. In determining whether a comment necessitates withdrawal of this direct final rule, DoD will consider whether it warrants a substantive response in a notice and comment process.

It has been determined that Privacy Act rules for the Department of Defense are not significant rules. This rule does not (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a sector of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in these Executive orders.

It has been determined that Privacy Act rules for the Department of Defense do not have significant economic impact on a substantial number of small entities because they are concerned only with the administration of Privacy Act systems of records within the Department of Defense. A Regulatory Flexibility Analysis is not required.

It has been determined that Privacy Act rules for the Department of Defense impose no additional information collection requirements on the public under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

It has been determined that Privacy Act rules for the Department of Defense do not involve a Federal mandate that may result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more and that such rulemaking will not significantly or uniquely affect small governments.

It has been determined that Privacy Act rules for the Department of Defense do not have federalism implications. The rules do not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, no Federalism assessment is required.

Accordingly, 32 CFR part 320 is amended as follows:

Table of Acronyms DHS Department of Homeland Security FR Federal Register NPRM Notice of Proposed Rulemaking A. Regulatory History and Information

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.”

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . The Coast Guard received the information about the fireworks display on March 7, 2014, and the fireworks display would occur before the rulemaking process would be completed. Because of the dangers posed by the pyrotechnics used in this fireworks display, the safety zone is necessary to provide for the safety of event participants, spectators, spectator craft, and other vessels transiting the event area. For the safety concerns noted, it is in the public interest to have these regulations in effect during the event.

The legal basis for the proposed rule is 33 U.S.C 1231; 46 U.S.C Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Public Law 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to establish safety zones.

The Town of Tiburon will sponsor Tiburon's 50th Anniversary Fireworks on May 30, 2014, near Point Tiburon in Tiburon, CA in approximate position 37°52′09″ N, 122°27′03″ W (NAD83) as depicted in National Oceanic and Atmospheric Administration (NOAA) Chart 18653. This safety zone establishes a temporary restricted area on the waters 100 feet surrounding the fireworks barge during the loading, transit and arrival of the pyrotechnics from the loading site to the launch site and until the commencement of the fireworks display. Upon the commencement of the fireworks display, the safety zone will increase in size and encompass the navigable waters around the fireworks barge within a radius of 560 feet. The fireworks display is meant for entertainment purposes. This restricted area around the fireworks barge is necessary to protect spectators, vessels, and other property from the hazards associated with pyrotechnics.

The Coast Guard will enforce a safety zone in navigable waters around and under a fireworks barge within a radius of 100 feet during the loading, transit, and arrival of the fireworks barge to the display location and until the start of the fireworks display. From 11 a.m. until 7:30 p.m. on May 30, 2014, the fireworks barge will be loading pyrotechnics at Pier 50 in San Francisco, CA. From 7:30 p.m. to 8:30 p.m. on May 30, 2014 the loaded fireworks barge will transit from Pier 50 to the launch site near Point Tiburon in approximate position 37°52′09″ N, 122°27′03″ W (NAD 83) where it will remain until the commencement of the fireworks display. Upon the commencement of the 30 minute fireworks display, scheduled to begin at 9:15 p.m. on May 30, 2014, the safety zone will increase in size and encompass the navigable waters around and under the fireworks barge within a radius of 560 feet in approximate position 37°52′09″ N, 122°27′03″ W (NAD 83) for Tiburon's 50th Anniversary Fireworks. At the conclusion of the fireworks display the safety zone shall terminate.

The effect of the temporary safety zone will be to restrict navigation in the vicinity of the launch site until the conclusion of the scheduled display. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the restricted area. These regulations are needed to keep spectators and vessels away from the immediate vicinity of the launch site to ensure the safety of participants, spectators, and transiting vessels.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.

We expect the economic impact of this rule will not rise to the level of necessitating a full Regulatory Evaluation. The safety zone is limited in duration, and is limited to a narrowly tailored geographic area. In addition, although this rule restricts access to the waters encompassed by the safety zone, the effect of this rule will not be significant because the local waterway users will be notified via public Broadcast Notice to Mariners to ensure the safety zone will result in minimum impact. The entities most likely to be affected are waterfront facilities, commercial vessels, and pleasure craft engaged in recreational activities.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

This rule may affect owners and operators of waterfront facilities, commercial vessels, and pleasure craft engaged in recreational activities and sightseeing. This safety zone would not have a significant economic impact on a substantial number of small entities for the following reasons. This safety zone would be activated, and thus subject to enforcement, for a limited duration. When the safety zone is activated, vessel traffic could pass safely around the safety zone. The maritime public will be advised in advance of this safety zone via Broadcast Notice to Mariners.

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

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

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

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

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

We have analyzed this rule under Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination With Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone of limited size and duration. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

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

Table of Contents for Preamble 1. Executive Summary 2. Statutory and Regulatory Background 3. Federal Emergency Management Agency (FEMA) 4. Rulemaking History 5. Comments on Proposed Rule A. Scoping Requirements for Units With Mobility Features B. Scoping Requirements for Units With Communication Features C. Needs of Individuals With Chemical and Electrical Sensitivities 6. Discussion of Final Rule 7. Regulatory Analyses

In this preamble, “we,” “our” and “us” refer to the Architectural and Transportation Barriers Compliance Board (Access Board). 1

We are required by the Americans with Disabilities Act (ADA) and the Rehabilitation Act to issue guidelines for the accessibility standards adopted by the U.S. Department of Justice (DOJ) for the design, construction, and alteration of facilities (other than certain transportation facilities) by entities subject to the ADA. 2 We are also required by the Rehabilitation Act to issue guidelines for the accessibility standards adopted by the U.S. Department of Housing and Urban Development (HUD) for the design, construction, and alteration of residential facilities by entities subject to the Architectural Barriers Act (ABA). 3 Our current guidelines, the ADA and ABA Accessibility Guidelines, were issued in 2004. 4 This final rule amends the ADA and ABA Accessibility Guidelines to specifically address emergency transportable housing units provided to disaster survivors by entities subject to the ADA or ABA. Compliance is not required by entities subject to the ADA until DOJ updates its accessibility standards to be consistent with the final rule. Compliance is not required by entities subject to the ABA until HUD updates its accessibility standards to be consistent with the final rule.

The final rule applies to entities subject to the ADA or ABA that provide emergency transportable housing units to disaster survivors. Emergency transportable housing units are prefabricated so they can be deployed rapidly in response to disasters. They are transported on a single transport vehicle over roadways, which results in size and space limitations. They provide temporary housing for persons whose homes have been destroyed or damaged by a disaster until they find suitable permanent housing.

Where group sites are developed for emergency transportable housing units, the final rule requires at least 10 percent of the unit pads at each group site to be designed and constructed to accept the installation of units with mobility features for disaster survivors who have mobility disabilities, and at least 5 percent of the total number of units installed at each group site to provide mobility features. Where emergency transportable housing units are installed on private sites provided by the occupant of the unit, existing commercial sites, or military installations, the final rule requires entities to provide units with mobility features as determined by a needs assessment conducted by the entity providing the units.

The final rule requires emergency transportable housing units with mobility features to comply with the technical requirements for residential dwelling units with mobility features. The final rule adds new technical requirements for floor surfaces, bedrooms, and weather alert systems in emergency transportable housing units with mobility features. The final rule also requires a water spray unit at kitchen sinks and a seat in roll-in type and transfer type shower compartments in emergency transportable housing units with mobility features. The final rule does not permit the use of platform lifts at the primary entrance to emergency transportable housing units with mobility features. The final rule revises existing exceptions and adds new exceptions relating to operable parts, ramps, grab bars, clear floor space at lavatories and kitchen sinks, and kitchen work surfaces in emergency transportable housing units with mobility features.

The final rule requires entities to provide emergency transportable housing units with communication features for disaster survivors who are deaf or have a hearing loss as determined by a needs assessment conducted by the entity providing the emergency transportable housing units, regardless of the type of site where the units are installed. The final rule requires emergency transportable housing units with communication features to provide combination smoke alarms and visible notification appliances complying with NFPA 72 National Fire Alarm Code. Where weather alert systems are provided in emergency transportable housing units, the final rule requires weather alert systems in units with communication features to provide audible and visible output.

The Federal Emergency Management Agency (FEMA) is the only entity we have identified that has recently provided emergency transportable housing units to disaster survivors. FEMA is subject to the ABA. We estimated the additional costs for FEMA to provide emergency transportable housing units that comply with the final rule compared to units complying with the Uniform Federal Accessibility Standards (UFAS). UFAS is the accessibility standard adopted by HUD for residential facilities covered by the ABA. We estimated the additional costs under three scenarios. The scenarios do not represent actual costs that FEMA will incur each year since the number of UFAS compliant units deployed by FEMA varies from year to year. The first scenario is based on the average number of UFAS compliant units deployed per year by FEMA in response to major disasters and emergencies declared by the President during the period from calendar year 2008 to 2013, which were 165 UFAS compliant units. Under the first scenario, we estimated the additional costs to range from $28,425 to $104,775. The second scenario is based on FEMA's current baseline target inventory of 298 UFAS compliant units. Under the second scenario, we estimated the additional costs to range from $51,480 to $189,230. The third scenario is based on the approximately 145,000 emergency transportable housing units that FEMA deployed in response Hurricanes Katrina and Rita. Under the third scenario, we estimated the additional costs to range from $2.5 million to $18.4 million depending on whether 10, 15, or 20 percent of the units are UFAS compliant. The additional costs estimated under the second and third scenarios may be incurred over more than one year.

The final rule would benefit disaster survivors with disabilities who need temporary housing. The benefits are difficult to quantify, but include important national values recognized in Executive Order 13563 such as equity, human dignity, and fairness.

The ADA prohibits discrimination on the basis of disability. 5 The ADA requires facilities constructed or altered by state and local governments, and public accommodations and commercial facilities constructed or altered by private entities to be readily accessible to and usable by individuals with disabilities. DOJ is required to adopt accessibility standards for the design, construction, and alteration of facilities (other than certain transportation facilities) by entities subject to the ADA. 6

The ABA requires facilities constructed or altered with federal funds and facilities leased by federal agencies to be readily accessible to and usable by individuals with disabilities. 7 HUD is required to adopt accessibility standards for the design, construction, and alteration of residential facilities by entities subject to the ABA. 8

We are required by the ADA and the Rehabilitation Act to issue guidelines for the accessibility standards adopted by DOJ for the design, construction, and alteration of facilities (other than certain transportation facilities) by entities subject to the ADA. 9 We are also required by the Rehabilitation Act to issue guidelines for the accessibility standards adopted by HUD for the design, construction, and alteration of residential facilities by entities subject to the ABA. 10 Our current guidelines, the ADA and ABA Accessibility Guidelines, were issued in 2004.

DOJ updated its accessibility standards for the design, construction, and alteration of facilities (other than certain transportation facilities) by entities subject to the ADA in 2010. The DOJ 2010 standards reference the 2004 ADA and ABA Accessibility Guidelines and include additional requirements. 11 HUD adopted UFAS for the design, construction, and alteration of residential facilities by entities subject to the ABA in 1984. 12 HUD has not yet updated its standards for residential facilities to be consistent with the ADA and ABA Accessibility Guidelines.

The final rule applies to entities subject to the ADA or ABA that provide emergency transportable housing units to disaster survivors. FEMA is the only entity we have identified that has recently provided emergency transportable housing units to disaster survivors. FEMA is subject to the ABA.

The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) authorizes FEMA to provide various types of assistance when a major disaster or emergency is declared by the President. 13 When disaster survivors are displaced from their pre-disaster primary residences as a result of damage caused by a major disaster or emergency, FEMA may provide them financial assistance to rent alternative housing. 14 When there is an insufficient supply of alternative housing, FEMA may provide direct assistance by purchasing or leasing emergency transportable housing units for disaster survivors. 15 FEMA may install the emergency transportable housing units on private sites provided for free by the occupant of the unit; existing commercial sites such as manufactured home parks; or group sites developed specifically for the units. 16 FEMA develops group sites on property provided by state or local governments or property leased by FEMA only when private sites and existing commercial sites are unable to accommodate the need for emergency transportable housing units. 17

Emergency transportable housing units provided by FEMA are currently required to comply with UFAS, the accessibility standard adopted by HUD for residential facilities covered by the ABA. UFAS requires 5 percent of the total number of federally owned one and two family dwelling units to comply with the applicable technical requirements. 18 When HUD eventually updates its standards for residential facilities covered by the ABA to be consistent with the ADA and ABA Accessibility Guidelines, emergency transportable housing units provided by FEMA will be required to comply with the updated HUD standards.

When disaster survivors apply for assistance from FEMA, individuals with disabilities are identified and their housing needs are assessed. 19 FEMA maintains a baseline target inventory of emergency transportable housing units ready to deploy in response to major disasters and emergencies based on historical usage, lead time to produce additional units, and installation capacity. FEMA reassesses the baseline at the beginning of each hurricane season and may readjust it based on operational needs, lessons learned, and on-going analysis. FEMA's current baseline target inventory is 2,000 units and 298 of the units (approximately 15 percent of the units) are targeted as UFAS compliant. 20 The actual number of emergency transportable housing units in the inventory varies as FEMA deploys the units to affected areas and contracts for the production of additional units as needed. Where group sites are developed, FEMA policy specifies that at least 15 percent of the unit pads be designed and constructed to accept the installation of UFAS compliant units. 21 Unit pads that accept the installation of UFAS compliant units include additional space to install an entry ramp to the unit and to provide an accessible parking space for the unit.

FEMA provided us data on the number of emergency transportable housing units, including UFAS compliant units, provided in response to 27 major disasters and emergencies declared by the President during the period from calendar year 2008 to 2013. 22 During this period, FEMA provided a total of 9,324 emergency transportable housing units, of which 991 units or 10.6 percent of the total units were UFAS compliant. FEMA installed approximately 5,568 of the units, including about 569 UFAS compliant units, on private sites provided by occupants of the units. FEMA installed approximately 2,258 of the units, including about 277 UFAS compliant units, on existing commercial sites. FEMA installed approximately 1,395 of the units, including about 135 UFAS units, on group sites. Although 10.6 percent of the total number of emergency transportable housing units provided during this period was UFAS compliant, the percentage of UFAS compliant units varied widely from disaster to disaster by the type of site. FEMA informed us that some of the UFAS compliant units were provided to disaster survivors who do not have disabilities due to the lack of inventory of standard units. Thus, the actual need for UFAS compliant units may be less than the data indicate.

In response to issues raised about the accessibility of emergency transportable housing units provided by FEMA after Hurricanes Katrina and Rita, we convened an advisory committee in 2007 to make recommendations for amending the ADA and ABA Accessibility Guidelines to specifically address emergency transportable housing units. The advisory committee members represented disability advocacy organizations, manufacturers of emergency transportable housing units, standard setting organizations, and federal agencies (FEMA, HUD, and DOJ). The advisory committee submitted a report with recommendations to amend the ADA and ABA Accessibility Guidelines in 2008. We issued a proposed rule to amend the ADA and ABA Accessibility Guidelines based on the advisory committee's report in 2012. 23 The advisory committee report and proposed rule are available at: http://www.access-board.gov/guidelines-and-standards/buildings-and-sites/emergency-transportable-housing/background.

We received 44 comments on the proposed rule, including comments from 11 persons who testified at a public hearing on the proposed rule. 24 The comments are available at: http://www.regulations.gov/#!docketDetail;D=ATBCB-2012-0004. Most of the comments were submitted by disability advocacy organizations (17 comments) and individuals (16 comments). The manufactured housing industry submitted four comments and other interested persons submitted four comments. The comments generally supported the proposed rule, except for the scoping requirements for units with mobility features and units with communication features. Ten comments, including one comment that was supported by 16 organizations and over 100 individuals, recommended that units meet the needs of individuals with chemical and electrical sensitivities. We respond to these comments below.

The ADA and ABA Accessibility Guidelines require at least 5 percent of the residential dwelling units in a facility to provide mobility features. 25 The advisory committee recommended alternate scoping requirements for emergency transportable housing units with mobility features. Where emergency transportable housing units are installed on private sites provided by the occupant of the unit, the advisory committee recommended that entities provide units with mobility features to ensure non-discrimination on the basis of disability as prescribed by regulations implementing section 504 of the Rehabilitation Act, the Stafford Act, and the ADA. 26 Where emergency transportable housing units are installed on group sites, the advisory committee recommended that 10 percent of the units should provide mobility features. The advisory committee based this recommendation on the number of UFAS compliant units that FEMA had in its inventory at the time the committee issued its report. 27 The advisory committee did not specifically address emergency transportable housing units installed on existing commercial sites.

The proposed rule did not specify the number of emergency transportable housing units with mobility features to be provided because the number of disaster survivors who need such units may vary from disaster to disaster by the type of site on which the units are installed. Instead, the proposed rule adopted the approach recommended by the advisory committee for private sites to any type of site, and would have required entities to provide emergency transportable housing units with mobility features in accordance with regulations implementing section 504 of the Rehabilitation Act, the Stafford Act, and the ADA. As explained in the preamble to the proposed rule, we intended entities to provide emergency transportable housing units with mobility features based on the assessed needs of the disaster survivors. 28

Some of the disability advocacy organizations and individuals who commented on the proposed rule recommended that 10 percent, 14 percent, or 15 percent of the total number of emergency transportable housing units installed on group sites should provide mobility features.

The final rule addresses the different types of sites on which emergency transportable housing units are installed. Where emergency transportable housing units are installed on private sites provided by the occupant of the units, the final rule requires entities to provide units with mobility features as determined by a needs assessment conducted by the entity providing the emergency transportable housing units. 29 This will ensure that disaster survivors with a disability who want a unit with mobility features to be installed on a private site that can accommodate the unit are provided such a unit. 30 Disaster survivors prefer to have emergency transportable housing units installed on the site of their pre-disaster primary residence where possible so they can remain in their communities and supervise the repair or reconstruction of their homes. Approximately 60 percent of the emergency transportable housing units provided by FEMA in response to major disasters and emergencies declared by the President between calendar years 2008 and 2013 were installed on private sites provided by the occupants of the units.

Where group sites are developed for emergency transportable housing units, the final rule requires entities to design and construct at least 10 percent of the unit pads to accept the installation of units with mobility features and to be on an accessible route. 31 We required a minimum number of unit pads at group sites to be designed and constructed to accept the installation of units with mobility features and to be on an accessible route because it is more cost effective to do so when the group sites are initially developed rather than altering the unit pads and circulation paths after the group sites are developed. The scoping requirement for unit pads at group sites is a minimum requirement and entities that develop group sites may exceed the minimum requirement. As noted earlier, FEMA policy specifies that at least 15 percent of the unit pads at group sites be designed and constructed to accept the installation of UFAS compliant units.

The final rule also requires at least 5 percent of the total number of the emergency transportable housing units installed on group sites to provide mobility features. This is consistent with the current scoping requirement for residential facilities in the ADA and ABA Accessibility Guidelines. We did not require at least 10 percent of the total number of units installed on group sites to provide mobility features because the data provided by FEMA for group sites where emergency transportable housing units were installed in response to major disasters and emergencies declared by the President between calendar years 2008 and 2013 show that less than 10 percent of the total number of units installed on about half of the group sites were UFAS compliant. 32 Requiring at least 10 percent of the total number of units installed on group sites to provide mobility features would limit FEMA's ability to provide units with mobility features at other types of sites based on the assessed needs of disaster survivors with disabilities. If more units with mobility features are needed at private sites and existing commercial sites than at group sites, requiring at least 10 percent of the total number of units installed on group sites to provide mobility features could result in fewer units with mobility features being available to install at the private sites and existing commercial sites.

Where federal agencies lease space at existing commercial sites such as manufactured home parks to install emergency transportable housing units, the final rule requires entities to provide units with mobility features as determined by a needs assessment conducted by the entity providing the emergency transportable housing units. 33 Data provided by FEMA on the number of emergency transportable housing units installed at existing commercial sites in response to major disasters and emergencies declared by the President between calendar years 2008 and 2013 show that the percent of UFAS compliant units installed at the sites varied widely from less than 5 percent to more than 50 percent. We did not specify the number of units with mobility features to be installed at existing commercial sites because the data vary so widely. The number of units with mobility features that should be installed at existing commercial sites is best determined by a needs assessment conducted by the entity providing the units.

Where emergency transportable housing units are installed on military installations, the final rule requires units with mobility features to be provided as determined by a needs assessment conducted by the entity providing the units. 34 We did not require a minimum number of units with mobility features to be installed on military installations because there are no data available on emergency transportable housing units provided on military installations.

The ADA and ABA Accessibility Guidelines require at least 2 percent of the residential dwelling units in a facility to provide communication features. 35 The advisory committee did not recommend alternate scoping requirements for emergency transportable housing units with communication features. The proposed rule did not specify the number of emergency transportable housing units with communication features to be provided because the number of disaster survivors who need such units may vary from disaster to disaster by the type of site on which the units are installed. Instead, the proposed rule would have required entities to provide emergency transportable housing units with communication features in accordance with the regulations implementing section 504 of the Rehabilitation Act, the Stafford Act, and the ADA, similar to what we proposed for emergency transportable housing units with mobility features.

Some of the disability advocacy organizations and individuals who commented on the proposed rule recommended that 2 percent of the total number of emergency transportable housing units installed on group sites should provide communication features.

The final rule requires entities to provide emergency transportable housing units with communication features as determined by a needs assessment conducted by the entity providing the units because the number of disaster survivors who need units with communication features may vary from disaster to disaster by the type of site on which the units are installed. 36 All the emergency transportable housing units provided by FEMA include the communication features required by the final rule, including combination smoke alarms and visual notification appliances complying with NFPA 72 National Fire Alarm Code and weather alert systems with audible and visible output.

The advisory committee included a member of an organization knowledgeable about the needs of individuals with chemical and electrical sensitivities. The advisory committee discussed issues related to the indoor environmental quality of emergency transportable housing units, but the committee concluded that it did not have the expertise to address the issues. In the proposed rule, we noted that FEMA currently requires emergency transportable housing units to comply with HUD's Manufactured Home Construction and Safety Standards, which include formaldehyde emission levels for plywood and particle board materials installed in the homes. 37 The Environmental Protection Agency also has initiated rulemaking to address formaldehyde emissions from composite wood products. 38

Comments submitted on behalf of individuals with chemical and electrical sensitivities noted that they experience disabling reactions to very low level exposures to formaldehyde and other volatile organic compounds. They recommended that FEMA provide emergency transportable housing units constructed of porcelain or comparable materials for individuals with chemical sensitivities. We have shared the comments with FEMA to further consider how to meet the needs of these individuals.

The ADA and ABA Accessibility Guidelines are codified as appendices to 36 CFR part 1191. Appendix A contains the Table of Contents. Appendix B contains the scoping requirements for facilities covered by the ADA. Appendix C contains the scoping requirements for facilities covered by the ABA. The scoping requirements in Appendix C are preceded by the letter “F” to distinguish them from the scoping requirements in Appendix B. Appendix D contains the technical requirements for facilities covered by the ADA and the ABA. The amendments to the ADA and ABA Accessibility Guidelines made by the final rule are discussed below under the applicable appendices. 39

The final rule reorganizes and renumbers the scoping requirements for residential facilities in section 233 in Appendix B and section F233 in Appendix C, and the technical requirements for residential dwelling units in section 809 in Appendix D. The final rule edits other sections of the guidelines that reference the scoping requirements for residential facilities in sections 233 and F233 and the technical requirements for residential dwelling units in section 809 to conform to the renumbered requirements in those sections. The final rule also edits the words “residential facilities” in several sections of the guidelines to read “facilities with residential dwelling units.” All references to the sections of the guidelines in this section of the preamble are to the renumbered sections.

There are no revisions to the Table of Contents in Appendix A.

Since most of the scoping requirements in Appendices B and C are the same, the revisions made by the final rule to the scoping requirements are discussed together.

These sections incorporate by reference the NFPA 72 National Fire Alarm Code (1999 and 2002 Editions). The final rule edits the references to the sections of the guidelines that require compliance with the NFPA 72 National Fire Alarm Code to conform to the renumbered technical requirements for residential dwelling units in section 809.

The final rule adds a definition to these sections for the term “emergency transportable housing unit.” The term is defined to mean a single or multiple section prefabricated structure that is transportable on a single transport vehicle and that can be set-up and installed on a temporary site in response to an emergency need for temporary housing. The definition lists travel trailers, park models, manufactured housing, and other factory built housing among the structures covered by the definition. Modular homes that are transportable on multiple vehicles and are joined together on a site are not covered by the definition. The definition considers emergency transportable housing units as a type of residential dwelling unit for the purposes of the guidelines.

The ABA applies to facilities leased by federal agencies. In Appendix C, the scoping requirements for facilities leased by federal agencies are contained in section F202.6. There are no scoping requirements for leased facilities in Appendix B. 40 The final rule revises section F202.6.5.8 to require residential dwelling units, other than emergency transportable housing units, leased by federal agencies to comply with the scoping requirements in F233 for residential facilities. The final rule adds new sections F202.6.5.9 and F206.5.9.10 to address emergency transportable housing units installed on existing commercial sites leased by federal agencies. A commercial site is a privately-owned facility containing factory-built housing that is customarily leased for a fee and that is fully equipped to accommodate emergency transportable housing units. Where emergency transportable housing units are installed on existing commercial sites, sections F202.6.5.9 and F206.5.9.10 require entities to provide emergency transportable housing units with mobility features and emergency transportable housing units with communication features as determined by a needs assessment conducted by the entity providing the emergency transportable housing units.

These sections contain a general exception for facilities with residential dwelling units. The exception does not require common use areas that do not serve residential dwelling units required to provide mobility features to comply with the scoping requirements or to be on an accessible route. The final rule revises the exception to also apply to common use areas that do not serve emergency transportable housing unit pads designed and constructed to accept the installation of units with mobility features.

These sections require operable parts located on accessible elements and accessible routes and in accessible rooms and spaces to comply with the technical requirements for operable parts, including clear floor space, reach ranges, and operation. The sections contain several exceptions. As discussed below, the final rule revises Exception 3 and adds Exceptions 9, 10, and 11 to the sections.

Where two or more electrical outlets are provided in a kitchen above a length of counter top that is uninterrupted by a sink or appliance, Exception 3 does not require one of the outlets to comply with the technical requirements for operable parts. Kitchens in emergency transportable housing units typically have fewer electrical outlets than kitchens in other types of residential dwelling units. The final rule revises Exception 3 so that it does not apply to emergency transportable housing units required to provide mobility features.

The final rule adds Exception 9 for residential dwelling units and transient lodging guest rooms that are not required to provide mobility features. Exception 9 clarifies that operable parts in these units are not required to comply with the technical requirements for operable parts.

The final rule adds Exception 10 for operable parts located beneath the body of emergency transportable housing units required to provide mobility features. These operable parts are typically used by service personnel for maintenance purposes and are not intended to be used by the occupants of the emergency transportable housing units. Exception 10 does not require these operable parts to comply with the technical requirements for operable parts.

The final rule adds Exception 11 for water shut-off valves. Water shut-off valves are typically located beneath sinks and toilets, and do not meet the technical requirements for clear floor space and reach ranges. The proposed rule would not have required water-shut off valves in emergency transportable housing units with mobility features to comply with the technical requirements for operable parts where a single shut-off valve complying with the technical requirements for clear floor space and reach ranges is provided for the entire unit. The final rule does not require water shut-off valves in any type of occupancy to comply with the technical requirements for operable parts. Since we do not know whether it is feasible to provide a single water shut-off valve in all other occupancies, the final rule does not require a single water shut-off valve to be provided in order to use Exception 11.

The final rule edits the references in Exception 4 to these sections to the technical requirements for residential dwelling units with mobility features to conform to the renumbered technical requirements in section 809.

The final rule edits these sections to reference the technical requirements for residential dwelling units with mobility features.

The final rule edits the references in these sections to the technical requirements for residential dwelling units with mobility features to conform to the renumbered technical requirements in section 809.

These sections specify where platform lifts are permitted as a component of an accessible route in new construction. The final rule does not permit the use of platform lifts at the primary entrance to an emergency transportable housing unit required to provide mobility features. The floor level of emergency transportable housing units is elevated above the ground. Although safety standards require manufactured housing to provide a secondary means of escape, the secondary means of escape usually is not accessible to occupants with mobility disabilities. In emergency transportable housing units required to provide mobility features, the primary entrance to the unit is the only accessible means of escape for occupants with mobility disabilities to evacuate the unit in an emergency. Platform lifts are not permitted at the primary entrance to emergency transportable housing units required to provide mobility features because the time needed to operate a platform lift and, if necessary, to recall it to the level of exit discharge can result in unnecessary delays for occupants with mobility disabilities evacuating the unit in an emergency.

The final rule edits the references in these sections to the technical requirements for residential dwelling units with mobility features to conform to the renumbered technical requirements in section 809.

The final rule edits the words “residential facilities” in these sections to read “facilities with residential dwelling units.”

The final rule edits the references in these sections to the technical requirements for residential dwelling units with mobility features to conform to the renumbered technical requirements in section 809.

The final rule edits the references in these sections to the technical requirements for residential dwelling units with mobility features to conform to the renumbered technical requirements in section 809.

The final rule edits the references in these sections to the technical requirements for residential dwelling units with communication features to conform to the renumbered technical requirements in section 809.

The final rule edits the references in these sections to the technical requirements for residential dwelling units with mobility features to conform to the renumbered technical requirements in section 809.

The final rule reorganizes and renumbers the provisions in these sections as shown below in order to add scoping requirements for emergency transportable housing units required to provide mobility features and for emergency transportable housing units required to provide communication features. 41 The final rule also edits the references to the technical requirements for residential dwelling units with mobility features in the provisions to conform to the renumbered technical requirements in section 809.

These sections contain the scoping requirements for residential dwelling units with mobility features. 42 The scoping requirements for facilities that do not contain emergency transportable housing units are in sections 233.3.1.1, F233.3.1.1, and F233.4.1.1, and they are not changed.

These sections contain the scoping requirements for emergency transportable housing units with mobility features installed at facilities other than military installations. Where emergency transportable housing units are installed on private sites provided by the occupant of the unit, the final rule requires entities to provide units with mobility features on the private sites as determined by a needs assessment conducted by the entity providing the units. Where group sites are developed for emergency transportable housing units, the final rule requires at least 10 percent of the unit pads to be designed and constructed to accept the installation of units with mobility features and to be on an accessible route, and at least 5 percent of the total number of units installed on the group sites to provide mobility features.

This section contains the scoping requirement for emergency transportable housing units with mobility features installed on military installations. The final rule requires entities to provide emergency transportable housing units with mobility features on military installations as determined by a needs assessment conducted by the entity providing the units.

These sections contain the scoping requirements for residential dwelling units with communication features. 43 The scoping requirements for facilities that do not contain emergency transportable housing units are in sections 233.3.2.1, F233.3.2.1, and F233.4.2.1, and they are not changed.

These sections contain the scoping requirements for emergency transportable housing units with communication features. The final rule requires entities to provide emergency transportable housing units with communication features as determined by a needs assessment conducted by the entity providing the units.

The final rule adds Exception 2 to these sections. Exception 2 does not require emergency transportable housing units required to provide mobility features to be dispersed among the various types of units in the facility or to provide choices of units comparable to those available to others since disaster survivors are provided units based on their assessed needs. Exception 2 does not exempt emergency transportable housing units required to provide mobility features from the requirement that the units be integrated with those available to other residents so that disaster survivors with disabilities are not segregated at group sites.

These sections contain the technical requirements for the running slope and rise of ramp runs. The running slope of ramp runs must not be steeper than 1:12 and any ramp rise must be 30 inches maximum. The floor level of emergency transportable housing units is typically elevated 36 inches above the ground. To comply with the technical requirements, entry ramps installed at emergency transportable housing units with mobility features must have at least two ramp runs and an intermediate landing between the ramp runs. The entry ramps occupy 158 to 180 square feet depending on the landing configuration. 44 The final rule adds exceptions to the technical requirements that permit a single ramp run with a slope not steeper than 1:10 and 36 inches maximum rise where existing physical or site constraints would prohibit the installation of an entry ramp complying with the slope and rise requirements at emergency transportable housing units installed on private sites provided by the occupant of the unit. The exceptions reduce the area occupied by the entry ramps to 120 square feet. The exceptions may enable disaster survivors with disabilities who need emergency transportable housing units with mobility features to have the units installed on their private home sites where existing physical or site constraints may otherwise prohibit the installation of an entry ramp complying with the technical requirements at the unit. Many individuals with disabilities have difficulty using ramps with slopes steeper than 1:12 and may find entry ramps with a 1:10 slope not usable. Because individuals with disabilities have varying needs and capabilities, the concurrence of individuals with disabilities who will use the entry ramps should be obtained before using the exceptions.

The final rule edits the references in these sections to the technical requirements for residential dwelling units with mobility features to conform to the renumbered technical requirements in section 809.

Exception 2 to this section permits grab bars to not be installed at water closets in residential dwelling units required to provide mobility features provided that the walls are reinforced to support future installation of grab bars. The final rule revises Exception 2 so that it does not apply to emergency transportable housing units required to provide mobility features since it could result in delays in installing grab bars in the units.

This section requires clear floor space positioned for a forward approach and knee and toe clearance to be provided at lavatories and sinks. Exception 3 to the section permits readily removable cabinetry to be installed under lavatories and sinks in residential dwelling units required to provide mobility features provided that the finish floor extends under the cabinetry and the walls behind and surrounding the cabinetry are finished. The final rule revises Exception 3 so that it does not apply to emergency transportable housing units required to provide mobility features.

The final rule revises this section to require a water spray unit to be provided at the kitchen sink in emergency transportable housing units required to provide mobility features so individuals with mobility disabilities can wash dishes without having to reach across the sink to control the water flow.

Exception 2 to this section permits grab bars to not be installed at bathtubs in residential dwelling units required to provide mobility features provided that the walls are reinforced to support future installation of grab bars. The final rule revises Exception 2 so that it does not apply to emergency transportable housing units required to provide mobility features since it could result in delays in installing grab bars in the units.

Exception 2 to this section permits grab bars to not be installed in shower compartments in residential dwelling units required to provide mobility features provided that the walls are reinforced to support future installation of grab bars. The final rule revises Exception 2 so that it does not apply to emergency transportable housing units required to provide mobility features since it could result in delays in installing grab bars in the units.

This section requires a folding or non-folding seat to be provided in transfer type shower compartments. An exception to the section permits seats to not be installed in transfer type shower compartments in residential dwelling units required to provide mobility features provided that the walls are reinforced to support future installation of seats. The final rule revises the exception so that it does not apply to emergency transportable housing units required to provide mobility features since it could result in delays in installing seats in transfer type shower compartments in the units. The final rule also requires a folding seat to be provided in roll-in type showers provided in emergency transportable housing units required to provide mobility features.

This section requires at least one work surface to be provided at kitchen counters in residential dwelling units required to provide mobility features. The work surface must have a clear floor space positioned for a forward approach, and knee and toe clearance beneath the kitchen counter. The final rule adds an exception to the section for emergency transportable housing units in order to preserve storage space beneath kitchen counters in the units. The exception does not require work surfaces to be provided at kitchen counters where a table is provided within the kitchen; an electric outlet is provided within reach of the table; and all the kitchen countertops are 34 inches high maximum. The table must comply with the technical requirements for dining surfaces and work surfaces.

The final rule reorganizes and renumbers the technical requirements for residential dwelling units in this section as shown below. 45

As discussed below, the final rule adds technical requirements to this section for floor surfaces, bedrooms, and weather alert systems in emergency transportable housing units with mobility features.

This section specifies that carpet not be provided on floor surfaces in emergency transportable housing units with mobility features.

This section requires a clear floor space for individuals who use wheelchairs and other mobility aids to be provided on one side of a bed in bedrooms in emergency transportable housing units. The clear floor space must be positioned for a parallel approach to the side of the bed and must be on an accessible route. Where bedrooms are less than 70 square feet, the section specifies that the furniture supplied with the unit cannot overlap the accessible route, maneuvering clearances required at doors, and turning space since it is not possible to rearrange the furniture in such small spaces. The section also requires a means to control at least one source of lighting from the bed, such as bedside lamps, wall switches near the bed, or remote control devices that can be operated from the bed, so individuals with mobility disabilities can safely transfer in and out of bed.

Where weather alert systems are provided in emergency transportable housing units, this section requires the operable parts on weather alert systems in units with mobility features to comply with the technical requirements for clear floor space and reach ranges.

As discussed below, the final rule adds technical requirements to this section for smoke alarms and weather alert systems in residential dwelling units with communication features.

This section requires residential dwelling unit smoke alarms to provide combination smoke alarms and visible notification appliances. The final rule requires combination smoke alarms and visible notification appliances to be supplied with a commercial light and power source along with a secondary power source, or a non-commercial alternating power source along with a secondary power source. This requirement is consistent with the NFPA 72 National Fire Alarm Code, which is referenced in the section.

Where weather alert systems are provided in emergency transportable housing units, this section requires weather alert systems in units with communication features to provide audible and visible output.

The final rule is not a significant regulatory action. FEMA is the only entity we have identified that has recently provided emergency transportable housing units to disaster survivors and will be affected by the final rule. We adhered to the principles of regulation in Executive Orders 13563 and 12866. Among other things, Executive Order 13563 directs agencies to propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; tailor the regulation to impose the least burden on society, consistent with obtaining the regulatory objectives; and, in choosing among alternative regulatory approaches, select those approaches that maximize net benefits. Executive Order 13563 recognizes that some benefits are difficult to quantify and provides that, where appropriate and permitted by law, agencies may consider and discuss qualitatively values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts. We discuss the costs and benefits of the final rule below.

FEMA maintains a baseline target inventory of emergency transportable housing units ready to deploy in response to major disasters and emergencies based on historical usage, lead time to produce additional units, and installation capacity. The baseline target inventory is reassessed at the beginning of each hurricane season and may be readjusted based on operational needs, lessons learned, and on-going analysis. FEMA's current baseline target inventory is 2,000 units and 298 of the units (approximately 15 percent of the units) are targeted as UFAS compliant. 46 The actual number of emergency transportable housing units in the inventory varies as FEMA deploys the units to disaster areas and contracts for the production of additional units as needed.

UFAS is the accessibility standard adopted by HUD for residential facilities covered by the ABA. The UFAS compliant units comply with the technical requirements in the final rule for units with mobility features, except for bedroom lighting controls and water spray units at kitchen sinks. FEMA estimated, based on input from companies that produce emergency transportable housing units, that bedroom lighting controls will add $60 and water spray units at kitchen sinks will add $75 to the cost of UFAS compliant units. All the emergency transportable housing units provided by FEMA contain the communication features required by the final rule, including combination smoke alarms and visible notification appliances complying with NFPA 72 National Fire Alarm Code and weather alert systems with audible and visible output. FEMA will not incur additional costs to comply with the technical requirements in the final rule for units with communication features.

We assumed that FEMA will provide bedroom lighting controls and water spray units at kitchen sinks in new UFAS compliant units purchased after the final rule is issued, and will not wait until HUD updates its accessibility standards for residential facilities covered by the ABA to be consistent with the final rule. We estimated the additional costs for FEMA to provide UFAS compliant units with bedroom lighting controls and water spray units at kitchen sinks under three scenarios. The scenarios do not represent actual costs that FEMA will incur each year since the number of UFAS compliant units deployed by FEMA varies from year to year. The scenarios are:

1. Average Number of UFAS Compliant Units Deployed per Year by FEMA. FEMA deployed an average of 165 UFAS compliant units per year in response to major disasters and emergencies declared by the President during the period from calendar year 2008 to 2013. 47 Under the first scenario, we estimated the additional costs if FEMA deploys an average 165 UFAS compliant units per year and replaces the inventory with the same number of UFAS compliant units.

2. Baseline Target Inventory of UFAS Compliant Units Maintained by FEMA. Under the second scenario, we estimated the additional costs if FEMA deploys the 298 UFAS compliant units in its baseline target inventory and replaces them with the same number of UFAS compliant units. These costs may be incurred over more than one year if all the UFAS compliant units in the inventory are not deployed in a single year.

3. UFAS Compliant Units Deployed in Event of Catastrophic Disasters Equivalent to Hurricanes Katrina and Rita. FEMA provided approximately 145,000 emergency transportable housing units to the survivors of Hurricanes Katrina and Rita. 48 Under the third scenario, we estimated the additional costs if FEMA deploys the same number of units in the event of catastrophic disasters equivalent to Hurricanes Katrina and Rita and 10, 15, or 20 percent of the units are UFAS compliant. These costs may be incurred over more than one year depending on whether the disasters occur in the early part or late part of the year and the time needed to produce large numbers of units.

The additional costs for FEMA to provide UFAS compliant units with bedroom lighting controls and water spray units at kitchen sinks under the three scenarios are shown in Table 1. The additional costs under the first scenario (average number of UFAS compliant units deployed per year) are $22,275. The additional costs under the second scenario (replace baseline target inventory of UFAS compliant units) are $40,230. The additional costs under the third scenario (percentage of UFAS compliant units deployed in the event of catastrophic disasters equivalent to Hurricanes Katrina and Rita) range from $2 million to $4 million depending on whether 10, 15, or 20 percent of the units are UFAS compliant.

The final rule does not allow use of the operable parts exception for electrical outlets in kitchens in emergency transportable housing units with mobility features since they typically have fewer electrical outlets than kitchens in other types of residential dwelling units. Where two or more electrical outlets are provided above a length of countertop that is uninterrupted by a sink or appliance, the exception does not require one of the outlets to comply with the technical requirements for operable parts, including clear floor space, reach ranges, and operation. Kitchen designs vary in emergency transportable housing units. Depending on the kitchen designs, electrical outlets may need to be installed in the face of the base cabinets to comply with the technical requirements for operable parts. FEMA estimated, based on input from companies that produce emergency transportable housing units, that installing electrical outlets in the face of the base cabinets will add from $150 to $500 to the cost of UFAS compliant units. The higher estimate assumes custom cabinetry is needed.

We do not have information on the various kitchen designs used by companies that produce emergency transportable housing units. We estimated the additional costs for not allowing the operable parts exception to be used for electrical outlets in kitchens in emergency transportable housing units with mobility features based on assumptions that 25, 50, and 100 percent of the units provide two or more electrical outlets above a length of countertop that is uninterrupted by a sink or appliance and need to install electrical outlets in the face of the base cabinets to comply with the technical requirements for operable parts. The additional costs for not allowing use of the operable parts exception under the three scenarios described earlier are shown in Table 2 as a range of low and high estimates. The low estimates assume that installing electrical outlets in the face of the base cabinets will add $150 to the cost of UFAS compliant units. The high estimates assume that installing electrical outlets in the face of the base cabinets will add $500 to the cost of UFAS compliant units. The additional costs under the first scenario (average number of UFAS compliant units deployed per year) range from $6,150 to $82,500. The additional costs under the second scenario (replace baseline target inventory of UFAS compliant units) range from $11,250 to $149,000. The additional costs under the third scenario (percentage of UFAS compliant units deployed in the event of catastrophic disasters equivalent to Hurricanes Katrina and Rita) range from $543,750 to $14.5 million depending on whether 10, 15, or 20 percent of the units are UFAS compliant.

The total additional costs to provide bedroom lighting controls and water spray units at kitchen sinks in UFAS compliant units and for not allowing use of the operable parts exception for electrical outlets in kitchens in emergency transportable housing units with mobility features are shown in Table 3 as a range of low and high estimates. The low estimates assume that 25 percent of the units provide two or more electrical outlets above a length of countertop that is uninterrupted by a sink or appliance and need electrical outlets installed in the face of the base cabinets to comply with the technical requirements for operable parts at the additional cost of $150 per unit. The high estimates assume that 100 percent of the units provide two or more electrical outlets above a length of countertop that is uninterrupted by a sink or appliance and need electrical outlets installed in the face of the base cabinets to comply with the technical requirements for operable parts at the additional cost of $500 per unit. The total additional costs under the first scenario (average number of UFAS compliant units deployed per year) range from $28,425 to $104,775. The total additional costs under the second scenario (replace baseline target inventory of UFAS compliant units) range from $51,480 to $189,230. The total additional costs under the third scenario (percentage of UFAS compliant units deployed in the event of catastrophic disasters equivalent to Hurricanes Katrina and Rita) range from $2.5 million to $18.4 million depending on whether 10, 15, or 20 percent of the units are UFAS compliant.

The scoping and technical requirements for emergency transportable housing units with mobility features will directly benefit disaster survivors with mobility disabilities who need temporary housing. The number of disaster survivors with mobility disabilities who need temporary housing will vary from disaster to disaster. During the five year period from 2008 to 2012, FEMA provided a total of 9,324 emergency transportable housing units to disaster survivors and 991of the units or 10.6 percent were UFAS compliant. 49 The number of UFAS compliant units provided in response to specific disasters ranged from zero to 345 units. In the event of catastrophic disasters equivalent to Hurricanes Katrina and Rita, the number of UFAS compliant units would be greater. FEMA provided approximately 145,000 emergency transportable housing units to the survivors Hurricanes Katrina and Rita. If FEMA were to provide the same number of emergency transportable housing units in the event of catastrophic disasters equivalent to Hurricanes Katrina and Rita and 10 to 20 percent of the units were UFAS compliant, there would be 14,500 to 29,000 UFAS compliant units for disaster survivors with mobility disabilities. The benefits of the final rule are incremental for disaster survivors with mobility disabilities since the UFAS compliant units comply with the technical requirements in the final rule for units with mobility features, except for bedroom lighting controls and water spray units at kitchen sinks. By requiring a means to control at least one source of lighting in bedrooms from the bed, individuals with mobility disabilities will be able to safely transfer in and out of bed. By requiring water spray units at kitchen sinks, individuals with mobility disabilities will be able to wash dishes without having to reach across the sink to control the water flow. The final rule also does not allow the use of the operable parts exception for electrical outlets in kitchens in emergency transportable housing units with mobility features since they typically have fewer outlets than kitchens in other types of residential dwelling units. These benefits are difficult to quantify, but include important national values recognized in Executive Order 13563 such as equity, human dignity, and fairness.

All the emergency transportable housing units provided by FEMA contain the communication features required by the final rule, including combination smoke alarms and visible notification appliances complying with NFPA 72 National Fire Alarm Code and weather alert systems with audible and visible output so the final rule has no incremental benefits for disaster survivors who are deaf or have a hearing loss. We do not have data on the number of emergency transportable housing units provided by FEMA to disaster survivors who are deaf or have a hearing loss.

The Regulatory Flexibility Act requires federal agencies to analyze the impacts of proposed and final rules on small entities, unless the agency certifies that the rule will not have a significant impact on a substantial number of small entities. 50 For the proposed rule, we certified that the rule will not have a significant impact on a substantial number of small entities because we did not identify any entities other than FEMA that provides emergency transportable housing units to disaster survivors. We requested comment in the proposed rule on whether any small entities provide emergency transportable housing units to disaster survivors. 51 We did not receive any comments indicating that small entities provide emergency transportable housing units to disaster survivors. Accordingly, we certify that the final rule will not have a significant impact on a substantial number of small entities.

The final rule adheres to the fundamental federalism principles and policy making criteria in Executive Order 13132. The final rule is issued pursuant to the Americans with Disabilities Act (ADA) and Architectural Barriers Act (ABA). 52 The ADA is civil rights legislation that was enacted by Congress pursuant to its authority to enforce the Fourteenth Amendment to the U.S. Constitution and to regulate commerce. The ADA prohibits discrimination on the basis of disability. The ADA requires facilities constructed or altered by state and local governments, and public accommodations and commercial facilities constructed or altered by private entities to be readily accessible to and usable by individuals with disabilities. The ADA recognizes the authority of state and local governments to enact and enforce laws that provide for greater or equal protection for the rights of individuals with disabilities. 53 The ABA requires facilities constructed or altered with federal funds and facilities leased by federal agencies to be readily accessible to and usable by individuals with disabilities.

The Unfunded Mandates Reform Act does not apply to proposed or final rules that enforce constitutional rights of individuals or enforce statutory rights that prohibit discrimination on the basis of race, color, sex, national origin, age, handicap, or disability. Since the final rule is issued pursuant to the ADA, which prohibits discrimination on the basis of disability, an assessment of the rule's effect on state, local, and tribal governments, and the private sector is not required.

For the reasons stated in the preamble, we amend 36 CFR part 1191 as follows:

I. Background

Upon promulgation of a new or revised NAAQS, sections 110(a)(1) and (2) of the CAA require states to address basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance for that new NAAQS. On July 18, 1997 (62 FR 36852), EPA promulgated a new annual PM 2.5 NAAQS and on October 17, 2006 (71 FR 61144), EPA promulgated a new 24-hour NAAQS. On February 20, 2013, EPA proposed to approve SIP submissions from Alabama, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee as they relate to section 110(a)(2)(D)(i)(II) infrastructure SIP requirements to protect visibility in other states for both the 1997 and 2006 PM 2.5 NAAQS. A summary of the background for today's final action is provided below. See EPA's February 20, 2013, proposed rulemaking at 78 FR 11805 for more detail.

Section 110(a)(2)(D) has two components: 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes four distinct components, commonly referred to as “prongs,” that must be addressed in infrastructure SIP submissions. The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS in another state (prong 1) and interfering with maintenance of the NAAQS in another state (prong 2). The third and fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit emissions activity in one state interfering with measures required to prevent significant deterioration of air quality in another state (prong 3), and to protect visibility in another state (prong 4). Section 110(a)(2)(D)(ii) requires SIPs to include provisions insuring compliance with sections 115 and 126 of the Act, relating to interstate and international pollution abatement.

EPA has previously taken action to address SIP submissions from Alabama, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee related to prongs 1 through 3 of section 110(a)(2)(D)(i) and the requirements of section 110(a)(2)(D)(ii) for the 1997 annual and 2006 24-hour PM 2.5 NAAQS. Today's final rulemaking relates only to prong 4 of section 110(a)(2)(D)(i)(II), which as previously described, requires that infrastructure SIPs contain adequate provisions to protect visibility in other states.

EPA received three sets of comments on the February 20, 2013 proposed rulemaking to approve the SIP submissions from Alabama, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee addressing prong 4 of section 110(a)(2)(D)(i)(II). Two of the commenters, the Municipal Electric Authority of Georgia and the Utility Air Regulatory Group, support EPA's proposed action and one commenter, the National Parks Conservation Association (the “Commenter”), opposes the proposed action. A summary of the adverse comments and EPA's responses are provided below.

Comment 1: The Commenter states that EPA must disapprove the infrastructure SIP submissions from Alabama, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee as they relate to prong 4 of section 110(a)(2)(D)(i) because the submittals rely on the Clean Air Interstate Rule (CAIR) to satisfy best available retrofit technology (BART) and reasonable progress requirements for CAIR-subject electric generating units (EGUs). According to the Commenter, EPA must direct each state to develop a plan consistent with the requirements of the Regional Haze Rule for source-specific BART and reasonable progress for nitrogen oxide (NO X ) and sulfur dioxide (SO 2 ) emissions from EGUs subject to these regional haze provisions. The Commenter contends that reliance on CAIR is improper because CAIR was “declared illegal” and remanded by the U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit) in North Carolina v. EPA, 550 F.3d 1176 (D.C. Cir. 2008) and is therefore not permanent and enforceable. The Commenter further contends that CAIR cannot substitute for BART because it is impermissible under section 169A of the CAA for EPA or the states to rely on a cap-and-trade program as a substitute for, or exemption from, BART and because EPA's better-than-BART provision in the Regional Haze Rule violates the CAA. The Commenter also believes that Alabama, Georgia, Kentucky, North Carolina, and South Carolina improperly relied on CAIR to “exempt” sources from a reasonable progress review and that, “[i]n most cases, the states did not perform a unit-specific reasonable progress analysis, but more generally asserted that reliance on CAIR was sufficient for reasonable progress.” The Commenter believes that in the absence of such an analysis, “it is not possible to determine whether or the extent to which CAIR may fulfill RP requirements, assuming that it could overcome the impossible hurdle of being an unenforceable program.” The Commenter is concerned that the reliance on CAIR to “remove emission reduction obligations from many sources of SO 2 ” and the “methodical elimination of sources of NO X and PM emissions” through the states' area of influence methodology “may have prevented the achievement of meaningful reasonable progress.” The Commenter also believes that “it is incumbent upon the states and EPA to demonstrate in their SIPs that they have actually taken all measures necessary to reduce their share of pollutants” to meet reasonable progress goals in neighboring states' Class I areas, citing language in 40 CFR 51.308(d)(3)(ii).

Response 1: EPA disagrees with the Commenter. As discussed in EPA's proposed rulemaking related to today's action, the DC Circuit vacated the Cross-State Air Pollution Rule (CSAPR) in EME Homer City Generation v. EPA, 696 F.3d 7, 38 (D.C. Cir. 2012) and ordered EPA to “continue administering CAIR pending the promulgation of a valid replacement.” The Agency believes that it is therefore appropriate for EPA to rely on CAIR emission reductions for purposes of assessing the adequacy of the infrastructure SIPs subject to this action with respect to prong 4 of section 110(a)(2)(D)(i)(II) while a valid replacement rule is developed and until submissions complying with any such new rule are submitted by the states and acted upon by EPA or until EME Homer City is resolved in a way that provides different direction regarding CAIR and CSAPR.

Furthermore, CAIR remains part of the federally-approved SIPs for Alabama, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee and can be considered in determining whether each of the infrastructure SIPs subject to today's action meets the requirements of prong 4. EPA is taking final action to approve these infrastructure SIP submissions with respect to prong 4 because the EPA-approved regional haze SIP for each state, in combination with each state's implementation plan provisions to implement CAIR, adequately prevent sources in each state from interfering with measures adopted by other states to protect visibility during the first planning period. 1 EPA notes that all of the rulemakings and proposed rulemakings cited by the Commenter that discuss the limited approvability of SIPs due to the status of CAIR were issued by EPA prior to the vacatur of CSAPR. Since the vacatur of CSAPR in August 2012 and with continued implementation of CAIR per the direction of the DC Circuit in EME Homer City, EPA has approved redesignations of areas to attainment of the 1997 and 2006 PM 2.5 NAAQS in which states have relied on CAIR as a permanent and enforceable measure. 2

EPA disagrees with the Commenter that the CAA does not allow states to rely on an alternative program such as CAIR in lieu of source-specific BART. EPA's regulations allow states to adopt alternatives to BART that provide for greater reasonable progress, and EPA's determination that states may rely on CAIR to meet the BART requirements has been upheld by the DC Circuit as meeting the requirements of the CAA. In the first case challenging the provisions in the Regional Haze Rule allowing for states to adopt alternative programs in lieu of BART, Center for Energy and Economic Development v. EPA, 398 F.3d 653, 660 (D.C. Cir. 2005), the court affirmed the Agency's interpretation of section 169A(b)(2) as allowing for alternatives to BART where those alternatives will result in greater reasonable progress than BART. In the second case, Utility Air Regulatory Group v. EPA, 471 F.3d 1333 (D.C. Cir. 2006), the court specifically upheld EPA's determination that states could rely on CAIR as an alternative to BART for EGUs in the CAIR-affected states. The court concluded that the EPA's two-pronged test for determining whether an alternative program achieves greater reasonable progress was a reasonable one and also agreed with EPA that nothing in the CAA required the EPA to “impose a separate technology mandate for sources whose emissions affect Class I areas, rather than piggy-backing on solutions devised under other statutory categories, where such solutions meet the statutory requirements.”  3

More fundamentally, EPA disagrees with the Commenter that the adequacy of the BART measures in the regional haze SIPs for these states is relevant to the question of whether each state's implementation plan meets the requirements of section 110(a)(2)(D)(i) of the CAA with respect to visibility. EPA interprets the visibility provisions in this section of the CAA as requiring states to include in their SIPs measures to prohibit emissions that would interfere with the reasonable progress goals set to protect Class I areas in other states. The Regional Haze Rule includes a similar requirement in 40 CFR 51.308(d)(3), and for each of the states subject to this action, EPA found that the respective regional haze SIP meets this requirement. 4 Each of these states relied on CAIR to achieve significant reductions in emissions to both meet the BART requirements and to address impacts of the state on Class I areas in other states. 5 The question of whether or not CAIR satisfies the BART requirements has no bearing on whether these measures meet the requirements of prong 4.

Regarding the reasonable progress evaluations, each state at issue focused its reasonable progress analysis on SO 2 emissions based on the conclusion that sulfate particles account for the greatest portion of the regional haze affecting Class I areas in these states. 6 Each state then established areas of influence and contribution thresholds to determine which of its sources should be evaluated for reasonable progress control. 7 EPA approved each state's methodology for identifying units for reasonable progress evaluation and each state's reasonable progress determinations in the respective regional haze SIP actions and provided a detailed discussion of the methodology and the rationale for approval in the Federal Register notices associated with those actions. 8

Contrary to the Commenter's assertions, Alabama, Georgia, Kentucky, North Carolina, and South Carolina did not “exempt [CAIR] sources . . . that would otherwise be subject to reasonable progress review.” Each of these states considered the four statutory reasonable progress factors in evaluating whether CAIR would satisfy reasonable progress requirements for the state's EGU sector and determined that no additional controls beyond CAIR were reasonable for SO 2 during the first planning period. 9 As discussed in EPA's Reasonable Progress Guidance, states may evaluate the need for reasonable progress controls on a source category basis, rather than through a unit-specific analysis, and have wide latitude to determine additional control requirements for ensuring reasonable progress. 10 The guidance also notes that states may consider emissions reductions from cap-and-trade programs such as CAIR in addition to source-specific controls. 11

As mentioned above, EPA determined that each of the regional haze SIPs submitted by the states subject to this action adequately prevents sources in the state from interfering with the reasonable progress goals adopted by other states to protect visibility during the first planning period, thus satisfying the requirements of 40 CFR 51.308(d)(3). These states participated in a regional planning process through VISTAS, and their SIPs include all measures needed to achieve their respective apportionment of emissions reduction obligations agreed upon through that process as required by 40 CFR 51.308(d)(3)(ii). 12

Comment 2: EPA must disapprove the infrastructure SIP submittals from North Carolina and South Carolina under prong 4 of 110(a)(2)(D)(i) because EPA has not approved the State's five-year progress reports.

Response 2: EPA disagrees with the Commenter. EPA received the North Carolina and South Carolina progress report SIP submittals on May 31, 2013, and December 28, 2012, respectively. As of this final rulemaking, EPA has not taken final action on these submissions, and no such action is due pursuant to CAA section 110(k)(2) at this time. Therefore, EPA does not believe that EPA approval of these progress reports is a required structural element necessary before EPA may approve the North Carolina and South Carolina infrastructure SIPs subject to this action.

Nevertheless, EPA notes that it has proposed approval of South Carolina's progress report SIP submission since the publication of the proposed infrastructure action that is the subject of this rulemaking. 13 As discussed in the proposed rulemaking on the progress report, South Carolina provided SO 2 emissions data from EPA's Clean Air Markets Division (CAMD) for EGUs in South Carolina and in the entire VISTAS region from 2002-2011. 14 This data indicates that emissions of SO 2 , the primary contributor to visibility impairment in the VISTAS region, have declined significantly since South Carolina submitted its regional haze SIP in 2007. 15 South Carolina's progress report also states that total SO 2 emissions from South Carolina EGUs are already below the 2018 projections in South Carolina's 2007 regional haze SIP submittal and are expected to decrease further. 16 In addition, the most current visibility data available at the time of EPA's proposed approval of the progress report shows that visibility has improved at the Cape Romain Wilderness Area, the Class I area within South Carolina. 17 For these reasons, EPA has proposed to approve South Carolina's negative declaration pursuant to 40 CFR 51.308(h) that no further substantive revision of the State's regional haze SIP is required at this time to achieve the reasonable progress goals for Class I areas affected by the State's sources and continues to believe that the State's existing SIP (including the regional haze SIP and CAIR) contains adequate provisions to meet the visibility protection requirements of section 110(a)(2)(D)(i)(II). 18

Although EPA has not yet proposed action on North Carolina's progress report SIP, the Agency has performed a preliminary review of the submission. North Carolina included 2011 SO 2 emissions data from CAMD for EGUs in North Carolina that are expected to be retired by 2015 and for EGUs that were projected in the 2007 regional haze SIP submission to have controls installed by 2018. 19 Based on this data, North Carolina reported a reduction in SO 2 emissions of approximately 390,000 tons per year from these units between 2002-2011 and estimated that 2018 SO 2 emissions would be approximately 80 percent lower than those projected in the regional haze SIP. 20 North Carolina also provided visibility data supporting its conclusion that visibility has improved since the 2000-2004 baseline at all five of the Class I areas in the State. 21 Based on EPA's preliminary review of this information and other information provided in the State's progress report SIP submission, EPA continues to believe, at this time, that the State's existing SIP (including the regional haze SIP and CAIR) contains adequate provisions to meet the visibility protection requirements of section 110(a)(2)(D)(i)(II).

EPA is taking final action to approve the infrastructure SIP submissions from Alabama, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee as demonstrating that these states meet the applicable requirements of section 110(a)(2)(D)(i) of the CAA that relate to the protection of visibility in other states for the 1997 annual and 2006 24-hour PM 2.5 NAAQS. In describing how its submission meets this requirement, Alabama, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee each referred to EPA-approved state provisions requiring EGUs to comply with the CAIR and to the limited approval and limited disapproval of its regional haze SIP. Although EPA has not fully approved the regional haze SIPs from these states, the Agency believes that the infrastructure SIP submission together with previously approved SIP provisions, specifically those provisions that require EGUs to comply with CAIR and the additional measures in the regional haze SIP addressing BART and reasonable progress requirements for other sources or pollutants, are adequate to demonstrate compliance with prong 4.

As described above, EPA is approving SIP submissions from Alabama, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee to incorporate provisions into the states' implementation plans to address prong 4 of section 110(a)(2)(D)(i) of the CAA for both the 1997 and 2006 PM 2.5 NAAQS because these submissions are consistent with section 110 of the CAA.

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

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

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

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

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

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

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

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

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

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

EPA has determined that this final rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because there are no “substantial direct effects” on an Indian Tribe as a result of this action. EPA notes that the Catawba Indian Nation Reservation is located within South Carolina. Pursuant to the Catawba Indian Claims Settlement Act, S.C. Code Ann. 27-16-120, “all state and local environmental laws and regulations apply to the Catawba Indian Nation and Reservation and are fully enforceable by all relevant state and local agencies and authorities.” Thus, while the South Carolina SIP applies to the Catawba Reservation, because today's action is not a substantive revision to the South Carolina SIP, and is instead approving South Carolina's infrastructure SIP submission to incorporate provisions satisfying prong 4 of section 110(a)(2)(D)(i), EPA has determined that today's action will have no “substantial direct effects” on the Catawba Indian Nation. EPA has also determined that these revisions will not impose any substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 7, 2014. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

40 CFR part 52 is amended as follows:

I. Does this action apply to me?

The Agency included in the Federal Register of February 3, 2014 (79 FR 6092) (FRL-9394-2), a list of those who may be potentially affected by this action.

EPA issued a final rule in the Federal Register of February 3, 2014 (79 FR 6092), that established an exemption from the requirement of a tolerance for certain chemicals when used as an inert ingredient as a surfactant in pesticide formulations in growing crops without limitations. In the regulatory text, CAS registry numbers were inadvertently omitted under §§ 180.910, 180.930, 180.940, and 180.960.

Section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)(3)(B)) provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, the agency may issue a final rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making this technical correction final without prior proposal and opportunity for comment, because this document merely corrects technical omissions. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(3)(B).

No. For a detailed discussion concerning the statutory and executive order review, refer to Unit VII. of the February 3, 2014 final rule.

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR part 180 is corrected as follows:

I. General Information A. Does this action apply to me?

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2013-0653 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before July 7, 2014. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2013-0653, by one of the following methods:

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

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

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

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

In the Federal Register of October 25, 2013 (78 FR 63938) (FRL-9901-96), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 2E8138) by Bayer CropScience LP, P.O. Box 12014, 2 T. W. Alexander Drive, Research Triangle Park, NC 27709. The petition requested that EPA establish import tolerances for residues of the fungicide tebuconazole, in or on orange, whole fruit at 1 part per million (ppm); orange, juice at 0.15 ppm; and orange, oil at 400 ppm. That document referenced a summary of the petition prepared by Bayer CropScience LP, the registrant, which is available in the docket, http://www.regulations.gov. Subsequently, the petitioner submitted a revised petition that requested different tolerance levels for orange juice and orange oil. The Agency published a second notice of filing document in the Federal Register of February 25, 2014 (79 FR 10458) (FRL-9906-77), noting the revisions for the uses in/on orange, juice from 0.15 ppm to 0.7 ppm; orange, oil from 400 ppm to 20 ppm. There were no comments received concerning this petition.

Based upon review of the data supporting the petition, the proposed tolerance for orange, juice is unnecessary. The proposed tolerance for orange, oil was lowered. The reasons for these changes are explained in Unit IV.C.

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

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

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The hazard characterization remains unchanged from the assessment upon which the final rule published in the Federal Register on November 15, 2013 (78 FR 68741) (FRL-9392-1) is based.

Specific information on the studies received and the nature of the adverse effects caused by tebuconazole as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in the preamble to that final rule and its supporting documents as well as the most recent human health risk assessment, “Tebuconazole: Human Health Risk Assessment for Tolerance on Imported Oranges”, which can be found at http://www.regulations.gov, under docket ID number EPA-HQ-OPP-2013-0653-0004.

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

A summary of the toxicological endpoints for tebuconazole used for human risk assessment is shown in the table contained in Unit III.B. of the preamble to the final rule published in the Federal Register issue of November 15, 2013.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to tebuconazole, EPA considered exposure under the petitioned-for tolerances as well as all existing tebuconazole tolerances in 40 CFR 180.474. EPA assessed dietary exposures from tebuconazole in food as follows:

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

Such effects were identified for tebuconazole. In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture (USDA) 2003-2008 National Health and Nutrition Examination Survey, What We Eat in America, (NHANES/WWEIA). As to residue levels in food, a somewhat refined acute probabilistic dietary exposure assessment was conducted for all existing and proposed food uses of tebuconazole. EPA used the latest USDA Pesticide Data Program (PDP) monitoring data, field trial data, percent crop treated (PCT) data and empirical and DEEM (ver. 7.81) default processing factors.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA's (NHANES/WWEIA) conducted from 2003-2008 as well. As to the residue levels in food, EPA made the following assumptions for the chronic exposure assessment: As to residue levels in food, EPA used field trial data, USDA PDP data, assumed PCT data levels and used empirical and DEEM (ver. 7.81) default processing factors as described in Unit III.C.1.iv.

iii. Cancer. The Agency determined that cancer dietary risk concerns due to long-term consumption of tebuconazole residues are adequately addressed by the chronic dietary exposure analysis using the reference dose; i.e.. the chronic dietary risk assessments is considered to be protective of any cancer effects, and therefore, a separate cancer dietary exposure analysis was not performed.

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

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

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

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

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

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

For the acute assessment, the Agency estimated the maximum PCT estimates for existing uses as follows: Almonds 2.5%; apples 2.5%; apricots 20%; barley 2.5%; beans green 2.5%; cantaloupes 10%; cherries 45%; corn 2.5%; cotton 2.5%; dry beans/peas 5%; garlic 95%; grapes 35%; onions 5%; peaches 25%; peanuts 55%; pears 5%; plums/prunes 5%; soybeans 2.5%; sweet corn 5%; and wheat 25%.

For the chronic assessment, the Agency estimated the average PCT estimates for existing uses as follows: Almonds 1%; apples 1%; apricots 10%; asparagus 5%; barley 2.5%; beans green 1%; cantaloupes 5%; cherries 30%; corn 1%; cotton 1%; dry beans/peas 2.5%; garlic 60%; grapes 20%; nectarines 10%; onions 5%; peaches 15%; peanuts 40%; pears 5%; pecans 5%; pistachios 2.5%; plums/prunes 2.5%; pumpkins 2.5%; soybeans 1%; squash 2.5%; sweet corn 2.5%; watermelons 10%; and wheat 20%.

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

Subsequently, the Agency use estimated percent import estimates from the most recent (2013) screening level usage and analysis available for orange juice and oranges at 27.7% and 7.7%, respectively. Since usage data are not available for other countries, the Agency assumes that all of the imported orange commodities are treated.

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

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

Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Screening Concentration in Ground Water (SCI-GROW) models the estimated drinking water concentrations (EDWCs) of tebuconazole for acute exposures are estimated to be 87.7 parts per billion (ppb) for surface water and 1.56 ppb for ground water and for chronic exposures are estimated to be 68.8 ppb for surface water and 1.56 ppb for ground water.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For the acute dietary risk assessment, a distribution of 30-year daily surface water concentrations was estimated for the EDWCs of tebuconazole. For chronic dietary risk assessment, the water concentration of value 68.8 ppb was used to assess the contribution to drinking water.

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

Tebuconazole is currently registered for the following uses that could result in residential exposures: Turf, flower gardens, trees, ornamentals, and pressure-treated wood. EPA assessed residential exposure using the following assumptions: For residential handlers, exposure is expected to be short-term. Intermediate-term exposures are not likely because of the intermittent nature of applications by homeowners. Dermal and inhalation exposures were combined since the same endpoint and POD is used for both routes of exposure. Residential post-application dermal exposure was assessed for adults and children golfing, and working in gardens. Incidental oral post-application exposure was assessed for children 1 to 2 years old performing physical activities on pressure-treated wood after application of tebuconazole. Both life stages may receive exposure to tebuconazole residues. Post-application exposure is expected to be short-term in duration. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www.epa.gov/pesticides/trac/science/trac6a05.pdf.

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

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

Tebuconazole is a triazole-derived pesticide. This class of compounds can form the common metabolite 1,2,4-triazole and two triazole conjugates (triazolylalanine and triazolylacetic acid). To support existing tolerances and to establish new tolerances fortriazole-derivative pesticides, including tebuconazole, EPA conducted a human health risk assessment for exposure to 1,2,4-triazole, triazolylalanine, and triazolylacetic acid resulting from the use of all current and pending uses of any triazole-derived fungicide. The risk assessment is a highly conservative, screening-level evaluation in terms of hazards associated with common metabolites (e.g., use of a maximum combination of uncertainty factors) and potential dietary and non-dietary exposures (i.e., high end estimates of both dietary and non-dietary exposures). In addition, the Agency has reduced the 10X Food Quality Protection Act safety factor (FQPA SF) to 3X. The FQPA SF has been retained as an uncertainty fact for use of a LOAEL to extrapolate a NOAEL uncertainty factor (UF L ). The Agency's complete risk assessment is found in the propiconazole reregistration docket at http://www.regulations.gov, docket ID number EPA-HQ-OPP-2005-0497.

An updated dietary exposure and risk analysis for the common triazole metabolites 1,2,4-triazole (T), triazolylalanine (TA), triazolylacetic acid (TAA), and triazolylpyruvic acid (TP) was conducted and completed in October 2013, in association with a registration request for several other triazole fungicides. That analysis concluded that risk estimates were below the Agency's level of concern for all population groups. The addition of tolerances associated with this action to the exposure analyses do not significantly increase the exposure to triazole and its conjugates. This assessment may be found on http://www.regulations.gov by searching for the following titles and docket numbers: “Common Triazole Metabolites: Updated Aggregate Human Health Risk Assessment to Address The New Section 3 Registrations For Use of Prothioconazole on Rapeseed Crop Subgroup 20A; Use of Difenoconazole on Rapeseed Crop Subgroup 20A; and Use of Tebuconazole on Imported Oranges”, located in docket ID number EPA-HQ-OPP-2013-0653-0005.

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

2. Prenatal and postnatal sensitivity. The toxicity database for tebuconazole includes prenatal developmental toxicity studies in three species (mouse, rat, and rabbit), a reproductive toxicity study in rats, acute and subchronic neurotoxicity studies in rats, and a developmental neurotoxicity study in rats. The data from prenatal developmental toxicity studies in mice and a developmental neurotoxicity study in rats indicated an increased quantitative and qualitative susceptibility following in utero exposure to tebuconazole. The NOAELs/LOAELs for developmental toxicity in these studies were found at dose levels less than those that induce maternal toxicity or in the presence of slight maternal toxicity. There was no indication of increased quantitative susceptibility in the rat and rabbit developmental toxicity studies, the NOAELs for developmental toxicity were comparable to or higher than the NOAELs for maternal toxicity. In all three species, however, there was indication of increased qualitative susceptibility. For most studies, minimal maternal toxicity was seen at the LOAEL (consisting of increases in hematological findings in mice, increased liver weights in rabbits and rats, and decreased body weight gain/food consumption in rats) and did not increase substantially in severity at higher doses. However, there was more concern for the developmental effects at each LOAEL, which included increases in runts, increased fetal loss, and malformations in mice; increased skeletal variations in rats; and increased fetal loss and frank malformations in rabbits. Additionally, more severe developmental effects (including frank malformations) were seen at higher doses in mice, rats and rabbits. In the developmental neurotoxicity study, maternal toxicity was seen only at the high dose (decreased body weights, body weight gains, and food consumption, prolonged gestation with mortality, and increased number of dead fetuses), while offspring toxicity (including decreases in body weight, brain weight, brain measurements, and functional activities) was seen at all doses.

Available data indicated greater sensitivity of the developing organism to exposure to tebuconazole, as demonstrated by increases in qualitative sensitivity in prenatal developmental toxicity studies in rats, mice, and rabbits, and by increases in both qualitative and quantitative sensitivity in the developmental neurotoxicity study in rats with tebuconazole. However, the degree of concern is low because the toxic endpoints in the prenatal developmental toxicity studies were well characterized with clear NOAELs established and the most sensitive endpoint, which is found in the developmental neurotoxicity study, has been used for overall risk assessments. Therefore, there are no residual uncertainties for prenatal and/or postnatal susceptibility.

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

i. The toxicity database for tebuconazole is complete.

ii. Tebuconazole demonstrated neurotoxicity in the acute neurotoxicity study in rats; the LOAEL of 100 milligrams/kilogram/day (mg/kg/day) was based on increased motor activity in male and female rats and decreased footsplay in female rats.

Malformations indicative of nervous system development disruption were seen in developmental toxicity studies in mice, rats, and rabbits. Neurotoxicity was also seen in offspring in the developmental neurotoxicity study in rats. The LOAEL of 8.8 mg/kg/day was based on decreases in body weights, decreases in absolute brain weights, changes in brain morphometric parameters, and decreases in motor activity. A NOAEL could not be established. However, the LOAEL (8.8 mg/kg/day) was employed as the point of departure in assessing the risk for all exposure scenarios, and the FQPA SF is retained as a UF L (i.e., use of a LOAEL to extrapolate a NOAEL). A Benchmark Dose (BMD) analysis of the datasets relevant to the adverse offspring effects (decreased body weight and brain weight) seen at the LOAEL in the DNT study was conducted. All of the BMDLs (benchmark dose limit) modeled successfully on statistically significant effects are 1-2X lower than the LOAEL. The results also indicate that an extrapolated NOAEL is not likely to be 10X lower than the LOAEL and that use of an UF L of 3X would not underestimate risk. Therefore, the analysis supports reducing the UF L from 10X to 3X. Using an UF L of 3X in risk assessment (8.8 mg/kg/day ÷ 3X = 2.9 mg/kg/day) is further supported by other studies in the tebuconazole toxicity database: Those studies with the lowest NOAELs were a developmental toxicity study in mice at 3 mg/kg/day and a chronic toxicity study in dogs at 2.9 mg/kg/day, with effects being seen at respective LOAELs of 10 and 4.5 mg/kg/day.

iii. Although there is qualitative evidence of increased susceptibility in the prenatal developmental studies in rats, the Agency did not identify any residual uncertainties after establishing toxicity endpoints and traditional UFs to be used in the risk assessment of tebuconazole. The degree of concern for residual uncertainties for prenatal and/or postnatal toxicity is low.

iv. There are no residual uncertainties identified in the exposure databases. EPA utilized a tiered approach in estimating exposure to tebuconazole. While some refinements were incorporated into dietary and residential exposure calculations, EPA is confident that the aggregate risk from exposure to tebuconazole in food, water and residential pathways will not be underestimated. The acute and chronic dietary exposure assessments incorporated refined estimates of residues in food commodities from reliable field trial data reflecting maximum use conditions, recent monitoring data from USDA's PDP, and relevant market survey data on the percentage of crops treated. Estimated concentrations of tebuconazole in drinking water were incorporated into the chronic dietary analysis as the upper bound point estimate and into the probabilistic acute dietary analysis as a distribution. For the residential exposure pathway (ornamentals, golf course turf, and treated wood products), potential exposure resulting from tebuconazole outdoor uses in the residential setting was assessed using screening-level inputs that assumes an adult or child will come in contact with turf and other surfaces immediately after application.

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

1. Acute risk. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to tebuconazole will occupy 84% of the aPAD for children 1-2 years old, the population group receiving the greatest exposure.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to tebuconazole from food and water will utilize 14.3% of the cPAD for all infants <1 year old, the population group receiving the greatest exposure. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of tebuconazole is not expected.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

Tebuconazole is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to tebuconazole.

Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined chronic food, water, and short-term residential exposures result in aggregate MOEs of 310 for adult handlers (post-application); 1,200 for children 11-16 years old (post-application); 510 for children 6-11 years old (post-application); and 350 for children 1-2 years old (post-application). Because EPA's level of concern for tebuconazole is a MOE of 300 or below, these MOEs are not of concern.

4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

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

5. Aggregate cancer risk for U.S. population. Based on the results of the chronic risk assessment, which the Agency considers to be protective of any cancer effects, the Agency concludes that there is no cancer risk from aggregate exposure to tebuconazole.

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

Adequate enforcement methodology (Gas chromatography/Nitrogen Phosphorus Detector (GC/NPD) Method 101341) is available to enforce the tolerance expression.

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

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

There are no Codex, Canadian or Mexican MRLs for tebuconazole in/or on orange, oil and orange, juice.

Based on the analysis of orange processing data, EPA lowered the tolerance level for orange, oil to 10 ppm. Tolerances for orange, juice were unnecessary since the raw agricultural commodity tolerance of 1ppm covers the proposed juice tolerance.

Therefore, tolerances are established for residues of tebuconazole, in or on orange, oil at 10 ppm and orange, juice at 1.0 ppm.

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

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

This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501 et seq. ).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2012-0588 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before July 7, 2014. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2012-0588, by one of the following methods:

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

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

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

In the Federal Register of September 28, 2012 (77 FR 59578) (FRL-9364-6), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 2E8051) by IR-4, 500 College Road East, Suite 201W., Princeton, NJ 08540. The petition requested that 40 CFR 180.430 be amended by establishing tolerances for residues of the herbicide fenoxaprop-ethyl, [(±)-ethyl 2-[4- [(6-chloro-2-benzoxazolyl)oxy]phenoxy]propanoate] and its metabolites 2-[4-[(6:-chloro-2-benzoxazolyl) oxy]phenoxy] propanoic acid and 6-chloro-2,3-dihydrobenzoxazol-2-one, each expressed as the parent compound, in or on grass, hay at 0.15 part per million (ppm). Based on the regional residue data submitted from Washington and Oregon, and the petitioner's intent for this to be a regional pesticide tolerance, the tolerance is being established as a “Tolerance with regional registration” with use restricted to Oregon, Washington, and Utah. That document referenced a summary of the petition prepared by Bayer CropScience, the registrant, which is available in the docket, http://www.regulations.gov.

Comments were received on the notice of filing. EPA response to those comments is discussed in Unit IV.C.

Based upon review of the data supporting the petition, EPA has modified the level at which the tolerance is being established. The reason for this change is explained in Unit IV.D.

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

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

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

FPE is an enriched isomer formulation (95% d and 5% l enantiomers) based on the previously registered product FE which is a 50:50 racemic mixture of d and l enantiomers. FE is no longer a registered active ingredient. The toxicology database for FPE is complete based on studies submitted for both FPE and FE. Based on the analysis of the submitted studies, EPA found that the toxicological effects of FE and FPE across species, duration, and route of exposure are similar. Most of the toxicological data available involved testing of the FE, not FPE. However, EPA has concluded that the similarity between the FE and FPE data is such that the database for FE could be bridged with FPE.

The major target organs following short-term and long-term oral administration of FE and FPE in rats and mice are the liver and kidneys, with rats being the most sensitive species. The primary toxic effect is altered lipid metabolism characterized by decreased lipids and cholesterol, and increased liver weights in rats, and slightly increased lipids, cholesterol, proteins, and liver weights in mice. Additionally, increased enzyme activity (aspartate amino transferase (ASAT), alanine amino transferase (ALAT), and alkaline phosphatase (ALP)), hypertrophy, and single cell necrosis were observed in mice. In the kidneys, increases in ketones and kidney weights were observed in rats and evidence of proximal renal tubular injury were observed in mice following 90-day administration of FPE. However, no effects on the kidneys were observed following chronic administration of FE to rats, mice, or dogs. In both species, males were slightly more sensitive to the liver effects of FE and FPE. It is also important to note that no increases in toxicity are observed over time for FE when comparing the 28-day and 90-day subchronic studies, the 2-generation reproductive toxicity study, and the 2-year chronic toxicity/carcinogenicity study in rats, or in FPE when comparing the 28-day and 90-day subchronic toxicity studies in rats.

FPE has low acute toxicity following the oral, dermal, and inhalation routes of exposure. No evidence of immunotoxicity, reproductive or neurological toxicity was identified in the database. Developmental toxicity occurred in rats as evidenced by skeletal anomalies (longitudinally displaced, fragmented, fused, dysplastic sternebrae or dislocated sternebrae) and skeletal retardations (weak or non-ossification of one or several cranial bones). Developmental effects only occurred in the rat in the presence of maternal toxicity (decreased body weight, body weight gain, and heart weight). No developmental effects were identified in rabbits. In mice, a treatment-related increase in tumor incidence of hepatocellular adenomas and carcinomas, mainly adenomas, was observed in males at 320 ppm (30%) compared to the control (2%). In addition, microscopic pathology indicated that hepatocellular hypertrophy was observed in the majority of treated animals (both sexes). There was, however, no evidence of a mutagenic effect in a comprehensive battery of genetic toxicology assays with both isomers. No evidence of tumors was identified in rats.

The only tumor response induced by FE/FPE occurred in the liver of male mice; no liver tumors were seen in the female mice or in the guideline chronic/carcinogenicity study in male and female rats. The tumors were benign with no progression to malignancy. Mutagenicity has been ruled out as a mode of action (MOA) for this response. The presence of a single non-mutagenic tumor type in one sex and species—here, benign liver tumors in the male mouse, a common tumor in mice—provides no more than a weak suggestion of possible carcinogenic effects and thus does not support a linear assessment of risk based on the tumor incidence. Given the doses at which the benign mouse tumors were seen, EPA concludes that the chronic reference dose (cRfD) for FPE will adequately protect for all chronic toxicity, including carcinogenicity, that could result from exposure to FE/FPE.

The Agency has waived the requirements for acute and subchronic neurotoxicity studies based on the following rationale:

1. The lack of neurotoxicity in the available toxicology database for FE and FPE.

2. The target organs of FPE and FE are the kidney and liver, and the mechanism of action for FPE and the chemical class do not target the nervous system.

3. Developmental effects and decreased total blood lipids/cholesterol are the most sensitive effects seen in the FE database and provide the most sensitive POD for risk assessment.

4. There is low concern for neurotoxicity in other members of this class of chemicals ( i.e., the arloxy phenoxy-propionate class).

Specific information on the studies received and the nature of the adverse effects caused by FPE as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in the document titled “ Fenoxaprop-p-ethyl. Registration Review Preliminary Risk Assessment and Proposed New Use on Grass Grown for Seed” on pages 52-57 in docket ID number EPA-HQ-OPP-2012-0588.

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

A summary of the toxicological endpoints for FPE used for human risk assessment is shown in Table 1 of this unit.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to FPE, EPA considered exposure under the petitioned-for tolerances as well as all existing FE tolerances in 40 CFR 180.430. EPA assessed dietary exposures from FPE and FE in food as follows:

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

No such effects were identified in the toxicological studies for FPE; therefore, a quantitative acute dietary exposure assessment is unnecessary.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the United States Department of Agriculture's (USDA's) National Health and Nutrition Examination Survey, What We Eat in America, (NHANES/WWEIA). As to residue levels in food, EPA use an unrefined analysis based on tolerance-level residues, 100 percent crop treated (PCT) assumptions, and Dietary Exposure Evaluation Model (DEEM) default processing factors.

iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that a nonlinear RfD approach is appropriate for assessing cancer risk to FPE. Cancer risk was assessed using the same exposure estimates as discussed in Unit III.C.1.ii.

iv. Anticipated residue and PCT information. EPA did not use anticipated residue or PCT information in the dietary assessment for FPE or FE. Tolerance level residues and 100 PCT were assumed for all food commodities.

2. Dietary exposure from drinking water. The Agency has identified FPE and its three degradates, fenoxaprop-p acid ((D+)-2-[4-(6-chloro-2-benzoxazolyloxy) phenoxy] propanoate, AE F088406), chlorobenzoxazolone (4-(6-chloro-2-benzoxazolyloxy) phenol, AE F054014), and 4-(6-chloro-2-benzoxazolyloxy) phenol (AE F040356), as residues of concern in drinking water. The parent plus the three degradates were assessed using a total toxic residue (TTR) approach.

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

Based on the Tier 1 Rice Model and Pesticide Root Zone Model Ground Water (PRZM GW), the estimated drinking water concentrations (EDWCs) of FPE and its degradates (TTR) for chronic exposure assessments are estimated to be 68.6 parts per billion (ppb) for surface water and 0.032 ppb for ground water.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For chronic dietary risk assessment, the water concentration of value 68.6 ppb was used to assess the contribution to drinking water.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). FPE is currently registered for the following uses that could result in residential exposures: Residential turf and home garden. EPA assessed residential exposure using the following assumptions: For residential handlers, both short-term dermal and short-term inhalation exposure is expected as a result of applying FPE to ornamentals and turf.

There is the potential for short-term dermal and incidental short-term oral post-application exposure for individuals exposed as a result of being in an environment that has been previously treated with FPE. The quantitative exposure/risk assessment for residential post-application exposures is based on the following scenarios:

The most conservative residential exposure scenario for adults reflects dermal exposure from post-application exposure to turf and gardens. The most conservative residential exposure for children reflects dermal and hand-to-mouth exposures from post-application high contact lawn activity exposure from turf applications.

Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www.epa.gov/pesticides/trac/science/trac6a05.pdf.

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

EPA has not found FPE to share a common mechanism of toxicity with any other substances, and FPE does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that FPE does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www.epa.gov/pesticides/cumulative.

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

2. Prenatal and postnatal sensitivity. The available data do not provide evidence of any increased susceptibility in the offspring in either of the two developmental toxicity studies for FPE or in the 2-generation reproduction study for FE. Delayed ossification was the primary effect in the developmental toxicity study and only occurred in the presence of maternal toxicity and a clearly defined NOAEL and LOAEL were achieved.

In the rat developmental toxicity study with FPE, longitudinally displaced, fragmented, fused, dysplastic sternebrae or dislocated sternebrae and weak or non-ossification of one or several cranial bones were noted at 100 mg/kg (highest dose tested). These incidences occurred only in the presence of maternal toxicity (decreased gestational body weights, body weight gains, and food consumption). No developmental effects occurred in rabbits. In the 2-generation rat reproductive toxicity study on FE, no reproductive or developmental effects were observed. An increase in ALP activity and liver weights were identified in the offspring at 9.0 mg/kg. These effects occurred in the presence of parental toxicity (increased liver weight and decreased lipids) and are consistent with hepatotoxicity, the primary toxic effect of FPE, observed across the database.

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

i. The toxicity database for FPE is complete.

ii. There is no indication that FPE is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.

iii. There is no evidence that FPE results in increased susceptibility in in utero rats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study.

iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to FPE in drinking water. EPA used similarly conservative assumptions to assess post-application exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by FPE.

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

1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. No adverse effect resulting from a single oral exposure was identified and no acute dietary endpoint was selected. Therefore, FPE is not expected to pose an acute risk.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to FPE and FE from food and water will utilize 28% of the cPAD for all infants less than 1 year old, the population group receiving the greatest exposure. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of FPE is not expected.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

FPE is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to FPE.

Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate worst case MOEs of 249 for adults and 302 for children. Because EPA's level of concern for FPE is a MOE of 100 or below, these MOEs are not of concern.

4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

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

5. Aggregate cancer risk for U.S. population. EPA considers the chronic aggregate risk assessment to be protective of any aggregate cancer risk.

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

Adequate enforcement methodology (gas chromatography with electron capture detection (GD-ECD) method, based on Hoechst HRAV Analytical Method HRAV-4B) is available to enforce the tolerance expression.

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

The Codex has not established a MRL for FPE in or on grass hay.

Two comments that were received were not related to FPE and therefore, do not need to be addressed here. A third comment was received stating that FPE is an endocrine disruptor and America does not need any more of those. In the available toxicity studies on FPE, there was no estrogen, androgen, and/or thyroid mediated toxicity. The Agency currently has no evidence that FPE is an endocrine disruptor.

EPA has modified the tolerance from the proposed level of 0.15 ppm to 0.09 ppm for the following reason: The method used for data-collection (as well as tolerance enforcement) converts the residues of concern for FPE to acyl 6-chlorobenzoxazolone for detection. It is necessary to then convert this residue value to parent equivalents. Since the residues found on grass, hay were less than the limit of quantitation (LOQ) of 0.05 ppm for acyl 6-chlorobenzoxazolone, EPA multiplied this 0.05 ppm value by the ratio of the molecular weights (1.71) to arrive at a recommended tolerance of 0.09 ppm.

Therefore, a tolerance with regional registration is established for residues of fenoxaprop-ethyl, [(±)-ethyl 2-[4- [(6-chloro-2-benzoxazolyl)oxy]phenoxy]propanoate] and its metabolites 2-[4-[(6:-chloro-2-benzoxazolyl) oxy]phenoxy] propanoic acid and 6-chloro-2,3-dihydrobenzoxazol-2-one, each expressed as the parent compound, in or on grass, hay at 0.09 ppm.

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

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

This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian Tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501 et seq. ).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

1. By this Order, adopted March 24, 2014 and released March 25, 2014, the Commission makes rule changes to part 1 of the Commission's rules, and amends its Schedule of Application Fees, 47 CFR 1.1102 et seq. to adjust its fees for processing applications and other filings. Section 8(a) of the Communications Act of 1934, as amended (“the Act”), requires the Commission to “assess and collect application fees at such rates as the Commission shall establish or at such modified rates as it shall establish pursuant to” section 8(b). Section 8 contains the Schedule of Charges for a broad range of application categories as well as procedures for modifying and collecting these charges. The Commission began assessing such application fees in 1987, and, as required by section 8(b), it began reviewing the fees every two years beginning after October 1, 1991 to make adjustments to reflect changes in the Consumer Price Index. As required by section 8(e) of the Act, collected fees are deposited in the general fund of the United States Treasury. As required by the statute and consistent with our prior practice, this Order increases application fees to reflect the net change in the Consumer Price Index for all Urban Consumers (“CPI-U”) of 8 percent, calculated from October 2009 to October 2013. 1 The adjustments made to the fee schedule comport with the statutory formula set forth in section 8(b).

2. The Commission will send a copy of this Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

3. Accordingly, IT IS ORDERED, that, pursuant to sections 1, 4(i), 4(j), and 8 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), and 158, the rule changes specified herein ARE ADOPTED and the Schedule of Application Fees, 47 CFR 1.1102 et seq., IS AMENDED as set forth in the attached Appendices.

4. It is further ordered that the rule changes and amendment to the Schedule of Application Fees made herein shall become effective 30 days after date of publication in the Federal Register .

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR Part 1 to read as follows:

Executive Summary

Under the ESA, the Service may establish an experimental population, allowing for the reintroduction of a species to its former range with special rules that allow for some of the management requirements of the ESA to be relaxed to facilitate acceptance by local landowners and managers. The Alaska Department of Fish and Game (ADF&G) plans to reintroduce wood bison ( Bison bison athabascae ) into one or more of three areas within their historical range in central Alaska (Yukon Flats, Minto Flats, and the lower Innoko/Yukon River area). Under this final rule, ADF&G will have primary management responsibility for leading and implementing the wood bison restoration effort, in cooperation with the Service. ADF&G will serve as the lead agency in the reintroduction and subsequent management of wood bison in Alaska; however, ADF&G will continue to coordinate with the Service on these restoration efforts. Management of populations in the NEP area will be guided by provisions in: (1) The associated special rule; (2) the EA for this action and ADF&G's environmental review; and (3) site-specific management plans developed for each area by ADF&G with involvement of landowners and other stakeholders. The rule will also allow for future regulated hunting based on sustained yield principles, once the herds are deemed sufficiently resilient to support such.

In Canada, wood bison were listed by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) as endangered in 1978, and downlisted to threatened in 1988. At that time, COSEWIC listings were not recognized under a specific Federal endangered species act. The Species at Risk Act (SARA) was enacted in 2003. Currently, COSEWIC recommends listings to appropriate Federal departments, which then accept or reject these listings under SARA. When SARA came into force, the listing of wood bison as threatened was recognized under that Act (G. Wilson, Canadian Wildlife Service, in litt., 2013). In the United States, the wood bison was first listed under the Endangered Species Conservation Act of 1969 as endangered (see 35 FR 8491, June 2, 1970). The Canadian National Wood Bison Recovery Team petitioned the Service to reclassify the wood bison as threatened on November 26, 2007, and on February 8, 2011, we published in the Federal Register (1) a 12-month finding indicating that the petitioned action was warranted, and (2) a proposed rule to reclassify the wood bison as a threatened species (76 FR 6734). On May 3, 2012, the status of the wood bison was reclassified to threatened (76 FR 26191).

Under the ESA, species listed as endangered or threatened are afforded protection largely through the prohibitions of section 9, the requirements of section 7, and corresponding implementing regulations. Section 9 of the ESA and its implementing regulations at 50 CFR 17.21 and 17.31, in part, prohibit any person subject to the jurisdiction of the United States to take (“take” includes to harass, harm, pursue, hunt, shoot, wound, kill, trap, or collect, or to attempt any of these), import or export, ship in interstate commerce in the course of commercial activity, or sell or offer for sale in interstate or foreign commerce, any listed species. The term `harm' is further defined to include significant habitat modification or degradation that results in death or injury to listed species by significantly impairing behavioral patterns such as breeding, feeding, or sheltering. It also is illegal to knowingly possess, sell, deliver, carry, transport, or ship any wildlife that has been taken illegally. Certain exceptions apply to agents of the Service and State conservation agencies.

Section 7 of the ESA and its implementing regulations at 50 CFR 402 outline the procedures for Federal interagency cooperation to conserve federally listed species and protect designated critical habitats. Under section 7(a)(1) of the ESA, all Federal agencies are directed to use their authorities in furtherance of the purposes of the ESA by carrying out programs for the conservation of endangered or threatened species. Section 7(a)(2) of the ESA states that Federal agencies will, in consultation with the Service, ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. Section 7 of the ESA does not affect activities undertaken on private lands unless they are authorized, funded, or carried out by a Federal agency.

Congress amended the ESA in 1982 with the addition of section 10(j), which provides for the designation of specific reintroduced populations of listed species as “experimental populations.” Under section 10(j), the Secretary of the Interior can designate reintroduced populations established outside the species' current range as “experimental.” Section 10(j) is designed to increase our flexibility in managing an experimental population by allowing us to treat the population as threatened, regardless of the species' designation elsewhere in its range. A threatened designation allows us discretion in devising management programs and special regulations for the population. Further, when we promulgate a section 10(j) rule for a species, the regulations at 50 CFR 17.31 that extend most section 9 prohibitions to threatened species do not apply, as the generic regulations are superseded by the section 10(j) rule, which contains the specific prohibitions and exemptions necessary and appropriate to conserve that species.

As experimental populations uniformly carry “threatened” status, section 4(d) of the ESA applies. Section 4(d) of the ESA allows us to adopt whatever regulations are necessary and advisable to provide for the conservation of a threatened species. Although the ESA limits the type of regulated take available for the conservation of threatened species, the Secretary is granted broad flexibility in promulgating “special” regulations under section 4(d) of the ESA to protect threatened species, and may allow for direct take, as has been done in the past, for example, with Gila trout (71 FR 40657, July 18, 2006).

Based on the best available information, we must determine whether experimental populations are “essential” or “nonessential” to the continued existence of the species. Experimental populations, whether essential or nonessential, are treated as threatened species. However, for section 7 interagency cooperation purposes only, an NEP located outside of a National Wildlife Refuge or National Park is treated as a species proposed for listing.

When members of the NEP are located outside a National Wildlife Refuge or National Park Service unit, only two provisions of section 7 of the ESA apply: Section 7(a)(1) and section 7(a)(4). In these instances, NEPs provide additional flexibility because Federal agencies are not required to consult with us under section 7(a)(2) of the ESA. Section 7(a)(4) requires Federal agencies to confer (rather than consult, as required under section 7(a)(2)) with the Service on actions that are likely to jeopardize the continued existence of a species proposed to be listed. A conference results in conservation recommendations that are optional as the agencies carry out, fund, or authorize activities. However, because an NEP is by definition not essential to the continued existence of the species, it is very unlikely that we would ever determine jeopardy for a project impacting a species within an NEP. Thus, regulations for NEPs may be developed to be more compatible with routine human activities in the reintroduction area.

Animals used to establish an experimental population may be obtained from a source or donor population provided their removal is not likely to jeopardize the continued existence of the species and appropriate permits have been issued in accordance with 50 CFR 17.22. In 2008, ADF&G imported 53 wood bison into Alaska after necessary permits and approvals were obtained. The primary original source of Alaska's wood bison is a captive-bred population at Elk Island National Park (EINP), Alberta, Canada, which was propagated for the purpose of providing disease-free stock for reestablishing populations in other parts of the species' original range (Gates et al. 2001, p. 15). These animals and additional disease-free wood bison (obtained as a result of an illegal import in 2003) and their progeny are presently maintained at the Alaska Wildlife Conservation Center (AWCC) in Portage, Alaska.

Canada's “National Recovery Plan for the Wood Bison” included the specific goal of reestablishing at least 4 viable populations of 400 or more wood bison in Canada (Gates et al. 2001, pp. 32-33). This plan supported fostering the “restoration of wood bison in other parts of their original range and in suitable habitat elsewhere” but set no discrete goals for recovery in other parts of the species' range. The Wood Bison Recovery Team placed a high priority on the reintroduction of wood bison to Alaska (Gates et al. 2001, pp. 32-33). The reestablishment of free-ranging, disease-free wood bison in Alaska would contribute to the overall conservation of wood bison in North America. However, future loss of a wood bison NEP from Alaska would not reduce the likelihood of the species' survival in its current range in Canada, which encompasses the only populations Canada evaluates when considering the status of the species for listing purposes under SARA. Consequently, because their loss would not appreciably reduce the likelihood of survival of the species in the wild, the Service finds that any wood bison populations established in Alaska would meet the definition of “nonessential” ( see 50 CFR 17.80(b)). Therefore, we hereby designate a nonessential experimental population of wood bison in Alaska.

Members of the family Bovidae, wood bison are the largest native terrestrial mammal in the western hemisphere, with adult bulls weighing 2,000 pounds (900 kilograms) or more (Reynolds et al. 2003, p. 1015). Wood bison are somewhat larger than the other extant bison subspecies in the United States, the plains bison ( B. b. bison ), and are distinguished by a more pronounced hump, forward-falling display hair on the head, reduced chaps and beard, and different demarcation on the cape (van Zyll de Jong et al. 1995, pp. 393-396). Specimen collections and historical accounts indicate that the historical range of wood bison included much of interior (an area generally described as the Yukon and Kuskokwim river drainages east of their common delta area) and south-central Alaska, and the Yukon, the western Northwest Territories, northern Alberta and British Columbia, and part of northern Saskatchewan in Canada (Stephenson et al. 2001, pp. 135-136; Reynolds et al. 2003, pp. 1012-1013; Wilson, in litt. 2013). Wood bison are predominantly grazers, foraging mainly on grasses and sedges that occur in northern meadows (Larter and Gates 1991, p. 2679).

Wood bison were present in Alaska for most of the last 5,000 to 10,000 years (Stephenson et al. 2001, pp. 125, 145-146). Detailed historical accounts from Athabascan elders in Alaska describe how bison were hunted and used and indicate that bison were an important source of food for Athabascan people before the bison population declined to low levels within the last few hundred years (Stephenson et al. 2001, pp. 128-134). The most recent recorded sightings of wood bison in Alaska were from the early 1900s of small groups or single animals in northeastern Alaska (Stephenson et al. 2001, pp. 129-134). Factors leading to the extirpation of wood bison from Alaska most likely included unregulated hunting by humans, along with the isolation of subpopulations caused by changes in habitat distribution during the late Holocene (Stephenson et al. 2001, pp. 146-147).

Wood bison were largely extirpated from much of their original range in Alaska and Canada by about 1900 (Stephenson et al. 2001, p. 140). At that time, only a few hundred animals existed in northeastern Alberta. Intensive conservation efforts in Canada beginning around 1900 are principally responsible for preventing the species' extinction (Gates et al. 2001, pp. 11-21). However, the translocation of surplus plains bison into Wood Buffalo National Park in the 1920s (Carbyn et al. 1993, pp. 25-27) resulted in some genetic dilution of wood bison, as well as the introduction of domestic cattle diseases into this population (Gates et al. 2001, p. 35). Cattle diseases (i.e., bovine brucellosis and bovine tuberculosis) are still a management concern in some herds in the Wood Buffalo National Park area in Canada (Gates et al. 2010, pp. 28-32; USDA 2008, p. 10). The susceptibility of wood bison and other native ungulates to these diseases underscores the importance of rigorous disease-testing protocols prior to releasing wood bison in Alaska (ADF&G-ADEC 2008).

Recovery efforts in Canada have been very successful. In 1978, there was 1 free-ranging, disease-free herd with 300 individuals, the MacKenzie herd. By 2000, when the last Canadian status review was conducted, the number of disease-free herds had grown to 6, with a total of approximately 2,800 individuals. Since 2000, an additional herd has been reestablished, bringing the total number of herds to 7, and the number of disease-free, free-ranging bison has increased to approximately 5,000. Each of 4 of the herds has a population of 400 or more, meeting one of the primary recovery goals. As of May 2013, there were approximately 11,000 wood bison in Canada, including close to 5,000 in 7 free-ranging, disease-free herds (including one outside the original range of the wood bison); 6,000 in 5 free-ranging but diseased herds; and 300 in a captive herd conservation population that is maintained by Parks Canada Agency to provide stock for conservation efforts in the wild (G. Wilson, in litt., 2013; G. Wilson, pers. comm. 2013).There are also 45 to 60 commercial wood bison operations in Canada, including approximately 500 to 700 animals (Canadian Wildlife Service, unpublished data 2009). Although commercial wood bison herds are not a part of Canada's recovery programs, their existence indicates that wood bison will propagate readily, given sufficient space and proper nutrition.

Under SARA, Environment Canada is responsible for the development of recovery strategies for threatened species like the wood bison. Environment Canada is currently in the process of developing the National Wood Bison Recovery Strategy (Wilson, Environment Canada, 2013, pers. comm.). This document is separate from the 2001 National Wood Bison Recovery Plan, which was developed prior to SARA being enacted. In addition, the State of Alaska has outlined plans for wood bison restoration and will complete detailed, site-specific management plans, developed with public input, for each bison release area before wood bison are reintroduced.

Alaska's restoration effort is supported by conservation authorities in the United States and Canada, including the International Union for the Conservation of Nature (IUCN)/North American Bison Specialist Group, the Wildlife Conservation Society (2013, in litt. ), the U.S. National Bison Society and Canadian Bison Association (2013, in litt. ), Alaska Chapter of the Wildlife Society (2013, in litt. ) and Canada's Wood Bison Recovery Team. These entities regard the restoration effort as having significant conservation value for bison, other wildlife, and the environment. In addition, the Service has worked diligently to assist ADF&G with wood bison reintroduction efforts, and the success of this project has been a priority for the Service. We recognize that the reintroduction presents a good opportunity to support effective conservation of wood bison.

Under this final rule, any wood bison reintroduced to the wild in Alaska will be designated as nonessential to recovery and experimental. The special rule that accompanies this section 10(j) rule is designed to broadly exempt from the section 9 take prohibitions any take of wood bison that is incidental to, and not the purpose of, otherwise lawful activities. We provide this exemption because we believe that such incidental take associated with otherwise lawful activities is necessary and advisable for the conservation of the species, as activities that currently occur or are anticipated in the NEP area, such as oil and gas development and other resource development projects, are generally compatible with wood bison restoration.

This designation is justified because no adverse effects to extant wild or captive wood bison populations will result from release of animals from the captive herd. We also expect that the reintroduction effort will result in the successful reestablishment of self-sustaining populations, which will contribute to the recovery of the species.

Regulated hunting has been used in Canada since 1987 to manage wood bison herds and is consistent with the recovery goals in the Canadian wood bison recovery plan. Herds with regulated harvest have increased in size (76 FR 6734, February 8, 2011). The Mackenzie herd, for example, was established in 1963 and first supported harvest in 1987, when the herd had reached approximately 1,500 bison. This herd continued to grow, to a maximum estimated size of 2400 around 1989, and supported an annual harvest of approximately 40 animals for several years after that point. In recent years, other mortality factors such as the periodic loss of animals to drowning and anthrax, coupled with reduced forage caused by flooding of inland lakes, reduced herd numbers to fewer than 1,000 animals. In response, Canadian managers suspended the regulated harvest in 2012 to enhance growth of the population ( http://www.enr.gov.nt.ca/_live/pages/wpPages/Mackenzie_Bison.aspx, viewed July 26, 2013, and T. Armstrong, NWT Bison Ecologist, pers. comm. 2013).

Regulated hunting has been used in Canada to (1) maintain herd size within the carrying capacity of the landscape; (2) reduce the potential for the spread of disease; (3) address public safety concerns near roads; and (4) increase community support for reestablished wood bison herds. Where hunting is allowed, it can lead to increased revenue for monitoring and management of the herds.

Sustainable levels of hunting of wood bison in Alaska will serve some of these same purposes, including securing the support of project sponsors (e.g., ADF&G, local communities, landowners, and nongovernmental organizations involved in the project). Because reintroduction of wood bison to Alaska depends heavily on this support, including provisions for hunting as a future management option is an essential component of this final rule. Moreover, provisions for future regulated hunting will assure landowners and development interests that the reintroduction of wood bison will not interfere with natural resource development or other human activities. Without such assurances, the reintroduction of wood bison to Alaska is unlikely to be acceptable to the public, development interests, or the Alaska State Legislature. In addition, hunting is the most feasible option for population management in the future in these remote areas. As mentioned above, wood bison in some herds in northern Canada are legally harvested under Territorial or Provincial hunting regulations, and regulated harvest is considered one of the primary management tools in conservation of the species. Thus, we believe that the opportunity for Alaska to contribute to the overall recovery and conservation of wood bison will be lost if provisions for hunting are not included in this rulemaking.

The reintroduction of wood bison to Alaska is patterned after successful reintroductions in Canada. The goal of the Alaska wood bison restoration project is to reestablish 1 to 3 free-ranging populations followed by a long-term monitoring and evaluation process to determine feasibility of establishing additional populations in the future. In addition to contributing to the conservation and recovery of wood bison in North America, objectives of the Alaska reintroduction effort include (1) restoring a key indigenous grazing animal to northern ecosystems; (2) restoring biological and habitat diversity and natural processes; (3) increasing the total number of wood bison in free-ranging, disease-free herds, thereby enhancing the overall survival of the species in the wild; (4) providing a regulatory framework that allows for sustainable development, including opportunities for local tourism and hunting and guiding businesses; and (5) reestablishing the historical cultural connection between bison and Alaska residents (ADF&G 2007, pp. 2-3).

Although many private landowners within the NEP area have indicated support for the presence of wood bison on their lands in the future, some major private landowners have expressed concerns about the potential legal and regulatory burdens related to the ESA if wood bison are reintroduced, including effects on resource development activities. Provisions in the special rule will ensure that the reintroduction of wood bison will not impede existing or potential future resource development activities. Wood bison will be released only after a suitable management framework has been developed by the State in cooperation with landowners, land managers, the Service, conservation organizations, and Tribal and local governments.

Experience with bison reintroductions elsewhere indicates that reintroduced wood bison populations in Alaska are likely to prosper in the areas where the State of Alaska proposes to restore the species (ADF&G 2007, pp. 11-12). However, temporary fluctuations in numbers may occur, which will not constitute a reason to reevaluate or change the NEP status. We do not foresee any likely situation justifying alteration of the NEP designation until the wood bison is no longer listed as endangered or threatened under the ESA, in which case the NEP designation will be discontinued.

In June 2008, under permits obtained from the Service, the U.S. Department of Agriculture, the Canadian Wildlife Service, and the State of Alaska, ADF&G translocated 53 wood bison from the disease-free EINP herd to a temporary holding facility at the AWCC, where they joined a small existing herd that was confiscated in 2003 after being imported illegally. As of June 2013, the AWCC herd contained about 135 wood bison, and about 35 calves were born in 2012. Because of space constraints and uncertainty regarding the timing of the completion of the section 10(j) rule and availability of release sites, breeding was restricted in 2012, and 12 calves were born in 2013. A larger number of calves can be produced when necessary. (B. Stephenson, ADF&G, pers. comm. 2013). All of these animals have been subjected to a rigorous disease-testing protocol while preparations are made for release of free-ranging wood bison in Alaska (ADF&G-ADEC 2008).

ADF&G has identified three areas that are expected to provide the best locations for initial release of wood bison in the NEP area. These sites were selected based on intensive evaluations of potential habitat conducted in seven areas in central Alaska between 1993 and 2006 (Berger et al. 1995, pp. 1-9; ADF&G 1994, pp. 10-14; Gardner et al. 2007, pp. 1-24). Following the recommendations of Canada's Wood Bison Recovery Team, suitable release sites should: (1) Support a minimum population of 400 bison, (2) be separate from areas inhabited by plains bison, and (3) not have conflicting land uses such as agriculture (Gardner et al. 2007, p. 2). Based on availability of high-quality forage, three areas in Alaska—the Yukon Flats, Minto Flats, and lower Innoko/Yukon River—were determined suitable to support viable populations of wood bison (ADF&G 2007, p. 27). The Yukon Flats offers the best habitat and can support in excess of 2,000 bison (Berger et al. 1995, p. 8). Minto Flats offers abundant forage, but the area is relatively small, and access to wet habitats may be limited during summer. The lower Innoko/Yukon River area offers suitable habitat that could support 400 or more wood bison (Gardner et al. 2007, p. 8). Characteristics of each selected reintroduction site are described in more detail in the EA associated with this action (see ADDRESSES for information on obtaining a copy of the EA).

Locations of the three potential wood bison reintroduction sites and boundaries of the NEP are shown in Figure 1 in the rule portion of this document. The boundaries of the NEP represent our interpretation of the best available information on what constituted a major part of the wood bison's historical occurrence in Alaska. This historical range includes substantial areas with little or no suitable bison habitat, interspersed with localized areas that will provide high-quality habitat. By establishing this large area for NEP designation, we do not imply that most or all of the area within the NEP boundary is suitable habitat for wood bison. The boundaries of the designated NEP area are based on the maximum estimated range of wood bison that will be released in and become reestablished in the NEP area. In addition to being readily discernible on the landscape, the areas near the NEP boundaries will generally discourage bison movements, since they include mostly high-elevation habitats or extensive forests that will provide little forage for bison. We do not expect herds reestablished in the reintroduction areas, which are near the center of the large NEP area (Figure 1) and provide excellent habitat, to move beyond these boundaries.

In conformance with recommendations of bison geneticists and conservation biologists, a minimum of about 40 captive-raised wood bison will be released at a single site within the NEP area in the first year of the program, and a similar number may be released at each of two additional sites in subsequent years. Additional bison may be released in each area if stock and funding are available. Released wood bison will be excess to the needs of captive-breeding herds at EINP and AWCC, and their release will not adversely affect the genetic diversity of the captive wood bison populations. Some bison will be radio-collared. Population monitoring will include telemetry studies and aerial population surveys to determine and monitor population size, productivity, and movements.

A temporary holding facility consisting of a small corral and camp, and a supply of hay will be provided at each release site. Ideally, wood bison will be transported to the site in late winter or early spring and held for an appropriate period (depending on weather and other factors) prior to release to allow them to acclimate in their new location and to ensure that the release date coincides with the emergence of spring forage. A more detailed review of reintroduction procedures is included in section 2.6 of the EA (see ADDRESSES for information on obtaining a copy of the EA).

ADF&G, the Service, and reintroduction cooperators will evaluate the success of each reintroduction effort and apply knowledge gained to subsequent efforts, thereby increasing the efficiency and long-term success of wood bison restoration efforts in Alaska. ADF&G will work with various cooperators to monitor population growth and movements, and to conduct basic long-term environmental monitoring.

Based on the current legal and biological status of the species and the need for management flexibility, and in accordance with section 10(j) of the ESA, the Service will designate all wood bison released within the boundaries of the NEP area in Alaska as members of the NEP. Such designation allows us to establish a special rule under section 4(d) for management of wood bison in Alaska, superseding the general section 9 prohibitions that would otherwise limit our management options. The legal and biological status of the species and the need for management flexibility resulted in our decision to establish the NEP designation for wood bison reintroduced into Alaska.

The section 4(d) special rule associated with this NEP designation furthers the conservation of wood bison by allowing their reintroduction to a large area within their historical range. The special rule provides assurances to landowners and development interests that the reintroduction of wood bison will not interfere with natural resource developments or with human activities. Without such assurances, the reintroduction of wood bison to Alaska would not be acceptable to the public, development interests, or the State. Except as provided for under sections 10(a)(1)(A) and 10(e) of the ESA or as described in the section 4(d) special rule associated with this NEP rule, take of any member of Alaska's wood bison NEP will be prohibited under the ESA.

The geographic extent for the Alaska wood bison NEP includes the Yukon, Tanana, and Kuskokwim River drainages in central Alaska (refer to Figure 1 in the rule portion of this document). Section 10(j) of the ESA requires that an experimental population be geographically separate from other wild populations of the same species. Because wild wood bison no longer exist in Alaska, the reintroduced herds will not overlap with any existing wild wood bison population. Wood bison herds established in Alaska will be separated from the nearest wild population in Canada (the Aishihik herd in Yukon) by at least 450 miles (725 kilometers) of mostly hilly or mountainous terrain, which will deter long-distance movements between herds. Wood bison and their offspring will likely remain in areas near release sites and well within the boundaries of the NEP area due to the presence of prime habitat (extensive meadow systems that will provide an abundance of preferred forage for bison) and surrounding geographic barriers (Gates and Larter 1990, pp. 235-236; Larter and Gates 1990, p. 604). The geographic area included in the NEP designation represents what ADF&G believes to be the maximum geographic extent to which bison populations might expand if they are reestablished in interior Alaska, as explained above under “ Reintroduction Sites.” This issue also is discussed in the “Comments” section of this final rule and in section 2.6 of the EA.

(a) Authority and planning . Under this final rule, ADF&G will serve as the lead agency in the reintroduction and subsequent management of wood bison in Alaska; however, ADF&G will continue to coordinate with the Service on these restoration efforts. Under this final rule, the Service delegates management authority to ADF&G, contingent upon periodic reporting in conformity with Federal regulations. Management of populations in the NEP area will be guided by provisions in: (1) The associated special rule; (2) the EA for this action and ADF&G's Environmental Review; and (3) management plans developed for each area by ADF&G with involvement of landowners and other stakeholders.

ADF&G will use public planning processes to develop implementation and management plans for wood bison restoration. Planning groups will include representatives from local communities, regional population centers, landowners, Alaska Native interests, wildlife conservation interests, industry, and State and Federal agencies, as appropriate for each area. Draft management plans will be circulated for public review, and final plans will be presented to the Alaska Board of Game and Federal Subsistence Board for review and approval. More detailed information on wood bison reintroduction and management is provided in the EA associated with this action.

(b) Population monitoring . Reintroduced wood bison populations will be monitored annually and during important seasonal periods. Biological data necessary for long-term bison management will be obtained from annual spring population surveys, fall or winter composition counts, and monitoring of herd movements. Bison populations are relatively easy to monitor because of their visibility, gregarious nature, and fidelity to seasonal ranges (ADF&G 2007, p. 12).

Through public outreach programs, ADF&G will inform the public and other State and Federal agencies about the presence of wood bison in the NEP area. Reports of injured or dead wood bison will be required to be provided to ADF&G (see the EA for contact information) for a determination of the cause of injury or death.

(c) Disease monitoring and prevention. Because of the extensive disease-testing programs at EINP (U.S. Department of Agriculture 2008, pp. 5-13) and at AWCC (ADF&G-ADEC 2008), the risk of reintroduced wood bison being infected with serious diseases is negligible. ADF&G will continue to obtain samples for disease testing as opportunities arise in connection with future wood bison radio-collaring efforts or harvests. In the unlikely event that a disease posing a significant threat to wood bison, other wildlife, or humans were to occur, the situation would be addressed through appropriate management actions, including vaccination or other veterinary treatment, culling, or removal of an entire herd, as described in the EA.

(d) Genetics. Wood bison selected for reintroduction are excess to the needs of the captive populations in Canada. The ultimate goal is to reestablish wild wood bison populations in Alaska with founding animals that are as genetically diverse as possible. Management objectives for each area will be developed during public management planning efforts, with a goal of ensuring that the genetic integrity of wood bison is maintained without further loss as a consequence of human intervention, consistent with the Canadian Wood Bison Recovery Plan.

(e) Mortality. Based on experience in reestablishing bison in other northern habitats, wood bison mortality after release is expected to be minimal (Gates and Larter 1990, p. 235). Based on the results of previous releases of disease-free wood bison, it is unlikely that predator management will be needed to allow populations to be successfully reestablished. A review of predator-prey interactions (ADF&G 2007, p. 43) is available online at: http://www.adfg.alaska.gov/static/species/speciesinfo/woodbison/pdfs/er_no_appendices.pdf. Predator-prey issues are discussed further in section 4.2.10 of the EA.

Section 10 of the ESA authorizes the Secretary of the Interior to permit “incidental take,” which is take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity, such as recreation, livestock grazing, oil and gas or mineral exploration and development, timber harvesting, transportation, and other activities that are in accordance with Federal, Tribal, State, and local laws and regulations. Under this final rule, a person could lawfully take a wood bison within the NEP area provided that the take is: (1) Unintentional, and (2) not due to negligent conduct. Such incidental take would not constitute “knowing take,” and neither the Service nor the State would pursue legal action for incidental take. The special rule associated with this NEP designation (50 CFR 17.84(x)(5); below) specifies the types of incidental take that will be covered. If we have evidence of knowing (i.e., intentional) take of a wood bison that is not authorized, we will refer matters to the appropriate authorities for prosecution.

Highway vehicles and trains can pose a risk to bison (Rowe 2007, p. 8). In Alaska, the only area where vehicle collisions might occur is in the vicinity of the Minto Flats, where the Parks Highway and the Alaska Railroad border the southeastern edge and the Elliot Highway approaches the northern edge of the area. There are currently no roads in the Yukon Flats or lower Innoko/Yukon River area. However, roads could be constructed within these areas in the future to support resource developments or for other purposes.

Unless stated otherwise in regulations, the State of Alaska prohibits hunting of any species, including wood bison, and unless regulations are superseded by Federal regulations, State hunting regulations apply. Prohibition of hunting will be enforced by the appropriate law enforcement entity with jurisdiction for the area. Public education and enforcement activities are expected to reduce potential sources of human-caused mortality. Based on results of similar efforts in Canada, we expect a low rate of natural or incidental mortality (Gates et al. 2001, pp. 30-40). If significant illegal mortality does occur in any given year, the State will develop and implement measures to reduce the level of mortality to the extent possible.

(f) Special handling. Under this final rule, ADF&G biologists, Service employees, and authorized agents acting on behalf of ADF&G or the Service may handle wood bison: (1) For scientific purposes; (2) to relocate bison to avoid conflict with human activities; (3) for conservation purposes; (4) to relocate wood bison that have moved outside the NEP area back to the NEP area; (5) to aid sick, injured, or orphaned wood bison; or (6) to salvage dead wood bison. The Service will work with ADF&G to determine appropriate procedures for handling all sick, injured, orphaned, and dead wood bison.

(g) Potential for conflict with oil and gas development, mineral development, recreation, and other human activities. Several existing or potential natural resource development projects that could be important to Alaska's economy are located within or near the three potential wood bison restoration sites. Exploration and potential oil and gas development is ongoing in the Minto Flats and Yukon Flats areas, and a gold mine could potentially be established in an area about 30 to 40 miles (48 to 64 kilometers) east of the expanse of potential wood bison habitat near the lower Innoko/Yukon River area (Liles 2010, p. 1; U.S. Department of the Interior 2005, pp. 1-18; Barrick/Novagold 2008). However, wood bison are relatively tolerant of human activity and resource development activities (ADF&G 2007, p. 47; Fortin and Andruskiw 2003, p. 811). They are mobile and adaptable animals that can use a variety of meadow and forested habitats, depending on the season, and can avoid local disturbances. Their large size and social nature also make them relatively easy to monitor (e.g., by aerial surveys) and manage.

Because wood bison will be introduced as an NEP, we expect that their establishment will not preclude or conflict with the development of oil, gas, and mineral resources or other human activities. Minor conflicts between cattle or other livestock grazing or agriculture and wood bison management might eventually occur in the southeast corner of the Minto Flats, where a few small agricultural operations exist. Such conflicts will be manageable with the flexibility inherent in the final rule and special rule included in this document. Agricultural activities on private lands within the NEP area will continue without additional restrictions during implementation of wood bison restoration activities. We do not expect adverse impacts to wood bison in the NEP area from hunting of other species; furbearer trapping; recreational activities, such as boating, snow machining, off-road vehicle use, or camping; or other resource-gathering activities, such as fishing, firewood cutting, berry picking, or logging.

(h) Protection of wood bison. ADF&G will employ accepted animal husbandry practices to promote the welfare of wood bison during captive holding and release (Weinhardt 2005, pp. 2-21). Releasing wood bison in areas with little human activity and development will minimize the potential for accidental, human-related bison mortality, such as collisions with highway vehicles.

(i) Public awareness and cooperation. ADF&G will work with the Service and other organizations to continue to inform the general public about the effort to restore wood bison to parts of their original range. Through the efforts of ADF&G and others, public and agency awareness of the program on State, national, and international levels is already widespread (ADF&G 2007, pp. 18-25 and Appendix D). Designation of the NEP in Alaska provides assurance of management flexibility to landowners, agencies, and other interests in the affected areas. As described above, through the application of management provisions set forth in the special rule, we do not expect wood bison reintroductions to impede future human activities or other resource developments in the NEP area.

In the proposed rule, published on January 18, 2013 (78 FR 4108), we requested that all interested parties submit written comments on the proposal by March 19, 2013. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. We did not receive any requests for a public hearing.

We reviewed all comments received from the public and peer reviewers for substantive issues and new information regarding the establishment of an experimental population of wood bison in interior Alaska. Comments were grouped into general categories specifically relating to the proposed reintroduction, and are addressed in the following summary and incorporated into the final rule as appropriate.

In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from four knowledgeable individuals with scientific expertise that included familiarity with the wood bison and its habitat, biological needs, recovery efforts, and threats. We received responses from three of the peer reviewers. In general, the peer reviewers stated that the proposed rule provided a concise and accurate summation of the available scientific information on the biology, current status, and recovery efforts for wood bison, and that the proposed establishment of an NEP in Alaska to facilitate wood bison reintroduction is well supported by the best available scientific information. One peer reviewer raised an issue about the NEP boundaries, as discussed below. We incorporated specific updated information, comments, and suggestions from peer reviewers as appropriate.

Comment: One peer reviewer expressed concern that wood bison may move farther than anticipated, and suggested expanding the boundaries of the NEP into the land area bordering the southeastern part of Norton Sound.

Our response: The two cases cited by the reviewer that involved relatively extensive bison movements following reintroduction are not representative of most recent bison reintroduction efforts. First, the Aishihik wood bison herd in Yukon exists in habitat characterized by limited and widely scattered low-biomass grasses and sedges, in contrast to the large expanses of high-biomass forage at the proposed release sites in Alaska. In similar high-biomass habitats in Canada, wood bison have shown a strong tendency to remain in home ranges that are much smaller than that used by the Aishihik herd, which must travel widely to find sufficient forage and has gradually developed a large home range as the population grows. Second, in contrast to the techniques planned for wood bison releases here, the release of plains bison decades ago in the Nabesna area was a “hard release,” with no holding period to allow bison to adjust after being transported to a new area. This likely contributed to their traveling some distance from the release site soon after release. Wood bison reintroductions in the NEP area will employ a brief holding period with supplemental feeding to allow bison to acclimatize to their new location, unlike the release of plains bison in the Nabesna area. This concern is addressed further in section 2.6 in the EA.

Comment: One peer reviewer suggested we include a discussion of the potential for hybridization with plains bison.

Our response: ADF&G and the Service are aware of the importance of preventing hybridization between wood bison and plains bison. This issue has been carefully considered in developing the restoration effort, and additional information has been included in section 4.1 of the EA, “Description of Proposed Reintroduction Sites.” We believe the potential for hybridization with plains bison is low. One of the criteria for site selection was that the release sites are located far enough from areas occupied by plains bison to eliminate the possibility of hybridization (ADF&G 2007).

Comment: One reviewer considered it wise to include the role of regulated hunting to build acceptance of bison on the land and support for bison.

Our response: The final rule and EA acknowledge that providing regulated hunting opportunities is one of the important goals of the wood bison reintroduction effort. The importance of hunting in building and maintaining public support has been recognized during project development, and outreach efforts have helped build substantial public support for the restoration effort.

During the comment period for the proposed rule, we received 61 comment letters directly addressing the proposed establishment of an NEP and associated special rule for wood bison. All substantive information provided during the comment period has either been incorporated directly into this final determination or addressed below. Several of the comments included opinions or information not directly related to the proposed rule, such as views relating to the management of plains bison herds in Alaska or movement and procurement of private wood bison herds. We do not address those comments as they do not have bearing on the NEP for wood bison.

Comment: Several commenters discussed the fact that wood bison are native to the landscape and that the species could play an important part in reestablishing the native flora and fauna of the ecosystem.

Our Response: We agree. Wood bison were historically distributed in interior and south-central Alaska and, if reintroduced, will help to restore the native diversity of the regional ecosystem.

Comment: Two commenters described wood bison as nonnative species in Alaska and considered the real motivation for the reintroduction to be an augmentation of hunting opportunities.

Our response: The scientific community—including paleontologists, anthropologists and archaeologists in Alaska and Canada, the Service, and ADF&G—has concluded that wood bison are clearly a native species in Alaska. The historical data are summarized in section 2.1 of the EA.

Comment: One commenter expressed concern that wood bison may compete with other ungulates, such as moose.

Our response: Evidence from Canada and elsewhere indicates that there is little competition between wood bison and other species, as detailed in sections 4.2.8, 4.2.9 and 4.2.10 of the EA. In parts of Canada, wood bison coexist with high densities of moose with no apparent competition. Similarly, in Alaska, plains bison coexist with moose, with no evident problems.

Comment: One commenter stated that the existence of cattle diseases in bison in Wood Buffalo and Yellowstone National Parks means that modern disease detection and eradication efforts might not be successful in reestablishing healthy wood bison herds.

Our response: The procedures used in recent times at Elk Island National Park and elsewhere have provided disease-free stock for several wood bison reintroductions in Canada, as well as several disease-free plains bison herds in Canada and the United States over the last several decades. A detailed review of disease prevention measures is included in section 4.2.12 of the EA.

Comment: One commenter was concerned that the presence of wood bison could affect grazing leases and permitted water rights.

Our response: Neither of these types of leases or permits currently exists or is anticipated to be issued in the areas being considered for bison reintroduction. In addition, one of the primary purposes of the NEP and associated special rule is to ensure that the reintroduction of wood bison will not impede existing or future resource development activities.

Comment: Several commenters acknowledged that wood bison will be a substantial source of red meat and an important food for subsistence hunters, families, and communities in the reintroduction area. One commenter expressed concern that giving primacy to the State may impact Federal subsistence hunting of this species if it was allowed to be hunted.

Our response: The Service and ADF&G recognize the contribution that harvestable wood bison populations could make to the well-being of local communities and Alaska in general. That ADF&G has led the way in developing the wood bison restoration effort, and will have primary population management authority, does not affect the authority of the Federal Subsistence Board in regulating harvest on Federal lands or the Alaska Board of Game in establishing harvest regulations. As the numbers of reintroduced wood bison increase, opportunities for subsistence and general hunting will be evaluated in the future. As with other resource allocation issues, regulatory agencies will work with the public to determine how wood bison harvests should be allocated.

Comment: One commenter stated that sustained yield hunting is not a scientifically acceptable manner to manage a threatened species.

Our response: Section 10(j) of the ESA allows for the designation of experimental populations to increase flexibility in managing listed populations, including allowing management practices and special regulations necessary to address potential negative impacts or concerns from reintroductions. Designating a population as experimental under section 10(j) and promulgating special rules under section 4(d) thus supersede the generic section 9 prohibitions against “take” of a threatened species.

Section 4(d) gives the Secretary the authority and broad discretion to authorize regulated take of a threatened population if it is necessary and advisable for the conservation of the species. The Service previously has authorized regulated, direct take of threatened species and NEPs. For example, when the Gila trout was downlisted to threatened (71 FR 40657, July 18, 2006), a special rule enabled the states of Arizona and New Mexico to promulgate regulations to allow recreational fishing for Gila trout in some streams within the recovery area. Similarly, the special rule for the Utah prairie dog (77 FR 46158, August 2, 2012) permits direct take in specified areas that the Service determined are not essential to the recovery of the prairie dog. Unlike the regulated hunting based on sustained yield principles expected for wood bison, no sustained yield harvest per se was proposed for the trout or prairie dog populations in these examples. Nonetheless, any allowable take of those species would need to be sustainable to avoid impeding recovery. Thus, the underlying principle and goals for allowing take of a threatened species are similar for all three species.

The Service's goals for allowing regulated, direct take through issuance of special rules for these threatened species are similar to the goals expressed in this rule and the accompanying EA regarding the wood bison NEP. For Gila trout, goals for allowing recreational fishing include increasing the geographic extent of recovery efforts and bolstering public support for those efforts by increasing angling opportunities in streams previously occupied by only nonnative trout (71 FR 40671). For the Utah prairie dog, goals include relieving population pressures in overcrowded portions of the range; alleviating some impacts to agricultural operations, human safety, and important cultural areas; and reducing impacts on private lands adjacent to prairie dog conservation lands (77 FR 46166).

Several of the goals articulated for the wood bison NEP are similar: expanding opportunities to restore species to historically occupied range or other suitable range; controlling depredating animals and animals that travel beyond NEP boundaries; and fostering public support for restoration efforts. As expressed in the EA (p. 2), the overall goal of the wood bison restoration effort is to promote wood bison conservation by “restoring wood bison populations to portions of their former habitat in Alaska so that they are again an integral part of Alaska's wildlife, providing Alaskans and others the opportunity to enjoy and benefit from this ecologically important northern mammal.” One of the specific objectives is to reestablish a cultural connection between wood bison and people in Alaska. This connection historically included hunting wood bison for food. Many of Alaska's citizens continue to depend on wild game for food. Once a self-sustaining population is reestablished, wood bison in the NEP will contribute to this food source. Meeting these objectives requires reestablishing a wood bison population that can be harvested in the future on a sustainable basis for both humans and bison.

Maintaining and strengthening public support for restoration efforts is important. Promulgating this special rule to designate the wood bison NEP establishes a flexible regulatory framework that supports the goals and objectives of the restoration effort and addresses the concerns of private landowners and other stakeholders in the NEP area. Without this provision, the overarching goal of reestablishing a native species in a large portion of its historical range will not be achieved. In addition, given the remoteness of the NEP area, regulated hunting is the most feasible means to maintain wood bison herd size within the carrying capacity of the landscape once the populations are fully reestablished.

Comment: Two commenters expressed concerns that the reintroduction of wood bison will negatively affect potential oil and gas development on the Yukon Flats or Minto Flats, and one asked that the special rule limit reintroductions to the lower Innoko/Yukon River area. Two commenters expressed concerns about effects on potential future agricultural development. One commenter supported the finalization of the rule, but also cited concerns about potential conflicts with agricultural developments being considered in the area south of Minto Flats and in the Yukon Flats area, and recommended that the initial release of wood bison occur at the lower Innoko/Yukon River site.

Our response: The State of Alaska has indicated that the lower Innoko/Yukon River area will be the first release site, and that it will continue to evaluate the possibility of other reintroductions (D. Vincent-Lang, Alaska Department of Fish and Game, pers. comm. 2013). The establishment of an NEP will support conservation goals while providing flexibility for sustainable resource development projects and reducing conflicts with future oil and gas development, as well as agriculture. Agricultural issues are discussed in section 4.4.3 of the EA. Protection for these and other land uses provided by the final rule as well as the mitigation measures outlined in the EA will allow wood bison restoration to proceed without interfering with potential agricultural developments, oil and gas activities, or other natural resource development projects.

Comment: One commenter raised concern about conflicts between plains bison and agriculture in the Delta Junction area as an indication that the same conflicts could occur in the Minto Flats area.

Our response: In the Delta area, farming expanded into areas north of the Alaska Highway that were already frequented by bison, and many crops were not fenced, resulting in a pattern of fall and winter use by the Delta bison herd. If reintroduced wood bison were to establish a pattern of movement from the high-quality bison habitat in the Minto State Game Refuge, north of the Tanana River, to potential future agricultural development south of the river, 10 or more miles (16 km) away, the mitigation measures envisioned by ADF&G in the EA for the area west of Nenana will include removing bison that conflict with agricultural operations or taking other actions to discourage bison from continuing to use agricultural lands. Such a pattern of use is unlikely, because current evidence indicates that future agricultural development will occur in areas separate from the bison habitat on the Minto Flats. Because the prospects for conflict are limited and could be mitigated, we do not believe that potential conflicts with agriculture are an obstacle to wood bison restoration.

Comment: The reintroduced NEP will still be a section 7 burden if the animals move onto a Refuge.

Our response: If wood bison move onto a National Wildlife Refuge, they will be considered a threatened species for purposes of section 7 consultation. That means that if the Service or any other Federal agency planned to fund, authorize, or carry out a project on or near a Refuge, the activity will have to be evaluated to determine whether it “may affect” wood bison. If adverse effects were anticipated, we would work to incorporate measures that would minimize those effects. We do not expect this process to become a burden, as applied to wood bison. No project in Alaska has ever been stopped because of the presence of an endangered or threatened species.

Comment: Several commenters stated that the section 10(j) rule can provide adequate safeguards for other land uses and provide the regulatory framework for wood bison restoration to move forward. One commenter asked for clarification about what circumstances would lead to a change in status as an experimental population.

Our response: The Service agrees that the NEP designation is designed to avoid any potential conflict between natural resource development and wood bison restoration, and we appreciate the support for the provisions of this rule. We do not envision any circumstances under which the status of the NEP would change, unless the wood bison were removed from the threatened species list. No NEP designation has ever been changed to an “essential” experimental population.

To help ensure the continued effectiveness and success of this program following reintroduction, we have added language to clarify that if any particular provision of this rule is found by a court to be legally insufficient or defective, it is the agency's intention that all remaining management and other provisions will remain in effect.

Comment: One commenter requested clarification on where within the broad NEP area the wood bison will actually be located or migrate in the years following reintroduction.

Our response: One reason for creating a relatively large NEP area, rather than one or more small NEP areas, is to make it highly unlikely that any wood bison will wander outside the boundaries of the area, in which case those animals would have threatened status given the species' current status under the ESA. A large NEP area provides greater protection for landowners in the region. Wood bison generally do not migrate long distances. Experience indicates that, in good habitat, they will establish relatively stable home ranges near a release site, which will slowly expand depending on how much populations are allowed to grow. Wood bison populations are not migratory, as many caribou populations are. The three areas where wood bison herds could actually be reestablished are illustrated in the EA and in Figure 1 in paragraph (x)(2)(i) of the rule portion of this document.

Comment: One commenter stated that the Service should refrain from issuing any final rule until after the appropriate management plans have been drafted and circulated for review, and that we should consider any comments on the management plans when finalizing the reintroduction rule.

Our response: We do not agree that a final rule should be delayed until management plans are completed. A key purpose of this rulemaking process is to establish a clear and stable regulatory environment that provides protection for other land uses and management flexibility that will allow management planning and implementation to proceed. As the lead management entity, the State of Alaska can determine when a specific planning and implementation effort should proceed.

Comment: One commenter stated that the bison reintroduction efforts must be designed to achieve an effective population size of greater than 500 animals and preferably up to 1000 animals, citing Hedrick, 2009, and the 2010 IUCN bison status report and Guidelines (Gates et al. 2010.).

Our response: The Service and ADF&G are aware of the importance of population size in maintaining genetic diversity, and the issue is discussed in section 2.7 of the EA and will be a consideration during development of site-specific management plans.

Comment: One commenter suggested that it will take decades for wood bison to reach a level that can support hunting.

Our response: Experience in managing other bison herds and population modeling indicate that founding populations of at least 40 bison could grow to approximately 400 animals in 10-15 years. Population growth and future harvest opportunities are addressed in section 2.6 of the EA.

Comment: Two commenters suggested that the Service should prepare a Recovery Plan for wood bison before any reintroductions take place.

Our response: The Service does not intend to prepare a recovery plan for this species. The Canadian wood bison recovery plan and recovery strategy provide the over-arching approach to recovery of this species range-wide, and site-specific management plans to be prepared by ADF&G will specify how each reintroduction will be conducted. There would be no benefit in preparing an additional recovery plan under the ESA. In addition, wood bison currently exist in the wild only in Canada, and the Service does not prepare recovery plans for species that occur only in foreign countries.

Based on the best scientific and commercial data available (in accordance with 50 CFR 17.81), the Service finds that reintroducing wood bison to Alaska and the associated protective measures and management practices under this final rulemaking will further the conservation of the species. The nonessential experimental population status is appropriate for wood bison taken from captive populations and released in Alaska because the loss of a wood bison NEP from Alaska will not reduce the likelihood of the species' survival in its current range in Canada and will not appreciably reduce the likelihood of survival of the species in the wild. The Service additionally finds that the less stringent section 7(a)(4) conference requirements associated with the nonessential designation do not pose a threat to the recovery and continued existence of wood bison. An NEP designation provides important assurances to stakeholders and the State of Alaska regarding regulatory compliance requirements relating to a listed species. This conservation effort would not occur without such assurances.

Hunting has been demonstrated to serve as an important management tool for the long-term conservation of wood bison on the landscape, in part because it is the primary means by which herd size can be maintained within the carrying capacity of remote reintroduction sites. In addition, biologically sustainable harvest can help build support for wood bison conservation among constituents. Given that reintroduced wood bison will be designated as a nonessential, experimental population, hunting will be an allowed take based on sustained yield principles as established by the Alaska Department of Fish and Game. This finding applies only to the specific circumstances relating to establishing an NEP for wood bison in Alaska.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.

Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

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 (5 U.S.C. 801 et seq. ), whenever a Federal agency publishes 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). However, no regulatory flexibility analysis is required if the head of an agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the Regulatory Flexibility Act to require 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. We certify that this rule will not have a significant economic effect on a substantial number of small entities. The following discussion explains our rationale.

The area affected by this rule consists of State, Federal, and private lands in interior Alaska. Reintroduction of wood bison associated with this final rule would not have any significant effect on recreational activities in the NEP area. We do not expect any closures of roads, trails, or other recreational areas. We do not expect wood bison reintroduction activities to affect the status of any other species, or other resource development actions within the release area (Fortin and Andruskiw 2003, p. 804). In addition, this final rulemaking is not expected to have any significant impact on private activities in the affected area. The designation of an NEP for wood bison in Alaska will significantly reduce the regulatory requirements associated with the reintroduction of wood bison; will not create inconsistencies with other agency actions; and will not conflict with existing or future human activities, including other resource development, or Tribal, other private, and public use of the land. This final rule will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises.

Lands within the NEP area that may be affected include the Yukon, Tanana, and Kuskokwim River drainages within Alaska. Many private landowners have indicated support for the presence of wood bison on their lands in the future. However, some major private landowners have expressed concerns about the potential legal and regulatory burdens related to the ESA and wood bison, including effects on other resource development activities, such as (a) the possibility of natural gas extraction in an area near the southern end of the Minto Flats State Game Refuge; (b) the potential for petroleum-related developments on the Yukon Flats; and (c) mineral development adjacent to the lower Innoko/Yukon River area. The 4(d) special rule includes provisions to ensure that the reintroduction of wood bison will not impede these or any other existing or potential future resource development activities.

The existence of a wood bison NEP in Alaska will not interfere with actions taken or planned by other agencies. Federal agencies most interested in this rulemaking include the Service, the Bureau of Land Management, the National Park Service, and the Bureau of Indian Affairs. The U.S. Forest Service has provided land to help support bison in captivity prior to release. This final rulemaking is consistent with the policies and guidelines of the other Department of the Interior bureaus. Because of the substantial regulatory relief provided by the NEP designation, we believe the reintroduction of wood bison in the areas described will not conflict with existing or future human activities on public lands administered by these agencies.

This final rule will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. This rule will not raise novel legal or policy issues. The Service has previously designated experimental populations of other species at numerous locations throughout the nation.

On the basis of this information, as stated earlier, we certify that this rule will not have a significant economic effect on a substantial number of small entities.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ), the NEP designation will not place any additional requirements on any city, village, borough, or other local municipalities. The specific sites where the NEP of wood bison will occur include predominantly State, Federal, and private lands in central Alaska. Many landowners and agencies have expressed support for this project. The State has expressed support for accomplishing the reintroduction through an NEP designation. Accordingly, the NEP will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required.

The NEP designation for wood bison in Alaska will not impose any additional management or protection requirements on the State or other entities. ADF&G has determined that restoring wood bison to Alaska is a high priority, and has voluntarily undertaken all efforts associated with this restoration project. Since this rulemaking does not require that any action be taken by local or State government or private entities, we have determined and certify pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1501 et seq., that this rulemaking will not impose a cost of $100 million or more in any given year on local or State governments or private entities (i.e., it is not a “significant regulatory action” under this Act).

In accordance with Executive Order 12630, we have determined that the establishment of a wood bison NEP will not have significant takings implications. Designating reintroduced populations of federally listed species as NEPs significantly reduces the ESA's regulatory requirements with respect to that species within the NEP area. Under NEP designations, the ESA requires a Federal agency to confer with the Service if the agency determines its action within the NEP area is likely to jeopardize the continued existence of the reintroduced species. However, even if a proposed Federal agency action would completely eliminate a reintroduced species from an NEP, the ESA would not compel the agency to deny a permit or cease any activity as long as the Service does not foresee that the activity may jeopardize the species' continued existence throughout its range. Furthermore, the results of a conference are advisory and do not restrict agencies from carrying out, funding, or authorizing activities. Additionally, the section 4(d) special rule stipulates that unintentional take (including killing or injuring) of the reintroduced wood bison will not be a violation of the ESA, when such take is incidental to an otherwise legal activity (e.g., oil and gas development or mineral extraction).

Multiple-use management of lands within the NEP area by government, industry, or recreational interests will not change as a result of the NEP designation. Because of the substantial regulatory relief provided by NEP designations, we do not believe the reintroduction of wood bison will conflict with existing human activities or hinder public use of the NEP area. Private landowners and others who live in or visit the NEP area will be able to continue to conduct their usual resource-gathering activities. The State of Alaska, through ADF&G, is a strong supporter of wood bison reintroduction under the NEP designation and has led the development and implementation of the restoration effort. A takings implication assessment is therefore not required because this rule: (1) Will not effectively compel a property owner to suffer a physical invasion of property, and (2) will not deny economically beneficial or productive use of the land or aquatic resources. This rule will substantially advance a legitimate government interest (conservation of a listed species) and will not present a barrier to any reasonable and expected beneficial use of private property.

In accordance with Executive Order 13132, we have considered whether this rule has significant Federalism effects and have determined that a Federalism assessment is not required. This rule will not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. In keeping with Department of the Interior policy, we requested information from and coordinated development of this final rule with the affected resource agencies in the State of Alaska. No intrusion on State policy or administration is expected, roles or responsibilities of Federal or State governments will not change, and fiscal capacity will not be substantially directly affected. The special rule will maintain the existing relationship between the State and the Federal Government and is being undertaken in coordination with the State of Alaska. The State endorses the NEP designation as the most feasible way to pursue wood bison restoration in Alaska, and we have cooperated with ADF&G in preparing this final rule. Therefore, this final rule does not have significant Federalism effects or implications that would warrant the preparation of a Federalism Assessment pursuant to the provisions of Executive Order 13132.

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

This final rule does not contain new information collection requirements, and a submission under the Paperwork Reduction Act (PRA) is not required. The Office of Management and Budget has approved the reporting requirements associated with experimental populations and has assigned OMB Control Number 1018-0095, expiring on May 31, 2014. 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.

In compliance with all provisions of the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq. ), we have analyzed the impact of this final rule. Based on this analysis and additional information resulting from peer review and public comment on the action, we have determined that there are no significant impacts or effects caused by this rule. We prepared a draft EA on the proposed action and made it available for public inspection: (1) In person at the U.S. Fish and Wildlife Service's Regional Office (see ADDRESSES ), and (2) online at http://www.regulations.gov. Even though not strictly required, in the interest of full disclosure and to recognize the potential controversy associated with this action, we prepared a final EA and a Finding of No Significant Impact to document our conclusions.

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 Manual Chapter 512 DM 2, the Service, through ADF&G, has coordinated closely with the Tribal governments near potential release sites throughout development of this project and rulemaking process. The Service extended an invitation for consultation to all Tribes within the NEP area, participated in several consultation sessions, and has fully considered information received through the Government-to-Government consultation process, as well as all comments submitted during the public comment period by Tribal members or Tribal entities on the NEP designation and wood bison reintroduction.

Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Because this rule is not expected to significantly affect energy supplies, distribution, and use, it is not a significant energy action. Therefore, no Statement of Energy Effects is required.

A complete list of all references cited in this rule is available at http://www.regulations.gov and upon request from the Fish and Wildlife Service's Regional Office, Fisheries and Ecological Services (see ADDRESSES ).

The primary authors of this rule are Sonja Jahrsdoerfer, U.S. Fish and Wildlife Service, Anchorage, AK, and Bob Stephenson, Alaska Department of Fish and Game (retired), Fairbanks, AK.

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

Background

A final rule published December 24, 2013 (78 FR 78106) for the take of marine mammals incidental to the Navy's training and testing activities in the HSTT Study Area. This correction revises the description contained in the preamble of the number of Eastern North Pacific gray whales authorized to be taken by Level B harassment.

As published, the preamble to the final regulations contains errors which may prove to be misleading and need to be clarified. These typos were correctly recorded in the regulatory text and do not change NMFS' analysis or conclusions in the final rule. Revised Letters of Authorization have been issued to the Navy, eliminating the 10 authorized Level A takes (training) and 5 authorized Level A takes (testing) of Eastern North Pacific gray whales over a 5-year period. In addition, the revised Letter of Authorization for testing activities corrects the number of blue whale takes to “up to 428 per year” (previously 426).

1. On page 78143, in Table 18, the entry for Eastern North Pacific gray whales is corrected to read as follows:

2. On page 78145, in Table 20, the entry for Eastern North Pacific gray whales is corrected to read as follows: