Executive Order 12866 and Executive Order 13563

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This action has been designated as a “non-significant regulatory action” under § 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget (OMB) has waived the review process.

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

Section 11 of the Act provides that nothing in the Act may be construed to preempt or supersede any other program relating to beef promotion organized and operated under the laws of the United States or any State. There are no administrative proceedings that must be exhausted prior to any judicial challenge to the provisions of this rule.

This rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this rule would not have substantial and direct effects on Tribal Governments and would not have significant tribal implications.

Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Administrator of the Agricultural Marketing Service (AMS) has considered the economic effect of this action on small entities and has determined that this rule will not have a significant economic impact on a substantial number of small entities. The purpose of RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly burdened.

In the February 2013 publication of “Farms, Land in Farms, and Livestock Operations,” USDA's National Agricultural Statistics Service (NASS) estimates that the number of operations in the United States with cattle in 2012 totaled approximately 915,000, down from 950,000 in 2009. The majority of these operations that are subject to the Order may be classified as small entities. There are approximately 25 importers who import beef or edible beef products into the United States and 297 importers who import live cattle into the United States. It is estimated that the majority of these operations subject to the Order are considered small businesses under the criteria established by the Small Business Administration (SBA) [13 CFR 121.201]. SBA defines small agricultural service firms as those having annual receipts of $7.0 million or less, and small agricultural producers are defined as those having annual receipts of less than $750,000.

The rule imposes no new burden on the industry. It only adjusts representation on the Board to reflect changes in domestic cattle inventory, as well as changes in cattle and beef imports. The adjustments are required by the Order and result in a decrease in Board membership from 103 to 100.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection and recordkeeping requirements imposed under part 1260 were previously approved under OMB control number 0581-0093.

The Board was initially appointed August 4, 1986, pursuant to the provisions of the Act (7 U.S.C. 2901-2911) and the Order issued thereunder. Domestic representation on the Board is based on cattle inventory numbers, and importer representation is based on the conversion of the volume of imported cattle, beef, or beef products into live animal equivalencies.

Section 1260.141(b) of the Order provides that the Board shall be composed of cattle producers and importers appointed by the Secretary of Agriculture from nominations submitted by certified producer and importer organizations. A producer may only be nominated to represent the State or unit in which that producer is a resident.

Section 1260.141(c) of the Order provides that at least every 3 years and not more than every 2 years, the Board shall review the geographic distribution of cattle inventories throughout the United States and the volume of imported cattle, beef, and beef products and, if warranted, shall reapportion units and/or modify the number of Board members from units in order to reflect the geographic distribution of cattle production volume in the United States and the volume of cattle, beef, or beef products imported into the United States.

Section 1260.141(d) of the Order authorizes the Board to recommend to USDA modifications to the number of cattle per unit necessary for representation on the Board.

Section 1260.141(e)(1) provides that each geographic unit or State that includes a total cattle inventory equal to or greater than 500,000 head of cattle shall be entitled to one representative on the Board. Section 1260.141(e)(2) provides that States that do not have total cattle inventories equal to or greater than 500,000 head shall be grouped, to the extent practicable, into geographically-contiguous units, each of which have a combined total inventory of not less than 500,000 head. Such grouped units are entitled to at least one representative on the Board. Each unit that has an additional 1 million head of cattle within a unit qualifies for additional representation on the Board as provided in § 1260.141(e)(4). As provided in § 1260.141(e)(3), importers are represented by a single unit, with the number of Board members based on a conversion of the total volume of imported cattle, beef, or beef products into live animal equivalencies.

The initial Board appointed in 1986 was composed of 113 members. Reapportionment, based on a 3-year average of cattle inventory numbers and import data, reduced the Board to 111 members in 1990 and 107 members in 1993 before the Board was increased to 111 members in 1996. The Board was decreased to 110 members in 1999, 108 members in 2001, and 104 members in 2005; increased to 106 members in 2009; and decreased to 103 members in 2011. This proposal amends § 1260.141(a) by decreasing the number of Board members from 103 to 100 with appointments for terms effective early in 2015.

The current Board representation by States or units was based on an average of the January 1, 2008, 2009, and 2010 inventory of cattle in the various States as reported by NASS. Current importer representation was based on a combined total average of the 2007, 2008, and 2009 live cattle imports as published by USDA's Foreign Agricultural Service and the average of the 2007, 2008, and 2009 live animal equivalents for imported beef products.

In considering reapportionment, the Board reviewed cattle inventories for the period of January 1, 2011, 2012, and 2013 as well as cattle, beef, and beef product import data for the period of January 1, 2010, to December 31, 2012. The Board recommended that a 3-year average of cattle inventories and import numbers should be continued. The Board determined that an average of the January 1, 2011, 2012, and 2013 cattle inventory numbers would best reflect the number of cattle in each State or unit since publication of the last reapportionment rule published in 2011 (76 FR 42012). The Board reviewed data published by USDA's Economic Research Service to determine proper importer representation. The Board recommended the use of a combined total of the average of the 2010, 2011, and 2012 cattle import data and the average of the 2010, 2011, and 2012 live animal equivalents for imported beef products. The method used to calculate the total number of live animal equivalents was the same as that used in the previous reapportionment of the Board. The live animal equivalent weight was changed in 2006 from 509 pounds to 592 pounds (71 FR 47074).

As discussed in the proposed rule, the Board's recommended reapportionment plan would have decreased the number of representatives on the Board from 103 to 99. Based on the Board's recommendation, New Mexico would lose one Board seat and Texas would lose two Board seats. The Importer Unit loses one Board seat. This final rule, however, results in Texas losing one Board seat.

The States and units affected by the reapportionment plan and the current and revised representation per unit are as follows:

The Board reapportionment takes effect with appointments that will be made to fill positions beginning January 1, 2015.

A number of technical amendments are being made to update or correct information contained in the provisions of the Order and regulations. These include:

Section 1260.129 references the U.S. Customs Service of the U.S. Department of the Treasury. The language has been amended to reflect the updated agency and department.

Section 1260.312(4)(c) has been amended to update an outdated address.

Section 1260.316 has been amended to reflect the correct OMB paperwork reduction number.

USDA published the proposed rule for public comment in the March 25, 2014, Federal Register [79 FR 16236]. The comment period ended April 24, 2014. USDA received two comments by the deadline. One comment from an individual was outside the scope of the rulemaking.

Another comment, submitted jointly by eight Texas cattle, dairy, and farm associations, was against Texas losing two member positions because the 3-year average reflects a loss of cattle numbers due to a severe drought. With many regions of the State beginning to return to more normal precipitation and pasture conditions, the commenters argued, plus record cattle prices encouraging heifer retention and herd rebuilding, cattle numbers in Texas will increase in the next 1 or 2 years.

In response, USDA agrees that the drought and other factors affected cattle inventory across the country but in Texas in particular. In addition, based upon available information USDA has concluded that Texas cattle herds will increase due to beneficial environmental and economic conditions. In addition, reports indicate that cattle will be moving into Texas from other States. Therefore, by the time the Board is seated in February 2015 when this reapportionment would actually take effect, cattle numbers in Texas should increase to a level to warrant the loss of only one Board member position in Texas rather than two as proposed. As a result, USDA is decreasing the number of Board members in Texas to 13 rather than 12, as proposed.

Pursuant to 5 U.S.C. 553, it is found that good cause exists for not postponing the effective date of this action until 30 days after the publication in the Federal Register because this action needs to be in effect as soon as possible to allow sufficient time for completion of the nomination process and appointments for the term of office beginning February 2015.

For reasons set forth in the preamble, 7 CFR part 1260 is amended as follows:

Section 553(b)(3)(A) of the Administrative Procedure Act (APA) (5 U.S.C. 553) authorizes agencies to dispense with notice and comment procedures for rules when the agency for “good cause” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without seeking comment prior to the rulemaking.

The FAA finds that notice and public comment to this immediately adopted final rule are impracticable, unnecessary, and contrary to the public interest. This rulemaking provides the opportunity for an informal conference with an FAA attorney before an order is issued under § 13.20. Since this change provides additional fairness and process to those persons who are subject to such an order, this amendment should not adversely impact those covered by an order. In fact, these conferences may result in a resolution of the matter or, in some cases, a narrowing of the issues, thereby conserving resources for respondents and the FAA. Finally, these conferences are optional.

Therefore, the FAA has determined that notice and public comment are unnecessary.

For the reasons noted above, the FAA is adopting this final rule without prior notice and public comment. The Regulatory Policies and Procedures of the Department of Transportation (DOT) (44 FR 1134; February 26, 1979), provide that, to the maximum extent possible, operating administrations for the DOT should provide an opportunity for public comment on regulations issued without prior notice.

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The agency also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the changes. The most helpful comments reference a specific portion of this rule, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, please send only one copy of written comments, or, if you are filing comments electronically, please submit your comments only one time.

The FAA will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this rulemaking. Once the comment period closes, the FAA will review and dispose of the comments filed in the rulemaking docket. Because this is a final rule, the FAA will publish a disposition of comments in the Federal Register . Based on the comments received, the FAA will state whether it has decided that (i) no action is necessary other than publishing the disposition of comments in the Federal Register , or (ii) the FAA should prepare a revised final rule.

Do not file in the docket information that you consider to be proprietary or confidential business information. Send or deliver this information directly to the person identified in the FOR FURTHER INFORMATION CONTACT section of this document. Mark the information that is considered proprietary or confidential. If the information is on a disk or CD ROM, mark the outside of the disk or CD ROM and also identify electronically within the disk or CD ROM the specific information that is proprietary or confidential.

Under 14 CFR 11.35(b), when the FAA is aware of proprietary information filed with a comment, the agency does not place it in the docket. The FAA holds it in a separate file to which the public does not have access, and the agency places a note in the docket that it has received it. If the FAA receives a request to examine or copy this information, the FAA treats it as any other request under the Freedom of Information Act, 5 U.S.C. 552. The FAA processes such a request under the DOT procedures found in 49 CFR part 7.

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

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, the FAA is charged with prescribing regulations required in the interest of safety for the design and performance of aircraft; regulations and minimum standards in the interest of safety for inspecting, servicing, and overhauling aircraft; and regulations for other practices, methods, and procedures the Administrator finds necessary for safety in air commerce.

Section 13.20 of 14 CFR part 13 (Orders of compliance, cease and desist orders, orders of denial, and other orders) applies to a variety of orders issued by the Administrator to carry out the provisions of the Federal Aviation Act of 1958, as amended, the Hazardous Materials Transportation Act, the Airport and Airway Development Act of 1970, and the Airport and Airway Improvement Act of 1982, or the Airport and Airway Improvement Act of 1982 as amended by the Airport and Airway Safety and Capacity Expansion Act of 1987. This section does not apply to orders issued under the authority of 49 U.S.C. 46301 (assessing civil penalties) or 49 U.S.C. 44709 (amendments, modifications, suspensions, and revocations of certain certificates).

Paragraph (c) of § 13.20 allows, within 30 days after service of the notice, a person subject to an order to reply in writing or request a hearing in accordance with subpart D of part 13. This rule amends that paragraph to add a third option—an opportunity to be heard in an informal conference with an FAA attorney. The FAA has determined that this third option offers additional fairness and process to those persons who would be the subject of an order issued under § 13.20. In addition, since this opportunity is already available to persons subject to certificate actions under § 13.19 and civil penalty actions under §§ 13.16 and 13.18, it makes sense to add it to § 13.20 for consistency and fairness.

Through the mechanism of the informal conference in these other contexts, matters are sometimes resolved or the issues are narrowed. This results in conserving resources, both for respondents and the FAA. The FAA expects these benefits will also be realized for orders issued under § 13.20 when the informal conference option is selected.

This rule also amends paragraph (d) of § 13.20 to provide for these informal conferences. Paragraph (d) currently allows a person who files a reply under paragraph (c) to further request a hearing in accordance with Subpart D of part 13 as to any charges not dismissed or not subject to a consent order. The option to request a hearing is expanded to include persons who requested an informal conference.

Concurrent with the publication of this rule, the FAA is publishing a final rule entitled “Repair Stations.” One of the main purposes of that rulemaking is to amend the certificate application section to provide the FAA with the ability to deny an application for a repair station certificate to an applicant who previously held a repair station certificate that was revoked or who intends to use certain key management personnel or other persons who could exercise control over the repair station's operations and who had materially contributed to the circumstances that caused a previous repair station revocation. That action is necessary to provide the FAA with the authority to deny a repair station certificate to an applicant who has violated part 145 regulations to an extent that revocation of the certificate was warranted or who intends to use key decision makers who materially contributed to a prior revocation.

During the FAA's internal review of the Repair Stations final rule, the FAA noted that commenters raised due process issues with respect to how the FAA would determine who these persons were, how it would be determined that they materially contributed to a prior revocation, and what process would be afforded them to challenge such determinations. When considering the commenters' concerns, the FAA noticed that, although FAA certificate actions and civil penalty actions provide for the opportunity for an informal conference with an FAA attorney, that option is not provided to persons who receive notice of a proposed order under § 13.20. The FAA believes that an amendment to part 13 is necessary to provide the informal conference option to all persons subject to an order issued under § 13.20. This provides a measure of fairness to affected persons, and because matters are sometimes resolved or the issues narrowed at the informal conference stage, this amendment has the potential to conserve resources for both respondents and the FAA.

To respond to those concerns, the FAA is adding a paragraph to the “denial authority” section (§ 145.51(f)) in the Repair Station Final Rule that provides that those persons are subject to an order under the procedures set forth in § 13.20. That section provides for notice and the opportunity for a hearing under subpart D of part 13.

In addition, we are making a minor clarifying change to paragraph (d). The current rule provides that, if a person files a reply, the person may request a hearing as to any charges not dismissed as a result of the agency's consideration of the reply. We are replacing the word “dismissed” with “withdrawn” because it more accurately reflects the role of the agency prior to a hearing. As provided in § 13.20(f), it is the role of the Hearing Officer at the close of the hearing to either dismiss the notice or issue an order. This change also aligns the agency's procedures in other enforcement contexts, for example, in civil penalty and certificate action matters.

Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule.

Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a proposed or final rule does not warrant a full evaluation, this order permits that a statement to that effect and the basis for it to be included in the preamble if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made for this final rule. The reasoning for this determination follows:

The amendment to § 13.20 allows for informal conference with FAA Counsel for those persons subject to orders of compliance, cease and desist orders, orders of denial, and other orders. This amendment parallels due process already afforded to persons of other enforcement actions (i.e. § 13.16 and § 13.18—civil penalty actions, and § 13.19—certificate actions). Since the amendment provides voluntary opportunity for issues to be resolved, or at least narrowed, prior to a formal hearing, a positive net benefit is realized.

Since the expected outcome will be a minimal impact with positive net benefits, a regulatory evaluation was not prepared.

The FAA has, therefore, determined that this final rule is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, and is not “significant” as defined in DOT's Regulatory Policies and Procedures.

The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation.” To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

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

This final rule provides a positive net benefit to persons subject to orders the opportunity to have informal conference with FAA Counsel prior to a formal hearing. Thus, this rule affects persons, not small entities.

If an agency determines that a rulemaking will not result in a significant economic impact on a substantial number of small entities, the head of the agency may so certify under section 605(b) of the RFA. Therefore, as provided in section 605(b), the head of the FAA certifies that this rulemaking will not result in a significant economic impact on a substantial number of small entities.

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this final rule and determined that it offers the same positive net benefit to all persons regardless of nationality and thus has a neutral trade impact.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $151 million in lieu of $100 million. This final rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there is no new requirement for information collection associated with this final rule.

(1) In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has reviewed the corresponding ICAO Standards and Recommended Practices and has identified no differences with these regulations.

(2) Executive Order 13609, Promoting International Regulatory Cooperation, promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of Executive Order 13609, and has determined that this action would have no effect on international regulatory cooperation.

FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in Chapter 3, paragraph 312d and involves no extraordinary circumstances.

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

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

An electronic copy of a rulemaking document may be obtained by using the Internet—

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

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

3. Access the Government Printing Office's Web page at: http://www.gpo.gov/fdsys/.

Copies may also be obtained by sending a request (identified by notice, amendment, or docket number of this rulemaking) to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680.

Comments received may be viewed by going to http://www.regulations.gov and following the online instructions to search the docket number for this action. Anyone is able to search the electronic form of all comments received into any of the FAA's dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.).

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

In consideration of the foregoing, the Federal Aviation amends Chapter I of Title 14, Code of Federal Regulations, as follows:

Discussion

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Emergency Airworthiness Directive CF-2014-19, dated June 20, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc. Model CL-600-1A11 (CL-600) airplanes. The MCAI states:

Bombardier, Inc. has issued the following service information. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

• Bombardier Alert Service Bulletin A600-0769, Revision 01, dated June 26, 2014.

• Canadair Temporary Revision (TR) 600/29, dated June 20, 2014, to the Canadair CL-600-1A11 Airplane Flight Manual (AFM).

• Canadair TR 600/30, dated June 6, 2014, to the Canadair CL-600-1A11 AFM.

• Canadair TR 600-1/24, dated June 20, 2014, to the Canadair CL-600-1A11 AFM (Winglets) including Erratum, Publication No. PSP 600-1AFM (US), TR No. 600-1/24, June 20, 2014.

• Canadair TR 600-1/26, dated June 6, 2014, to the Canadair CL-600-1A11 AFM (Winglets).

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all pertinent information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.

Since late 2006, we have included a standard paragraph titled “Airworthy Product” in all MCAI ADs in which the FAA develops an AD based on a foreign authority's AD.

The MCAI or referenced service information in an FAA AD often directs the owner/operator to contact the manufacturer for corrective actions, such as a repair. Briefly, the Airworthy Product paragraph allowed owners/operators to use corrective actions provided by the manufacturer if those actions were FAA-approved. In addition, the paragraph stated that any actions approved by the State of Design Authority (or its delegated agent) are considered to be FAA-approved.

In an NPRM having Directorate Identifier 2012-NM-101-AD (78 FR 78285, December 26, 2013), we proposed to prevent the use of repairs that were not specifically developed to correct the unsafe condition, by requiring that the repair approval provided by the State of Design Authority or its delegated agent specifically refer to the FAA AD. This change was intended to clarify the method of compliance and to provide operators with better visibility of repairs that are specifically developed and approved to correct the unsafe condition. In addition, we proposed to change the phrase “its delegated agent” to include a design approval holder (DAH) with State of Design Authority design organization approval (DOA), as applicable, to refer to a DAH authorized to approve required repairs for the proposed AD.

One commenter to the NPRM having Directorate Identifier 2012-NM-101-AD (78 FR 78285, December 26, 2013) stated the following: “The proposed wording, being specific to repairs, eliminates the interpretation that Airbus messages are acceptable for approving minor deviations (corrective actions) needed during accomplishment of an AD mandated Airbus service bulletin.”

This comment has made the FAA aware that some operators have misunderstood or misinterpreted the Airworthy Product paragraph to allow the owner/operator to use messages provided by the manufacturer as approval of deviations during the accomplishment of an AD-mandated action. The Airworthy Product paragraph does not approve messages or other information provided by the manufacturer for deviations to the requirements of the AD-mandated actions. The Airworthy Product paragraph only addresses the requirement to contact the manufacturer for corrective actions for the identified unsafe condition and does not cover deviations from other AD requirements. However, deviations to AD-required actions are addressed in 14 CFR 39.17, and anyone may request the approval for an alternative method of compliance to the AD-required actions using the procedures found in 14 CFR 39.19.

To address this misunderstanding and misinterpretation of the Airworthy Product paragraph, we have changed the paragraph and retitled it “Contacting the Manufacturer.” This paragraph now clarifies that for any requirement in this AD to obtain corrective actions from a manufacturer, the actions must be accomplished using a method approved by the FAA, Transport Canada Civil Aviation (TCCA), or Bombardier's TCCA Design Approval Organization (DAO).

The Contacting the Manufacturer paragraph also clarifies that, if approved by the DAO, the approval must include the DAO-authorized signature. The DAO signature indicates that the data and information contained in the document are TCCA-approved, which is also FAA-approved. Messages and other information provided by the manufacturer that do not contain the DAO-authorized signature approval are not TCCA-approved, unless TCCA directly approves the manufacturer's message or other information.

This clarification does not remove flexibility previously afforded by the Airworthy Product paragraph. Consistent with long-standing FAA policy, such flexibility was never intended for required actions. This is also consistent with the recommendation of the Airworthiness Directive Implementation Aviation Rulemaking Committee to increase flexibility in complying with ADs by identifying those actions in manufacturers' service instructions that are “Required for Compliance” with ADs. We continue to work with manufacturers to implement this recommendation. But once we determine that an action is required, any deviation from the requirement must be approved as an alternative method of compliance.

Part 3 of Canadian Emergency AD CF-2014-19, dated June 20, 2014, which specifies accomplishing a repair or modification of the thrust reversers, is not required in this AD. We are currently considering requiring a repair or modification of the thrust reversers. However, the planned compliance time for the action would allow enough time to provide notice and opportunity for prior public comment on the merits of the actions.

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because cracks of the translating sleeve at the thrust reverser actuator attachment points could result in thrust reverser deployment or dislodgement in-flight and subsequent reduced control of the airplane. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2014-0490; Directorate Identifier 2014-NM-133-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD.

We estimate that this AD affects 18 airplanes of U.S. registry.

We also estimate that it will take about 29 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $44,370, or $2,465 per product.

In addition, we estimate that any necessary follow-on actions will take about 72 work-hours and require parts costing $509, for a cost of $6,629 per product. We have no way of determining the number of aircraft that might need this action.

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

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

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

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

Authority for This Rulemaking

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

This rulemaking is promulgated under the authority described in title 49, subtitle VII, part A, subpart III, section 44701, General requirements, and section 44707, Examining and rating air agencies. Under section 44701, the FAA may prescribe regulations and standards in the interest of safety for inspecting, servicing, and overhauling aircraft, aircraft engines, propellers, and appliances. The FAA may also prescribe equipment and facilities for, and the timing and manner of, inspecting, servicing, and overhauling these items. Under section 44707, the FAA may examine and rate repair stations.

This regulation is within the scope of section 44707 since it specifies instances when the FAA may deny the issuance of a repair station certificate, especially when a previously held certificate has been revoked.

As a result of a fatal accident, the National Transportation Safety Board (NTSB) recommended  1 that an applicant's past performance should be a consideration in determining whether a new certificate should be issued. The NTSB was concerned that the FAA had no mechanism for preventing individuals who have been associated with a previously revoked repair station certificate from continuing to operate through a new repair station certificate. The NTSB pointed out that the FAA has addressed this issue in the context of air carriers and other commercial operators. Specifically, 14 CFR 119.39(b) allows the FAA to deny an application for a part 121 or 135 air carrier or operating certificate if the applicant has previously held a certificate that was revoked or if a person who exercised control over (or held a key management position in) an operator with a revoked certificate will be exercising control over (or holding a key management position in) the new operator.

Additionally, § 119.39(b) allows the FAA to deny certification to an applicant who is substantially owned by (or who intends to fill a key management position with) an individual who had a similar interest in a certificate holder whose certificate was (or is being) revoked when that individual materially contributed to the circumstances causing revocation. The FAA agrees with the NTSB that part 145 should have the same safeguards as § 119.39(b).

The NTSB also took issue with the practice of an individual whose repair station was being investigated for serious violations of the regulations surrendering the certificate to stop the investigation process. Accordingly, the NTSB recommended that the “FAA should complete the investigation to the extent necessary to document all available facts relating to the fitness of the involved individuals; . . . .”  2

The FAA is publishing this final rule in part to address these recommendations from the NTSB.

On May 21, 2012, the FAA published a notice of proposed rulemaking (NPRM) titled “Repair Stations” (77 FR 30054). In the NPRM, the FAA proposed to amend the regulations for repair stations by revising the system of ratings, the repair station certification requirements, and the regulations applicable to repair stations providing maintenance for air carriers. The proposal also addressed the NTSB recommendation (discussed previously) by proposing amendments that would permit the FAA to deny certain applicants new certificates based on their enforcement history. The FAA believed these changes were necessary because many portions of the existing repair station regulations do not reflect current repair station aircraft maintenance and business practices, and the existing regulations have not kept pace with advances in aircraft technology. The agency proposed the changes to modernize the regulations to keep pace with current industry standards and practices.

The comment period was scheduled to close on August 20, 2012. However, the FAA received a request from the Aeronautical Repair Station Association (ARSA) and other organizations to extend the comment period. In a notice published on August, 17, 2012 (77 FR 49740), the FAA granted a 90-day comment period extension to November 19, 2012.

The NPRM proposed to amend part 145 by:

• Significantly revising the system of ratings to eliminate class, radio, instrument, and accessory ratings;

• Requiring each repair station choosing to use a capability list to audit the list for currentness at least every two years;

• Requiring new applicants for a repair station certificate to include a letter of compliance as part of their application;

• Requiring repair stations to provide permanent housing for their facilities, equipment, materials, and personnel;

• Identifying specific reasons that the issuance of a repair station certificate could be denied;

• Prohibiting fraudulent or intentionally false entries in an application, record, or report made under the repair station rules; and

• Accommodating revisions made to 14 CFR parts 91 and 43 providing for the change in rating system and standardization of language.

The FAA received more than 230 public comments to the NPRM. The majority of the commenters, including Aircraft Electronics Association (AEA), Aerospace Industries Association (AIA), Aircraft Owners & Pilots Association (AOPA), Aeronautical Repair Station Association (ARSA), Aviation Suppliers Association (ASA), Experimental Aircraft Association (EAA), General Aviation Manufacturers Association (GAMA), Helicopter Association International (HAI), Modification and Replacement Parts Association (MARPA), National Air Transportation Association (NATA), the Small Business Administration (SBA) Office of Advocacy, Coordinating Agency for Supplier Evaluation (CASE) and several individual commenters had serious concerns with the proposed changes, and many suggested withdrawing the entire proposal.

Although commenters recognized that the system of ratings is outdated, there was general dissatisfaction with the proposed new system of ratings and the transition process. Commenters also expressed concerns on the proposals for a capability list, recurring audit, letter of compliance, permanent housing, facilities and equipment, and the FAA's proposed authority to deny a repair station application.

In the NPRM, the FAA proposed significant changes to the system of ratings, the repair station certification requirements, and the rules for repair stations providing maintenance for air carriers.

The FAA is withdrawing most of the changes proposed in the NPRM because of the issues raised by commenters. Many commenters argued that the proposed ratings system would not be satisfactory for current and future repair stations. Also, many expressed concern that the FAA does not have sufficient resources to perform recertification of all currently certificated repair stations while continuing to certificate new repair stations in the course of the proposed 24-month transition. This concern is exacerbated by the possible influx of hundreds of repair station applicants resulting from the finalization of the Transportation Security Administration foreign repair station rule, which allows for the certification of new repair stations outside the United States for the first time since 2004.

The NPRM proposed extensive changes to the repair station regulations with accommodating changes to 14 CFR parts 43 and 91. The final rule implements only the denial authority, the falsification penalty, and several minor revisions and corrections. The rule also requires that a certificate surrender is not complete until the FAA accepts the certificate for surrender. The final rule does not change 14 CFR parts 43 and 91 as initially proposed.

Currently, 14 CFR 145.53 provides that, with certain exceptions, an applicant who meets the requirements of the rule is entitled to a repair station certificate. Section 145.53 does not provide an exception related to a past regulatory non-compliance history. There has been at least one incident where the FAA revoked a repair station certificate for serious maintenance-related safety violations, and a key management official from the repair station shortly thereafter obtained a new repair station certificate under which improper maintenance resulted in a fatal accident.

As a result of the fatal accident, the NTSB recommended that an applicant's past performance should be a consideration in determining whether a new certificate should be issued. The FAA agrees that this is an important consideration in assessing an applicant's overall fitness to hold a certificate and is providing a new exception to certificate entitlement in § 145.51(e).

The new exception will apply to:

• An applicant who previously held a repair station certificate that was revoked or is in the process of being revoked;

• An applicant who intends to fill certain key management positions with individuals who had materially contributed to the circumstances that led to a prior repair station certificate revocation, or to an ongoing revocation action against a repair station; and

• An applicant whose repair station will be owned or controlled by an individual or individuals who previously owned or exercised control over a repair station that had its certificate revoked or is in the process of being revoked.

With regard to the exception stated in the second bullet above, the FAA notes that in the NPRM the agency erroneously proposed two nearly identical paragraphs— (§§ 145.1051(e)(2) and 145.1051(e)(3)) pertaining to individuals who would be slated to hold management positions with a new applicant. Proposed paragraph (e)(2) addressed instances where the applicant intended to (or did) fill a management position with an individual who exercised control over or who held the same or a similar position with a repair station that had its certificate previously revoked, and paragraph (e)(3) addressed instances where an individual who would hold a management position in the new repair station previously held a management position with a repair station that had a certificate revoked. The FAA has determined that these two paragraphs are largely redundant and would accomplish essentially the same thing. As discussed below, proposed § 145.51(e) was meant to parallel the similar exceptions found for air carrier operating certificates in 14 CFR 119.39(b), and that section does not contain the text of paragraph (e)(3) discussed above. Therefore, the FAA is withdrawing § 145.51(e)(3) as proposed in the NPRM.

Under this new exception, the FAA may still issue a new certificate, but the applicant will no longer be entitled to a certificate, even if other qualifying criteria are met. Knowledge of the compliance disposition of key management personnel is an important component of the fitness assessment the FAA makes in determining the overall qualifications of an applicant who will conduct repair station operations.

To implement this new exception, the FAA is adding a two-part question to FAA Form 8310-3, Application for Repair Station Certificate and/or Rating. The question asks: Will any person as described in part 145.51(e) be involved with the management, control, or have substantial ownership of the repair station? If yes, provide a detailed explanation on a separate page. The detailed response to a `yes' answer will allow the FAA to evaluate the circumstances of the revocation and determine whether the certification will or will not continue.

Also, in response to the NTSB recommendation, the FAA is adding a requirement that a certificate surrender is not complete until the FAA accepts the certificate for surrender. The new surrender requirement codifies existing FAA policy, and will prevent a repair station under investigation from attempting to circumvent a possible enforcement action that could result in a revocation of the repair station certificate by surrendering its certificate to stop the investigation before it is completed.

The other significant amendments in this final rule are:

• The addition of a new § 145.12 that prohibits fraudulent or intentionally false entries or omissions in applications, records, or reports made under the repair station rules. The rule provides that making a prohibited fraudulent or intentionally false entry or knowingly omitting a material fact is grounds for suspending or revoking any certificate, approval, or authorization the FAA issued to the person who made the entry or caused the omission.

• A revision to paragraph (a) of § 145.53 to incorporate the new grounds for denying a certificate under § 145.51(e) (discussed above) as another exception to certificate entitlement even if the other qualification requirements are met.

• A revision to § 145.55 to add that a certificate surrender is not complete until the FAA accepts the certificate for cancellation.

This final rule will also make the following amendments:

• A revision to § 145.55 to add a new paragraph (c)(3) to require that a repair station outside the United States applying for certificate renewal must show the required fee has been paid.

• A revision to § 145.57 to add a requirement in paragraph(a)(1) that a certificate change is necessary if the repair station certificate holder changes the name of the repair station.

• A revision to § 145.57(b), which currently requires that if a repair station's assets are sold the new owner must apply for a certificate. The revision clarifies that a new owner will need to apply for a new certificate only if the new owner chooses to operate as a repair station.

• Revisions to §§ 145.153, 145.157, and 145.213 to add the terms “appropriately” before “certificated” and “as a mechanic or repairman” before “under part 65” in three instances: (1) Supervisory personnel requirements (§ 145.153(b)(1)); (2) Personnel authorized to approve an article for return to service (§ 145.157(a)); and (3) Inspection of maintenance, preventive maintenance, or alterations (§ 145.213(d)). The first two of these revisions were proposed in the NPRM; however, the third was inadvertently omitted, and we are including it here for clarity and consistency. As discussed in the NPRM, the omission of the term “appropriately” in the 2001 final rule was an oversight we proposed to correct with this final rule. This omission technically provides that any individual holding a certificate issued under part 65 (other than mechanics and repairmen—such as air traffic control tower operators and aircraft dispatchers) could fill these positions. Under these amendments, supervisors and persons authorized to inspect and approve an article for return to service would, at a minimum, have to hold a certificate appropriate for the work being performed ( e.g., a mechanic or a repairman certificate).

• A revision to § 145.155 to remove the word “and” at the end of paragraph (a)(2). Since no § 145.155(a)(3) currently exists, it is an error for “and” to appear after paragraph (a)(2), and its removal corrects this error.

• A revision to § 145.163 to add the term “and use” after “must have” in paragraph (a). This section requires a repair station to have an approved training program, but does not provide a specific requirement that the program be used. This revision is necessary to clarify the intent of the current rule that repair stations must have and use an employee training program approved by the FAA. This rule also removes the reference to April 6, 2006, (added by the 2001 amendments) as the date by which the FAA required new applicants to submit a training program for approval, and also the starting date from which each existing repair station would be required to submit its training program for approval based on the specified staggered schedule, i.e., by the last day of the month in which its repair station certificate had been issued. This revision results in the necessary inclusion of the text of paragraph (a)(1) into § 145.163(a) and the consequent deletion of paragraphs (a)(1) and (a)(2).

In addition, we are also making a correction that was not proposed in the NPRM. Specifically, we are correcting § 145.221(a) to remove the erroneous insertion of the word “serious” when addressing the service difficulty reporting requirements from any failure, malfunction, or defect. The word “serious” was removed through notice and comment rulemaking in the 2001 final rule entitled “Repair Stations,” (66 FR 41088, August 6, 2001) that significantly revised part 145. The word “serious” was inadvertently inserted by a separate final rule entitled “Service Difficulty Reports,” (65 FR 56191, September 15, 2000).

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C.) authorizes agencies to dispense with notice and comment procedures for rules when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without seeking comment prior to the rulemaking. The removal of the term “serious” in § 145.221(a) does not change a standard, nor will there be any effect on regulated entities other than to prevent future misunderstandings that would have been resolved when interested persons contacted the FAA. Accordingly, due to the nature and circumstances of the error explained above, the FAA finds that further notice and comment are unnecessary to effect the correction.

The FAA determined that the expected outcome of the rule will be a minimal impact with positive net benefits. Therefore, a regulatory evaluation was not prepared for this final rule. The FAA has, therefore, determined that this final rule is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, and is not “significant” as defined in DOT's Regulatory Policies and Procedures.

The NPRM proposed reducing the number of repair station ratings from eight to five, and revising the ratings' definitions to indicate the type of work that a repair station would be authorized to perform. Approximately 190 commenters, including AEA, AIA, GAMA, and Duncan Aviation, commented specifically on the proposed change to the system of ratings. Generally, these organizations stated that the proposed rule would not modernize the ratings (or that the changes would be regressive), would be cost prohibitive, and would not enhance safety. The following are some examples of the comments received on this proposal.

AEA noted that the proposed changes in the rating system are the basis for the reissuance of the repair station certificates, but that the perceived added benefit of the ratings revision does not justify the extreme cost of reapplication. AEA recommended that the FAA retain the current rating classification system and provide a better description of the maintenance authorized by each rating.

AIA stated that class ratings are beneficial to industry, and that the FAA's proposal to eliminate this type of rating would cause additional burdens beyond those set forth in the NPRM. AIA further stated that the transition from class to category will most likely cause significant disruption to existing repair stations with no appreciable safety benefit. Large repair stations would need time and resources to make the transition based on the breadth of their customer base and complexity of their operations. Small repair stations would be faced with an overwhelming burden, with a lack of resources to make the transition to build compliant capability lists or operations specifications systems.

GAMA stated that the FAA's proposal would allow airframe-rated repair stations to repair and alter radios and instruments without any specific ratings or obvious qualifications. GAMA added that the FAA's proposed ratings did not provide due consideration to avionics, which are increasingly more complex integrated systems that require greater and unique levels of technical skills to maintain properly.

Duncan Aviation stated that the current outdated rating system was better than the proposed rating system, which added no value to the way a repair station conducts business. Duncan Aviation suggested that the current system remain in place until a better system is developed with input from industry.

Based on the comments received, and because the ARAC recommendation on which the FAA based the proposed ratings changes is dated, the FAA will retain the current system of ratings until such time it can better understand and learn from all stakeholders what the future of repair station ratings should look like. The comments on the proposed ratings system changes clearly point to differences between those repair stations that are well suited to the current ratings system and those who find the current ratings system outdated and not meaningfully descriptive.

In the NPRM, the FAA proposed changes to allow for certification denial when certain enforcement history exists. The proposal also clarified existing regulatory language. Approximately 175 commenters, including EAA, AOPA, AIA, ARSA, ASA, CASE, GAMA, NATA, and the SBA Office of Advocacy expressed concerns with several of the proposed changes to the repair station certification requirements.

EAA, GAMA, NATA, and other commenters also expressed concerns with the FAA's proposed requirement that equipment, tools, test apparatus, materials, and personnel must be in place for inspection at the time of certification, with no provision that the equipment requirement could be met with an acceptable contract for its availability when needed. They proposed that the FAA retain the current language. GAMA further stated that the proposed change would require a financial impact assessment. EAA added that the requirement is unrealistic and noted that many of today's modern materials are shelf-life limited and would likely expire during the application and approval process, and that it was unrealistic to begin hiring technicians when the repair station certification process could take as long as 24 to 36 months.

As to the proposal to eliminate the option for an applicant to have a contract to make equipment available at the time of certification and any other time when needed when the relevant work is being performed in lieu of actually having the equipment on site, the FAA believes there is uncertainty within the industry on both the current and proposed requirements. This uncertainty is exacerbated by the inconsistent application of the contract clause regarding whether the equipment or only the contract must be on hand during the certification inspection. Many certificate holders have long argued that it makes no economic sense to own or have on hand expensive, seldom used tools and equipment during certification.

In view of these comments, the FAA is withdrawing the proposal to require that the equipment must be in place for inspection at the time of certification or rating approval by the FAA. The original purpose for permitting applicants to meet the equipment requirement at certification approval by having a contract to make the equipment available when the relevant work is being performed remains. This is because it makes no economic sense to require an applicant to have on site expensive and seldom used equipment that would be costly to locate on site and that might sit unused for extended periods of time. By having a contract acceptable to the FAA, an applicant would be able to demonstrate that the required equipment could be made available when needed. In some cases this “contract” may actually be a letter of intent from an air carrier for which the repair station intends to perform work, or something similar from an equipment supplier. We recognize that the mere existence of a contract at the time of certification does not guarantee equipment availability at some unknown future date—indeed, contracts may be broken and suppliers may go out of business. Nevertheless, the presence of documentation that the repair station has planned for its needs and has at least a present means of meeting those needs provides some assurance to the FAA that it would not be certificating a “paper repair station.”

Because of the potential ambiguity in the existing text of § 145.51(b), however, we are amending the paragraph for clarification. We proposed this clarification in the 2006 NPRM, which was withdrawn in its entirety on May 7, 2009, due to the large number of adverse comments received on many of the other proposals. The ambiguity arose from the text in paragraph (b) that states: “An applicant may meet the equipment requirement of this paragraph if the applicant has a contract acceptable to the FAA with another person to make the equipment available to the applicant at the time of certification and at any time that it is necessary when the relevant work is being performed by the repair station.” (§ 145.51(b), emphasis added.) Except that we are no longer including tools and test apparatus in this paragraph as proposed in 2006, our reasoning to clarify this paragraph as proposed in the 2006 NPRM remains, and is quoted in pertinent part below:

EAA, NATA, and other commenters questioned the legality of the proposed regulatory transition and expressed concern over the FAA's ability to recertify every repair station in a timely manner during the 24-month transition period. Several commenters stated that the intent of the proposed language was unclear and that the procedural elements lacked safety benefits.

EAA commented that the FAA does not have the necessary resources to reissue approximately 5,000 repair station certificates in 24 months. Another commenter stated that it is currently not uncommon for applicants to experience extended delays in processing new and amended repair station certificates due to the reported lack of availability of FAA staff and resources. NATA stated that the recertification effort is likely to be impossible to achieve given the scope of the other proposed changes in the NPRM. As a result, the proposed rule would be too costly for repair stations and would result in some existing repair stations ceasing operations.

The SBA Office of Advocacy and others expressed concern that the cost estimate associated with re-certification was understated. Additionally, NATA added that the FAA will likely have far less than 24 months for approving or disapproving applications and foresees a situation of cascading delays. Pratt & Whitney, The Boeing Company, and other commenters suggested a grandfather clause limiting the need for existing repair stations to re-apply.

Based on the negative comments and concerns regarding the FAA's ability to resource and complete the re-certification of all currently certificated repair stations in 24 months, and because this lengthy transition period was prompted by the proposed new ratings system that the FAA is not adopting in this rule, the FAA is not proceeding with the proposed transition.

With respect to the proposed amendment to § 145.103 that would have required each certificated repair station to provide and maintain suitable permanent housing for its facilities, equipment, materials, and personnel, AEA, GAMA, and other commenters stated that any definition of “maintain” would impose requirements that do not comport with the FAA's intent to provide flexible requirements that align with current repair station business practices. Additionally, they argued that the proposed language would require a certificate holder to have sole operational control of its housing at all times, and any repair stations that may currently share space within a hangar would no longer be permitted to share space.

Some commenters stated that the FAA failed to provide a definition of “maintain” in the proposed requirement that each repair station “provide and maintain” suitable permanent housing for its facilities, etc., whereas the current rule requires only that the certificate holder “provide” this housing. They also stated that this proposal would have imposed additional costs not reflected in the FAA's economic impact assessment.

As pointed out by commenters, FAA did not define “maintain” in changing “provide suitable permanent housing” to “provide and maintain suitable permanent housing.” This lack of definition created confusion. The FAA agrees with the commenters and is not amending § 145.103.

EAA, GAMA, and several other commenters questioned the need for the proposal that repair stations provide a description of their training program for approval by the FAA. EAA stated that the FAA had not adequately explained the failure of the current training program requirements and the need to increase the regulatory burden by requiring a description of the training program for FAA approval. GAMA questioned the purpose of the language when the entire training program, not just a description of the training program, is required to be approved by the FAA. Both organizations requested that the FAA retain the current language.

With respect to commenters' concerns that requiring a description of the training program for approval to be included in the application package would be burdensome and not justified, the FAA notes that a meaningful description of the program would be necessary under the current training requirements regulation (§ 145.163), which requires the program be approved by the FAA. The agency concurs, however, that this description is not necessary as a separate part of the application, and is withdrawing this proposed requirement.

In the NPRM, the FAA proposed requiring supervisors to be present to oversee the work being performed by the repair station and that they be appropriately certificated under 14 CFR part 65 for the work being supervised. The NPRM also proposed that both supervisors and inspection personnel be able to speak English. The FAA is not adopting this proposal, except for a minor editorial change.

Many of the large repair stations, as well as ARSA, did not concur with the proposals that supervisors be present to oversee the work performed and that they speak English. AEA and others commented that if the FAA proceeded with the proposed regulation, it would have essentially required a supervisor to be present and to oversee every individual performing every maintenance activity at repair stations. This also would have had broad implications for contract maintenance.

The commenters further stated that a clear unintended consequence of this proposed language would have been a substantial increase in the cost of maintenance services to compensate additional supervisory positions, as well as a corresponding decrease in availability of maintenance services due to limited availability of supervisory personnel.

Most of the comments regarding the proposal that supervisors be present when the work was performed stated that this requirement would have required industry to hire numerous additional supervisory personnel at great cost to cover eventualities such as night work, emergency field maintenance, line maintenance, and work conducted at additional fixed locations.

EAA commented that the proposed requirement for supervisors to speak English was not justified, and that the Americans with Disabilities Act prohibits such discrimination. EAA reasoned that a supervisor might not be able to speak English, but could effectively “communicate” in English. Pratt and Whitney suggested the requirement to speak English served no purpose, was subjective, and would be a detriment to safety by forcing foreign persons to speak in a non-native language. Foreign repair stations Hong Kong Aircraft Engineering Company, Ltd., and Tamagawa Aero Systems Co., Ltd., and other domestic repair stations and individuals commented that the requirement to speak English was unnecessary as it did not enhance safety. The commenters also disagreed with the proposed requirement for inspection personnel to speak English.

Commenters also disagreed with the proposed requirement for a repair station inspector to be available at the article while performing inspections. The commenters viewed the need to have an inspector at each phase while the work was being performed as too costly and not necessary.

Based on the comments received, the FAA will not revise the current requirements for supervisory personnel, inspection personnel, or personnel authorized to approve an article for return to service, except to insert “appropriately” before “certificated” and “as a mechanic or repairmen” before “under part 65” in §§ 145.153 and 145.157. This will correct the inadvertent omissions from the 2001 rulemaking. The repair station industry generally agreed with this proposed editorial change. As discussed above in the Overview of Final Rule section, we are making the same change to § 145.213(d) for clarification and consistency.

As proposed in the NPRM, the FAA may deny a repair station a certificate in instances where one or more key individuals had materially contributed to the circumstances causing a previous repair station certificate revocation. As discussed previously, the FAA's proposed changes were based on an NTSB recommendation, and the proposal was influenced to a large extent by 14 CFR 119.39(b). The FAA is also amending § 145.55, to now contain a certificate surrender provision that requires acceptance for cancellation by the FAA to render the certificate no longer effective.

Some commenters were concerned with the proposed amendment to § 145.55 (Duration and renewal of certificate) that would maintain the effectiveness of a surrendered repair station certificate until the FAA accepts it for cancellation. This new requirement addresses a loophole that allowed certificate holders to avoid the ramifications of a revoked certificate by voluntarily surrendering a repair station certificate at any point during the FAA's investigation prior to the certificate's actual revocation. Once surrendered, there would be no certificate to take action against, and the investigation would stop. Accordingly, no order would be issued, and there would be no findings of violations or certificate revocation of record.

Several commenters expressed their understanding of the proposed denial provision and credited the FAA's desire for safety, but they asserted that the agency's implementation of the denial provision in a fair and uniform manner would be difficult. The commenters generally stated that the increase in safety was outweighed by the burden that would be placed on the agency and the industry. In addition, the requirement would waste FAA resources through unnecessary paperwork exercises without providing any safety benefits.

The SBA Office of Advocacy stated that small entities expressed concerns about repair stations lacking the knowledge and ability to track parties whose certificates have been revoked or who voluntarily surrendered certificates during an enforcement proceeding. Additionally, repair stations have no way of knowing who these disqualified individuals are, thereby making the cost of complying with the certificate denial provisions highly unpredictable or impossible. Small entity representatives suggested that if the agency adopted this proposal, the FAA should maintain a list of disqualified individuals.

GAMA recommended the insertion of “knowingly ” in proposed § 145.1051(e)(2) (§ 145.51(e)(2) in this final rule) to implicate the intent of an applicant and suggested that the text be amended to read “the applicant knowingly fills or intends to fill a management position.” The FAA declines to adopt this suggestion because, in general, the purpose of this provision is to help ensure that persons who have committed serious (and often intentional) violations of the regulations are not able to continue doing so under a newly issued repair station certificate.

It is important that the FAA be aware of the compliance disposition of key management personnel when the agency assesses the fitness of those who will be operating repair stations. This safeguard is necessary whether or not the applicant has knowledge of the person's compliance history. An applicant's knowledge of the person's compliance history is implicated only when he or she completes the application and checks “Yes” or “No” to the 2-part question on FAA Form 8310-3, whether key personnel described in § 145.51(e) will be involved in the management or control of the new repair station. If the applicant knowingly provides a false answer to this question, the entry would be considered intentionally false and in violation of § 145.12.

The International Association of Machinist Aircraft Workers (IAMAW), International Brotherhood of Teamsters—Aircraft Division (IBT-AD), Transportation Trades Department (TTD) of the AFL-CIO, and Transportation Workers Union (TWU) endorsed the new requirement. The IAMAW stated that it is a common sense reform. The IBT-AD stated that the proposal did not go far enough, and suggested that the FAA consider maintaining a list of persons or entities that have been involved in repair station certificate revocations, or require an applicant to affirmatively disclose whether it has previously had a certificate revoked.

AIA, ASA, GAMA, NATA, and HEICO Aerospace generally supported the FAA's intent to follow the NTSB's recommendation. However, with regard to the FAA's proposal to change the word “entitled” in § 145.53(a) to “eligible,” as one means to implement the denial provisions, AIA stated that it was unclear what the specifics of being found “eligible” are, and that the term left too much discretion to FAA inspector preference or interpretation. AIA also stated that its membership recognizes that there may be circumstances where the public interest is best served by denying a certificate, even when the other conditions are met. AIA suggested that “entitled” be retained with an additional exception that would remove the variability of local inspector preference or interpretation, but which would retain the intent of the proposal.

The FAA agrees with the suggestion from AIA that the term “entitled” be retained in § 145.53(a), and that an additional exception to entitlement reference be added to include the new exceptions. The FAA also agrees and will retain the current language that provides for entitlement of the certificate when the requirements of part 145 have been met. Paragraph (a) of § 145.53, however, is amended to add the denial authority (found in new § 145.51(e)) as another exception to the current certificate entitlement provision.

EAA believes it is not an applicant's responsibility to determine if certain individuals are subject to this provision and that the responsibility for this determination should remain with the FAA. EAA is concerned that the proposal introduces uncertainty and confusion into the application process by not providing a method for determining whom a repair station should not employ. To address this concern, the FAA will respond to an applicant request for information regarding specific persons.

MARPA stated that the proposed language would permit the FAA to deny a certificate to a range of applicants associated with previous certificate revocations and requested that the entire proposed rule be rescinded. MARPA noted the following effects this proposal would have on the repair station industry:

• It would impose a de facto blacklist of certain parties, potentially excluding those on the list from significant participation in the repair station industry, and could include personnel who may have had nothing to do with the offenses that caused the prior repair station certificate to be revoked.

• It would have a chilling effect on subsequent employment of experienced repair station personnel who had previous association with repair stations whose certificates were revoked.

• Although the language is permissive (“may be denied”), the expense of a repair station certificate application would make it impractical to proffer an application that might be denied on a discretionary basis, further leading to an effective blacklisting of such persons.

MARPA noted further that in cases where a repair station (especially a small one) accepts a revocation by the FAA due to a lack of resources to fight the action, the applicant would be effectively blacklisted from the repair station industry. It added that in such cases in the past, FAA employees have specifically advised certificate holders to accept the proposed revocation and then to reapply. For all past revocations, the proposed rule would effectively impose a new penalty that was unanticipated at the time of the original revocation. MARPA also stated that the ex post facto imposition of such a penalty on a class of persons represents a Bill of Attainder (or a Regulation of Attainder) and is in violation of Article I, Section 9, of the U.S. Constitution.

The FAA does not agree with MARPA's assertion that the new denial authority amendments to § 145.51 would effectively impose a new penalty that was unanticipated at the time of the original revocation, and therefore that this would amount to an ex post facto imposition of a penalty on a class of persons. Because the agency did not discuss the prospective nature of the proposal in the NPRM, it is understandable that MARPA raised this concern. The FAA intends, however, that the new denial authority in § 145.51(e) will be exercised only prospectively. It will be applied only in instances where the revocation at issue takes place after the effective date of this rule. Accordingly, no “ex post facto imposition of a penalty” issue could arise.

The FAA also disagrees with MARPA's characterization that the denial provision would represent a Bill of Attainder (or a Regulation of Attainder). Black's Law Dictionary defines Bill of Attainder as: “Legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial.”  3 Section 145.51(e) will not provide for punishment of any person without due process. First, a full appeal process through the NTSB and the federal courts is provided by 49 U.S.C. 44709 for any person identified in paragraph (e)(1)—an applicant who holds a repair station certificate that is undergoing a revocation process, or who held a repair station certificate that had been revoked. Second, to respond to the commenters' concerns about an absence of due process for individuals identified in paragraph (e)(2) and (3), we are adding a new paragraph (f) to § 145.51 to provide that, if the FAA revokes a repair station certificate for violations of the repair station regulations, those individuals identified in § 145.51(e)(2) and (3) may be subject to an order finding that they materially contributed to the circumstances causing the revocation. Issuance of these orders will be governed by the FAA's Investigative and Enforcement Procedures, 14 CFR part 13—specifically the procedures set forth in § 13.20 will apply, including the right to a hearing under subpart D of part 13.

In order to effectively implement this new provision, the FAA's investigation underpinning the revocation process must develop evidence that supports the factual allegations leading to a charge that the identified person materially contributed to the circumstances that caused the revocation. The FAA will develop guidance to assist agency inspectors in gathering and documenting the necessary evidence simultaneously with an investigation leading to the associated repair station certificate revocation. In accordance with § 13.20, except in egregious matters in which the Administrator determines that an emergency exists requiring immediate issuance of an order, each identified individual would first be provided with a notice that would include the pertinent factual allegations and the charge that he or she materially contributed to the circumstances causing the revocation. Though § 13.20 presently does not provide for the opportunity for a person who receives a notice under that section to participate in an informal conference with an FAA attorney prior to the FAA issuing an order, the agency is simultaneously with this rule amending the part 13 regulation to provide for that option. The FAA believes that providing this option for all orders issued under § 13.20 would be beneficial for all affected parties because often the issues are resolved, or at least narrowed, at that stage, providing for economies of resources.

Section 145.51(e) is nearly identical to the similar rule for air carriers. In the same manner that § 119.39(b) applies to air carriers, this new repair station rule is intended to help ensure those persons who exercise operational authority over business decisions in a repair station are those who have not demonstrated an unwillingness or an inability to ensure safe and compliant operations. Along these lines, the FAA views the restriction on new repair stations being controlled or managed by persons identified in § 145.51(e)(2) and (3) as a continuing and ongoing requirement. In other words, the FAA would look with disfavor on the actions of a certificate holder who, sometime after obtaining the certificate with no association with key personnel identified in those paragraphs, becomes associated with one or more of the persons the regulation was designed to preclude from controlling repair station operations. In egregious cases, such a repair station could be subject to an enforcement action under § 145.51(e) based on its not meeting the original certification requirement. The FAA Administrator has previously decided that a regulation imposing a requirement addressed to an “applicant” can impose an ongoing and continuing qualification requirement. See Alphin Aircraft, Inc., FAA Order No. 97-10 at 3 (1997), 1997 WL 93230 (FAA). For air carriers, in applying the similar provisions of 14 CFR 119.39(b), the FAA considers the obligation for an air carrier not to be controlled by one or more of these persons to be ongoing and continuing.

For the purposes of implementing § 145.51(e)(2) and (3), the notice sent to an identified individual will set forth the factual allegations supporting the agency's determination and advise the person that he or she may be subject to an order finding that he or she materially contributed to the revocation circumstances. The notice will also advise the person that, if the order described above is issued and affirmed, the person's name will be included in an FAA data base of individuals that have been found to have materially contributed to the circumstances causing a repair station certificate revocation. In addition, the notice will also advise that, under § 145.51(e), an applicant for a new repair station certificate in the future may be denied the certificate if a person in this data base will have the same or similar position of authority or control over the new repair station's operations. The notice should also advise that, as described above, the person may be denied a similar controlling role in an existing repair station. The means to facilitate this preclusion would be an action against the repair station to enforce the provisions of § 145.51(e).

AEA stated that it did not understand the proposed change to § 145.55—that a surrender of a certificate was not effective until the FAA accepted the certificate for cancellation. AEA stated the proposed language was not clear and recommended the current text be retained without that addition. ARSA was vehemently opposed to the FAA having to “accept” the surrender of a repair station certificate and therefore requested the proposal not be adopted.

Airborne Maintenance and Engineering Services, Inc. (Airborne) commented that adopting the proposed requirement would encourage entities working on the fringes of the regulations to impede or otherwise not support FAA inspector corrective actions and create a disincentive for a poorly run repair station to voluntarily surrender its certificate.

The FAA is including the proposed amendment to § 145.55(a) to make clear that an attempt by a repair station undergoing an enforcement investigation to surrender its certificate in order to stop the investigation will be ineffective, as the certificate will remain effective until the FAA accepts it for cancellation or otherwise takes appropriate enforcement action. As a consequence, the investigation would continue, and, if appropriate, enforcement action could be taken. If serious violations of the regulations were found and the FAA concluded that the certificate holder lacked qualifications to hold the certificate, an order revoking the certificate could ensue.

The FAA is adding new § 145.12 to prohibit any fraudulent or intentionally false entry or omission of a material fact in any application, record, or report made under part 145. Among other things, this new prohibition will help discourage applications that fail to include the names of the persons contemplated by the denial provisions found in § 145.51(e). The sanction for any of those acts is suspension or revocation of the repair station certificate and any certificate, approval, or authorization issued by the FAA and held by the person committing the act.

Several companies, along with three associations and one individual, commented on this proposal. None of the commenters disagreed with the need to prohibit fraudulent or intentionally false entries. The most common concerns were that the proposed requirement lacked due process, and that it was redundant to a similar prohibition in the maintenance rules, specifically 14 CFR 43.12. At least three of the commenters raised issues concerning determinations made by individual inspectors in initiating enforcement actions. Gulfstream Aerospace Corporation questioned whether “intent” to make the false entry must be determined.

Other than expressing concerns over possible abuses resulting from determinations made by individual inspectors, the comments concerning a lack of due process were rather vague and unspecific. The FAA notes that any report of an alleged violation made by an individual inspector will be reviewed at several levels within the FAA—including by legal counsel—before a notice or order is issued. Further, legal counsel will not issue a notice or order unless the agency has evidence that such a violation, in fact, had occurred. In any case brought by the FAA against an alleged violator of a falsification regulation, or any other regulation, the burden of proving the violation is on the agency, and the affected person is entitled to a full appeal process. Alleged violators of a prohibition against making intentionally false entries, as with any other alleged violation, are entitled to due process in accordance with 49 U.S.C. 44709 or 46301 and associated FAA and NTSB regulations.

In answer to a comment by Gulfstream Aerospace Corporation as to whether “intent” must be determined, the answer is yes, but only to the extent that the false entry was made knowingly. That is, at the time the person made the false entry, the person knew the entry was false. Other FAA regulations already prohibit fraudulent or intentionally false entries, either of which necessarily incorporates an element of intentionality in making the false entry, i.e., the person knew at the time of making the entry that it was false, but the person made the entry anyway. Similarly, an explicit element of the new paragraph (b) in this final rule (discussed below) is a knowing concealment of a material fact. As with knowingly making a false entry, paragraph (b) is triggered when a person knew that he or she failed to include the material fact in the document at issue.

As to the comments that opined that the proposal was redundant to the falsification prohibition already existing in the maintenance rules (§ 43.12), the FAA addressed both the differences between that rule and the one proposed for repair stations, and the need for this regulation in the NPRM. While § 43.12 provides for suspension or revocation of the applicable airman and other mentioned certificates and privileges for requisite maintenance record falsifications or fraudulent acts, it does not provide for repair station certificate suspension or revocation for the same kind of conduct (77 FR 30066, May 21, 2012).

In addition, we are adding two additional consequences that will apply to the making of intentionally false entries or omissions. The first additional potential consequence is that the proscribed conduct may warrant imposition of a civil penalty either in addition to or in combination with a certificate action. This sanction option reflects the civil penalty authority granted to the FAA by the Congress in 49 U.S.C. 46301, whereby the FAA can assess civil penalties against both individuals and businesses for violations of the statute and the agency's regulations. Depending on the circumstances, sometimes a civil penalty may be an appropriate deterrent. The second additional consequence is that the FAA may deny an application if it is supported by an intentionally false entry or omission. The FAA views this consequence to be within the scope of what was proposed in the NPRM. This reflects the common sense notion that, if a certificate could be suspended or revoked based on an intentional falsification, it would make no economic sense for the agency to first issue the certificate and then turn around and initiate a certificate action based on the falsification. This change is consistent with a November 2013 amendment to 14 CFR part 121, in which the agency added a new § 121.9, which, among other things, provides for the imposition of a civil penalty and/or the denial of an application if a person made or caused to be made a fraudulent or intentionally false statement or knowing omission as described in that section (78 FR 67836; Nov. 12, 2013).

The agency notes that, while § 43.12(b) does provide for the suspension or revocation of an applicable operator certificate, in addition to the applicable airman certificate, it does not provide for the suspension or revocation of a repair station certificate. Because of the importance to safety of accurate records, this final rule adopts the text proposed that provides for the suspension or revocation of not only the repair station certificate but also of any FAA-issued certificate, approval, or authorization held by the person who committed the falsification.

As stated in the NPRM, in view of the FAA's limited resources, both the agency and ultimately the flying public depend heavily on the integrity of the system of self-reports. Because of the importance of honest and trustworthy records and reports to aviation safety, the FAA believes that any person who makes or causes to be made an intentionally false or fraudulent entry in any record or report the agency needs to provide proper oversight of repair stations should be subject to enforcement action as noted above. Accordingly, the agency may suspend or revoke not only the repair station certificate, but any certificate, approval, or authorization issued by the FAA and held by that person. 4

Another company, Airborne, expressed concern that most of the other falsification prohibition regulations referenced in the NPRM ( e.g., §§ 61.37, 61.59, 63.18, 63.20, 65.18, 65.20, and 67.403) refer to certificates held by individuals, not companies. Airborne stated that its review of other operating rules ( e.g., those in parts 121, 125, 129, and 135) found no similar falsification provisions applicable to those certificate holders. The company also referenced Chapter 7 of the FAA's Compliance and Enforcement Program, FAA Order 2150.3B, Paragraph 2.a(1), which states that the agency generally suspends the certificates of individual certificate holders for violations, but usually takes civil penalty action against air carriers and airports. The commenter was especially concerned that a wrongful act (fraudulent or intentional falsification) by a single individual could result in the closing of an entire certificated entity.

Although Airborne may be correct in observing that the other falsification prohibition regulations cited in the NPRM refer to suspending or revoking certificates held by individuals and not by companies, the FAA does not believe that is a reason to refrain from issuing this rule. Besides, as discussed briefly above, in November 2013 (approximately a year and a half after the Repair Station NPRM), the FAA published amendments to 14 CFR part 121, which added a new § 121.9 (Fraud and falsification), which provided for sanctions against air carriers and persons employed by them for violations of similar proscribed conduct. Those sanctions include: (1) A civil penalty; (2) suspension or revocation of any FAA-issued certificate held by that person; (3) the denial of an application for any FAA-issued approval; and (4) the removal of any FAA-issued approval (78 FR 67836; November 12, 2013). As noted in the NPRM, the importance of accurate records to assist the FAA in exercising its aviation safety oversight responsibilities cannot be overstated. If repair station officials know that one consequence of falsifying records is the loss of the repair station certificate, they may be motivated to produce accurate and truthful records.

The FAA also notes that Airborne, in opposing a regulation that could result in the revocation of a repair station's certificate, selectively quoted from the FAA's Compliance and Enforcement Program, FAA Order 2150.3B, when it stated: “Thus, the agency generally suspends the certificates of individual certificate holders for violations. However, the FAA usually takes civil penalty action against air carriers and airports. . . .” Airborne, however, neglected to reference the next sentence in Order 2150.3B, which states: “Nevertheless, when the FAA determines that safety considerations warrant it, the agency will suspend the certificate of any type of certificate holder. In no case will the FAA take civil penalty action alone when remedial legal action is necessary or appropriate.”  5 Additional FAA guidance in this area is found in paragraph 2.b(4) of the Order which states that revocation is normally appropriate when a certificate-holding entity deliberately or flagrantly violates the statute or regulations or falsifies records. Moreover, in the FAA's published sanction guidance, the sanction generally called for in the case of an intentionally false or fraudulent entry, reproduction, or alteration in a record or report is certificate revocation. 6

As discussed above, however, we have added the additional sanctions of a civil penalty and the denial of an application. Consistent with § 121.9 (Fraud and falsification), three different sanctions will be available to the agency to enforce this rule. Section 145.12(c) provides that committing an act prohibited by either paragraph (a) or (b) is a basis for any one or any combination of (1) suspension or revocation, (2) a civil penalty, and (3) denial of an application. The addition of the civil penalty sanction addresses commenters' concerns that in some cases a civil penalty would be more appropriate for a company than a revocation of its certificate. Whether a civil penalty, a certificate action, or both, is an appropriate sanction would depend on the actual circumstances of the matter and a consideration of appropriate factors, including agency sanction guidance, related to determining the sanction or sanctions to be applied.

As discussed above and in the NPRM, the FAA has long considered intentional falsification of required records to be a serious safety-related problem with a potential for dire consequences. The referenced regulatory prohibitions against individual falsifications are long-standing, as are the recommended sanctions for both individuals and entities in the agency's published sanction guidance. Including in the regulations a proscription against entities falsifying records made, kept, or used to show compliance with a requirement is in the public interest, and the FAA is adopting this section as proposed, but with the added clarification that a falsification in material submitted in support of an application is also proscribed. This is to forestall an argument that information submitted, while false, technically was not in the application, and therefore was outside the reach of the regulation. Also, in response to a comment, the FAA is adding a proscription against concealment of a material fact by omission, as discussed below.

Finally ARSA, in stating it had no objection to the proposal, also noted that the FAA should be mindful that similar sections in 14 CFR include omission of material information as equally egregious. Consequently, ARSA suggested that the FAA may wish to consistently express all prohibitions of such actions.

The FAA agrees with ARSA's recommendation that the regulation should prohibit omissions of material information. ARSA's reference in its comments to similar sections in 14 CFR that include omission of material information may be a reference to the omission prohibition in 14 CFR 3.5(c)(2). The FAA issued 14 CFR part 3 in 2005 to prohibit persons from making fraudulent or intentionally false statements in records when conveying information in an advertisement or sales transaction about the airworthiness of a type-certificated product. Section 3.5(c)(2) provides, in pertinent part, that no person may make, or cause to be made, through the omission of material information, a representation that a type-certificated product is airworthy if that representation is likely to mislead a consumer.

Clearly, omissions of material information can be as damaging as the insertion of false information in a required document. This issue is brought to light in contemplation of new § 145.51(e) (Application for certificate), in which the FAA seeks information on who an applicant proposes to place in management or controlling positions. Information on the compliance history of these personnel is important to the FAA in determining the qualifications, including the compliance disposition, of those persons who could make operational decisions. Omitting the requested information could be as damaging as making an intentionally false entry.

The NTSB, in interpreting the plain language of current falsification prohibition regulations, has held that the failure to make an entry cannot constitute an intentionally false entry because the omission is not an entry. 7 The FAA aims to close this “loophole” by adding new paragraph (b) to new § 145.12, to provide that no person may, by omission, knowingly conceal or cause to be concealed, a material fact. This text also finds support in the Government's general falsification prohibition statute, 18 U.S.C. 1001, which, in paragraph (a)(1), provides for criminal penalties for whoever falsifies, conceals, or covers up by any trick, scheme, or device a material fact.

The FAA has also eliminated the phrase “required to be” with regard to any record or report made, kept, or used to show compliance. The agency has done so to forestall an argument a falsifier could make that, although the falsity occurred in a record or report that was made, kept, or used to show compliance, it was not a record or report that was required by a regulation to be made or kept. The NTSB has already rejected that argument in addressing a violation of § 43.12. 8 There, the respondent argued that he was not required to use those particular records that formed the basis for the falsification charge. The NTSB agreed instead with the FAA's position that the rule reaches falsifications in any maintenance documents kept or used to show compliance with a requirement in part 43, whether or not the documents are records or reports in a form or format the FAA requires an individual to keep or to use for that purpose.

The NTSB offered a second rationale in that case for construing the term “required” in the regulation. The term should not be restricted to mean “required” by the FAA Administrator. The NTSB decision noted that the term can also be broadly construed to mean required by the circumstances for which compliance is sought or necessary. Here, the respondent presented documents purporting to establish compliance with various airworthiness directives to establish that the aircraft was airworthy. The respondent's submission of the records attesting the airworthiness directives' accomplishment represented his recognition that they constitute records that he was required to make, keep, and use in order to satisfy the requirements of part 43. Even though NTSB case law should preclude an alleged falsifier from arguing the false entry at issue was not in a required record or report, the FAA determined that eliminating the term from this regulation will, at a minimum, remove the potential ambiguity.

The FAA also notes that a similar falsification prohibition in the FAA's certification rules (14 CFR part 21) does not contain the phrase “required to be” to modify the phrase “kept, made, or used.” Specifically, § 21.2(a)(2) prohibits any fraudulent, intentionally false, or misleading statement in any record or report that is kept, made, or used to show compliance with any requirement of this part. The FAA's removal of the phrase “required to be” from the text proposed in the NPRM simply aligns this rule with the existing certification falsification provision and, as noted above, accords with NTSB precedent.

The comments in this section concern proposed changes in definitions, contract maintenance, and compliance costs. All of the concerns raised by the commenters in this section are addressed by the FAA's withdrawal of the applicable proposed sections.

AEA, ARSA, CASE, EAA, and some repair stations voiced objection to the definitions of avionics and line maintenance proposed in § 145.1003, Definition of terms. AEA did not concur with the definition of avionics and suggested that it should include both mechanical and electronic radios, indicators, and instruments. Both AEA and ARSA commented that although the FAA defined avionics, the agency never used the term in part 145. ARSA added that the definition is unnecessary and should be removed in its entirety.

AEA and EAA objected to the definition of line maintenance, stating that the FAA has not given justification for establishing a new requirement on where line maintenance may be performed. AEA stated that maintenance authorizations may be limited to commercial operators; however the definition of line maintenance is much broader than unscheduled maintenance for a part 121 and 135 air carrier.

ARSA stated that the line maintenance definition should be stricken in its entirety and that the term can be defined only within the context of a repair station's capabilities and the operator's requirements. Therefore, the amount, type, and extent of line maintenance is already controlled by the performance standards; the only additional “control” needed under part 145 is the validation that the repair station has appropriate capabilities and quality procedures. ARSA also stated that if the agency keeps the definition it cannot be limited purely to work under parts 121 and 135; it must include part 91, subpart K, at a minimum. Further, the time allotment must be removed; it places an artificial barrier on the type of work that can and should be performed with limited resources in accordance with part 43.

GAMA commented on the proposed section covering contract maintenance, stating that on-site inspection of the subcontractor would be required before any maintenance is performed by that person. GAMA emphasized that this is not stated in the rule and should not be added as an interpretation without being added to the rule. For organizations with multiple service facilities, the proposed rule would have required each facility to inspect the subcontractor, which would place an undue burden on both the repair station and the subcontractor.

Almost all commenters disagreed with the FAA's economic forecast. They stated that the FAA's calculations grossly underestimated the costs to industry. EAA added that at a time when the aviation industry is in perilous condition, it does not seem appropriate to impose a large economic impact on aviation businesses and their customers for little or no safety benefit.

NATA, AOPA, Mobile Transponder Services, LLC, and others stated that the FAA identified two compliance costs to repair stations: The cost to apply for a rating and the cost to revise their manuals. However, the FAA also proposed significant changes to training program requirements but did not account for the resources required to develop the new training curriculum and the staff-hours necessary to re-train all applicable staff members. Some commenters also stated the FAA did not consider the complications and costs of limiting mobile maintenance operations, particularly to general aviation aircraft owners and operators. These expenses will increase the cost of these elements of the proposed rules exponentially.

Additionally, several commenters, including AOPA, noted that the agency estimated the average one-time compliance costs would be $1,146 for a small repair station, and $2,848 for a medium sized repair station. The commenters argued that those costs are just a fraction of the cost of the proposed rule. They also expressed the view that even considering just the costs identified by the FAA (application for rating and revision of manuals) the estimates are unrealistically low. Furthermore, the commenters stated that the costs assigned by the FAA are especially unreasonable if the FAA intended for currently certificated repair stations to complete a letter of compliance, in addition to enduring the entire certification process and revising manuals and other documents.

Collectively, the commenters stated that in large repair stations, “supervisors” are often hourly-paid lead personnel. The term “supervisor” in some instances may refer to the administrative supervisor who does not give technical guidance to those who are unfamiliar with all the necessary job requirements. Therefore, the commenters argued that naming each supervisor on a roster, as proposed in the NPRM, would be ineffective for enhancing safety.

The FAA is withdrawing the overarching ratings proposal with associated certification and personnel requirements. The proposals for changes to definitions, contract maintenance, and the required 24-month transition are inseparably linked to the overarching proposals and are not adopted in this final rule. This rule contains only the amendments that add denial authority, require FAA acceptance of a surrendered certificate, and prohibit fraudulent or intentionally false entries and omissions, as well as several minor administrative changes.

Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule.

Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a proposed or final rule does not warrant a full evaluation, this order permits that a statement to that effect and the basis for it to be included in the preamble if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made for this final rule. The reasoning for this determination follows:

This rule amends regulations for repair stations in four areas. First, it introduces a new exception that enables the FAA to deny an applicant a repair station certificate if the applicant previously held a repair station certificate that had been revoked, or if certain key individuals (those that would be in a management position or who would have control or a substantial ownership interest in the applicant) had materially contributed to the circumstances that caused a previous repair station certificate revocation. Along these lines, the rule also provides that a repair station's attempt to surrender its certificate is not effective until the FAA accepts the certificate for cancellation. Secondly, the rule provides that false or fraudulent entries or omissions in applications, records, or reports may result in revocation of any certificate issued by the FAA. Thirdly, the rule adopts administrative changes to clarify the intent of the current rule. Lastly, the rule corrects several errors in the repair station regulations.

Current regulations do not allow the FAA to deny a repair station certificate to a technically qualified applicant, regardless of conduct. This rule permits the FAA to deny an application if the applicant previously had a certificate revoked or if the certificate is in the process of being revoked, or the applicant intends to fill a position with an individual as described in part 145.51(e). To determine if an applicant fits the criteria described in part 145.51(e), the FAA will add one two-part question to FAA Form 8310-3 “Application for Repair Station Certificate and/or Rating.” The new question is: “Will any person as described in part 145.51(e) be involved with the management, control, or have substantial ownership of the repair station? If 'YES', provide a detailed explanation on a separate page.” If an applicant declares “No,” no additional explanation by the applicant is required. If an applicant declares “Yes,” the applicant is required to give a written narrative of the circumstances leading to the revocation. Based on the information provided in the narrative, the FAA can deny the applicant a repair station certificate, if warranted. In addition, an applicant, on occasion, may find it necessary to contact FAA personnel to determine if a certain individual has been identified as a contributor to a repair station certificate revocation. The time expended by both parties for this query, as well as the increased time required for an applicant to complete revised FAA Form 8310-3, is expected to be negligible.

Since the expected outcome will be a minimal impact with positive net benefits, a regulatory evaluation was not prepared. The FAA has, therefore, determined that this final rule is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, and is not “significant” as defined in DOT's Regulatory Policies and Procedures.

The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation.” To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.

However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

For this regulatory flexibility analysis, the FAA used the SBA-defined categories of “small” (1,500 or fewer employees) and “non-small” (more than 1,500 employees) for the aircraft manufacturing industry. As of May 2013, there were 4,779 FAA certificated repair stations. Of these repair stations, a vast majority (99.5 percent or 4,753) are defined as “small.” The last time a certificate application was made by a “non-small” entity was in 2005. 9

During the three-year period from 2010 through 2012, the FAA received 526 applications for repair station certification, for an average of 175 applications per year. 10 All 526 applications for certification were submitted by small entities. Consequently, it is projected that most future applicants for repair stations certificates will also be small entities. Accordingly, this final rule will impact a substantial number of small entities.

The SBA Office of Advocacy provided comments to the FAA on the NPRM. One comment was that the cost estimate for the re-certification of repair stations (which was prompted by a new ratings system) is understated. The FAA withdrew the provision for a new ratings system from the final rule. Thus, the cost estimate for recertification of repair stations has been eliminated.

The SBA also commented that small industry representatives stated that they lack the knowledge and ability to track parties whose certificates were either revoked or voluntarily surrendered during an enforcement proceeding, thereby making the cost of complying with the “bad actor” provisions highly unpredictable or impossible. The representatives recommended that should this provision be adopted then the FAA should maintain a list of disqualified individuals. Repair station applicants could then query the FAA regarding that information on certain persons. To address this concern, the FAA will respond to an applicant request for information regarding specific persons; however a list of disqualified persons will not be made available to the public.

There will be a substantial number of small entities impacted by this rule. However the expected economic impact to these entities will be minimal. To assist in implementing this rule, the FAA will add one additional two-part question to the application for a repair station certificate. To further assist applicants in answering this question, the FAA will answer an applicant's inquiry as to whether a named individual has contributed to the revocation of a repair station certificate. Thus, the cost of this incremental time required for these activities is expected to be minimal.

If an agency determines that a rulemaking will not result in a significant economic impact on a substantial number of small entities, the head of the agency may so certify under section 605(b) of the RFA. Therefore, as provided in section 605(b), the head of the FAA certifies that this rulemaking will not result in a significant economic impact on a substantial number of small entities.

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this final rule and determined that it will impose the same costs on domestic and international entities and thus has a neutral trade impact.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $151.0 million in lieu of $100 million. This final rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. According to the 1995 amendments to the Paperwork Reduction Act (5 CFR 1320.8(b)(2)(vi)), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid Office of Management and Budget (OMB) control number.

This final rule will impose a revision to the existing information collection requirements previously approved under OMB Control Number 2120-0682, Application for Repair Station Certificate and/or Rating (FAA Form 8310-3). The FAA has determined that the revision to the information collection is not significant or substantive and does not change the terms of the existing OMB approval. As required by the Paperwork Reduction Act, the FAA submitted the information collection revision to OMB for its review to ensure that the public record is accurate.

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

(2) Executive Order (EO) 13609, Promoting International Regulatory Cooperation, promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of EO 13609, and has determined that this action would have no effect on international regulatory cooperation.

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

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

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

An electronic copy of a rulemaking document may be obtained by using the Internet—

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

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

3. Access the Government Printing Office's Web page at http://www.gpo.gov/fdsys/.

Copies may also be obtained by sending a request (identified by notice, amendment, or docket number of this rulemaking) to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680.

Comments received may be viewed by going to http://www.regulations.gov and following the online instructions to search the docket number for this action. Anyone is able to search the electronic form of all comments received into any of the FAA's dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.).

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

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 145 as follows:

The Commission issued the Energy Labeling Rule in 1979, 44 FR 66466 (Nov. 19, 1979) pursuant to the Energy Policy and Conservation Act of 1975 (“EPCA”). 1 The Rule covers several categories of major household appliances, including central air conditioners and heat pumps. It requires manufacturers of covered appliances to disclose specific energy consumption or efficiency information (derived from DOE test procedures) at the point-of-sale. In addition, each label must include a “range of comparability” indicating the highest and lowest energy consumption or efficiencies for comparable models. The Commission updates these ranges periodically.

The Commission is updating the Rule's ranges of comparability, based on current data, for central air conditioners, heat pumps, and weatherized furnaces, effective January 1, 2015. In a February 6, 2013 Federal Register Notice (78 FR 8362), the Commission issued new EnergyGuide label requirements to help consumers, distributors, contractors, and installers easily determine whether a specific furnace or central air conditioner meets applicable DOE regional efficiency standards. Among other things, these amendments revised labels for central air conditioners, heat pumps, and weatherized furnaces that will be required on January 1, 2015. In the 2013 Notice, the Commission did not publish updated comparability ranges for those products because energy data available at that time would likely become obsolete before the January 1, 2015 date. However, the Commission explained it would publish new ranges for central air conditioners, heat pumps, and weatherized furnaces, when more current data became available before 2015. 2 That date serves as the effective date for the new FTC labels and the new comparability ranges for these products.

In addition to publishing the new ranges, the Commission is updating the prototype and sample labels in the Rule to reflect these range changes. As discussed in a Federal Register Notice published this year, the Commission plans to address updates for other heating products, including boilers and non-weatherized furnaces, separately. 3

The amendments published in this Notice involve routine, technical and minor, or conforming changes to the labeling requirements in the Rule. These technical amendments merely provide a routine change to the range and cost information required on EnergyGuide labels. Accordingly, the Commission finds for good cause that public comment for these technical, procedural amendments is impractical and unnecessary (5 U.S.C. 553(b)(A)(B) and (d)).

The provisions of the Regulatory Flexibility Act relating to a Regulatory Flexibility Act analysis (5 U.S.C. 603-604) are not applicable to this proceeding because the amendments do not impose any new obligations on entities regulated by the Energy Labeling Rule. These technical amendments merely provide a routine change to the range information required on EnergyGuide labels. Thus, the amendments will not have a “significant economic impact on a substantial number of small entities.”  4 The Commission has concluded, therefore, that a regulatory flexibility analysis is not necessary, and certifies, under Section 605 of the Regulatory Flexibility Act (5 U.S.C. 605(b)), that the amendments announced today will not have a significant economic impact on a substantial number of small entities.

The current Rule contains recordkeeping, disclosure, testing, and reporting requirements that constitute information collection requirements as defined by 5 CFR 1320.3(c), the definitional provision within the Office of Management and Budget (OMB) regulations that implement the Paperwork Reduction Act (PRA). OMB has approved the Rule's existing information collection requirements through May 31, 2017 (OMB Control No. 3084 0069). The amendments now being adopted do not change the substance or frequency of the recordkeeping, disclosure, or reporting requirements and, therefore, do not require further OMB clearance.

For the reasons set out in the preamble of this document, the Federal Trade Commission amends 16 CFR part 305 as follows:

I. Background

In the Federal Register of March 6, 2012 (77 FR 13232), FDA announced that Abbott Laboratories, 3300 Stelzer Rd., Columbus, OH 43219, had filed a food additive petition (FAP 2A4788). The petition proposed that FDA amend the food additive regulations in § 172.380 (21 CFR 172.380), Vitamin D 3 , to provide for the safe use of vitamin D 3 as a nutrient supplement in meal replacement beverages and meal replacement bars that are not intended for special dietary use in reducing or maintaining body weight and for use in foods that are sole sources of nutrition for enteral tube feeding. After the document was published, Abbott amended the petition to exclude the proposed use of vitamin D 3 in meal replacement bars. This final rule is a complete response to the petition.

Abbott has requested that we amend § 172.380 to authorize the use of vitamin D 3 as a nutrient supplement at levels not to exceed 500 International Units (IU) per 240 milliliters (mL) (prepared beverage) in meal replacement beverages that are not intended for special dietary use in reducing or maintaining body weight and that are represented for use such that the total amount of vitamin D 3 provided by the product does not exceed 1,000 IU per day, and at levels not to exceed 1.0 IU per kilocalorie (kcal) in food represented for use as a sole source of nutrition for enteral feeding.

Vitamin D comprises a group of fat-soluble seco-sterols and comes in many forms. The two major physiologically relevant forms are vitamin D 2 and vitamin D 3 . Vitamin D without a subscript represents either vitamin D 2 or vitamin D 3 or both. Vitamin D is affirmed as generally recognized as safe (GRAS) for use in food as a nutrient supplement in § 184.1950(c)(1) (21 CFR 184.1950(c)(1)) in accordance with § 184.1(b)(2) (21 CFR 184.1(b)(2)), with the following specific limitations:

Additionally, under § 184.1950(c)(2) and (c)(3), vitamin D is affirmed as GRAS for use in infant formulas and margarine, respectively. Under § 172.380, vitamin D 3 is approved for use as a food additive as a nutrient supplement in calcium-fortified fruit juices and fruit juice drinks; meal replacement and other type bars, soy protein-based meal replacement beverages represented for special dietary use in reducing or maintaining body weight; and cheese and cheese products as defined therein. Under § 172.379, vitamin D 2 is approved for use as a food additive as a nutrient supplement in soy beverages, soy beverage products, soy-based butter substitute spreads, and soy-based cheese substitutes and soy-based cheese substitute products. Under § 172.381, vitamin D 2 bakers yeast is approved for use as a food additive as a source of vitamin D 2 and as a leavening agent in yeast-leavened baked goods and baking mixes and yeast-leavened baked snack foods.

Vitamin D is essential for human health. The major function of vitamin D is the maintenance of blood serum concentrations of calcium and phosphorus by enhancing the absorption of these minerals in the small intestine. Vitamin D deficiency can lead to abnormalities in calcium and bone metabolism, such as rickets in children or osteomalacia in adults. Excessive intake of vitamin D elevates blood plasma calcium levels (hypercalcemia) by increased intestinal absorption and/or mobilization from the bone.

To ensure that vitamin D is not added to the U.S. food supply at levels that could raise safety concerns, FDA affirmed vitamin D as GRAS with specific limitations as listed in § 184.1950. Under § 184.1(b)(2), an ingredient affirmed as GRAS with specific limitations may be used in food only within such limitations, including the category of food, functional use of the ingredient, and level of use. Any addition of vitamin D to food beyond those limitations set out in § 184.1950 requires either a food additive regulation or an amendment of § 184.1950.

To support the safety of the proposed uses of vitamin D 3 , Abbott submitted dietary exposure estimates of vitamin D from the proposed uses of vitamin D 3 , as well as all current dietary sources for four scenarios: (1) Background exposure from naturally occurring sources of vitamin D and currently regulated uses of vitamin D at levels reported in the U.S. Department of Agriculture Food and Nutrient Database for Dietary Studies, which represent typical vitamin D levels in foods; (2) background exposure plus exposure from yeast-leavened baked goods and baking mixes and yeast-leavened snack foods containing 400 IU vitamin D/100 g food as served (at the time that Abbott submitted their petition, the petition to amend the food additive regulations for the use of vitamin D 2 bakers yeast was under review); (3) background exposure, exposure from yeast-containing baked products containing 400 IU vitamin D/100 g food, and from dietary supplement use; and (4) background exposure, exposure from yeast-containing baked products containing 400 IU vitamin D/100 g food, dietary supplements, and the proposed uses in meal replacement beverages and bars. They compared these intake estimates to the Tolerable Upper Intake Level (UL) for vitamin D established by the Institute of Medicine (IOM) of the National Academies. Abbott also submitted a number of publications pertaining to human clinical studies on vitamin D. Based on this information, which is discussed in section II, Abbott concluded that the proposed uses of vitamin D 3 in meal replacement beverages that are not intended for special dietary use in reducing or maintaining body weight and in foods that are sole sources of nutrition for enteral feeding are safe.

To establish with reasonable certainty that a food additive is not harmful under its intended conditions of use, we consider the projected human dietary exposure to the additive, the additive's toxicological data, and other relevant information (such as published literature) available to us. We compare an individual's estimated daily intake (EDI) of the additive from all food sources to an acceptable intake level established by toxicological data. The EDI is determined by projections based on the amount of the additive proposed for use in particular foods and on data regarding the amount consumed from all food sources of the additive. We commonly use the EDI for the 90th percentile consumer of a food additive as a measure of high chronic dietary intake.

In 1997, the Standing Committee on the Scientific Evaluation of Dietary Reference Intakes of the Food and Nutrition Board at the IOM conducted an extensive review of toxicology and metabolism studies on vitamin D published through 1996. The IOM published a detailed report that included a UL for vitamin D for infants, children, and adults. At that time, the IOM established a UL for vitamin D of 2,000 IU/per day (p/d) for children 1 to 18 years of age and adults, and a UL of 1,000 IU/p/d for all infants.

In 2011, the IOM conducted an extensive review of relevant published scientific literature on vitamin D to update current dietary reference intakes and ULs for vitamin D. Based on this information, the IOM revised the ULs for vitamin D and developed a report on their findings (Ref. 1). In their 2011 assessment of vitamin D, the IOM established a UL of 1,000 IU/p/d for infants 0 months to 6 months of age and a UL of 1,500 IU/p/d for infants 6 months to 12 months of age. For children 1 year to 3 years of age, the IOM established a UL of 2,500 IU/p/d; for children 4 years to 8 years of age, the IOM established a UL of 3,000 IU/p/d. For children 9 years to 18 years of age and adults, the IOM established a UL of 4,000 IU/p/d.

The IOM considers the UL as the highest average daily intake level of a nutrient that poses no risk of adverse effects when the nutrient is consumed over long periods of time. The UL is determined using a risk assessment model developed specifically for nutrients and considers intake from all sources: Food, water, nutrient supplements, and pharmacological agents. The dose-response assessment, which concludes with an estimate of the UL, is built upon three toxicological concepts commonly used in assessing the risk of exposures to chemical substances: No-observed-adverse-effect level, lowest-observed-effect level, and an uncertainty factor.

For the proposed use of vitamin D 3 in meal replacement beverages that are not intended for special dietary use in reducing or maintaining body weight, Abbott provided dietary intake estimates for vitamin D for seven population groups, assuming typical vitamin D levels in food. Although Abbott stated that their proposed uses do not include products for infants or children less than 9 years of age, Abbott included exposure estimates for children 1 to 3 years of age and 4 to 8 years of age. Because Abbott's exposure estimates differed in several aspects from the way in which we typically calculate dietary exposure, we conducted our own exposure estimate for vitamin D from: (1) The proposed use of vitamin D 3 in meal replacement beverages that are not intended for special dietary use in reducing or maintaining body weight; (2) current food uses of vitamin D (including regulated uses, naturally occurring sources of vitamin D, and dietary supplements); and (3) combined current and proposed food uses. We estimated the exposure to vitamin D for the overall U.S. population (1 year of age and older) and 10 population subgroups (including 2 subgroups for infants less than 12 months of age), assuming that all foods that can be fortified with vitamin D will be fortified at the maximum level permitted.

Our estimated exposure to vitamin D from all food sources for the overall U.S. population (1 years of age and older), including consumers of meal replacement beverages that are not intended for special dietary use in reducing or maintaining body weight, was 1,520 IU per person per day (IU/p/d) for the 90th percentile consumer, based on food consumption data in the 2007-2008 National Health and Nutrition Examination Survey (NHANES). Infants are not expected to consume meal replacement beverages; however, we included these subpopulations in our exposure assessment for completeness. According to the 2007-2008 NHANES, no meal replacement beverage consumption was reported for infants 0 months to 6 months of age, and only very limited consumption of meal replacement beverages was reported for infants 6 to 12 months of age. The cumulative exposure for infants 0 to 6 months of age and infants 6 to 12 months of age from all food sources of vitamin D, including the proposed uses and dietary supplements, was estimated to be 844 IU/p/d and 831 IU/p/d, respectively, for the 90th percentile consumer (Ref. 2).

For the proposed use of vitamin D 3 for food represented as the sole source of nutrition for enteral feeding, Abbott indicated that there are many different methods available in the scientific literature for estimating caloric needs when using fortified enteral nutrition products as the sole source of nutrition. Abbott reported that the simplest method is to assume that a person requires 25-30 kcal per kilogram body weight per day (kcal/kg bw/d). Thus, a 60 kg person being fed only an enteral nutrition product would require 1,500 kcal to 1,800 kcal per day. Assuming the proposed vitamin D 3 fortification level of 1.0 IU/kcal in enteral products represented for use as the sole source of nutrition and the highest recommended caloric requirement of 30 kcal/kg bw/d, results in an estimated vitamin D 3 exposure of 1,800 IU/p/d for a 60 kg person (Ref. 3). As noted by Abbott, this level is far below the UL of 4,000 IU vitamin D for an adult. In addition, any person receiving vitamin D 3 from an enteral feeding product as their sole source of nutrition would be under the care of a doctor who would be monitoring the patient's vitamin D intake.

FDA reviewed and evaluated the information submitted by Abbott regarding the safety of the dietary intake of vitamin D 3 that would result from the proposed uses in meal replacement beverages that are not intended for special dietary use in reducing or maintaining body weight and for use in foods that are sole sources of nutrition for enteral feeding. Abbott submitted scientific articles published subsequent to the 1997 IOM report and issuance of the August 29, 2012, final rule (77 FR 52228) authorizing the use of vitamin D 2 bakers yeast in yeast-leavened baked goods and baking mixes and yeast-leavened baked snack foods. Abbott concluded that these recent publications support the safety of increases in the levels of vitamin D supplementation in humans that could result from the proposed uses. We concur with Abbott's conclusion (Ref. 4).

We considered the ULs established by the IOM relative to the intake estimates as the primary basis for assessing the safety of petitioned uses of vitamin D 3 . We also reviewed the scientific articles on vitamin D intake submitted by Abbott, as well as other relevant published studies available to FDA since our previous evaluations of five food additive petitions for fortifying a variety of foods with vitamin D. The most recent petition resulted in our amendment of the food additive regulations in § 172.381 to allow for the safe use of vitamin D 2 bakers yeast as a source of vitamin D 2 and as a leavening agent in yeast-leavened baked goods and baking mixes and yeast-leavened baked snack foods (77 FR 52228, August 29, 2012). The four earlier food additive petitions also resulted in amendments of the food additive regulations to allow for the safe use of vitamin D as a nutrient supplement in certain foods (74 FR 11019, March 16, 2009; 70 FR 69435, November 16, 2005; 70 FR 37255, June 29, 2005; 70 FR 36021, June 22, 2005; and 68 FR 9000, February 27, 2003).

Depending on the age group, the IOM UL for vitamin D for the U.S. population 1 year of age and older ranges from 2,500 IU/p/d to 4,000 IU/p/d. The estimated exposure to vitamin D from all food sources, including the proposed use in meal replacement beverages that are not intended for special dietary use in reducing or maintaining body weight, at the 90th percentile for the overall U.S. population (1 years of age and older) is estimated to be 1,520 IU/p/d, which is below the lowest IOM UL in the range of ULs for the overall U.S. population (1 year of age and older), 2,500 IU/p/d. The estimated exposure to vitamin D from all food sources, including the proposed use in meal replacement beverages that are not intended for special dietary use in reducing or maintaining body weight, for infants 0 months to 6 months of age at the 90th percentile is 844 IU/p/d; for infants 6 months to 12 months of age, estimated exposure to vitamin D is 831 IU/p/d. Both of these estimates are below the respective IOM UL of 1,000 IU/p/d for infants 0 months to 6 months of age and 1,500 IU/p/d for infants 6 months to 12 months of age. Because the 90th percentile EDI of vitamin D from all current and proposed food sources for each population group is less than the corresponding IOM UL for that population group, we conclude that dietary intake of vitamin D 3 from the proposed use as a nutrient supplement in meal replacement beverages that are not intended for special dietary use in reducing or maintaining body weight is safe.

Based on the proposed use level of 1.0 IU/kcal in enteral feeding products, the dietary exposure to vitamin D 3 is estimated to be 1,800 IU/p/d for a 60 kg person. This estimate is below the IOM UL of 4,000 IU/p/d for adults. Because the use of these products are intended for individuals under medical supervision and monitoring by a physician, we have no safety concerns regarding the proposed use of vitamin D 3 in enteral feeding products, and we conclude that this use is safe.

Based on all data relevant to vitamin D 3 that we reviewed, we conclude that the petitioned use of vitamin D 3 as a nutrient supplement in meal replacement beverages that are not intended for special dietary use in reducing or maintaining body weight and for use in foods that are sole sources of nutrition for enteral feeding within the limits proposed by Abbott is safe. Consequently, we are amending the food additive regulations as set forth in this document. Additionally, the current regulation for the use of vitamin D 3 in food (§ 172.380) indicates that the additive must meet the specifications in the Food Chemicals Codex, 7th Edition (FCC 7). The more current FCC is the 8th Edition (FCC 8). Because the specifications for vitamin D 3 in FCC 8 are identical to those in FCC 7, we are amending § 172.380 by adopting the specifications for vitamin D 3 in FCC 8 in place of FCC 7.

In accordance with § 171.1(h) (21 CFR 171.1(h)), the petition and the documents that we considered and relied upon in reaching our decision to approve the petition will be made available for public disclosure (see FOR FURTHER INFORMATION CONTACT ). As provided in § 171.1(h), we will delete from the documents any materials that are not available for public disclosure.

We previously considered the environmental effects of this rule, as stated in the March 6, 2012, Federal Register document of petition for FAP 2A4788. We stated that we had determined, under 21 CFR 25.32(k), that this action “is of a type that does not individually or cumulatively have a significant effect on the human environment” such that neither an environmental assessment nor an environmental impact statement is required. We have not received any new information or comments that would affect our previous determination.

This final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

If you will be adversely affected by one or more provisions of this regulation, you may file with the Division of Dockets Management (see ADDRESSES ) either electronic or written objections. You must separately number each objection, and within each numbered objection you must specify with particularity the provision(s) to which you object, and the grounds for your objection. Within each numbered objection, you must specifically state whether you are requesting a hearing on the particular provision that you specify in that numbered objection. If you do not request a hearing for any particular objection, you waive the right to a hearing on that objection. If you request a hearing, your objection must include a detailed description and analysis of the specific factual information you intend to present in support of the objection in the event that a hearing is held. If you do not include such a description and analysis for any particular objection, you waive the right to a hearing on the objection.

It is only necessary to send one set of documents. Identify documents with the docket number found in brackets in the heading of this document. Any objections received in response to the regulation may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday, and will be posted to the docket at http://www.regulations.gov.

Our review of this petition was limited to section 409 of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 348). This final rule is not a statement regarding compliance with other sections of the FD&C Act. For example, the Food and Drug Administration Amendments Act of 2007, which was signed into law on September 27, 2007, amended the FD&C Act to, among other things, add section 301( ll ) of the FD&C Act (21 U.S.C. 331( ll )). Section 301( ll ) of the FD&C Act prohibits the introduction or delivery for introduction into interstate commerce of any food that contains a drug approved under section 505 of the FD&C Act (21 U.S.C. 355), a biological product licensed under section 351 of the Public Health Service Act (42 U.S.C. 262), or a drug or biological product for which substantial clinical investigations have been instituted and their existence has been made public, unless one of the exemptions in section 301( ll )(1) to ( ll )(4) of the FD&C Act applies. In our review of this petition, FDA did not consider whether section 301( ll ) of the FD&C Act or any of its exemptions apply to food containing this additive. Accordingly, this final rule should not be construed to be a statement that a food containing this additive, if introduced or delivered for introduction into interstate commerce, would not violate section 301( ll ) of the FD&C Act. Furthermore, this language is included in all food additive final rules and therefore should not be construed to be a statement of the likelihood that section 301( ll ) of the FD&C Act applies.

The following sources are referred to in this document. References marked with an asterisk (*) have been placed on display at the Division of Dockets Management (see ADDRESSES ), under Docket No. FDA-2012-F-0138, and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday, and are available electronically at http://www.regulations.gov. References without asterisks are not on display; they are available as published articles and books.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Director, Center for Food Safety and Applied Nutrition, 21 CFR part 172 is amended as follows:

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

This rulemaking establishes two special local regulations for two regattas and three safety zones for two fireworks displays and one swim event. Each event and its corresponding regulatory history is discussed below.

The Aquapalooza is a recurring marine event but with no regulatory history.

The Connecticut River Raft Race is also a recurring marine event but with a regulatory history. Specifically, the Coast Guard established a special local regulation in 2012 for this event via a final rule entitled, “Safety Zones & Special local Regulations; Recurring Marine Events in Captain of the Port Long Island Sound Zone.” This rulemaking was published on May 24, 2013 in the Federal Register (78 FR 31402). In 2013, the special local regulation for the Connecticut River Raft Race was modified by a temporary final rule issued by the Coast Guard entitled, “Special Local Regulations and Safety Zones; Marine Events in Captain of the Port Long Island Sound Zone.” This rulemaking was published on July 10, 2013 in the Federal Register (78 FR 41300).

The Sebonack Golf Club Fireworks Display is a new event with no regulatory history. The Sebonack Golf Club has helped sponsor a similar recurring event that was held in the same location on July 6, 2013 and known as National Golf Links Fireworks. A safety zone was established in 2012 for the National Golf Links Fireworks event via a final rule entitled, “Safety Zones & Special local Regulations; Recurring Marine Events in Captain of the Port Long Island Sound Zone.” This rulemaking was published on May 24, 2013 in the Federal Register (78 FR 31402).

Island Beach Two Mile Swim is a recurring event with some regulatory history. Specifically, the Coast Guard established a safety zone around this event on August 3, 2013 via a temporary final rule not published in the Federal Register entitled, “Safety Zone, Island Beach Two Mile Swim, Captain Harbor, Greenwich, CT.”

The Bohlsen Wedding Fireworks Display is a new event with no regulatory history.

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(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable and contrary to the public interest. There is insufficient time to publish a NPRM and solicit comments from the public before these events take place. Thus, waiting for a comment period to run would inhibit the Coast Guard's ability to fulfill its mission to keep the ports and waterways safe.

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

The legal basis for this temporary rule is 33 U.S.C. 1231, 1233; 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 and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1 which collectively authorize the Coast Guard to define regulatory special local regulations and safety zones.

As discussed in the Regulatory History and Information section, two regattas, two fireworks displays, and one swim event will take place in the COTP Long Island Sound Zone between July 27, 2014 and August 17, 2014. The COTP Long Island Sound has determined that the two special local regulations and the three safety zones established by this temporary final rule are necessary to provide for the safety of life on navigable waterways during those events.

Aquapalooza is a boating event open to the Public that attracts many people and boats into Zach's Bay near Jones Beach State Park in Wantagh, NY for an afternoon of music and entertainment. The event sponsor expects to have 500 participants, including swimmers and boaters, and 150 boats attend the event. The large number of boats operating in close proximity to each other and to a swim area, operating at dangerous speeds for the conditions and the large number of vessels departing Zach's Bay at the conclusion of the event creates hazardous conditions in the form of potentially dangerous boat operations within heavily congested waters. These conditions are especially hazardous for any vessels attempting to navigate in the southbound direction and against the flow of the main vessel traffic at the conclusion of the event. The Coast Guard determined that a special local regulation that restricts vessel speed and the flow of vessel traffic will improve the safety of waterway users.

The Connecticut River Raft Race involves many participants operating human-powered and/or sail-powered vessels of their own design and construction along a stretch of the Connecticut River near Middletown, CT. The start and finish points of the race have been changed to locations within the same general area but with improved access to the Connecticut River creating safer entry and exit conditions for event participants and support personnel. Due to the hazards facing these participants, including the unknown and/or untested seaworthiness of their vessels and potential limitations to vessel navigation and/or maneuverability, the Coast Guard determined that a special local regulation that restricts vessel speed and operation is needed to protect participants, spectators and other waterway users during the event.

The Sebonack Golf Club fireworks display and the Bohlsen Wedding fireworks display are expected to attract large numbers of spectator vessels that will congregate around the locations of these events. The Coast Guard determined that safety zones are required for each of these fireworks displays to protect both spectators and participants from the hazards created by them, including unexpected pyrotechnics detonation and burning debris.

Island Beach Two Mile Swim is a swim event that is held in Captain Harbor near Greenwich, CT. Approximately 80 participants will swim an out and back, two mile course that starts on Little Captain Island, then continues roughly northwest for 1 mile towards Bower's Island and then returns along the same track to Little Captain's Island. The swim course includes waters routinely transited by commercial and recreational boat traffic which could present hazards, including increased risk of collision, to the event participants and safety and support resources. The Coast Guard has determined that a safety zone is required to protect the event participants from the hazards associated with swim events on navigable waters, including potential threats from commercial and recreational boat traffic. The safety zone would also improve visibility and maneuverability for the safety vessels and personnel supporting the event.

This rule establishes two special local regulations for two separate regattas and three safety zones for two fireworks display and one swim event. The location of these special regulated areas and safety zones are as follows:

The special local regulation established for Aquapalooza includes two measures to reduce the risks to waterways users of Zach's Bay before, during, and after the event. The first measure restricts vessel movement within the regulated area to no wake speed or 6 knots, whichever is slower on July 27, 2014 from 11:30 a.m. to 8 p.m. The second measure restricts all vessel movement within the regulated area to the outbound or northbound direction on July 27, 2014 from 3 p.m. to 5:30 p.m.

The special local regulation established for the Connecticut River Raft Race restricts vessel movement within the regulated area of the Connecticut River to no wake speed or 6 knots, whichever is slower and also stipulates that vessels shall not anchor, block, loiter, or impede the transit of event participants or official patrol vessels in the regulated areas unless authorized by COTP or designated representatives. Both measures will be enforced on August 2, 2014 from 9:30 a.m. to 2:30 p.m.

This rule prevents vessels from entering, transiting, mooring or anchoring within areas specifically designated as safety zones and establishes additional vessel movement rules within areas specifically under the jurisdiction of the special local regulations during the periods of enforcement unless authorized by the COTP or designated representative.

Public notifications will be made to the local maritime community prior to the event through the Local Notice to Mariners and Broadcast Notice to Mariners.

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.

The Coast Guard determined that this rulemaking is not a significant regulatory action for the following reasons: The enforcement of these regulated areas and safety zones will be relatively short in duration. Also, persons or vessels desiring entry into a regulated area or a deviance from the stipulations within a regulated area may be authorized to do so by the COTP Sector Long Island Sound or designated representative. Additionally, persons or vessels desiring to enter a safety zone may do so with permission from the COTP Sector Long Island Sound or designated representative. Furthermore, these special local regulations and safety zones are designed in a way to limit impacts on vessel traffic, permitting vessels to navigate in other portions of the waterways not designated as a regulated area or as a safety zone. Finally, to increase public awareness of these special local regulations and safety zones, the Coast Guard will notify the public of the enforcement of this rule via appropriate means, such as via Local Notice to Mariners and Broadcast Notice to Mariners.

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. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This temporary final rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to enter, transit, anchor or moor within a regulated area or a safety zone during the periods of enforcement from July 27, 2014 to August 17, 2014. However, this temporary final rule will not have a significant economic impact on a substantial number of small entities for the same reasons discussed in the REGULATORY PLANNING AND REVIEW section.

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 the establishment of special local regulations and safety zones. This rule is categorically excluded from further review under paragraph 34(g) and (h) 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 parts 100 and 165 as follows:

A. Regulatory History and Information

The Coast Guard is issuing this final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the Pinellas Bayway Structure “C” Bridge, that once required draw operations in 33 CFR 117.287(e), was removed from Gulf Intracoastal Waterway mile 114.0 and replaced with a fixed bridge in 2014. Therefore, the regulation is no longer applicable and shall be removed from publication. It is unnecessary to publish an NPRM because this regulatory action does not purport to place any restrictions on mariners but rather removes a restriction that has no further use or value.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective in less than 30 days after publication in the Federal Register . The bridge has been a fixed bridge for 1 year and this rule merely requires an administrative change, in order to omit a regulatory requirement that is no longer applicable or necessary. The modification has already taken place and the removal of the regulation will not affect mariners currently operating on this waterway. Therefore, a delayed effective date is unnecessary.

The Pinellas Bayway Structure “C” Bridge across the Gulf Intracoastal Waterway mile 114.0 was removed and replaced with a fixed bridge in 2014. It has come to the attention of the Coast Guard that the governing regulation for this drawbridge was never removed subsequent to the completion of the fixed bridge that replaced it. The elimination of this drawbridge necessitates the removal of the drawbridge operation regulation, 33 CFR 117.287(e), that pertains to the former drawbridge.

The purpose of this rule is to remove paragraph (e) of 33 CFR 117.287 that refers to the Pinellas Bayway Structure “C” Bridge at mile 114.0, from the Code of Federal Regulations since it governs a bridge that is no longer able to be opened.

The Coast Guard is changing the regulation in 33 CFR 117.287(e) by removing restrictions and the regulatory burden related to the draw operations for this bridge that is no longer in existence [is no longer a drawbridge]. The change removes the paragraph (e) of the regulation governing the Pinellas Bayway Structure “C” Bridge since the bridge has been replaced with a fixed bridge and the old bascule bridge was removed from the waterway. This Final Rule seeks to update the Code of Federal Regulations by removing language that governs the operation of the Pinellas Bayway Structure “C” Bridge, which no longer operates as a drawbridge. This change does not affect waterway or land traffic. This change does not affect nor does it alter the operating schedules in 33 CFR 117.287 that govern the remaining active drawbridges on the Gulf Intracoastal Waterway.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes or 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 Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.

The Coast Guard does not consider this rule to be “significant” under that Order because it is an administrative change and does not affect the way vessels operate on the waterway.

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. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will have no effect on small entities since this drawbridge has been removed and replaced with a fixed bridge and the regulation governing draw operations for this bridge is no longer applicable. There is no new restriction or regulation being imposed by this rule; therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this final rule will not have a significant economic impact on a substantial number of small entities

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it 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 might 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 guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded 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 simply removes the operating regulations or procedures for a fixed bridge. This rule is categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction.

Under figure 2-1, paragraph (32)(e), of the Instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows:

The Coast Guard will enforce the safety zone in San Diego Bay for the Pyro Spectacular, Inc for USS MIDWAY Museum fireworks display in 33 CFR 165.1123, Table 1, Item 6 from 9:00 p.m. to 9:30 p.m.

Under the provisions of 33 CFR 165.1123, persons and vessels are prohibited from entering into, transiting through, or anchoring within the 600 foot regulated area safety zone that includes the tug and barge unless authorized by the Captain of the Port, or his designated representative. Persons or vessels desiring to enter into or pass through the safety zone may request permission from the Captain of the Port or a designated representative. If permission is granted, all persons and vessels shall comply with the instructions of the Captain of the Port or designated representative. Spectator vessels may safely transit outside the regulated area, but may not anchor, block, loiter, or impede the transit of participants or official patrol vessels or commercial traffic within the federal channel. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in patrol and notification of this regulation.

This notice is issued under authority of 5 U.S.C. 552 (a) and 33 CFR 165.1123. In addition to this notice in the Federal Register , the Coast Guard will provide the maritime community with advance notification of this enforcement period via the Local Notice to Mariners, Broadcast Notice to Mariners, and local advertising by the event sponsor. If the Captain of the Port Sector San Diego or his designated representative determines that the regulated area need not be enforced for the full duration stated on this notice, he or she may use a Broadcast Notice to Mariners or other communications coordinated with the event sponsor to grant general permission to enter the regulated area.

In 1979, EPA promulgated the 1-hour 0.12 parts per million (ppm) ground-level ozone national ambient air quality standard (NAAQS). See 44 FR 8202 (Feb. 8, 1979). The Northern Virginia portion, consisting of the counties of Arlington, Fairfax, Loudoun, Prince William, and Stafford and the cities of Alexandria, Fairfax, Falls Church, Manassas, and Manassas Park in Virginia was originally classified as part of the Metropolitan Washington, DC-MD-VA serious nonattainment area (the Washington Area). See 40 CFR 81.347. On January 24, 2003 (68 FR 3411), EPA determined that the Washington Area failed to attain the 1-hour ozone NAAQS by November 15, 1999, as required by section 181(a) of the CAA, and the Washington Area was reclassified to a severe ozone nonattainment area pursuant to section 181(b)(2) of the CAA.

As a result of the Washington Area's classification, each state, including the Commonwealth of Virginia, was required to submit a SIP demonstrating how attainment of the NAAQS would be met. In order to demonstrate attainment, the Commonwealth of Virginia implemented state-specific controls with the goal of limiting emissions of nitrogen oxides (NO X ) from the area's electric utility plants to 0.15 pounds per million British Thermal Units (BTUs) of heat (fuel) input to the boilers. As a coal-fired electric generating facility that emitted volatile organic compounds (VOCs) and NO X , Potomac River, located in Alexandria, Virginia, was identified as a source subject to control, and a state operating permit was created as a vehicle for implementing the control measure. EPA approved this permit into the SIP on December 14, 2000 (65 FR 78100).

Potomac River was also identified as a source subject to reasonably available control technology (RACT) requirements. EPA defines RACT as “the lowest emission limitation that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility.” See 44 FR 53761 (Sept. 17, 1979). In order to ensure compliance with the RACT requirements for the control of VOCs, a state operating permit was issued by the Commonwealth of Virginia Department of Environmental Quality (VADEQ) for Potomac River and approved by EPA into the SIP on January 2, 2001 (66 FR 8). In order to ensure compliance with the RACT requirements for the control of NO X , a consent agreement was entered between Virginia and the owner of Potomac River and approved by EPA into the SIP on January 2, 2001 (66 FR 8).

On May 10, 2013, VADEQ submitted a formal revision to its SIP. The SIP revision consists of a request by the Commonwealth to remove from the Virginia SIP the two operating permits and consent agreement discussed above for Potomac River. On December 21, 2012, GenOn Potomac River, LLC and VADEQ signed a mutual determination of permanent shutdown of the Alexandria, Virginia facility. The SIP submission includes a copy of the signed determination which: (1) Mutually agrees that the source is permanently shutdown, (2) establishes that all permits for the source in accordance with 9VAC5-20-220 are revoked, (3) removes the source from the air emissions inventory, and (4) establishes that any future operations must be in accordance with Virginia's Prevention of Significant Deterioration (PSD) permit program pursuant to 9VAC5 Chapter 80. If Potomac River should resume operation in the future, VADEQ may be required at that time to revise its SIP as appropriate.

EPA is approving the May 10, 2013 submittal from VADEQ that removes from the Virginia SIP the two operating permits and consent agreement for Potomac River because the source has permanently shutdown and all of the source's permits are revoked. EPA believes this revision will not interfere with Virginia's attainment or maintenance of any NAAQS. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on October 14, 2014 without further notice unless EPA receives adverse comment by September 11, 2014. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

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

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege Law, Va. Code § 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts. . . .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.” Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”

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

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

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive 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).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804, however, exempts from section 801 the following types of rules: Rules of particular applicability; rules relating to agency management or personnel; and rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). Because this is a rule of particular applicability, EPA is not required to submit a rule report regarding this action under section 801.

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 October 14, 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking action.

This action to remove the two operating permits and a consent agreement for Potomac River from the Virginia SIP may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

40 CFR part 52 is amended as follows:

EPA Region 8 is publishing this direct final Notice of Partial Deletion for all of Operable Unit 4 (OU4), Upper California Gulch; Operable Unit 5 (OU5), ASARCO Smelters/Slag/Mill Sites; and Operable Unit 7 (OU7), Apache Tailing Impoundment, of the Site, from the NPL. The NPL constitutes Appendix B of 40 CFR part 300, of the NCP, which EPA promulgated pursuant to section 105 of CERCLA of 1980, as amended. EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). This partial deletion of the Site is proposed in accordance with 40 CFR 300.425(e) and is consistent with the Notice of Policy Change: Partial Deletion of Sites Listed on the NPL. 60 FR 55466 (Nov. 1, 1995). As described in 40 CR 300.425(e)(3) of the NCP, a portion of a site deleted from the NPL remains eligible for Fund-financed remedial action if future conditions warrant such actions.

Because EPA considers this action to be noncontroversial and routine, this action will be effective October 14, 2014 unless EPA receives adverse comments by September 11, 2014. Along with this direct final Notice of Partial Deletion, EPA is co-publishing a Notice of Intent for Partial Deletion in the “Proposed Rules” section of the Federal Register . If adverse comments are received within the 30-day public comment period on this partial deletion action, EPA will publish a timely withdrawal of this direct final Notice of Partial Deletion before the effective date of the partial deletion and the partial deletion will not take effect. EPA will, as appropriate, prepare a response to comments and continue with the deletion process on the basis of the Notice of Intent for Partial Deletion and the comments already received. There will be no additional opportunity to comment.

Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses OU4, Upper California Gulch; OU5, ASARCO Smelters/Slag/Mill Sites; and OU7, Apache Tailing Impoundment, and demonstrates how they meet the deletion criteria. Section V discusses EPA's action to partially delete the Site parcels from the NPL unless adverse comments are received during the public comment period.

The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the State, whether any of the following criteria have been met:

Pursuant to CERCLA section 121(c) and the NCP, EPA conducts five-year reviews to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants, or contaminants remain at a site above levels that allow for unlimited use and unrestricted exposure. EPA conducts such five-year reviews even if a site is deleted from the NPL. EPA may initiate further action to ensure continued protectiveness at a deleted site if new information becomes available that indicates it is appropriate. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.

The following procedures apply to the deletion of OU4, OU5 and OU7:

(1) EPA has consulted with the State prior to developing this direct final Notice of Partial Deletion and the Notice of Intent for Partial Deletion co-published in the “Proposed Rules” section of the Federal Register .

(2) EPA has provided the State 30 working days for review of this notice and the parallel Notice of Intent for Partial Deletion prior to their publication today, and the State, through the CDPHE, has concurred on the partial deletion of OU4, OU5 and OU7 of the Site from the NPL.

(3) Concurrently with the publication of this direct final Notice of Partial Deletion, a notice of the availability of the parallel Notice of Intent for Partial Deletion is being published in a major local newspaper, the Leadville Herald Democrat. The newspaper notice announces the 30-day public comment period concerning the Notice of Intent for Partial Deletion of OU4, OU5 and OU7 of the Site from the NPL.

(4) The EPA placed copies of documents supporting the partial deletion in the deletion docket and made these items available for public inspection and copying at the Site information repositories identified above.

(5) If adverse comments are received within the 30-day public comment period on this partial deletion action, EPA will publish a timely notice of withdrawal of this direct final Notice of Partial Deletion before its effective date and will prepare a response to comments and continue with the deletion process on the basis of the Notice of Intent for Partial Deletion and the comments already received.

Deletion of a portion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a portion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for further response actions, should future conditions warrant such actions.

The following information provides EPA's rationale for deleting OU4, OU5 and OU7 of the Site from the NPL:

The California Gulch Superfund Site, EPA ID No. COD980717938, is located in Lake County, Colorado approximately 100 miles southwest of Denver. The Site was proposed for inclusion on the NPL on December 30, 1982, (47 FR 58476), and listed on September 8, 1983, (48 FR 40658). The Site is in a highly mineralized area of the Colorado Rocky Mountains covering approximately 18 square miles of a watershed that drains along California Gulch to the Arkansas River. The Site includes the City of Leadville, various parts of the Leadville Historic Mining District, Stringtown, and a section of the Arkansas River from the confluence of California Gulch to the confluence of Two-Bit Gulch. Mining, mineral processing, and smelting activities have occurred at the Site for more than 130 years. Mining in the district began in 1860, when placer gold was discovered in California Gulch. As the placer deposits were exhausted, underground mine workings became the principal method for removing gold, silver, lead and zinc ore. As these mines were developed, waste rock was excavated along with the ore and placed near the mine entrances. Ore was crushed and separated into metallic concentrates at mills, with mill tailing generally released into surrounding streams and after about 1930 slurried into tailing impoundments. Many of the mining operations ceased operations around 1900, although several smelters continued operations into the 1920s (Western Zinc) and the 1960s (AV Smelter) and the last active mine, the Black Cloud, shut down in 1999.

All of the mines within the Site boundaries are presently inactive, and all of the mills and smelters have been demolished. Mining remains that contributed to environmental contamination are (1) mill tailing (the fine-grained residue remaining after milling has removed the metal concentrates form the ore) in impoundments and fluvial deposits, (2) mine waste rock piles (mine development rock and low grade ore removed to gain access to an ore body, and often deposited near adits and shaft openings), (3) mine water drainage tunnels, (4) draining adits, and (5) various smelter wastes including slag piles, flue dust and fallout from stack emissions.

The Site was placed on the NPL due to concerns regarding the impact of acidic and metals laden mine drainage on surface waters leading to California Gulch and the impact of heavy metals loading into the Arkansas River. A Site-wide Phase I Remedial Investigation (Phase I RI), which primarily addressed surface water and groundwater contamination, was issued in January 1987. As a result of the Phase I RI, EPA identified the first operable unit, the Yak Tunnel, to address the largest single source of metallic loading. A number of additional Site-wide studies followed the Phase I RI.

EPA agreed, pursuant to a May 2, 1994 Consent Decree (1994 CD), to divide the Site into 12 operable units (OUs). With the exception of OU12, the OUs pertain to distinct geographical areas corresponding to areas of responsibility for the identified responsible parties and/or to distinct sources of contamination. The OUs are as follows: OU1, Yak Tunnel/Water Treatment Plant; OU2, Malta Gulch Tailing Impoundments and Lower Malta Gulch Fluvial Tailing; OU3, D&RGW Slag Piles and Easement; OU4, Upper California Gulch; OU5, ASARCO Smelter Sites/Slag/Mill Sites; OU6, Starr Ditch/Stray Horse Gulch/Lower Evans Gulch/Penrose Mine Waste Pile; OU7, Apache Tailing Impoundments; OU8, Lower California Gulch; OU9, Residential Populated Areas; OU10, Oregon Gulch; OU11, Arkansas River Valley Floodplain; and OU12, Site-wide Surface and Groundwater. To date, OU2, OU8, OU9, and OU10 have been partially deleted from the NPL.

The background and history, the Remedial Investigations and Feasibility Studies (RI/FS), Removal and Response Actions, Selected Remedies, Cleanup Standards, and Operation and Maintenance activities for OU4, OU5 and OU7 are discussed below.

Upper California Gulch (OU4) is located to the southeast of the City of Leadville. A map of OU4 can be found in the docket at http://www.regulations.gov under Docket ID no. EPA-HQ-SFUND-1983-0002. OU4 covers an area of approximately 2.4 square miles, contains waste rock piles and fluvial tailing and is divided into six sub-basins, Garibaldi, Whites Gulch, Nugget Gulch, AY Minnie, Iron Hill and South Area, which also includes the Fluvial Tailing Site 4 known as Oro City. Although 131 waste piles were initially identified in OU4, the number of waste rock piles of concern in the OU has been reduced to 20 through remedial investigation and analytical screening. The twenty waste rock piles in these sub-basins contain a total estimated volume of 431,000 cubic yards, impacting 28.3 acres. The waste rock piles are primarily weathered porphyry with limited to no vegetation and with highly oxidized surfaces.

Fluvial tailing deposition within OU4 is discontinuous and appears to have been subdivided into several distinct pockets. In OU4, the Fluvial Tailing Site 4 extends for a distance of approximately 1.5 miles along Upper California Gulch, from slightly upstream of the Yak Tunnel portal to the upstream end of the Printer Boy Mine area. Fluvial tailing and fluvial tailing mixed with alluvial sediments are located in the South Area and Fluvial Tailing Site 4 (Oro City), and are estimated at 102,000 cubic yards in volume. The fluvial tailing piles are largely un-vegetated, with grasses and lodgepole pine growing on approximately a quarter of the tailing surface. A wetland area exists along the Upper California Gulch channel within the OU4 boundaries. Oro City is considered a cultural and historic resource for the Leadville Historic Mining District. The land in OU4 is zoned by Lake County for recreational, industrial and mining land uses. EPA is the lead agency for OU4 and the CDPHE is the support agency. Under the 1994 CD, Resurrection/Newmont Mining (Resurrection/Newmont) assumed responsibility for OU4.

Concurrent with the various investigations and studies, risk assessments were conducted. They included the Preliminary Baseline Risk Assessment (Preliminary BRA), the Final Baseline Human Health Risk Assessments (Final BRA): Part A, Part B, and Part C; the Ecological Risk Assessment for Terrestrial Ecosystems (ERA); the Surface Water Human Health Risk Assessment; the Groundwater Baseline Human Health Risk Assessment and the Baseline Aquatic Ecological Risk Assessment (BARA).

For human health risk issues at OU4, the Preliminary BRA and the Final BRA Part C, Evaluation of Worker Scenario and Evaluation of Recreational Scenarios, were most pertinent. The Preliminary BRA indicated that lead and arsenic are responsible for the majority of human health risks at the Site. Therefore, arsenic and lead were used as indicator contaminants for risk in the Final BRA. Residential, commercial, and industrial uses do not occur in OU4, nor are these uses anticipated to occur in the future at OU4. Therefore, commercial workers, industrial workers, and residents are not exposed to contaminated media in OU4. Recreation is the most likely land use scenario for OU4. Therefore, recreational visitors were selected as the receptors of concern for OU4. The Final BRA identified soil ingestion as the exposure pathway of concern for recreational visitors. Exposure to other media and exposure to soil/dust through other pathways (e.g., dermal) are considered an insignificant concern for recreational users. The OU4 investigations showed that average concentrations of arsenic and lead in exposure areas in OU4 where recreational use is considered likely were less than the risk-based action levels for the recreational land use scenario (lead 16,000 mg/kg and arsenic 1,400 mg/kg) identified in the Final BRA, indicating that an unacceptable health risk is unlikely to result from recreational exposure to lead or arsenic in surface soils in OU4.

For ecological risks at OU4, the BARA and the ERA were the most pertinent. The BARA characterized the impacts of mine waste contamination on the aquatic ecosystem of the Site. Results of the BARA indicate that mine waste poses potential unacceptable risk to all aquatic species. The BARA states that the Girabaldi Mine, the North Mike, and the fluvial tailing, as well as other sources, such as high metal waste rock piles, contribute to the metals entering California Gulch and, ultimately, the Arkansas River. Potential risks to the terrestrial ecosystem from mine waste contamination were characterized in the ERA. Risks to the blue grouse, mountain bluebird, and least chipmunk exceeded EPA acceptable levels for exposure to contaminants in mine waste contamination in OU4. Potential risks to plants and soil fauna from exposure to mine waste contamination were also indicated. Surface water ingestion may also result in a potential risk of some effect to terrestrial receptors. Action levels were not developed for terrestrial receptors. Thus, these releases of contaminants from OU4 presented an unacceptable risk to aquatic and terrestrial ecological receptors and response actions were necessary at OU4 to control the release of contaminants and acidic water into the environment.

The State, the EPA and certain Potentially Responsible Parties (PRPs) have conducted various studies and investigations to evaluate the nature and extent of contamination generally at the Site, and specifically within OU4. Remedial Investigations (RIs) began in 1986 within the Site, including mine waste rock piles, tailing disposal areas, surface water and aquatics, groundwater, smelter sites, residential/populated area soils, slag piles, and terrestrial studies. The Yak Tunnel/California Gulch Remedial Investigation (1986 RI) evaluated the human health and environmental impacts due to historic mining activities. Waste rock piles were selected for sampling based upon their potential to impact surface water systems. Waste rock and fluvial tailing material samples (from 0 to 6 inches) were collected at 14 sites in OU4. Waste rock and/or tailing samples were collected in the Iron Hill drainage, at the Garibaldi, Agwalt, Printer Girl, and AY-Minnie mine sites, and along Fluvial Tailing Site 4.

In 1986 and 1987, EPA conducted additional RI investigations. The Draft Phase II Remedial Investigation Technical Memorandum 1986-1987 (Phase II RI) evaluated mine-related wastes, surface water and groundwater quality, associated with the Printer Girl and the AY-Minnie mine sites. The California Gulch Hydrologic Investigation, included surface water, groundwater, and sediment sampling; laboratory analysis of samples; and an inventory of mine and mineral waste. The primary objectives were to characterize the surface and groundwater quality and flow patterns, and to identify sources of contaminant loading in California Gulch. Conducted in 1991 and 1992, the Final-Surface Water Remedial Investigation Report (Surface Water Rl), prepared by ASARCO, involved surface water and sediment sampling in the Arkansas River and its tributaries, including California Gulch.

The Final-Hydrogeologic Remedial Investigation Report (Hydrogeologic RI), prepared for ASARCO, from the fall of 1991 through the winter of 1992, included well monitoring, and groundwater analysis. The objectives were to investigate groundwater quality and flow directions, evaluate potential impacts to water users and surface water receptors, and to characterize background groundwater quality.

Issued in 1994, the Final-Tailing Disposal Area Remedial Investigation Report (Tailing RI) discusses the investigation of the five major tailing impoundments and seven fluvial tailing deposits, and their potential impacts on surface and groundwater at the California Gulch Site for ASARCO in the fall of 1991.

The 1994 Draft Final-Field Reconnaissance Survey of Mine Waste Piles Located Within the Upper California Gulch Drainage identified 131 individual waste rock piles and ranked these waste rock piles for two criteria: (1) Potential physical instability that may expose or spread materials, and (2) minerals contained on the surface of the pile.

In addition to the Site investigations, cultural resource surveys were conducted at the Garibaldi, the North Moyer, Agwalt, and the Printer Girl mine sites in 1990, 1994, and 1995. Resurrection/Newmont conducted additional field investigation activities in 1994 and 1995 to evaluate the potential for waste rock piles to generate acid rock drainage (ARD) and leach metals; to further define conditions within OU4; to supplement existing RI information with additional physical, chemical, and geotechnical data; and to provide supplemental information for use in an Engineering Evaluation/Cost Analysis (EE/CA) and a Focused Feasibility Study (FFS).

Resurrection/Newmont completed an EE/CA in 1995 (1995 OU4 EE/CA). The 1995 OU4 EE/CA was prepared to evaluate and identify a preferred non-time critical removal action for the Garibaldi Mine site area within OU4. Resurrection/Newmont completed the FFS for OU4 of the California Gulch Site in January 1998 (1998 OU4 FFS). The purpose of the 1998 OU4 FFS was to identify and evaluate remedial alternatives to address potential sources of contaminant loading within the OU4 site area. The 1998 OU4 FFS provided a detailed analysis for the following waste rock piles and fluvial tailing material: Waste rock near the Garibaldi Mine; waste rock in Upper Whites Gulch; waste rock and fluvial tailing near the AY-Minnie and Printer Boy mining areas; waste rock piles at North Moyer/North Mike; and mine waste rock piles located near the Minnie pump shaft.

Based on the results of the numerous remedial investigations and the 1998 OU4 FFS for OU4, the EPA determined, at the time, that actual or threatened releases of hazardous substances from waste rock and fluvial tailing piles in OU4 may present an imminent and substantial endangerment to public health, welfare or the environment if not addressed through remedial action. Metals from former mining activities, present in waste rock and fluvial tailing piles, may leach to surface water or groundwater via ARD. Response actions were necessary at OU4 to control the release of contaminants and acidic water into the environment. These releases presented a risk to aquatic and terrestrial ecological receptors.

In the 1994 CD, Resurrection/Newmont agreed to perform certain remediation work in three operable units (OU4, OU8, and OU10). The Work Area Management Plan (WAMP), included as Appendix D to the 1994 CD, defines the scope of work to be performed by Resurrection/Newmont. The 1995 OU4 EE/CA included site characterization, (utilizing existing remedial investigation data and collected field data) to be used to identify removal action objectives and alternatives. The 1995 OU4 EE/CA provided information to enable the EPA to select several removal actions.

Pursuant to the August 4, 1995 and July 19, 1996 Action Memorandums and the November 18,1996 Amended Action Memorandum, Resurrection/Newmont conducted Non-Time Critical Removal Actions at the Garibaldi sub-basin, the Agwalt Mine in Whites Gulch, and the Upper California Gulch surface water diversion. These removal actions successfully addressed contamination at the Garibaldi and the Agwalt mine sites. The removal actions included construction of portal collection systems and concrete-lined channels to intercept and divert surface water run-on and portal flow away from two waste rock piles. The Garibaldi removal action also included two groundwater interception trenches to divert groundwater flow.

The EPA issued the Record of Decision (ROD) for OU4 (1998 OU4 ROD) on March 31, 1998. The Remedial Action Objectives (RAOs) established in the 1998 OU4 ROD include: (1) Control erosion of contaminated materials into local water courses, (2) Control leaching and migration of metals from contaminated materials into the surface water, and (3) Control leaching and migration of metals from contaminated materials into the groundwater.

The selected remedy for OU4 consisted of the following remedial components: (1) Within the Garabaldi sub-basin, creation of a diversion of surface water and selected removal of waste; (2) within the Whites Gulch sub-basin, the excavation, consolidation and removal of waste rock at the Printer Girl Waste Rock Pile, and the regrading of excavated areas of the Printer Girl Waste Rock Pile and construction of diversion ditches to control surface water run-on to the regraded areas; (3) within the Nugget Gulch sub-basin: Excavation and consolidation of the Rubie, Adirondack, Colorado No. 2 east and North Mike Waste Rock Piles onto the Colorado No. 2 Waste Rock Piles; regrading and placement of a simple rock or vegetated cover over the Colorado No. 2 Waste Rock Pile, terracing, soil amendment and revegetation of excavated areas, and construction of diversion ditches to control surface water run-on to the terraced and regraded areas; (4) within the AY Minnie sub-basin: Construction of diversion ditches to reduce surface water run-on onto the AY Minnie Waste Rock Pile, and relocation of Lake County Road 2 to allow space for construction of a sedimentation pond and provide added protection from stability failures of timber cribbing without destroying the mining heritage and cultural resources of this mining area; Iron Hill sub-basin: Regrading and placement of a simple cover (revegetated soil or rock) over the Mab Waste Rock Pile as well as revegetation of surrounding disturbed areas; and (5) within Oro City, reconstruction and stabilization of the Upper California Gulch stream channel to prepare for a 500-year flood event, and regrading and removal, if necessary, of channel spoil material and selected fluvial tailing, and construction of eight sediment dams within the channel and approximately 1.5 acres of wetlands along the channel.

On March 17, 2004, the EPA issued an Explanation of Significant Differences (ESD) deferring remedial activities at Fluvial Tailing Site 4/Oro City because of the historical significance of the Oro City area as an early mining camp. Spring runoff in the Oro City area is monitored as part of OU12, Site-wide water quality. Because the selected remedy in the 1998 OU4 ROD left wastes in place but did not include institutional controls (ICs), a second ESD was signed on July 29, 2013 to include ICs as part of the OU4 source control remedy for the Site.

The 1998 OU4 ROD addressed potential source material contributing to surface water and groundwater contamination at the Site but did not contain numeric cleanup standards. As previously mentioned, the OU12 remedy addresses site-wide surface water and groundwater contamination and includes numeric cleanup standards.

The 1998 OU4 ROD identified the need for additional remedial actions in Whites Gulch (Printer Girl Waste Pile), Nugget Gulch Waste Rock, AY Minnie Waste Rock, Iron Hill Waste Rock, and Fluvial Tailing Site 4/Oro City. Resurrection/Newmont commenced these remedial actions in June 1998 and completed the work in February 2003. The major components of the remedial action included controlling erosion of contaminated materials into local watercourses, controlling leaching and migration of metals from contaminated materials into the surface water, and controlling leaching and migration of metals from contaminated materials into the groundwater.

Under the 1994 CD and a 2008 Consent Decree settlement (2008 CD) that replaced the 1994 CD, Resurrection/Newmont agreed to operate and maintain the OU4 remedy features. Resurrection/Newmont conducts inspections in accordance with the OU4, OU8, and OU10, Operations and Maintenance (O&M) Plan, California Gulch Superfund Site which can be found in Appendix D to the 2008 CD approved on August 29, 2008. Resurrection/Newmont findings are documented in the Annual California Gulch Superfund Site OU4, OU8 and OU10 Inspection Reports. These reports are available by contacting EPA Region 8.

Environmental covenants for Resurrection/Newmont's properties within OU4 were recorded with the Lake County Clerk and Recorder on July 31, 2012 and October 10, 2012. The environmental covenants provide the following Use Restrictions: (1) No Residential Use, Day Care Centers or Schools, Parks or Open Space that are designed or intended to provide play or recreation areas for children, (2) Restrictions on using untreated groundwater from wells, and (3) Restrictions on uses or activities that would disturb/interfere or have the potential to disturb/interfere with the protectiveness of the remedy and remedial components. On December 22, 2010, Lake County implemented ICs that covered all property within OU4 in the form of a local ordinance, a resolution amending the Lake County Land Development Code and adopting regulations that protect both engineered and non-engineered remedies at OU4. A best management practice handout is provided to all applicants applying for a building permit within OU4. In addition, any disruption of engineered or non-engineered remedies, and/or excavation of more than 10 cubic yards of soil off-site within OU4 requires written approval from the CDPHE. All of OU4 is zoned Industrial Mining by Lake County, which serves to limit future changes of land use without County approval and notification to the EPA and the CDPHE of such proposed changes.

OU5 includes five smelter sites (Elgin Smelter, Grant/Union Smelter, Western Zinc Smelter, Arkansas Valley South Hillside Slag Pile (EGWA) and Arkansas Valley Smelter (AV), and one mill site known as Colorado Zinc-Lead Mill (CZL). A map of OU5 can be found in the docket at www.regulations.gov under Docket ID no. EPA-HQ-SFUND-1983-0002. One smelter and the mill are co-located as the AV/CZL sites, approximately 1.5 miles southwest of Leadville on the north bank of California Gulch. The combined area is approximately 70 acres. The entire AV/CZL sites lie above the 500-year floodplain of Lower California Gulch. The AV/CZL sites are also adjacent to portions of OU3 that includes the AV Slag Pile. The AV, which is part of the Leadville Historic Mining District, operated from 1879 until 1961. It was the longest-operating smelter in the Leadville area, processing a wide variety of ores and reprocessing slag to produce lead, silver and other metals during this time. The CZL operated intermittently from 1926 to 1938 using a custom flotation process to produce zinc, lead, gold, silver and some copper. Tailing, the byproduct of the mill operation was discharged below the mill presumably into the CZL Tailing Impoundment which is included as part of OU8. The mill closed in 1930 and was reopened in 1935. The mill processed ores from several local mines and waste dumps between 1935 and 1938 when the operations ceased.

The Elgin Smelter, which operated intermittently from 1879 to 1903, is located in north-central Leadville on the south bank of Big Evans Gulch near the intersection of U.S. Highway 24 and State Highway 91. The Elgin Smelter works were leased and operated by several different companies between 1893 and 1902. The Grant/Union Smelter was actually two smelters: The Grant Smelter, which operated from 1878 to 1882, and the Union Smelter which operated from 1892 to 1900. Both smelters were located near the confluence of Georgia Gulch and California Gulch, northeast of the Colorado Mountain College campus. The Western Zinc Smelter, which operated from 1914 until 1926, is located in the western part of Leadville, approximately seventy five feet west of McWethy Drive and approximately one hundred feet south of the Lake County fairgrounds. The Western Zinc Mining and Reducing Company used the facility to extract zinc from ores.

Also referred to as the Tramway Slag Pile, the Arkansas Valley South Hillside Slag Pile is located south of U.S. Highway 24 on the hillside across from the AV site. It was perhaps used by the AV or the Grant/Union Smelter. The Arkansas Valley South Hillside Slag Pile site is estimated to consist of 16,000 cubic yards in two elongated piles of slag, extending approximately 2,000 feet parallel to California Gulch and U.S. Highway 24. There are no smelter remains or any other waste materials except slag at this site.

Prior to the remedial action, smelter debris, which consisted primarily of brick, concrete, metal, tile, wood and glass, as well as residual mine waste and smelter materials including slag, coke/charcoal, limestone, ore, matte, tailing and flue dust, covered OU5. After remedial action, the majority of the smelter and mill structures at the AV/CZL sites have been demolished, though some buildings and foundations remain preserved as cultural heritage properties. The EGWA sites are currently vacant.

Potential media of concern in OU5 include tailing, flue dust, and non-residential area soils at the AV/CZL sites and slag, non-residential soils, and residential area soils at the EGWA sites. Results of the Preliminary BRA and the Final BRA indicate that human receptors are expected to have minimal exposure to slag. Metals from former mining practices including lead, arsenic, cadmium, copper and zinc, presented a potential risk to human and ecological receptors. The majority of human health risks at the Site, generally, have been attributed to lead and arsenic. Therefore, these two contaminants were selected as indicator chemicals for remedial response.

Residential use of OU5 is currently limited to one residence, and future residential use is not expected. Otherwise, the AV/CZL and EGWA sites are currently vacant. Commercial, industrial, and recreational uses are the expected future uses at OU5. Therefore, receptors of concern at OU5 are commercial and industrial workers and recreational visitors. The Final BRA identified soil ingestion as the exposure pathway of concern for recreational visitors; ingestion of soil and dust was identified as the exposure pathway of concern for commercial/industrial workers. Exposure to other media (e.g., tailing, waste piles, slag) and exposure to soil/dust through other pathways (e.g., dermal) are considered of insignificant concern for workers and recreational users.

The soils at the AV Smelter were determined to contain levels of arsenic and lead above risk-based action levels for both the commercial/industrial land use scenarios (lead 6,100 mg/kg-7,700 mg/kg and arsenic 610 mg/kg-690 mg/kg) and the recreational land use scenario (lead 16,000 mg/kg and arsenic 1,400 mg/kg-3,200 mg/kg) identified in the Final BRA. The highest levels of contamination were detected in samples taken from the bag-house area. The CZL site had lead levels above the risk-based action level for commercial/industrial uses. The Elgin Smelter and the Grant/Union Smelter sampling had lead and arsenic levels above risk-based action levels for both commercial/industrial uses and recreational uses. Therefore, the contaminated media in OU5 posed a significant risk to human health.

As with OU4 above, the BARA and the ERA were the most pertinent in evaluating the risk to ecological receptors in OU5. Releases of contaminants from OU5 presented an unacceptable risk to aquatic and terrestrial ecological receptors and response actions were necessary at OU5 to control the release of contaminants and acidic water into the environment.

In September 1990, the EPA and ASARCO signed an Administrative Order on Consent for the performance of soils sampling and air monitoring at the Site. In 1991, the EPA issued a Unilateral Administrative Order that required ASARCO to conduct studies and complete RIs. In August 1994, ASARCO entered into a CD with the United States, State and other PRPs to perform certain remediation work in OU5, OU7 and OU9. The WAMP, included as Appendix D to the 1994 CD, defines the scope of work to be performed by ASARCO.

Several investigations have been conducted within the Site that have addressed the smelter/slag/mill sites. A Smelter Site Reconnaissance began in 1991 as part of the Smelter Remedial Investigation (Smelter RI), which was conducted in 1991 and 1992, and primarily focused on smelter-impacted soils but, also included sampling of discrete locations where smelter bag houses, dust chambers, or roasting furnaces may have been located. This study was initiated by ASARCO and included the Elgin Smelter, Grant/Union Smelter, Western Zinc Smelter sites, and Arkansas Valley Smelter sites.

A Surface Water RI (Surface Water RI) of the California Gulch Site was conducted in 1991 and 1992. The final Surface Water RI report was issued in 1996 describing the results of the surface water investigation. The study included surface water and sediment sampling in the Arkansas River and its tributaries, including California Gulch.

The 1996 Groundwater RI (Hydrogeologic RI) included installation of monitoring wells and piezometers, water level measurements, and groundwater sampling and analysis. The objectives of the Hydrogeologic RI were to investigate groundwater quality and flow directions, evaluate potential impacts to surface water receptors, and characterize background qroundwater quality.

Denver and Rio Grande Western Railroad, another PRP at the Site, undertook RIs of seven major lead slag piles including the Elgin Smelter and Grant/Union Smelter sites and one zinc slag pile, the Western Zinc slag pile. The Zinc Slag RI was performed concurrent with the Lead Slag Pile RI. Investigation activities during these two RIs focused mainly on the slag material that may have the potential to leach metals.

In 1993, the EPA conducted a Screening Feasibility Study (SFS) to initiate the overall CERCLA FS process at the California Gulch Site. The purpose of the SFS was to develop general response actions and identify an appropriate range of alternatives applicable to the various contaminant sources to be considered during feasibility studies for the California Gulch Site. Remedial alternatives retained in the SFS for tailing, flue dust, and non-residential area soils in OU5 for the AV/CZL sites were further evaluated and screened during an FFS. The 2000 OU5 AV/CZL FFS provided a detailed analysis of the five retained alternatives from the SFS as applied to tailing, flue dust, and non-residential soils. The 1999 OU5 EGWA FS provided a detailed analysis of the two retained alternatives from the SFS as applied to slag and four alternatives from the SFS for non-residential area soils. IC were included in the feasibility studies for OU5 to provide future protectiveness.

The Proposed Plan describing the EPA's preferred alternatives was issued on July 27, 2000. The preferred alternative for the AV/CZL sites was Alternative 3, Consolidation/Containment (Flue Dust Repository and Soil Cover). For the EGWA sites, the preferred alternative was Alternative 2, Institutional Controls.

The EPA issued two RODs for OU5. The ROD for the AV/CZL sites on OU5 was issued on September 29, 2000. The ROD for the EGWA sites on OU5 was issued on October 31, 2000.

The RAOs established in the two RODs for OU5 include: (1) Control airborne transport of tailing particles, flue dust and soil, (2) Control erosion of tailing, flue dust and contaminated materials into local water courses, (3) Control leaching and migration of metals from tailing, flue dust and soil into surface water, (4) Control leaching and migration of metals from tailing, flue dust and soil into groundwater, (5) Control contamination exposure to humans, animals and aquatic life, and (6) Prevent direct exposure of population to elevated contaminant levels in surficial soil.

The remedy selected for the AV/CZL sites consisted of: (1) Excavation of flue dust and relocation to a single-lined, fully encapsulated repository, (2) Consolidation of tailing and non-residential soils and placement of an 18-inch vegetated soil cover over the consolidated pile, (3) Implementation of ICs such as deed notices or deed restrictions to provide notification that a barrier is in place and to restrict land uses incompatible with the remedy, and (4) Development of an O&M program during remedial design to include inspection and maintenance of the cover and surface water controls, as well as inspection for evidence of erosion, differential settlement of the cover and adequacy of vegetation.

The remedy selected for the EGWA sites consisted of implementation of ICs to warn of potential hazards and to maintain the effectiveness of the remedy by limiting access to or use of the property for current or potential future land use scenarios.

The 2000 OU5 RODs for the EGWA sites and AV/CZL sites did not contain numeric cleanup standards, but were meant to address potential source material contributing to surface water and groundwater contamination. The OU12 remedy addresses site-wide surface water and groundwater contamination.

Implementation of the 2000 OU5 ROD for the AV/CZL sites began in June 2002. Some smelter structures were demolished, flue dust was excavated and the contaminated materials were transported to an on-site repository. Tailing and contaminated soil were consolidated on site and placed under eighteen inches of clean soil cover which was then vegetated. Diversion ditches to prevent run-on and ponding on the consolidated waste pile were also constructed. Remedial actions were initiated by ASARCO, but discontinued when ASARCO filed for bankruptcy. The EPA assumed lead responsibility for implementation of the remedy at OU5 through a settlement agreement signed between ASARCO and the federal government in 2008. The EPA completed AV/CZL OU5 remedial action in 2010. Both the OU5 RODs for the EGWA sites and the AV/CZL sites included implementation of ICs as part of the remedy. Lake County has adopted a local ordinance as an IC for the EGWA sites and AV/CZL sites. See the OU5 and OU7 Operations and Maintenance section below for information regarding O&M and ICs in OU5.

OU7, the Apache Tailing Impoundments, consisted of four distinct tailing impoundments located on the southern edge of the City of Leadville adjacent to U.S. Highway 24. These impoundments are located in California Gulch, approximately 1,500 feet downstream from the Yak Tunnel Water Treatment Plant surge pond. A map of OU7 can be found in the docket at http://www.regulations.gov under Docket ID no. EPA-HQ-SFUND-1983-0002. Tailing, placed in the Main Impoundment and possibly the North Impoundment, was generated by a mill located on the hillside northeast of the Apache Tailing Impoundments known alternately as the Venir Mill, the California Gulch Mill, and the ASARCO Leadville Milling unit. The available historical information indicates that this mill operated between 1939 and 1956, producing approximately 630,000 cubic yards of tailing in the 11.3-acre Main Impoundment and an estimated 14,500 cubic yards of tailing in the 1.8-acre North Impoundment.

Apache Energy and Minerals Company operated the Apache Mill from the late 1970s into the 1980s. The Apache Mill reprocessed tailing from the Main Impoundment and deposited the remaining materials into Tailing Ponds No. 2 and No. 3, which were located west and downstream of the Main Impoundment and were about 1.5 and 0.5 acres in size, respectively. Tailing Ponds No. 2 and No. 3 were consolidated into the Main Impoundment under a removal action in 1997.

For human health risk issues at OU7, the Preliminary BRA and the Final BRA Part C, Evaluation of Worker Scenario and Evaluation of Recreational Scenarios, were most pertinent. The Preliminary BRA indicated that lead and arsenic are responsible for the majority of human health risks at the Site. Therefore, arsenic and lead were used as indicator contaminants for risk in the Final BRA. Residential use of OU7 does not currently occur, nor is future residential use reasonably anticipated. Commercial, industrial, and recreational uses are expected at OU7. Therefore, commercial and industrial workers and recreational visitors were considered as groups that were potentially at risk. The Final BRA identified soil ingestion as the exposure pathway of concern for recreational visitors and ingestion of soil and dust was identified as the exposure pathway of concern for commercial/industrial workers. Exposure to other media (e.g., slag piles) and exposure to soil/dust through other pathways (e.g., dermal) are considered an insignificant concern for workers and recreational users. The OU7 investigations showed that the concentrations of lead and arsenic in the surficial tailing were below risk-based action levels for both the commercial/industrial land use scenarios (lead 6,100 mg/kg-7,700 mg/kg and arsenic 610 mg/kg-690 mg/kg) and the recreational land use scenario (lead 16,000 mg/kg and arsenic 1,400 mg/kg-3,200 mg/kg) identified in the Final BRA. Therefore, the exposed tailing did not pose a significant risk to human health.

For ecological risks at OU7, the BARA and the ERA were the most pertinent. The BARA characterized the impacts of mine waste contamination on the aquatic ecosystem of the Site. Results of the BARA indicate that mine waste poses potential unacceptable risk to all aquatic species. The BARA states that Apache Tailing Impoundments as well as other sources such as high metal waste rock piles, contribute to the metals entering California Gulch and, ultimately, the Arkansas River. Potential risks to the terrestrial ecosystem from mine waste contamination were characterized in the ERA. Risks to the blue grouse, mountain bluebird, and least chipmunk exceeded EPA acceptable levels for exposure to contaminants in tailing. Potential risks to plants and soil fauna from exposure to tailing were also indicated. Surface water ingestion may also result in a potential risk of some effect to terrestrial receptors. Action levels were not developed for terrestrial receptors. Thus, these releases of contaminants from OU7 presented an unacceptable risk to aquatic and terrestrial ecological receptors and response actions were necessary at OU7 to control the release of contaminants and acidic water into the environment.

The State, EPA and certain PRPs conducted various studies and investigations to evaluate the nature and extent of contamination within the Site generally and OU7 specifically. RIs that specifically addressed OU7 included the Tailing RI performed in the fall of 1991, a Supplemental RI conducted in 1996 and 1997 to respond to questions and issues that arose in response to the Draft Apache Tailing FS, issued in January 1996 and additional RI work performed between 1997 to 1999 that was reported in the final FFS (2000 FFS). The 2000 FFS assessed the general conditions of the Apache Tailing Impoundments area, evaluated and summarized the nature and extent of contamination within OU7, and evaluated remedial alternatives to address the risks and conditions identified at OU7.

The various RI studies concluded that loading from OU7 to groundwater (and not surface water) was the dominant process by which contaminants moved from OU7. This groundwater provides some loading to surface water downstream from OU7, which drains to California Gulch and ultimately to the Arkansas River.

The EPA issued the ROD for OU7 on June 6, 2000. The OU7 remedy was selected to eliminate or reduce potential threats to humans and the environment through the construction of a soil cover with a geosynthetic barrier and revegetation followed by implementation of ICs and a long-term monitoring plan.

The RAOs identified in the OU7 ROD for the Apache Tailing Impoundments were: (1) Control airborne transport of tailing particles; (2) Control erosion of tailing materials and deposition into local water courses; and (3) Control leaching and migration of metals from tailing into surface water and groundwater.

The selected remedy for OU7 included: (1) Surface water controls including the channelization of California Gulch through the southern portion of the Main Impoundment and diversion ditches to provide surface water run-on and runoff control; (2) Application of source surface controls to the impounded tailing, consisting of regrading the impoundment, placement of a multi-layer composite cover over the combined tailing area, and revegetating the covered surface; (3) ICs to warn of potential hazards and to maintain the effectiveness of the remedy by limiting access to or use of the property (current and future use scenarios) including temporary and permanent measures; and (4) A long-term monitoring program to assess the quality of surface water and groundwater following implementation of the remedy. The O&M Plan includes inspection and maintenance of the cover and surface water controls, including evidence of erosion, differential settlement of the cover, and vegetation monitoring.

Remedial action included: (1) Installation and maintenance of temporary sediment, diversion and storm water control structures in accordance with the Storm Water Management Plan and maintenance of such controls during construction activities; (2) Provision of dust control, as necessary, during all excavating, hauling, and placing operations; (3) Excavation of dispersed tailing and soil adjacent to the Main Impoundment to allow for the construction of temporary sedimentation ponds; (4) Demolition of the existing concrete foundations to the west of the Main Impoundment; (5) Relocation of a section of sanitary sewer line around the North Impoundment, connection to an existing sewer line at the east and west ends including two new sewer lateral connections, and abandonment of existing manholes and sewer line; (6) Regrading of the tailing impoundments as indicated on the drawings and placement of excavated material in fill areas between the Main and North Impoundments and on top of the Main Impoundment; (7) Removal and replacement of the overhead power line running east and west between the Main and North Impoundments; (8) Channelization of California Gulch through the southern portion of the Main Impoundment; (9) Installation of the multi-layer cover system consisting of a geosynthetic clay liner, geocomposite drainage layer, and an 18-inch soil cover over the regraded tailing impoundments; (10) Construction of permanent diversion ditches, berms and swales with appropriate erosion protection to provide surface water run-on and runoff control; (11) Extension or abandonment of monitoring wells or piezometers as necessary; (12) Revegetation of the tailing impoundments and other disturbed areas with specified seed mixture; and (13) Site cleanup and demobilization. ASARCO's Construction Complete Report is dated December 12, 2003. The long-term monitoring of water quality in OU7 is performed as part of the Site-wide Water, OU12 remedy.

The 2000 OU7 ROD did not contain numeric cleanup standards but intended to address air transport of tailing material, erosion of tailing material in local waters, and potential source material contributing to surface water and groundwater contamination at the Site.

Multiple removal actions were conducted at OU7 between 1996 and 2000, including removal of Tailing Ponds No. 2 and No. 3, consolidation of material removed from Tailing Ponds No. 2 and No. 3 on the Main Impoundment, and placement of erosion protection along the toe of the southwest embankment of the Main Impoundment below the clay-tile culverts and wooden box culvert outfalls. The December 1997 Removal Action Completion Report describes the construction activities in detail.

Per the 2008 CD settlement, ASARCO was relieved from the responsibility for implementing O&M activities at OU5 and OU7. The State is performing the O&M for OU5 and OU7 under an agreement with EPA. The State performs annual O&M monitoring, and periodic inspection and maintenance of the soil cover and surface water control features of OU5 and OU7. The O&M Plan was completed on March 20, 2014. O&M monitoring and maintenance occurs annually as directed by the O&M plan.

Lake County, on December 22, 2010 for OU7 and April 15, 2013 for OU5, and the City of Leadville, on May 7, 2013 for OU7, implemented ICs in the form of local ordinances, resolutions amending the Land Development Codes and adopting regulations that protect both engineered and non-engineered remedies at OU5 and OU7. A best management practice handout is provided to all applicants applying for a building permit within OU5 and OU7. In addition, any disruptions of engineered or non-engineered remedies, and/or excavation of more than 10 cubic yards of soil off-site within OU5 and OU7 require written approval from the CDPHE.

The remedies at the entire Site, including OU4, OU5 and OU7 require ongoing five-year reviews in accordance with CERCLA section 121(c) and § 300.430(f)(4)(ii) of the NCP. The next five-year review for the California Gulch Site is planned for 2017.

In the 2012 five-year review dated September 27, 2012 for the Site, the OU4 remedy was determined to be protective in the short-term. However, there were concerns regarding continued long-term protectiveness because the requirement of ICs was not documented in a decision document, however ICs had already been implemented by the PRP and Lake County. An ESD dated July 29, 2013 resolved this concern. Environmental covenants for Resurrection/Newmont's properties within OU4 were recorded with the Lake County Clerk and Recorder on July 31, 2012 and October 10, 2012. On December 22, 2010, Lake County implemented ICs for all the property in OU4 in the form of a local ordinance, a resolution amending the Lake County Land Development Code and adopting regulations that protect both engineered and non-engineered remedies at OU4.

In the 2012 five-year review for the Site, the OU5 and OU7 remedies were determined to be protective in the short-term. However, there were concerns regarding continued long-term protectiveness because an O&M Plan was not in place. The State developed an O&M Plan for OU5 and OU7, which EPA accepted on March 20, 2014. O&M monitoring and maintenance is occurring annually under the O&M plan.

Pursuant to CERCLA section 121(c) and the NCP, EPA will conduct the next five-year review by September 27, 2017 to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants, or contaminants remain at the Site above levels that allow for unlimited use and unrestricted exposure.

Public participation activities have been satisfied as required in CERCLA section 113(k), 42 U.S.C. 9613(k) and CERCLA section 117, 42 U.S.C. 9617. During the courses of these operable units, comment periods were offered for proposed plans, five-year reviews, and other public meetings. The documents that the EPA relied on for the partial deletion of OU4, OU5, and OU7 from the California Gulch Superfund Site, are in the docket and are available to the public in the information repositories. A notice of availability of the Notice of Intent for Partial Deletion has been published in the Leadville Herald Democrat to satisfy public participation procedures required by 40 CFR 300.425 (e)(4).

The State, the Lake County Commissioners, the City of Leadville are supportive of the partial deletion of OU4, OU5 and OU7.

EPA has consulted with the State, Lake County Commissioners, and the City of Leadville on the proposed partial deletion of OU4, OU5, and OU7 of the California Gulch Site from the NPL prior to developing this Notice of Partial Deletion. Through the five-year reviews, EPA has also determined that the response actions taken are protective of public health or the environment and, therefore, taking of additional remedial measures is not appropriate.

The implemented remedies achieve the degree of cleanup or protection specified in: For OU4, the 1995 and 1996 Non-Time Critical Removal Actions, the 1998 OU4 ROD, 2004 OU4 ESD and 2013 OU4 ESD; for OU5, the 2000 OU5 RODs for the EGWA and AV/CZL sites; and for OU7, the 1996 and 1997 Non-Time Critical Removal Actions and the 2000 OU7 ROD.

All selected removal and remedial action objectives and associated cleanup goals for OU4, OU5 and OU7 are consistent with agency policy and guidance. This partial deletion meets the completion requirements as specified in OSWER Directive 9320.22, Close Out Procedures for National Priority List Sites. All response activities at OU4, OU5, and OU7 of the Site are complete and the three operable units pose no unacceptable risk to human health or the environment. Therefore, EPA and CDPHE have determined that no further response is necessary at OU4, OU5, and OU7 of the Site.

The EPA, with concurrence of the State through the CDPHE has determined that all appropriate response actions under CERCLA, other than operation, maintenance, monitoring and five-year reviews, have been completed. Therefore, EPA is deleting all of OU4, Upper California Gulch; OU5, ASARCO Smelters/Slag/Mill Sites; and OU7, Apache Tailing Impoundment of the Site.

Because EPA considers this action to be non-controversial and routine, EPA is taking it without prior publication. This action will be effective October 14, 2014 unless EPA receives adverse comments by September 11, 2014. If adverse comments are received within the 30-day public comment period, EPA will publish a timely withdrawal of this direct final notice of partial deletion before the effective date of the partial deletion and it will not take effect. EPA will prepare a response to comments and continue with the deletion process on the basis of the notice of intent to partially delete and the comments already received. There will be no additional opportunity to comment.

On March 4, 2013, the Coast Guard published a notice of proposed rulemaking (NPRM) entitled “Vessel Documentation Renewal Fees” in the Federal Register (78 FR 14053). That NPRM contained the Coast Guard's proposed revision of 46 CFR part 67, setting forth proposed fees for services provided.

The Coast Guard received 2,720 comment responses on the proposed fees. Comments were received from individuals, law firms, commercial vessel documentation services, industry groups, and maritime corporations. We considered all comments in promulgating this final rule. The comments received in response to the proposed rule are discussed below in Section V. Discussion of Comments and Changes.

The legal basis for this rule is found in 46 U.S.C. 2110. That section provides that the Secretary of the Department in which the Coast Guard is operating (Secretary) shall establish a fee or charge for a service or thing of value that is provided to the recipient or user of that service. The Secretary is empowered in 46 U.S.C. 2104 to delegate the authorities in 46 U.S.C. Subtitle II to the Coast Guard. The Secretary exercised that delegation authority for fees in Department of Homeland Security Delegation No. 0170.1(92)(a).

In establishing these fees, we are required to use the criteria found in 31 U.S.C. 9701. Under this provision the fees must be fair, and must be based on the costs to the government, the value of the service or thing to the recipient, and the public policy or interest served (see 31 U.S.C. 9701(b)).

The purpose of this rule is to increase the annual Certificate of Documentation (COD) renewal fee collections so that the fees we charge more accurately reflect the actual costs to the Coast Guard of providing the annual documentation renewal services. By doing so, we will comply with the law and continue to provide documentation services by charging fair-value user fees.

Section 10401 of the Omnibus Budget Reconciliation Act of 1990 (Pub. L. 101-508, Nov. 5, 1990, 104 Stat. 1388), codified at 46 U.S.C. 2110, requires that the Coast Guard establish user fees for Coast Guard vessel documentation services. One of the vessel documentation services the Coast Guard provides is renewal of endorsements upon a COD. A COD is required for the operation of a vessel in certain trades, serves as evidence of vessel nationality, and permits owners of vessels to benefit from preferred mortgages (46 CFR 67.1). An Endorsement means an entry that may be made on a COD, and, except for a recreational endorsement, is conclusive evidence that a vessel is entitled to engage in a specified trade (46 CFR 67.3).

The Coast Guard sets fees at an amount calculated to achieve recovery of the costs of providing the service, in a manner consistent with the general user-charges principles set forth in OMB Circular A-25. Under that OMB Circular, each recipient should pay a reasonable user charge for Federal Government services, resources, or goods from which he or she derives a special benefit, at an amount sufficient for the Federal Government to recover the full costs of providing the service, resource, or good (see OMB Circular A-25, sec. 6(a)(2)(a)).

We last promulgated our user fees for vessel documentation services on November 15, 1993 (58 FR 60256), found at 46 CFR part 67, subpart Y-Fees. The fees reflect the Coast Guard's program costs for 1993, with the cost of providing annual COD renewals included as part of overhead costs. Since then, the renewal costs have increased. The existing fees do not cover the operating and overhead costs associated with our vessel documentation and recording activities under 46 U.S.C. chapters 121 and 313.

The COD renewal fee will more accurately reflect the Coast Guard's current operating and overhead costs associated with providing this discrete set of services. While we previously included the cost of providing annual COD renewals as part of its overhead costs, the fees collected in relation to these costs do not nearly cover our operating and overhead costs associated with providing annual COD renewal services. Therefore, we will break out and separately charge an annual-renewal fee of $26 (shown in Table 67.550—Fees) to cover the cost of providing the required annual COD renewal services. The Coast Guard's fiscal year 2010 review of vessel documentation user charges, “Vessel Documentation Biennial User Fee Review,” recommended establishment of an annual fee for COD renewals. The Biennial User Fee Review is available in the docket as indicated under ADDRESSES . In accordance with our statutory obligations and this recommendation, we proposed to break out and separately charge an annual renewal fee of $26 (shown in Table 67.550—Fees) to cover the cost of providing the required annual COD renewal services. After reviewing the comments, as discussed below, this rule adopts the proposed renewal fee without change.

The Biennial User Fee Review also recommended establishment of a fee for resubmitted requests for services such as applications, determinations, waivers, etc. We elected not to pursue the latter recommendation at this time, but will consider this fee in future studies and possibly in future rulemaking actions. Presently, we charge several other fees associated with vessel documentation and we anticipate that further review (as required by OMB Circular A-25) of these fees and the cost of service will result in additional proposed adjustments to reflect changes in cost and provision of services. Any of these additional proposed adjustments would be the subject of a separate rulemaking.

Currently, the Coast Guard provides CODs to 265,000 vessels registered in the United States, with average annual renewals issued to 235,000 vessels. The Coast Guard received 2,720 responses to the NPRM, with a total of 4,943 discrete comments, ranging in issue from general support to alternative ways to impose the fee and questions about the fee structure. We grouped the comments into 7 categories of concern, which encompass 45 separate issues. Below, we summarize these categories and the Coast Guard's response to them. No public meeting was requested and none was held.

Eight comments submitted were unclear or duplicate comments, however because they were accompanied by other comments that were categorized, we were able to respond to at least part of the commenter's concerns. We received one submission where the commenter claimed that he already pays the Coast Guard $27.50 for an annual PIN fee. We thank the commenter for his submission, but we are not sure about the fee to which he refers. He also worded his comment such that it does not appear he has documented his vessel. Only one other submission couldn't be categorized, where the commenter stated he “didn't care” because his vessel was not documented, but followed up with the statement that he still paid an annual fee of about $26 to enter the United States from Canada each summer. The Coast Guard thanks these commenters for their submissions, but we have no response, as these are outside of the scope of this rulemaking.

Many commenters (536) responded positively to the proposed rule, including 459 comments in support of the proposed rule and 77 comments that praised the Coast Guard's work. The Coast Guard thanks those commenters for their supportive comments.

Nearly 1,500 (1499) comments expressed disapproval of the proposed rule. Many (228) wrote that they would no longer document their vessel if the rule became final. A further 1,271 referred to the user fee as the imposition of a new “tax” on the boating community. The Coast Guard appreciates this feedback and would like the opportunity to clarify the difference between imposing a tax versus a user fee.

First, a user fee is designed to defray the costs of a regulatory activity (or government service), while a tax is designed to raise general revenue. Second, a true user fee must be proportionate to the necessary costs of the service, whereas a tax may not be. Third, a user fee is charged for requested services, whereas a tax is not. The discussion in the Regulatory Analysis will expand on the costs of the Coast Guard providing the COD service, and demonstrate how the new fee will be proportionate to the cost of providing the service.

The Coast Guard received 412 comments related to the components of the fee and how the fee was calculated. Many commenters (202) suggested that the fee was not reflective of the cost of providing the service. Others (140) suggested that the initial fee paid for documentation was sufficient for service costs for the life of the vessel. Several commenters (55) asked what, if any, new benefits would be provided that required an additional fee. Only 13 commenters suggested that the fee was too low.

The Omnibus Budget Reconciliation Act of 1990 (46 U.S.C. 2110) requires the Coast Guard to charge a fee for services but limits charges to no more than the overall cost of program. The fee calculations are based on the full cost of providing the service. The cost methodology, including process and overhead costs used in the calculation, is available in the docket.

Each service provided for vessel documentation carries associated costs that are considered in that fee. The initial application fee covers that service only; the renewal fee covers services incurred while issuing the renewal and maintaining the information supporting the document.

The Coast Guard recognizes that Federal vessel documentation confers many financial benefits on the vessel owner. However, there are no new benefits as a result of the renewal fee. The renewal fee is only necessary to cover the costs of providing the service as noted in the previous paragraph.

One commenter suggested that there would be extra costs associated with Coast Guard boardings to enforce the fee. The Coast Guard does not charge fees for boardings nor conduct boardings to enforce fees. The fee discussed in this rule is based on the cost to the Coast Guard for issuing the renewal. One commenter suggested the Coast Guard add a lien review to the annual renewal. The Coast Guard disagrees with the idea of implementing a lien review. A lien review is a separate process not connected with annual renewal of endorsements on a COD.

The Coast Guard received 886 comments recommending alternative ways to charge for vessel documentation renewal services. Among those, the most frequent (243) comments suggested that the Coast Guard charge for vessel documentation renewals only under certain circumstances, such as if changes are made to the documentation or if renewals are late (late fees). Additional commenters within this grouping proposed making the COD a permanent document. By regulation, CODs expire one year after issuance, regardless of whether or not there are any changes in information. Similar to current motor vehicle registration renewal processes, (in that an owner must pay to obtain a valid registration, regardless of whether any change to information is necessary), valid documents must be obtained in order to legally operate vessels.

Several commenters also suggested that the Coast Guard add the cost of the renewal service to existing fees or pay for the service through taxes. For example, we received 84 comments that suggested we increase the initial documentation fee, instead of charging the renewal fee. We also received seven comments that suggested the Coast Guard combine these fees with the United States Customs and Border Protection decal fees, but that vessel owners should not have to do both. Another seven comments suggested the Coast Guard recoup costs from fuel taxes.

The Coast Guard is required to charge a cost-based fee for all vessel documentation services provided. Renewal of endorsements on a COD is a service that incurs ongoing costs. Charging a separate fee for renewals allows the Coast Guard to fairly distribute those costs and allows flexibility to ensure the costs are recouped over the entire period of ownership. As discussed earlier taxes and user fees have separate purposes, user fees are charged for specific services, using taxes such as a fuel tax to cover COD expenses would create inequities by causing some boat owners to pay (via fuel charges) for services (COD renewals) that they did not use. Additionally, because the COD renewals are a separate and distinct effort from the Customs and Border Protection decal issuance, these fees cannot be combined.

Many commenters (91) suggested that the Coast Guard provide discounted rates for senior citizens, Auxiliary members, and non-profit organizations. While we understand the desire to provide a reduced rate, the current user fee covers the actual cost of processing a renewal; reducing fees for any one group would shift the cost to another group and this would not meet the fairness requirement of 31 U.S.C. 9701.

Other commenters suggested that documentation of recreational vessels be conducted by States. For example, 89 commenters suggested the Coast Guard do away with Federal COD and instead have States perform the service, or commented that they should not have to pay both Federal and State fees. One hundred ten commenters suggested that the Coast Guard charge States for use of the information the Coast Guard collects. We understand some owners do not want to pay both Federal and State fees; however, holding a valid Federal COD confers additional benefits beyond State registration. Furthermore, it is optional for recreational vessel owners. Recreational vessel owners are not required to request this service or to hold a Federal COD.

Forty-eight comments suggested that renewal fees apply only to commercial vessel owners. Obtaining a COD is already optional for recreational vessel owners. However, when the option to obtain a COD renewal is exercised, the cost of processing renewal CODs is the same, regardless of whether the vessel is operating with a commercial or recreational endorsement.

The Coast Guard also received a variety of comment submissions (197) that decried government size and waste and asserted the need for government spending cuts. Another 10 commenters suggested the Coast Guard privatize or outsource CODs. We note these comments, however they fall outside of the scope of the rulemaking. As noted, the Coast Guard provides this service and is required to charge a fee for incurred costs. The Coast Guard has and continues to minimize the costs and charges to provide this service.

The Coast Guard received 1,316 comments regarding the implementation of the new fee. The majority of these comments suggested the Coast Guard institute a multiyear renewal option program (757) and establish online payment capabilities (288). Others inquired about future adjustments to the fee. In particular, 199 commenters consider the proposed $26 fee too high, with many worried that the fee will continue to increase. Several commenters (30) queried if the fee could be determined by the class, size or value of the vessel. Another 29 commenters questioned the need to document vessels, indicating they had been forced into it.

The Coast Guard has provided annual renewals of endorsements on CODs to reduce the risk of maintaining outdated information and in response to vessel owner needs to maintain preferred mortgage status. The Coast Guard understands the efficiencies of multiyear renewals and will consider this in a future rule making. It cannot be implemented currently since this will require changes to processes, information systems, budgets, regulations and perhaps laws.

Currently, the Coast Guard offers online payment options for certain services, and, along with other Federal agencies, is looking for ways to expand and improve this service. The Coast Guard will continue to work to find efficiencies to reduce costs incurred and minimize fees charged. As processes, automation, information systems, and costs change, future adjustments of this fee will be made through regulation and based on the cost of providing the service.

One commenter requested to know when the fee would start. This regulation will become effective 90 days after the date of publication, on the date specified in the DATES section of this document. Therefore, the fees will start no earlier than 90 days after the date of publication of this regulation.

One commenter requested information on any requirements for renewal when the vessel's COD is “on deposit.” Currently a COD on deposit does not require an annual renewal. This will not change as a result of this rulemaking. This fee will apply only to renewals.

Two commenters requested clarification on endorsements and exemptions. These issues are beyond the scope of this rule. The respondents may contact the Coast Guard National Vessel Documentation Center (NVDC) directly for clarification. Contact and other helpful information is available through the NVDC Web site: http://www.uscg.mil/nvdc/default.asp or by calling 1-800-799-8362.

Two commenters suggested the Coast Guard refund fees when relinquishing CODs. This is not possible because the fee is being charged for services already performed at the time of renewal.

Four commenters suggested that all boaters, not just those holding a document, pay the fee. This is not possible because the Coast Guard may only charge a fee for requested services. The request for service is voluntary, not all boaters request the service. Therefore the Coast Guard has no authority to charge all boaters.

Four commenters asked about enforcement of renewing a COD. Renewal of a COD is a voluntary request. If a COD is not properly renewed, it expires and with it, the benefits conferred also expire.

The Coast Guard received 213 comments with suggestions or questions about how the fee should or would be used. Most of these comments (114) addressed how the fees would be used and the benefits to the owner. Many included suggestions about how the fees should be used for waterway maintenance (21), boating services and safety (23), and to improve the Great Lakes (1). Thirty seven commenters indicated that they would be supportive if the fees go towards the Coast Guard only. There were eight comments inquiring whether the fees would go towards improving service, and five who viewed the documentation service renewal fee as unnecessary. Four commenters questioned whether the location of their vessel would influence the fees charged, because there is no Coast Guard presence where their boat is kept.

The Coast Guard is limited by law as to how it may use the fees collected. Vessel documentation fees collected from commercial vessel owners are deposited in the general fund of the Treasury as offsetting receipts of the department in which the Coast Guard is operating and ascribed to the Coast Guard activities. Vessel documentation fees collected from recreational vessel owners are used by the Coast Guard's NVDC to perform vessel documentation services for recreational vessel owners. Overall the fee collected through implementation of this rule is intended to provide additional funds to the NVDC for improvements to documentation service. The Coast Guard understands that the current backlog of requests for service particularly for recreational vessels is excessive and intends to apply the available fees collected from renewals to correct this problem.

The fee for renewing a COD will be the same regardless of the location of the vessel. There is no difference in cost associated with location when renewing a COD because the same documentation services are provided regardless of location of the vessel. Although some endorsements are requested for specific commercial purposes, the locations that a vessel may be used other than for that commercial purpose is not limited by the COD issued.

The Coast Guard received 71 comments regarding the benefits the government would gain with the proposed user fee. We received 35 comments about the expected benefits to the government. A further 26 comments cited the Federal government's ability to contract with documented vessel owners for the use of their vessels during certain national emergencies. The respondents suggested that this resulted in a benefit to the government and should be considered when setting a fee for renewing a COD. Ten commenters suggested public safety would be negatively impacted, as some owners would choose not to hold or renew Federal documents.

For the Federal government to use a documented vessel in times of emergency the vessel must be acquired under a mutually agreed upon contract between the Federal government and the vessel owner. Because the vessel owner would be paid for the use of the vessel this was not a factor in setting the fee. The Coast Guard based the documentation fee on the cost of providing the service, not on benefits received or given by either the government or the vessel owner. The purpose of vessel documentation is to provide the vessel owner with specific benefits and is not intended as a public safety measure.

After considering all comments, the Coast Guard is finalizing the user fee as it was proposed. The Coast Guard appreciates all of the comments received. The Coast Guard is publishing the final rule without changing the requirements stated in the NPRM.

We developed this final rule after considering numerous statutes and Executive Orders (E.O.s) related to rulemaking. Below, we summarize our analyses based on these statutes or E.O.s.

E.O.s 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule is not a significant regulatory action under section 3(f) of E.O. 12866 as supplemented by E.O. 13563, and does not require an assessment of potential costs and benefits under section 6(a)(3) of E.O. 12866. The Office of Management and Budget (OMB) has not reviewed it under E.O. 12866. Nonetheless, we developed an analysis of the costs and benefits of the rule to ascertain its probable impacts on industry.

We received no comments that would alter our assessment of the impacts presented in the NPRM. Further, we have found no additional data or information that would change our assessment of the impacts presented in the NPRM. As such, we have adopted the analysis in the NPRM for this rule as final. A summary of the analysis follows:

The cost to industry  1 outlined in this final rule would represent a transfer payment from the public to the government to offset the costs incurred by the U.S. Coast Guard to provide COD renewal services to those that paid. Transfer payments do not affect total resources available to society. The total social cost to society as a result of this final rule is zero. The following table summarizes the costs and benefits of this rule.

As discussed above, this final rule requires an annual renewal fee for endorsement(s) on the CODs. This fee, which is based on the costs that the Federal Government currently incurs to process renewals, along with additional costs due to increased need in labor and capital costs, will cost each vessel owner $26 per renewal.

The renewal fee that will be charged to the public under this final rule is based on the full cost to the Federal Government to provide this service. The renewal fee will allow the Federal Government to recoup those costs. Specifically, the purpose of the renewal fee is to ensure that this service is self-sustaining. As such, the renewal fee was determined by dividing the full, annual cost of providing the service by the average number of renewals over the past 5 years. The full, annual cost of providing this service includes all current costs, such as labor, capital, and overhead, plus additional labor and capital costs that will be required to process the additional fees collected.

In 2011, we conducted a comprehensive study to more accurately calculate the costs involved with the annual COD renewal process. Our “Full Cost Study for Renewal of Endorsements on Certificates of Documentation” focuses on the cost of annual COD renewals, updates the cost figures, and includes costs for the additional activities required to process collections. The cost study is available in the docket where indicated under the ADDRESSES section in the preamble.

The study indicated that the average number of annual renewals for 2006-2010 was 235,000. The renewals accounted for a subset of the approximately 65,000 commercial and 200,000 recreational vessels documented by the Coast Guard in 2010. Under this final rule, we anticipate that the cost for processing annual COD renewals and their associated fees will be approximately $6 million, as shown in Table 2. The full cost to provide the annual renewal service shown in Table 2 includes directly traced personnel costs calculated from timed activities, allocated personnel costs based on costs associated with personnel directly involved and in supporting roles, and other costs such as operating and administrative costs, facilities, and information systems costs.

The COD renewal and collection services are provided with enough frequency that we were able to reliably estimate the average time involved. We calculated personnel costs based on an hourly rate that represents the cost per hour or part thereof per employee. The employee cost is based on hourly rates found in COMDTINST 7310.1M, Coast Guard Reimbursable Standard Rates, available in the docket where indicated under ADDRESSES . The NVDC anticipates that the method for collecting fees will be similar to the current process for late renewals, with some additional activities for processing the payment (collections) in accordance with U.S. law and Federal guidance. 2 The total annual cost to operate the NVDC annual COD renewal program and collect fees is approximately $6 million; the final fee reflects this cost, and should close the current gap identified in the Biennial User Fee Review.

To calculate the annual renewal fee, we divided the total annual costs associated with the renewal program by the average number of annual renewals. We included directly traced personnel costs for those activities in a timed study. These activities represent a small, mostly automated portion of the full process. However, we could not include other direct and indirect costs, such as allocated personnel costs, in the time study due to the complexity of the activities. Some of these costs are based on additional steps necessary to process applications with payments, which, at least initially, will be a manual rather than automated process. Other costs are non-personnel operating and are also allocated costs. The allocated cost is based on a percent of standard personnel costs for positions based on relative volume of renewals produced. Table 2 shows these costs.

This total cost to the Coast Guard is shown by the following equation: the total cost divided by the average number of renewals ($5,898,508/235,000 CODs = $25.08/COD), which results in an annual renewal fee of $25.08, which is rounded up to the next dollar, $26. This allows us to recover the full cost of providing this service.

The following figure summarizes the annual cost estimate of the final rule.

This final rule is estimated to cost industry $42.9 million over 10-years discounted at a 7 percent rate. Table 3 summarizes the total 10-year cost to industry.

This final rule provides benefits to both the Federal Government and vessel owners. Because the Coast Guard has not collected a fee for COD renewal in the past, the estimated $6.1 million in revenue that the government will collect from the fee will enable the Coast Guard to continue offering these services to the public, which will allow private and commercial vessel owners to continue to benefit from the program. These benefits include, but are not limited to: obtaining documentation for commercial use of vessels, obtaining private mortgages from financial lenders, and ability to travel internationally with evidence of vessel ownership for both private and commercial vessel owners.

When formulating the proposal, which is now being finalized, we also considered an alternate methodology to calculate the annual COD renewal fee. We derived this alternative fee by taking the average of the fees charged by each State (for vessel registration) on an annual basis. The average fee, on an annual basis, for the 50 States and the District of Columbia is approximately $42. This average, multiplied by the number of annual renewals, yields a value of approximately $10 million. We rejected this alternative because the annual collections under this methodology would exceed the Federal Government cost of providing the service, and the full-cost results provided a more reasonable fee.

Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, we have considered whether this final rule would have a significant economic impact on a substantial number of small entities. 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.

In the NPRM, we reviewed size and ownership data of affected entities by using data provided by the NVDC and public and proprietary data sources for company revenue and employee size data. We determined that there are approximately 18,164 entities owning 65,534 commercial vessels that would be impacted by this rule. 4 These entities include businesses and government jurisdictions. Privately-owned recreational vessels comprise the remaining vessel population and are not included in this regulatory flexibility analysis because these vessels are owned by individuals whom are not considered to be small entities for the purpose of the Regulatory Flexibility Act.

We did not receive any public comments following the issuance of the NPRM that would alter our analysis of the economic impact that this rule would have on small entities. Further, we found no additional data or information that would change our findings presented in the NPRM. As such, we have adopted our findings from the NPRM for this final rule. A summary of the analysis presented in the NPRM follows.

To conduct our analysis, we chose a random sample of 400 affected entities. 5 We were able to find revenue or employee size data for 88 of these entities using Web sites, such as MANTA and ReferenceUSA. This included 83 businesses and 5 government jurisdictions. We did not find any small not-for-profit organizations that are independently owned and operated and are not dominant in their fields.

To determine the size of the 83 businesses with available revenue or employee size data, we used the North American Industry Classification System (NAICS) codes to identify the line of business for the entities in our sample and compared the data found to the small business size standards determined by the Small Business Administration (SBA). 6 Of the entities with data, 70 are considered small by SBA size standards and 13 exceeded SBA size standards for small businesses. We also assume that those entities without data available are small.

To determine the size of the 5 affected government jurisdictions, we used the definition from the Regulatory Flexibility Act section 601(5), which classifies small government jurisdictions as jurisdictions with a population of less than 50,000. Of the 5 government jurisdictions, one has a population of less than 50,000, and would therefore be considered small.

As such, we estimate that more than 95 percent of all entities that would be affected by this final rule are small entities. We do not anticipate a significant economic impact to these small entities as a result of this final rule. This rule would require that all entities renewing the endorsements on their COD pay an annual renewal fee of $26 per documented vessel. This final rule impacts a diverse set of industry sectors with a wide range of fleet sizes and revenues. Table 4 provides example data for three affected small businesses that represent the upper, lower, and median values for revenue, fleet size, and cost found within the sample population. Our research shows that those entities with the largest fleets, and thus a greater incurred cost, also have the highest reported revenue in our sample.

By multiplying the renewal fee by the number of documented vessels owned by each entity analyzed from our sample, we were able to calculate the cost per entity of this final rule. We then used that cost to determine a percentage of revenue impact on the entity by dividing the total cost per entity by the revenue. This analysis showed that the impact from this final rule would be less than 1 percent of annual revenue for small businesses in the sample.

The one small government jurisdiction in our sample operated three vessels that would require COD renewals for a total of $78 in annual COD renewal fees. Given that the cost to this small government jurisdiction is only $78, we expect this final rule would not cause a significant economic impact.

Therefore, the Coast Guard certifies, under 5 U.S.C. 605(b), that this final rule will not have a significant economic impact on a substantial number of small entities.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking. If the final rule will affect your small business, organization, or governmental jurisdiction, and you have questions concerning its provisions or options for compliance, please consult Ms. Mary Jager, CG-DCO-832, Coast Guard; telephone 202-372-1331, email Mary.K.Jager@uscg.mil. The Coast Guard will not retaliate against small entities that question or complain about this final rule or any policy or action of the Coast Guard.

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).

This final rule calls for no 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, or 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 final rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132. Our analysis is explained below.

As explained above, 46 U.S.C. 2110 states that “the Secretary shall establish a fee or charge for a service or thing of value provided by the Secretary under this subtitle.” In doing so, it was the intent of Congress to grant the Coast Guard, via delegation from the Secretary, the exclusive authority to establish user fees for Coast Guard vessel documentation services. The Coast Guard has exercised its authority in this rulemaking by establishing annual fees for renewals of endorsements upon the Certificate of Documentation. Therefore, the establishment of user fees for Coast Guard vessel documentation services is within a field foreclosed from state or local regulation. In light of the analyses above, this final rule is consistent with the principles of federalism and preemption requirements in Executive Order 13132.

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 1 year. Though this final rule will not result in such an expenditure, we do discuss the effects of this final rule elsewhere in this preamble.

This final rule will not cause a taking of private property or otherwise have taking implications under E.O. 12630 (“Governmental Actions and Interference with Constitutionally Protected Property Rights”).

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

We have analyzed this final rule under E.O. 13045 (“Protection of Children from Environmental Health Risks and Safety Risks”). This final 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 final rule does not have tribal implications under E.O. 13175 (“Consultation and Coordination with Indian Tribal Governments”), because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this final rule under E.O. 13211 (“Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use”). We have determined that it is not a “significant energy action” under that E.O. because it is not a “significant regulatory action” under E.O. 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

The National Technology Transfer and Advancement Act, codified as a note to 15 U.S.C. 272, directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This final 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 (42 U.S.C. 4321-4370f), and have concluded 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 is categorically excluded under section 2.B.2, figure 2-1, paragraph 34(a) of the Instruction. This rule involves regulations that are editorial or procedural. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES.

For the reasons discussed in the preamble, the Coast Guard amends 46 CFR part 67 as follows:

NMFS published a final rule in the Federal Register on November 3, 2003 (68 FR 62250), implementing a process, for years in which the full Winter I commercial scup quota is not harvested, to allow unused quota from the Winter I period (January 1 through April 30) to be added to the quota for the Winter II period (November 1 through December 31), and to allow adjustment of the commercial possession limit for the Winter II period commensurate with the amount of quota rolled over from the Winter I period.

For 2014, the initial Winter II quota is 3,498,355 lb (1,587 mt), and the best available landings information indicates that 3,734,116 lb (1,694 mt) remain of the Winter I quota of 9,900,300 lb (4,491 mt). Consistent with the intent of Framework 3, the full amount of unused 2014 Winter I quota is transferred to Winter II, resulting in a revised 2014 Winter II quota of 7,232,471 lb (3,281 mt). Because the amount transferred is greater than 2,000,000 lb (907 mt), the possession limit per trip will increase from 12,000 lb (5,443 kg) to 18,000 lb (8,165 kg) during the Winter II quota period, consistent with the final rule that increased the Winter II trip limit, published on May 22, 2014 (79 FR 29371).

This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.

The Assistant Administrator for Fisheries, NOAA (AA), has determined good cause exists pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment on this in-season adjustment because it is impracticable and contrary to the public interest. The landings data upon which this action is based are not available on a real-time basis and, consequently, were compiled only a short time before the determination was made that this action is warranted. If implementation of this in-season action is delayed to solicit prior public comment, the objective of the fishery management plan to achieve the optimum yield from the fishery could be compromised; deteriorating weather conditions during the latter part of the fishing year will reduce fishing effort and could prevent the annual quota from being fully harvested. This would conflict with the agency's legal obligation under the Magnuson-Stevens Fishery Conservation and Management Act to achieve the optimum yield from a fishery on a continuing basis, resulting in a negative economic impact on vessels permitted to fish in this fishery.