The regulations in “Subpart-Fruits and Vegetables” (7 CFR 319.56-1 through 319.56-71, referred to below as the regulations) prohibit or restrict the importation of fruits and vegetables into and within the United States from certain parts of the world to prevent the introduction of plant pests into the United States.

Prior to the effective date of this final rule, the regulations only allowed mangoes ( Mangifera indica L.) to be imported into the continental United States from the Philippines if they were produced on the island of Guimaras, which was determined to be free of both Sternochetus mangiferae (mango seed weevil) and S. frigidus (mango pulp weevil). Mangoes from all other areas of the Philippines except Palawan were eligible for importation into Hawaii and Guam only. Mangoes from the island of Palawan were prohibited entry into all areas of the United States due to the presence of mango pulp weevil.

However, the national plant protection organization (NPPO) of the Philippines requested that the Animal and Plant Health Inspection Service (APHIS) amend the regulations to recognize additional areas of that country as being free of mango seed weevil and mango pulp weevil. Specifically, the Government of the Philippines asked that we recognize the mango growing regions of Luzon, Visayas, and Mindanao as free of mango seed weevil and mango pulp weevil and the island of Palawan as free of mango seed weevil.

In response to the request by the NPPO of the Philippines, we prepared a commodity import evaluation document (CIED) entitled “Recognition of Mango Production Sites That are Free of Mango Seed Weevil, Sternochetus mangiferae and Mango Pulp Weevil, Sternochetus frigidus in the Philippines.”

Based on the evidence presented in the CIED, on April 10, 2014, we published in the Federal Register (79 FR 19838-19840, Docket No. APHIS-2013-0057) a proposal  1 to amend the list of designated pest-free areas for mango seed weevil and mango pulp weevil within the Philippines. We also proposed to amend the box labeling restriction in § 301.56-33(d) and the additional declaration requirement in § 319.56-33(e) to refer to areas that are free of mango seed weevil and mango pulp weevil in accordance with the regulations in § 319.56-5 rather than to specific areas. This allows us to update the list of pest-free areas through a notice published in the Federal Register in accordance with § 319.56-5 rather than a proposed rule.

In addition, the proposed rule provided notice of a new pest-specific irradiation dose of 165 Gy that we determined is effective against mango pulp weevil in mangoes. The reasons for that determination were described in a treatment evaluation document (TED) we prepared in support of that action. Therefore, we proposed to allow the importation of mangoes from areas of the Philippines that are either free of mango pulp weevil or that are treated for that pest with the new pest-specific irradiation dose. Because the Plant Protection and Quarantine (PPQ) Treatment Manual also lists a pest-specific irradiation dose of 300 Gy for mango seed weevil, which was not previously reflected in the regulations, we also proposed to allow the importation of mangoes from areas of the Philippines that are either free of mango seed weevil or that are treated for that pest in accordance with the authorized pest-specific irradiation dose listed in the Treatment Manual. Finally, we proposed to amend the regulations to allow the use of any approved treatments for Bactrocera fruit flies rather than specifically with vapor heat. This allows for the treatment of mangoes from the Philippines with the new irradiation dose for mango pulp weevil or the current irradiation dose for mango seed weevil, both of which exceed the minimum irradiation dose approved for the treatment of Bactrocera fruit flies.

We solicited comments on the proposed rule for 60 days ending June 9, 2014. We received eight comments by that date. They were from private citizens, an industry group, and representatives of State and foreign governments. One commenter supported the proposed rule. One commenter raised issues that were not germane to the proposed rule. The issues raised by the other commenters are discussed below.

The majority of commenters objected to the importation of Philippine mangoes into Hawaii because Hawaii also produces mangoes and they were concerned that the importation of mangoes from the Philippines could cause economic harm to domestic growers or because of concerns that pests within the Philippines could be introduced into Hawaii on Philippine mangoes.

Prohibiting the importation of mangoes from the Philippines into Hawaii is limited by APHIS' statutory authority under the Plant Protection Act (PPA, 7 U.S.C. 7701 et seq. ). Under the PPA, APHIS may prohibit the importation of a fruit or vegetable into the United States only if we determine that the prohibition is necessary in order to prevent the introduction or dissemination of a plant pest or noxious weed within the United States. APHIS does not have the authority to restrict imports solely on the grounds of potential economic effects on domestic entities that could result from increased imports. Moreover, Philippine mangoes are already eligible to be imported into Hawaii. Current imports from the Philippines comprise a negligible share of total fresh mango imports and the additional quantity of fresh mango that may be imported from the Philippines because of this rule is unlikely to make an appreciable difference in the total quantity imported. Therefore, it is unlikely that this final rule will have a significant impact on U.S. mango growers.

Additionally, we do not agree with the commenters' concerns regarding a pest risk to Hawaii from the mangoes from the Philippines. Except for the Island of Palawan, where mango pulp weevil is present, all mango growing areas within the Philippines have been confirmed free of mango seed weevil and mango pulp weevil. Therefore, except for Palawan, the only pests of concern that could reasonably be expected to follow the pathway of mangoes from the Philippines are fruit flies of the genus Bactrocera. However, these pests are already required to be treated with vapor heat treatment in accordance with 7 CFR part 305. Since the authorization of Philippine mango imports into Hawaii, no pests of concern have been intercepted in commercial shipments of Philippine mangoes to the United States. This final rule authorizes the importation of mangoes from the Island of Palawan if treated with irradiation at a dose of 165 Gy. As stated in the TED, this treatment has been proven effective against mango pulp weevil.

Two commenters objected to Palawan's status as free of mango seed weevil as the island was not included in a 3-year survey to determine the presence of mango seed weevil in growing areas within the Philippines.

Palawan's freedom from mango seed weevil was determined based on historical records provided by the Philippine Bureau of Plant Industry. In the event that mango seed weevil is found in any shipment originating from Palawan, the export program will be suspended unless all shipments are treated with irradiation in accordance with 7 CFR part 305.

Two commenters suggested that all pests of mangoes be treated with irradiation at 165 Gy and stated that shipments of mangoes from the Philippines be prohibited entry into the United States until it can be proven that treatment within the United States would not result in accidental pest introductions.

International Plant Protection Convention standards require that phytosanitary measures represent the least restrictive measures available and result in the minimum impediment to the international movement of people, commodities, and conveyances. Currently, mangoes from areas in the Philippines that are free of mango seed and mango pulp weevils are eligible for importation into the United States if treated for fruit flies with vapor heat or with irradiation at a minimum absorbed dose of 150 Gy. Treatment of mangoes from the Philippines with irradiation at 165 Gy or higher may be required only if the mangoes originate from the island of Palawan where mango pulp weevil is present or are found infested with pests that would justify a higher dose of irradiation. Higher irradiation doses cost more to administer and may affect the marketability of the product. Section 305.9 of the regulations outline safeguards required to prevent the accidental introduction of pests prior to treatment with irradiation at the port of entry within the United States. Such safeguards include, but are not limited to, not removing the packaging on untreated shipments prior to treatment and moving regulated articles in refrigerated or air-conditioned conveyances to minimize pest mobility. In the event that treatment is unable to be properly applied, the facility is also required to have a contingency plan in place for safely destroying or disposing of untreated articles. We believe these safeguards are adequate to prevent the accidental introduction of plant pests into the United States.

Therefore, for the reasons given in the proposed rule, we are adopting the proposed rule as a final rule, without change.

This is a substantive rule that relieves restrictions and, pursuant to the provisions of 5 U.S.C. 553, may be made effective less than 30 days after publication in the Federal Register . Immediate implementation of this rule is necessary to provide relief to those persons who are adversely affected by restrictions we no longer find warranted. Making this rule effective immediately will allow interested producers and others in the marketing chain to benefit from the availability of mangoes from an additional source. Therefore, the Administrator of the Animal and Plant Health Inspection Service has determined that this rule should be effective upon publication in the Federal Register .

This final rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

This final rule is in response to a request from the Philippines to recognize additional areas (regions in Luzon, Visayas, and Mindanao) as free of mango seed weevil and mango pulp weevil, and the island of Palawan as free of mango seed weevil. Currently, fresh mango from the Philippines is enterable into the United States from the island of Guimaras, considered free of these weevils, subject to treatment to mitigate the risk associated with fruit flies of the genus Bactrocera.

In addition, APHIS is amending the PPQ Treatment Manual by adding irradiation at 165 Gy as an option to mitigate the risk associated with mango pulp weevil. This dosage also mitigates the risk associated with fruit flies of the genus Bactrocera.

In 2010 and 2011, fresh mango exports to the United States from the Philippines averaged about 42,000 pounds per year. U.S. mango imports from all sources averaged more than 3.3 billion pounds per year between 2009 and 2012, with most coming from Mexico, Peru, Ecuador, Brazil, and Guatemala. Thus, imports from the Philippines comprise a negligible share of total fresh mango imports, less than 0.002 percent. Given the Philippines' current very small share and the proximity of major Latin American sources, the additional quantity of fresh mango that may potentially be imported from the Philippines because of this rule is unlikely to make an appreciable difference in the total quantity imported.

U.S. mango production (about 6.6 million pounds per year) is equivalent to 0.2 percent of total imports. Most if not all mango farms are small entities in Florida, California, Texas, and Hawaii, where the fruit is primarily marketed locally. Any effect for these farms and for mango importers of additional fresh mango imports from the Philippines will be inconsequential, given the very small change expected to total imports.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

This final rule allows mangoes to be imported into the United States from the Philippines. State and local laws and regulations regarding mangoes imported under this rule will be preempted while the fruit is in foreign commerce. Fresh fruits are generally imported for immediate distribution and sale to the consuming public, and remain in foreign commerce until sold to the ultimate consumer. The question of when foreign commerce ceases in other cases must be addressed on a case-by-case basis. No retroactive effect will be given to this rule, and this rule will not require administrative proceedings before parties may file suit in court challenging this rule.

This final rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Accordingly, we are amending 7 CFR part 319 as follows:

In a final rule  1 that was published in the Federal Register on May 2, 2014 (79 FR 24995-24997, Docket No. APHIS-2012-0038), and effective on June 2, 2014, we amended the fruits and vegetables regulations to add a section, § 319.56-67, that allows the importation of cape gooseberry ( Physalis peruviana ) from Colombia into the United States under a systems approach.

One of the provisions of the systems approach, found in paragraph (b)(1) of § 319.56-67, required the cape gooseberry to be produced in places of production that are registered with the national plant protection organization (NPPO) of Colombia. Another, found in paragraph (c)(1) of § 319.56-67, required trapping for Mediterranean fruit fly (Medfly, Ceratitis capitata) at registered places of production. Finally, paragraph (c)(2) of § 319.56-67 specified that capture of Medfly at a registered place of production would result in immediate cancellation of exports from farms within 5 square kilometers of the detection site, and required an additional 50 traps to be placed in the 5 square kilometer area surrounding the detection site.

Our intent was to prohibit exports from farms within a 5 kilometer radius (78.54 square kilometers) of a detection site, rather than 5 square kilometers. Cancelling exports from within 5 square kilometers of the detection site, however, would prohibit exports only from within a 1.26 kilometer radius of the detection site.

The additional trapping would have to occur in this 5 square kilometers area surrounding the detection site. In other words, our intent was to specify that additional trapping would have to occur in an area circumscribed by a larger area from which exports would be prohibited. Due to drafting errors, however, neither the rule nor its supporting documents reflected this intent.

Accordingly, we are amending paragraph (c)(2) of § 319.56-67 to specify that capture of Medfly at a registered place of production will result in immediate cancellation of exports from farms within a 5 kilometer radius (78.54 square kilometers) of the detection site, and to specify that an additional 50 traps must be placed within an area with a 1.26 kilometer radius (5 square kilometers) surrounding the detection site.

Accordingly, we are amending 7 CFR part 319 as follows:

The U.S. Department of Energy (DOE) received a petition from the Air-Conditioning, Heating, and Refrigeration Institute (AHRI) dated July 30, 2014, requesting that DOE reconsider its final rule setting energy conservation standards for walk-in coolers and freezers (“WICFs” or “walk-ins”). Energy Conservation Standards for Walk-In Coolers and Freezers, Docket No. EERE-2008-BT-STD-0015, RIN 1904-AB86, 79 FR 32050 (June 3, 2014) (“WICF Final Rule” or, in context, “the Rule”).

DOE adopted the WICF Final Rule in accordance with the Energy Policy and Conservation Act of 1975, as amended (“EPCA”). EPCA, as amended, governs the manner in which DOE will implement its rulemaking process for prescribing energy conservation standards for various consumer products and certain commercial and industrial equipment. At issue in AHRI's petition is the stringency of the energy conservation standards DOE adopted for refrigeration systems of WICFs. Those standards relied in part on certain modifications made to the walk-in test procedure that DOE adopted to ease the testing burden on refrigeration system manufacturers. See 79 FR 27387 (May 14, 2014). DOE determined these standards would result in the significant conservation of energy and are technologically feasible and economically justified, thereby meeting the statutorily required elements for an energy conservation standard. 42 U.S.C. 6295(o)(2)(A). AHRI asserted that the standards adopted by DOE for walk-in refrigeration systems were based on what AHRI characterizes as “errors” that resulted in standards that were neither technologically feasible nor economically justified.

Unlike some other statutes governing standard-setting through rulemaking, EPCA contains no provision setting forth a procedure for agency reconsideration of already prescribed final rules that established or revised energy conservation standards. Instead, the legal framework established in EPCA by Congress provides a means to enable a person to seek amendment of DOE's existing rules under certain circumstances, not reconsideration of a newly promulgated rule. See 42 U.S.C. 6295(n). Accordingly, AHRI's self-styled “petition for reconsideration” is procedurally improper.

Alternatively, even if DOE were to construe AHRI's petition for reconsideration as seeking amendment, rather than reconsideration of the WICF rule, pursuant to 42 U.S.C. 6295(n), AHRI would still fail to establish a valid basis for granting the petition. First, consistent with the statutory structure described above and the general requirement that agencies provide an interested person the right to petition for “the issuance, amendment, or repeal of a rule,” see 5 U.S.C. 553(e), EPCA permits interested persons to petition DOE to amend its standards. See 42 U.S.C. 6295(n). While that provision applies to any final rule, it also requires that the petition satisfy certain criteria. With regard to these criteria, DOE may only grant such a petition if, assuming no other information were considered, the petition provides evidence providing an adequate basis to amend the standard if the amended standard would result in the significant conservation of energy, would be technologically feasible, and would be cost effective, as described under 42 U.S.C. 6295(o)(2)(B)(i)(II) ( i.e., “the savings in operating costs throughout the estimated average life of the covered product in the type (or class) compared to any increase in the price of, or in the initial charges for, or maintenance expenses of, the covered products which are likely to result from the imposition of the standard”). See 42 U.S.C. 6295(n)(2). AHRI's petition, which focuses on newly issued standards, which are not yet in effect, and makes claims regarding those standards and certain procedural steps, does not meet the prescribed criteria under the statute. Moreover, even if AHRI's petition satisfied the criteria under 42 U.S.C. 6295(n), it does not establish a valid basis for amendment of the final rule because AHRI seeks an amended standard that would increase the maximum allowable energy use or decrease the minimum required energy efficiency of a covered product, contrary to EPCA. See 42 U.S.C. 6295(o)(1).

Further, DOE notes that AHRI's petition appears to reflect a fundamental misunderstanding of how to perform the calculations required to rate a given refrigeration component. Accordingly, AHRI's petition is predicated on a flawed set of calculations and assumptions.

While the issues raised in AHRI's petition do not warrant amending the WICF standards, DOE believes that it would be beneficial to hold a public meeting to demonstrate how DOE's test procedure and refrigeration system standards interact with each other and how manufacturers must calculate the efficiency of their respective refrigeration systems. The public meeting, which DOE had already planned to hold in response to inquiries regarding this interaction, will help ensure that stakeholders properly apply the test procedure when assessing the compliance of their equipment with the applicable standard. A parallel notice is also being published in the Federal Register today which contains details regarding this public meeting.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to the specified products. The NPRM was published in the Federal Register on June 4, 2014 (79 FR 32195). The NPRM proposed to correct an unsafe condition for the specified products. This AD results from an MCAI originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI states:

We gave the public the opportunity to participate in developing this AD. We considered the comment received.

One commenter requested that we provide sufficient time to comply with the AD. The commenter indicated that special tooling, to be supplied by Turbomeca, is necessary to comply with the AD. The vibration check itself is also performed by Turbomeca representatives.

We do not agree. Our analysis has confirmed that 32 months is sufficient time for operators to complete the actions required by this AD. We did not change this AD.

We reviewed the available data, including the comment received, and determined that air safety and the public interest require adopting this AD as proposed.

We estimate that this AD affects 1,268 engines installed on aircraft of U.S. registry. We also estimate that it will take about 4 hours per engine to comply with the inspection requirement in this AD. The average labor rate is $85 per hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $431,120.

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 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 to the extent that it justifies making a regulatory distinction, and

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc. Model BD-700-1A10 and BD-700-1A11 airplanes. The NPRM published in the Federal Register on July 1, 2014 (79 FR 37246).

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2013-41, dated December 30, 2013 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition on certain Bombardier, Inc. Model BD-700-1A10 and BD-700-1A11 airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov/#!documentDetail;D=FAA-2014-0424-0002.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (79 FR 37246, July 1, 2014) or on the determination of the cost to the public.

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.

We have become 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, TCCA, or Bombardier, Inc.'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.

We also have decided not to include a generic reference to either the “delegated agent” or “design approval holder (DAH) with State of Design Authority design organization approval,” but instead we have provided the specific delegation approval granted by the State of Design Authority for the DAH.

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

• Are consistent with the intent that was proposed in the NPRM (79 FR 37246, July 1, 2014) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (79 FR 37246, July 1, 2014).

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

We estimate that this AD affects 57 airplanes of U.S. registry.

We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this AD. The average labor rate is $85 per work hour. Required parts would cost about $0 per product. Based on these figures, we estimate the cost of this AD on U.S. operators to be $4,845, or $85 per product.

In addition, we estimate that any necessary follow-on actions would take about 1 work-hour, for a cost of $85 per tee fitting. We have no way of determining the number of aircraft that might need this action.

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

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

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

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.

You may examine the AD docket on the Internet at http://www.regulations.gov/#!docketDetail;D=FAA-2014-0424; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section.

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes, and Model 777 airplanes. The NPRM published in the Federal Register on September 24, 2013 (78 FR 58487). The NPRM was prompted by testing reports on certain Honeywell phase 3 DUs. These DUs exhibited susceptibility to radio frequency emissions in WiFi frequency bands at radiated power levels below the levels that the displays are required to tolerate for certification of WiFi system installations. The phase 3 DUs provide primary flight information including airspeed, altitude, pitch and roll attitude, heading, and navigation information to the flightcrew. The NPRM proposed to require replacing the existing phase 3 DUs with new phase 3A DUs and installing new DU database software. We are issuing this AD to prevent loss of flight-critical information displayed to the flightcrew during a critical phase of flight, such as an approach or takeoff, which could result in loss of airplane control at an altitude insufficient for recovery, or controlled flight into terrain.

The cause of the unsafe condition stated in the Discussion section of this AD is a known susceptibility of the Phase 3 DUs to RF transmissions inside and outside of the airplane. This susceptibility has been verified to exist in a range of RF spectrum (mobile satellite communications, cell phones, air surveillance and weather radar, and other systems), and is not limited to WiFi transmissions.

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal (78 FR 58487, September 24, 2013), and the FAA's response to each comment.

Three commenters requested that we revise the applicability. A4A requested that we change the applicability to address only airplanes that have phase 3 DUs installed. Mr. Philipp Schmid requested that the applicability only address airplanes that have a WiFi system installed in the cabin. All Nippon Airways (ANA) requested that we revise applicability paragraph (c) of the proposed AD (78 FR 58487, September 24, 2013) to refer to the airplanes identified in Boeing Special Attention Service Bulletin 737-31-1471, dated November 29, 2012; and Boeing Special Attention Service Bulletin 777-31-0187, dated November 29, 2012.

A4A stated that the FAA is making the NPRM (78 FR 58487, September 24, 2013) applicable to all Model 737 NG and Model 777 series airplanes, regardless of the operator's intent to install a Wi-Fi system. A4A expressed that in paragraph (e) of the proposed AD, the FAA acknowledges that the unsafe condition is directly related to electromagnetic interference (EMI) characteristics exhibited at specific frequency ranges related to Wi-Fi transmission. A4A stated that the phase 3 DUs have passed all applicable certification testing required for approval and use on transport category airplanes, including the DO-160 environmental standards. A4A asserted that the phase 3 display units have proven to be reliable under normal operating conditions. A4A also stated that the failure mode identified by the NPRM is specific to an additional test procedure prescribed by DO-294C that is required only as part of the certification requirements of an operator-installed Wi-Fi system.

ANA stated that the those airplanes not specified in Boeing Special Attention Service Bulletin 737-31-1471, dated November 29, 2012; and Boeing Special Attention Service Bulletin 777-31-0187, dated November 29, 2012; were/will be delivered with the requested changes in production.

We partially agree with the commenters' requests. We recognize that operators will not be able to comply with the proposed replacement specified in paragraph (g) of the proposed AD (78 FR 58487, September 24, 2013) if airplanes do not have any phase 3 DUs installed. Therefore, we have revised paragraph (g) of this AD to allow operators to inspect to determine if phase 3 DUs are installed and if no phase 3 DUs are installed, no further action is necessary.

The intent of this AD is to remove all DUs with an unsafe condition from all Model 737NG and Model 777 series airplanes, regardless of whether or not the airplanes are listed in the effectivity of Boeing Special Attention Service Bulletin 737-31-1471, dated November 29, 2012; and Boeing Special Attention Service Bulletin 777-31-0187, dated November 29, 2012.

DUs can be rotated among other airplanes. As noted by Boeing, the phase 3 DU's are interchangeable and intermixable with earlier versions of DU's on 737NG and 777 airplanes, and may have been installed on any 737NG or 777 airplanes, and may be in operator spares inventory.

In regards to A4A's comment that phase 3 DUs have proven to be reliable under normal operating conditions, the testing that revealed the DU susceptibility was verified by inspection of the phase 3 DU qualification test reports provided by the DU manufacturer. The intent of this AD is to eliminate this known susceptibility of the phase 3 DUs to RF transmissions, including those from sources outside the airplane. This susceptibility is not limited to WiFi transmissions, but has been verified to exist in a range of the RF spectrum used by mobile satellite communications, cell phones, air surveillance and weather radar, and other systems. The phase 3 displays that failed the test did so substantially below the RF immunity levels set forth in paragraph 1 of the “High Intensity Radiated Fields (HIRF)” section of the preamble to 737 Special Condition 25-ANM-132, dated September 26, 1997; and paragraph 1 of the HIRF discussion in the preamble to 777 Special Condition 25-ANM-78, dated November 10, 1993. Under the provisions of paragraph (h) of this AD, we will consider requests for approval of an AMOC if sufficient data are submitted to substantiate that the DU change is not necessary. We have not changed this AD in this regard.

Virgin Australia (VOZ), Air France (AFA), Ryanair, Airlines for America (A4A), and Honeywell requested that we withdraw or review the need for the NPRM (78 FR 58487, September 24, 2013).

VOZ stated that during testing of the WiFi inflight entertainment system on the VOZ Model 737NG fleet, it noted that the DU blanking occurred only when the WiFi radiated power source (set-up in the flight deck) was increased to a high level. VOZ also stated that under normal operating conditions of the WiFi radiated power, there was no blanking of the DU, but interference was present only at a certain frequency. VOZ commented that as part of the WiFi supplemental type certificate (STC), a decal is installed in the flight deck that states that WiFi is not to be used when airplane engines are running for the purpose of flight, and flight operation procedures also restrict transmitting devices in the flight deck. We infer that VOZ requested that we withdraw the NPRM (78 FR 58487, September 24, 2013).

AFA stated that since April 2013, AFA and Koninklijke Luchtvaart Maatschappij N.V.(KLM) have operated two Model 777 airplanes equipped with WiFi that have had no DU problems. AFA commented that the WiFi signal is available on the flight deck, but its use is prohibited. AFA suggested that it is likely that the WiFi signal level is too low to cause the DU blanking problems that led to the NPRM (78 FR 58487, September 24, 2013). AFA also stated that on its other Model 777 airplanes (85 airplanes equipped with phase 2 or 3 DUs with no WiFi), neither AFA nor KLM, have experienced DU problems. AFA stated that the DU discrepancies are caused by WiFi interference directly associated with design defects of the phase 3 DU, and since replacement cost is at customer expense, estimated more than $2,000 per DU, the cost to comply with the NPRM for the quantity of phase 3 DUs in service in both fleets is not reasonable or justified.

Ryanair and Honeywell commented that testing performed on the phase 3 DUs concluded that a Federal Communications Commission (FCC) compliant WiFi radiating device does not result in interference on the phase 3 DU unless the transmitting device is within 1 meter of the DU. Ryanair and Honeywell stated that is not possible for FCC compliant WiFi devices to cause interference to the DUs from outside the airplane during flight and that intentional emitting devices by passengers are prohibited from use on an airplane, and in any case will always be more than the required 1 meter distance from the DU, and consequently cannot cause interference to the DUs. Ryanair and Honeywell also stated that the installation and operation of any intentional emitting devices in the cockpit during flight is subject to regulatory approval and such regulatory approval process includes electromagnetic interference testing at WiFi frequencies. Ryanair asserted that requiring the NPRM (78 FR 58487, September 24, 2013) actions on all airplanes, irrespective of the installation or operation of WiFi systems in the cockpit, is imposing a high, and unnecessary, financial burden on operators.

Honeywell stated that instead of requiring all phase 3 DUs to be replaced or modified, as proposed by the NPRM (78 FR 58487, September 24, 2013), the need for modifying the DUs should only be considered in the process for authorizing the use of WiFi devices in the cockpit. Honeywell explained that since the cockpit is a controlled environment, the airline has the opportunity to select acceptable devices and establish procedures for their use and storage that can mitigate any interference risk. Honeywell stated that Delta Airlines has been safely operating WiFi-enabled Apple iPads in its flight decks, including those with phase 3 DUs, based on a waiver granted by the FAA.

Honeywell also stated that they have performed an assessment of continued operational safety (COS) risk to an external high intensity radiated field (HIRF) condition using the methods defined in the Transport Airplane Risk Assessment Methodology (TARAM) Handbook published by the FAA, Transport Airplane Directorate, and that its TARAM analysis concluded that the COS risk from external HIRF condition falls well within the FAA's acceptable risk zone.

A4A requested that we withdraw the NPRM (78 FR 58487, September 24, 2013) because it believes that the risk is not adequately substantiated, and that conflicting data exists questioning the susceptibility of the DUs to WiFi interference. A4A also commented that the economic impact of the NPRM actions is far greater than the cost estimate stated in the NPRM and should be acknowledged and weighed against what it characterized as questionable risk.

We do not agree with the commenters' request to withdraw the NPRM (78 FR 58487, September 24, 2013). The testing that revealed the DU susceptibility to WiFi interference was verified by inspection of the phase 3 DU qualification test reports provided by the DU manufacturer. The intent of this final rule is to eliminate this known susceptibility of the phase 3 DUs to radio frequency (RF) transmissions, including those from sources outside the airplane. The phase 3 displays that failed testing did so substantially below the RF immunity levels set forth in paragraph 1 of the HIRF section of the preamble to 737 Special Condition 25-ANM-132, dated September 26, 1997 ( http://www.gpo.gov/fdsys/pkg/FR-2009-09-03/pdf/E9-21299.pdf ); and paragraph 1. of the HIRF discussion in the preamble to 777 Special Condition 25-ANM-78, dated November 10, 1993 ( http://www.gpo.gov/fdsys/pkg/FR-2004-11-08/pdf/04-24847.pdf ).

As part of our assessment of the safety issue in accordance with our established safety process, the FAA also performed a TARAM analysis of the issue with the assistance of the airplane manufacturer. This analysis did not agree with Honeywell's assessment. The FAA issued an operating rule exemption to Delta Airlines for use of iPads on the flight deck because it was in the public interest to do so in order to enable testing and evaluation of other aviation safety-enhancing technology the FAA was researching. The FAA's exemption was granted to Delta based on extensive testing and supporting data, use of specially trained flight crews, and establishment of appropriate operating procedures to ensure safe flight operations during the time period of the exemption. The NPRM (78 FR 58487, September 24, 2013) will not be withdrawn because it meets the intent of correcting the unsafe condition listed in the SUMMARY section. Under the provisions of paragraph (h) of this AD, we will consider requests for approval of an alternative method of compliance (AMOC) if sufficient data are submitted to substantiate that the DU change is not necessary. We have not changed this AD in this regard.

A4A requested that we fully present our underlying data in support of the NPRM (78 FR 58487, September 24, 2013) risk allegation. Mr. Philipp Schmid stated that WiFi operational limitations should be considered in the risk assessment and that to his knowledge, WiFi systems must be disabled during the critical phases of flight such as an approach or take-off.

A4A stated that the FAA does not disclose in the NPRM (78 FR 58487, September 24, 2013), the nature of DU testing conducted nor its source, and that a rulemaking of this magnitude must be supported in incontrovertible data from appropriate and reliable sources.

A4A submitted information from Southwest Airlines (SWA) that stated that SWA collected data from both certified lab and engineering designed airplane ground tests indicating that the Honeywell phase 3 DUs are not susceptible at or below the energy levels required for certification. SWA also stated that it has performed extensive testing with respect to susceptibility of the Honeywell phase 3 DUs in the WiFi bands outlined in the NPRM (78 FR 58487, September 24, 2013) and that this testing indicated that significant safety margins are available; and that there are no threat susceptibilities recorded at or below the WiFi certification levels. SWA also commented that it has flown 2,375,481 hours with 435 airplanes since WiFi system installation with no un-attributable DU blanking or blinking defects that would be a consideration under the NPRM. SWA concluded that “this experience indicates a negligible level of risk.”

A4A submitted information from United Airlines (UAL). UAL explained that an alternate means of assuring an equivalent level of safety while a replacement program is undertaken has been accepted by FAA at UAL. UAL stated that it has been granted certification limitations which allow operation of the WiFi system provided that the flight deck is placarded to disallow use of transmitting portable electronic devices (TPED) when engines are operating for purposes of flight. UAL stated it believes such limitations are the appropriate means to address the unsafe condition because they apply directly to the certification of airplane with an operator-installed WiFi system. A4A stated that it agrees with UAL that such a restriction provides an equivalent level of safety, for if it did not, it would not have been approved by the FAA.

We do not agree with the commenters' requests. We do not agree to share the underlying data in the AD. An AD is not an appropriate vehicle for sharing proprietary data.

The susceptibility of phase 3 DUs to RF transmissions was initially identified during a WiFi STC installation by an operator and a WiFi vendor and reported to the FAA. As a result of this discovery, we performed a risk assessment for in-service airplanes equipped with phase 3 DUs using our established COS process, which determined that an AD action was warranted for this issue. In addition, Boeing did an independent safety review and also determined that the DU blanking was a safety issue using its own risk assessment process.

Although various entities (operators, vendors, etc.) may have done testing which may seem to contradict our findings, the WiFi tests conducted during the above referenced STC project failed to meet RF immunity level requirements. The testing that revealed the DU susceptibility was further verified by inspection of the phase 3 DU qualification test reports provided to the FAA by the DU manufacturer.

The intent of this AD is to eliminate this known susceptibility of the phase 3 DUs to RF transmissions, including those from sources outside the airplane. The phase 3 displays that failed testing did so substantially below the RF immunity levels set forth in paragraph l of the “High Intensity Radiated Fields (HIRF)” section of the preamble to 737 Special Condition 25-ANM-132, dated September 26, 1997; and paragraph l. of the HIRF discussion in the preamble to 777 Special Condition 25-ANM-78, dated November 10, 1993.

We do not agree that no problems have occurred on in-service airplanes, since the WiFi STC testing that disclosed this susceptibility was conducted on an in-service airplane equipped with phase 3 DUs. With respect to operational limitations providing an acceptable level of safety, we approved certain STCs with such limitations as a means of compliance until a permanent solution was available. However, we intended those limitations as interim action until permanent corrective actions for the unsafe condition became available for the baseline airplanes. We do not consider it adequate to leave those operating limitations in place permanently as the sole corrective action for the unsafe condition.

Under the provisions of paragraph (h) of this AD, we will consider requests for approval of an AMOC if sufficient data are submitted to substantiate that the DU change is not necessary. We have not changed this final rule in this regard.

A4A requested that we revise the compliance time in the proposed AD (78 FR 58487, September 24, 2013) from 60 months to 72 months, and that we recognize system redundancy when considering its compliance time request.

A4A stated that multiple redundancies associated with the display system are designed to assure the flight crew always has access to critical information, and even in the event three DUs become inoperative, all normal primary flight display, navigation display, terrain guidance, and engine instrument information will still be displayed to the pilot. A4A also stated that there are vastly more affected units than were identified by the proposed AD (78 FR 58487, September 24, 2013). A4A stated that two of its largest operators alone account for over one thousand affected DUs. A4A contends that a 72-month compliance time is a reasonable time to comply with the NPRM and is an appropriate time given the risk.

We partially agree with the commenter. We agree with the commenter's statement that there are more units and airplanes affected than those listed in the proposed AD (78 FR 58487, September 24, 2013) because this has now been verified with the manufacturer's service information and comments to the NPRM. We disagree with extending the compliance time beyond 60 months. Our risk assessment considered system redundancy. However, along with DU susceptibility to RF transmissions, we have also considered other risk factors such as human factors, pilot workload, and phase of flight, etc. It is possible for all primary flight display units to fail at once during a critical phase of flight such as a takeoff or approach and landing. This could lead to loss of control of the airplane at an altitude insufficient for recovery, or controlled flight into terrain or obstacles, the availability of standby instruments in such a situation notwithstanding.

Our compliance time is based on a detailed and in-depth risk assessment by the FAA and Boeing that has determined that the requirements of this AD must be accomplished within 60 months to mitigate the unsafe condition in the interest of the safety of the flying public. We recognize that in some cases, it may be necessary to accomplish the AD requirements outside normal scheduled maintenance cycles, and that some level of additional cost and/or lost revenue may result in such cases. However, the risk assessment indicates 60 months is an appropriate compliance time that will ensure an acceptable level of continued operational safety for the Model 737NG and Model 777 series airplane fleets. However, according to the provisions of paragraph (h) of this AD, we may consider requests to adjust the compliance time if the request includes data that prove that the new compliance time would provide an acceptable level of safety. We have not changed this AD in this regard.

Boeing requested that we remove Boeing Special Attention Service Bulletin 737-31-1471, dated November 29, 2012; and Boeing Special Attention Service Bulletin 777-31-0187, dated November 29, 2012; from the terminating action, since terminating action should include alternate part number DUs. Or, alternatively, Boeing recommended that operators be allowed to replace at a minimum, the phase 3 DUs and corresponding database software with earlier or newer certified units installed in the left outboard, right outboard and upper center DU positions. Boeing stated that earlier versions of intermixable/interchangeable DUs also do not exhibit HIRF susceptibility, so the terminating action could include replacement of phase 3 DU's with earlier certified units.

Boeing also requested that we revise the language in the NPRM (78 FR 58487, September 24, 2013) to specify that terminating action is to remove phase 3 DUs from Model 737NG and Model 777 series airplanes, with replacement of any other DU certified for the Model 737NG and Model 777 series airplanes. Boeing stated that the NPRM should not require the installation of the phase 3A DUs, but instead only require that the phase 3 DUs be replaced or not installed on any airplane.

We partially agree with the commenter's requests. We agree that terminating action is to replace all phase 3 DUs with certain other DUs certified for the Model 737NG and Model 777 series airplanes. We have revised this final rule so that it does not require the installation of phase 3A DUs, but instead only requires that the phase 3 DUs be replaced with the following approved DU part numbers that do not have the unsafe condition: Phase 1, phase 2, and phase 3A DUs. Phase 1 and phase 2 DUs do not have the RF susceptibility that has been identified in the phase 3 DUs, are intermixable and interchangeable with the phase 3 DUs, and therefore, are an acceptable option for replacement of the phase 3 DUs to correct the unsafe condition. The intent of this AD is to remove all DUs with an unsafe condition and replace them with an acceptable alternative.

We disagree with the request to remove the references to Boeing Special Attention Service Bulletin 737-31-1471, dated November 29, 2012; and Boeing Special Attention Service Bulletin 777-31-0187, dated November 29, 2012; from the terminating action. Installing phase 3A DUs as specified in these service bulletins is an acceptable option for correcting the identified unsafe condition.

We have revised paragraph (g) of this AD to require replacing phase 3 DUs with phase 1, phase 2, or phase 3A DUs.

Honeywell requested that we allow for phase 3 DUs to be upgraded to phase 3A DUs, rather than replacing with new phase 3A DUs. Honeywell stated that phase 3 DUs can be upgraded to phase 3A DUs via a modification kit and rework process defined in service information that has previously been provided to operators.

We agree with the commenter's request to allow for phase 3 DUs to be upgraded to phase 3A DUs. We have removed the requirement in paragraph (g) of this AD to replace phase 3 DUs with “new” phase 3A DUs. Either new or modified phase 3A DUs may be installed.

Several commenters requested that we revise the cost estimate in the NPRM (78 FR 58487, September 24, 2013). A4A requested that we revise the cost analysis to include all affected airplanes and DUs in the U.S. registry, and increase the per-airplane replacement time to three hours. A4A stated that the FAA states that the NPRM affects 157 airplanes of U.S. registry, encompassing 942 DUs. A4A commented that UAL alone operates 150 such airplanes, exposing a significant error in estimation. A4A also stated that Honeywell indicates there are 10,100 in-service phase 3 DUs affected; and that using the NPRM figure of $1,700 parts cost per DU ($10,200/six units per airplane), the parts cost alone rises to $17,170,000, or more than ten times the stated total cost of compliance. A4A also commented that while the NPRM estimates two hours per airplane for DU replacement, one carrier estimates three hours, a 50 percent increase in labor hours.

Ryanair requested that we review the cost of compliance. Ryanair stated that the estimated cost of compliance for the U.S. carriers seems to be a gross underestimate of the actual figure. Ryanair explained that it has 707 phase 3 DUs in its fleet of 737-800s. This is approximately the same number the FAA is assuming for the entire US fleet of Model 737NG series airplanes.

Boeing requested that we review the estimated costs table for the number of affected airplanes for both Model 737 and Model 777 series airplanes; and that we include the cost of updating phase 3 DUs which may have been installed on airplanes not delivered with phase 3 DUs as replacement units for failed DUs, and spare phase 3 DUs provided to airlines. Boeing explained that phase 3 DUs are interchangeable and intermixable with earlier versions of DUs on Model 737NG and Model 777 series airplanes, and may have been installed on any Model 737NG and Model 777 series airplane, and may be in operator spares inventory. Boeing also stated that a review of Boeing Special Attention Service Bulletin 737-31-1471, dated November 29, 2012; and Boeing Special Attention Service Bulletin 777-31-0187, dated November 29, 2012; shows an effectivity of 1,326 U.S. registered airplanes.

We partially agree with the commenters' requests. We agree with revising the estimated U.S. fleet size in the Cost of Compliance section in this final rule. Boeing has indicated in its comments that the number of affected U.S. airplanes is greater than the number of airplanes estimated in the NPRM (78 FR 58487, September 24, 2013). We disagree with revising the estimated labor hours. The labor hour estimate has been provided by the manufacturer. A4A's comment indicates that only one operator estimates that the labor hour estimate should be increased. We do not account for individual operator differences in the calculation of total labor hour estimates. We also disagree with considering airplanes that may have had phase 3 DUs installed after production as we have no way of estimating how many airplanes may have had this modification. We have changed the cost estimate in this final rule to reflect 1,149 Model 737 airplanes and 177 Model 777 airplanes.

Mr. Philipp Schmid commented that in today's world with more and more transmitters in the cabin and on the ground, the FAA should have more carefully taken into account the design and system integrations of line replaceable units for immunity to EMI.

We acknowledge the commenter's concern. We make efforts to ensure that systems and equipment are immune to EMI effects during certification. We recently published rules with compliance requirements for HIRF immunity (e.g. section 25.1317 of Title 14, Code of Federal Regulations (14 CFR 25.1317)) ( http://www.gpo.gov/fdsys/pkg/CFR-2011-title14-vol1/pdf/CFR-2011-title14-vol1-sec25-1317.pdf ). However, we continue to conduct monitoring and surveillance of approved designs in service and require accomplishment of corrective actions for unsafe conditions when needed to ensure continued operational safety. This AD accomplishes continued operational safety by addressing an identified unsafe condition. The commenter did not request any changes to the NPRM (78 FR 58487, September 24, 2013). We have not changed this AD in this regard.

Aviation Partners Boeing (APB) stated that the installation of winglets per Supplemental Type Certificate (STC) ST00830SE ( http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgstc.nsf/0/E3615811C4A7D87B86257C1C00720D67?OpenDocument&Highlight=st00830se ) does not affect the accomplishment of the manufacturer's service instructions.

We agree with APB's statement that the installation of winglets as specified in STC ST00830SE ( http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgstc.nsf/0/E3615811C4A7D87B86257C1C00720D67?OpenDocument&Highlight=st00830se) does not affect accomplishment of the requirements of this AD, and for airplanes on which STC ST00830SE is installed, an alternative method of compliance (AMOC) approval request to account for the installation of that STC is not necessary to comply with the requirements of section 39.17 of the Federal Aviation Regulations (14 CFR 39.17).

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

• Αre consistent with the intent that was proposed in the NPRM (78 FR 58487, September 24, 2013) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the the NPRM (78 FR 58487, September 24, 2013).

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

We estimate that this AD affects 1,326 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

Discussion

We issued a supplemental notice of proposed rulemaking (SNPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 767-200, -300, -300F, and -400ER airplanes. The SNPRM published in the Federal Register on July 2, 2014 (79 FR 37681). We preceded the SNPRM with a notice of proposed rulemaking (NPRM) that published in the Federal Register on August 12, 2013 (78 FR 48826). The NPRM proposed to require an inspection of the left-and right-hand wing fuel tank access doors to determine whether impact-resistant access doors are installed in the correct locations, and to replace incorrectly installed doors with impact-resistant access doors. The NPRM also proposed to require an inspection for stencils and index markers on impact-resistant access doors, and application of new stencils or index markers if necessary. In addition, the NPRM proposed to require revising the maintenance program to incorporate changes to the airworthiness limitations section. The NPRM was prompted by reports indicating that a standard access door was located where an impact-resistant access door was required, and stencils were missing from some impact-resistant access doors. The SNPRM proposed to revise the NPRM by adding airplanes to the applicability. We are issuing this AD to prevent foreign object penetration of the fuel tank from uncontained engine failure or tire debris, which could cause a fuel leak near an ignition source (e.g., hot brakes or engine exhaust nozzle), consequently leading to a fuel-fed fire.

We gave the public the opportunity to participate in developing this AD. We have considered the comments received. Boeing and FedEx Express supported the SNPRM (79 FR 37681, July 2, 2014).

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

• Are consistent with the intent that was proposed in the SNPRM (79 FR 37681, July 2, 2014) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the SNPRM (79 FR 37681, July 2, 2014).

We estimate that this AD affects 436 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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

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

Section 21F(g)(1) of the Exchange Act establishes the Securities and Exchange Commission Investor Protection Fund (“Fund”), 1 which is available to pay awards to whistleblowers (as provided in Section 21F(b)), and to fund certain activities of the Commission's Inspector General. 2 The Commission may request that the Secretary of the Treasury invest the portion of the Fund that is not, in the discretion of the Commission, required to meet the current needs of the Funds. 3 The Secretary of the Treasury must invest such funds in obligation of the United States, “within maturities suitable to the needs of the funds of the Fund as determined by the Commission on the record.”  4

The Commission is amending it rules to delegate to the Chief Financial Officer the authority, in accordance with section 21F(g)(4), to make requests to the Secretary of the Treasury to invest the Fund's monies that are not, in his or her discretion, required to meet the current needs of the Fund and to determine what maturities for these investments are suitable to the needs of the Fund.

The Office of Financial Management, headed by the Chief Financial Officer, is responsible for managing the financial matters of the Commission. In providing the Chief Financial Officer with the authority to perform these additional functions, this amendment is intended to streamline the efficient operation of the Commission.

The Commission has determined that these amendments relate solely to the agency's organization, procedure, or practice. Accordingly, the provisions of the Administrative Procedure Act regarding notice of proposed rulemaking and opportunity for public participation are not applicable. 5 The Regulatory Flexibility Act, therefore, does not apply. 6 Because these rules relate solely to the agency's organization, procedure, or practice and do not substantially affect the rights or obligations of non-agency parties, they are not subject to the Small Business Regulatory Enforcement Fairness Act. 7 Finally, these amendments do not contain any collection of information requirements as defined by the Paperwork Reduction Act of 1995, as amended. 8 Further, because the amendments impose no new burdens on private persons, the Commission does not believe that the amendments will have any impact on competition for purposes of Section 23(a) (2) of the Exchange Act. Accordingly, the amendments are effective October 1, 2014.

The amendments to the Commission's rules are adopted pursuant to 15 U.S.C. 77o, 77s, 77sss, 77d, 78d-1, 78d-2, 78w, 78ll(d), 78mm, 80a-37, 80b-11, and 7202.

In accordance with the preamble, the Commission hereby amends Title 17, Chapter II of the Code of Federal Regulations as follows:

Background

This document contains final regulations that amend the Income Tax Regulations (26 CFR part 1) under sections 162 and 262 of the Internal Revenue Code (Code) relating to the deduction of local lodging expenses. On April 25, 2012, a notice of proposed rulemaking (REG-137589-07) was published in the Federal Register (77 FR 24657). One written comment responding to the notice of proposed rulemaking was received. No public hearing was requested or held. After consideration of the comment, the regulations are adopted as amended by this Treasury decision.

The provisions of the proposed regulations under section 162 of the Code were designated as § 1.162-31, however, after the proposed regulations were published, unrelated regulations were finalized as § 1.162-31. Accordingly, the final regulations in this document under section 162 are designated as § 1.162-32.

Under the general rule in § 1.162-31(a) of the proposed regulations, local lodging expenses for an individual are personal, living, or family expenses that are nondeductible by the individual under section 262(a). Depending on the facts and circumstances, however, local lodging expenses may be deductible under section 162 as ordinary and necessary business expenses. Section 1.162-31(b) of the proposed regulations provides a safe harbor, pursuant to which local lodging expenses that meet certain criteria are treated as ordinary and necessary business expenses of an individual. Local lodging expenses that meet either the facts and circumstances test of paragraph (a) or the safe harbor requirements of paragraph (b) are deductible by an individual if incurred directly. Alternatively, if the expenses are incurred by an employer on behalf of an employee, the value of the local lodging may be excludible from the income of the employee as a working condition fringe under section 132(a) and (d). To the extent an employer reimburses an employee for local lodging expenses, the reimbursement may be excludible from the employee's gross income if the expense allowance arrangement satisfies the requirements of an accountable plan under section 62(c) and the applicable regulations. The expenses are also deductible by the employer as ordinary and necessary business expenses.

The commenter requested that the final regulations be revised to make it clear that a taxpayer's local lodging expenses that do not satisfy the safe harbor under § 1.162-31(b) of the proposed regulations may nonetheless be deductible under § 1.162-31(a) of the proposed regulations depending on the taxpayer's facts and circumstances. In response to this comment, the final regulations clarify that the examples illustrate the facts and circumstances test. Specifically, the examples illustrate situations in which certain conditions of the safe harbor are not satisfied and, therefore, the facts and circumstances test determines the appropriate treatment.

An example in the proposed regulations describes circumstances in which a professional sports team provides local lodging to players and coaches for a noncompensatory business purpose. The commenter suggested that the final regulations clarify that local lodging provided to other employees of a sports team also may be ordinary and necessary noncompensatory business expenses. In response to this comment, the final regulations revise the example to clarify that the reference to players and coaches is illustrative and not exclusive.

The commenter requested that the final regulations clarify the circumstances in which meal expenses paid or incurred in connection with lodging expenses are deductible. The final regulations do not adopt this comment, as the proposed regulations did not provide rules relating to meal expenses and those issues are beyond the scope of these regulations.

These regulations apply to expenses paid or incurred on or after October 1, 2014. Taxpayers may apply these regulations to expenses paid or incurred in taxable years ending before October 1, 2014, for which the period of limitation on credit or refund under section 6511 has not expired.

This Treasury decision is not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations and, because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, the notice of proposed rulemaking that preceded these final regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business. No comments were received.

The principal author of these regulations is R. Matthew Kelley of the Office of Associate Chief Counsel (Income Tax and Accounting). However, other personnel from the IRS and the Treasury Department participated in their development.

Accordingly, 26 CFR part 1 is amended as follows:

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2012-0576 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before December 1, 2014. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2012-0576, by one of the following methods:

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

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

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

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

In the Federal Register of August 22, 2012 (77 FR 50661) (FRL-9358-9), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 2F8047) by Arysta LifeScience, North America, LLC, 15401 Weston Pkwy, Suite 150, Cary, NC 27513. The petition requested that 40 CFR 180.609 be amended by establishing tolerances for combined residues of the fungicide, fluoxastrobin, (1 E )-[2-[[6-(2-chlorophenoxy)-5-fluoro-4-pyrimydinyl]oxy]phenyl](5,6-dihydro-1,4,2-dioxazin-3-yl)methanone O -methyloxime, and its Z -isomer, (1 Z )-[2-[[6-(2-chlorophenoxy)-5-fluoro-4-pyrimydinyl]oxy]phenyl](5,6-dihydro-1,4,2-dioxazin-3-yl)methanone O -methyloxime, in or on melon, subgroup 9A, at 1.5 parts per million (ppm); sorghum grain at 1.5 ppm; sorghum forage at 4 ppm; and sorghum stover at 4 ppm. That document referenced a summary of the petition prepared by Arysta LifeScience, North America LLC, the registrant, which is available in the docket, http://www.regulations.gov. Comments were not received on the notice of filing.

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

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

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

Following repeated exposure, fluoxastrobin has mild or low toxicity in all tested species except for the dog. Repeated oral administration to dogs resulted in adverse liver toxicity at considerably lower doses than those noted in other species. Based on species sensitivity, the effects observed in the dog were used as endpoints for risk assessment. In both the 90-day and 1-year oral feeding studies in dogs, the liver appeared to be the target organ. In dogs, mice, and rats, the kidney was another target organ. There was no indication of an adverse effect attributable to a single dose. Based on developmental toxicity studies (rat and rabbit) and a 2-generation reproduction study (rat), there was neither increased susceptibility of pre-/postnatal exposure to fluoxastrobin, nor adverse effects on reproduction. Furthermore, neurotoxic effects were not seen in an acute neurotoxicity study in rats up to the limit dose of 2,000 mg/kg/day. In a subchronic neurotoxicity study in rats, fluoxastrobin did not elicit any neurotoxic effects. Repeated dose studies of fluoxastrobin in the database did not show immunotoxic effects in rats. Results of genotoxicity testing were negative and there were no treatment-related carcinogenicity findings in adequately performed carcinogenicity studies in rats and mice. Therefore, fluoxastrobin is classified as “not likely to be carcinogenic to humans.” Specific information on the studies received and the nature of the adverse effects caused by fluoxastrobin as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http: // www.regulations.gov in document Fluoxastrobin. Aggregate Human Health Risk Assessment for the Proposed New Uses on Melon Subgroup 9A and Sorghum, Along with Establishment of Permanent Tolerances on Wheat, and Amendments to Established Tolerances on Milk and Milk Fat on page 26 in docket ID number EPA-HQ-OPP-2012-0576.

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

A summary of the toxicological endpoints for fluoxastrobin used for human risk assessment is discussed in Unit III.B. of the final rule published in the Federal Register of April 11, 2014 (79 FR 20100, 20101-02) (FRL-9907-46), docket number EPA-HQ-OPP-2012-0576.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to fluoxastrobin, EPA considered exposure under the petitioned-for tolerances as well as all existing fluoxastrobin tolerances in 40 CFR 180.609. EPA assessed dietary exposures from fluoxastrobin in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. No such effects were identified in the toxicological studies for fluoxastrobin; therefore, a quantitative acute dietary exposure assessment is unnecessary.

ii. Chronic exposure. A slightly refined chronic dietary exposure assessment was performed for fluoxastrobin using tolerance-level residues, average field trial residues, and 100% crop treated (CT). This risk assessment was conducted using the DEEM-FCID Version 3.16. This model uses 2003-2008 food consumption data from the U.S. Department of Agriculture's (USDA's) National Health and Nutrition Examination Survey, What We Eat in America, (NHANES/WWEIA).

iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that fluoxastrobin does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

iv. Anticipated residue and percent crop treated (PCT) information. EPA did not use anticipated residue and/or PCT information in the dietary assessment for fluoxastrobin. Tolerance-level residues, average field-trial residues, and/or 100% CT were assumed for all food commodities.

2. Dietary exposure from drinking water. The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for fluoxastrobin in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of fluoxastrobin. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www.epa.gov/oppefed1/models/water/index.htm. In addition to evaluating the EDWCs from the proposed uses, EDWCs were reevaluated for all existing uses with Pesticide Root Zone Model Ground Water (PRZM-GW), which models continued use of fluoxastrobin over many years. For the chronic dietary assessment, the ground water EDWC (137 µg/L) was more conservative than the surface water EDWC (18.6 µg/L); the ground water EDWC was based on an existing turf use modeled with a 100-year simulation of 100 years of repeated applications, using the highest single maximum application rate and the highest yearly application rate.

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

Fluoxastrobin is currently registered for the following uses that could result in residential exposures: Broadcast control of diseases on turf, including lawns and golf courses. EPA assessed residential exposure using the following assumptions:

i. Residential handler exposure. Residential handler exposure for adults is expected to be short-term only. Intermediate-term and chronic exposures are not likely because of the intermittent nature of applications by homeowners. Since there are no toxicity findings for the short-term dermal route of exposure up to the limit dose, the residential handler assessment only includes the inhalation route of exposure.

ii. Post-application exposure. There is also potential for homeowners and their families (of varying ages) to be exposed as a result of entering areas that have previously been treated with fluoxastrobin. Residential post-application exposure for adults and children is expected to be short-term only because residues are not expected to be present for longer periods of time. Exposure might occur on areas such as lawns used by children or recreational areas such as golf courses used by adults and youths. Potential routes of exposure include dermal (adults and children) and incidental oral ingestion (children). Since no acute hazard has been identified, an assessment of episodic granular ingestion was not conducted. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at: http://www.epa.gov/pesticides/science/residential-exposure-sop.html.

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

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

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

2. Prenatal and postnatal sensitivity. The available studies used to evaluate pre- and postnatal exposure susceptibility do not indicate increased susceptibility of rats or rabbits to fluoxastrobin. These studies include the following:

i. Developmental toxicity studies in rats.

ii. Developmental toxicity studies in rabbits.

iii. A 2-generation reproduction study in rats.

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

i. The toxicity database for fluoxastrobin is complete. EPA waived the requirement for a subchronic inhalation data based on, among other things, its conclusion that even if an additional 10X safety factor was applied, inhalation exposure would not raise a risk of concern.

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

iii. There is no evidence that fluoxastrobin results in increased susceptibility in in utero rats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study. The rat developmental study was tested up to the limit dose (1,000 mg/kg/day), and the rabbit developmental study was tested up to 400 mg/kg/day (highest dose tested). At the highest dose tested, there were decreases in food consumption and body weight in the maternal animals, but there were no developmental effects. Furthermore, in the rat reproduction study, there was no sensitivity in the offspring of the pups relative to the parental animals.

iv. The exposure databases are estimated based on data that reasonably account for potential exposures. The chronic dietary food exposure assessment was slightly refined but still based on 100 PCT assumptions, tolerance-level residues, some average field-trial residues, and conservative ground water modeling estimates. New 2012 Residential Standard Operating Procedures (SOPs) were used to assess post-application exposure to children including incidental oral exposure. In addition, the Agency has obtained a Turf Transferable Residue (TTR) study, which provides slightly refined chemical-specific assumptions to estimate exposure for the hand-to-mouth post-application assessment. The assessment is still considered highly conservative because it assumes maximum application rates and conservative day zero hand-to-mouth activities.

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

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

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to fluoxastrobin from food and water will utilize 30% of the cPAD for the general population, and 66% of the cPAD for all infants <1 year old, the population subgroup with the highest estimated chronic dietary exposure to fluoxastrobin. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of fluoxastrobin is not expected.

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

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

Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 610 for adults and 110 for children (1-2 years old). Because EPA's level of concern for fluoxastrobin is a MOE of 100 or below, these MOEs are not of concern.

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

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

5. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, fluoxastrobin is not expected to pose a cancer risk to humans.

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

Adequate enforcement methodology (liquid chromatography/mass spectrometry/mass spectrometry) is available to enforce the tolerance expression. Method No. 00604 is available for plant commodities and Method No. 00691 is available for livestock commodities. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: residuemethods@epa.gov.

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

There are no Codex maximum residue limits (MRLs) established for fluoxastrobin.

The petition requested a tolerance of 4.0 ppm for residues of fluoxastrobin and its Z-isomer on sorghum forage and stover. Based on the available residue data and using the Organisation for Economic Co-operation and Development (OECD) tolerance calculation procedure, the Agency is establishing a tolerance for these commodities at 5.0 ppm. In addition, the Agency is revising the commodity names to “sorghum, grain, grain”, “sorghum, grain, forage”, and “sorghum, grain, stover” to be consistent with the commodity vocabulary EPA generally uses for tolerances.

Therefore, tolerances are established for combined residues of fluoxastrobin and its Z-isomer in or on melon subgroup 9A and sorghum, grain, grain at 1.5 ppm; and in or on sorghum, grain, forage and sorghum, grain, stover at 5.0 ppm.

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

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

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

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

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

Therefore, 40 CFR chapter I is amended as follows:

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2013-0277 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before December 1, 2014. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2013-0277, by one of the following methods:

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

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

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

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

In the Federal Register of October 25, 2013 (78 FR 63938) (FRL-9901-96), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide tolerance petition (PP 3F8148) by Technology Sciences Group, Inc. (TSG) (the Petitioner), on behalf of Agri-Neo, Inc., 3485 Ashby Saint-Laurent (Quebec), H4R 2K3, Canada. The petition requested that 40 CFR part 180 be amended by establishing an exemption from the requirement of a tolerance for residues of TAED and its metabolite, DAED in or on all food commodities. That document referenced a summary of the petition prepared by the Petitioner, TSG, which is available in the docket, http://www.regulations.gov. There were no comments received on the notice of filing.

Based upon the review of the data supporting the petition, EPA is establishing a tolerance exemption on rice and strawberries rather than all food commodities as requested.

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Pursuant to FFDCA section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in FFDCA section 408(b)(2)(C), which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance or tolerance exemption and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” Additionally, FFDCA section 408(b)(2)(D) requires that the Agency consider “available information concerning the cumulative effects of [a particular pesticide's] . . . residues and other substances that have a common mechanism of toxicity.”

The EPA evaluated the available toxicity and exposure data on TAED and its metabolite, DAED and considered its validity, completeness, and reliability, as well as the relationship of this information to human risk. A full explanation of the data upon which the EPA relied and its risk assessment based on that data can be found within the August 29, 2014 document entitled “Federal Food, Drug, and Cosmetic Act (FFDCA) Considerations for Tetraacetylethylenediamine (TAED) and its metabolite Diacetylethylenediamine (DAED).” This document, as well as other relevant information, is available in the docket for this action as described under ADDRESSES .

Based upon that evaluation, the EPA concludes that there is a reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to residues of TAED and its metabolite, DAED. Therefore, an exemption from the requirement of a tolerance is established for residues of TAED and its metabolite, DAED when used as a fungicide and a bactericide on rice and strawberries.

An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation. The Agency believes that an analytical enforcement method is not required for a tolerance exemption on rice and strawberries and there are no risk concerns for these crops. Further, residues are not expected on any other crops because rice is typically grown in areas that are not near or next to other crops. Additionally, the early planting of strawberries versus other like crops and the use of buffers limits the potential for residues of the pesticide on crops that may be near.

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

The Codex has not established a MRL for TAED and its metabolite, DAED.

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

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

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

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

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

Therefore, 40 CFR chapter I is amended as follows:

I. Background

In FR Doc. 2014-18447 of August 6, 2014 (79 FR 45872), there were a number of technical errors, which are identified and corrected in the “Summary of Errors” and “Correction of Errors” sections of this correction document. The provisions of this correction document are effective as if they had been included in the document published on August 6, 2014. Accordingly, the corrections are effective October 1, 2014.

On page 45910, in Table 8: Quality Measures Finalized in the FY 2014 IRF PPS Final Rule Affecting the FY 2016 and 2017 Adjustments to the IRF Annual Increase Factors and Subsequent Year Increase Factors, we inadvertently omitted the fiscal years affected by each of the listed quality measures, and therefore, are correcting the table.

On page 45911, in our discussion of the FY 2014 IRF PPS final rule, we made a typographical error in identifying the Federal Register citation.

On page 45915, we inadvertently referred to “future year IRP PPS increase factors” instead of “future year IRF PPS increase factors.”

On page 45917, in our discussion of the Continuity Assessment Record and Evaluation (CARE) items, we inadvertently provided an incorrect hyperlink to the CARE reports.

On page 45918, in Table 11: Summary of IRF QRP Measures Affecting the FY 2017 Adjustments to the IRF PPS Annual Increase Factor and Subsequent Year Increase Factors, we inadvertently omitted the superscripts at the end of the sixth and seventh bulleted items.

On page 45921, in our discussion of the IRF Quality Reporting Program (QRP) data completion thresholds, we made a technical error regarding the monthly submission of quality data. We require quarterly submission of healthcare-associated infection data for the National Health Safety Network (NHSN) Catheter-Associated Urinary Tract Infection (CAUTI) Outcome Measure (NQF #0138); quarterly submission of vaccination data for the Percent of Residents or Patients Who Were Assessed and Appropriately Given the Seasonal Influenza Vaccine (Short-Stay) (NQF #0680) measure; and annual submission of vaccination data for the Influenza Vaccination Coverage among Healthcare Personnel (NQF #0431) measure. However, the data submitted for each measure must cover each month of the applicable reporting period.

On page 45922, we made a typographical error in describing where the IRF QRP quality data items can be found in the IRF Patient Assessment Instrument (PAI) training manual.

On page 45922, in our discussion of the IRF PAI training manual, we inadvertently provided an incorrect hyperlink to the manual.

In accordance with section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)), we ordinarily publish a notice of proposed rulemaking in the Federal Register to provide a period for public comment before the provisions of a rule take effect. However, we can waive this notice-and-comment procedure if the Secretary finds, for good cause, that the notice and comment process is impracticable, unnecessary, or contrary to the public interest, and incorporates a statement of the finding and the reasons therefor into the notice.

Section 553(d) of the APA ordinarily requires a 30-day delay in the effective date of final rules after the date of their publication in the Federal Register . This 30-day delay in the effective date can be waived, however, if an agency finds for good cause that the delay is impracticable, unnecessary, or contrary to the public interest, and the agency incorporates a statement of the findings and its reasons in the rule issued.

This document merely corrects typographical and technical errors in the preamble of the FY 2015 IRF PPS final rule. The provisions of that final rule have been subjected to notice-and-comment procedures. The corrections contained in this document are truly technical and/or typographical and do not make substantive changes to the policies and payment methodologies that were adopted in the FY 2015 IRF PPS final rule. Therefore, we find for good cause that it is unnecessary and would be contrary to the public interest to undertake further notice-and-comment procedures to incorporate the corrections in this document into the FY 2015 IRF PPS final rule. For the same reasons, we find that there is good cause to waive the 30-day delay in the effective date for these corrections. Specifically, we believe that it is in the public interest to ensure that the FY 2015 IRF PPS final rule accurately reflects our policies as of the date they take effect. Therefore, we find that delaying the effective date of these corrections beyond the effective date of the final rule would be contrary to the public interest. In so doing, we find good cause to waive the 30-day delay in effective date.

In FR Doc. 2014-18447 of August 6, 2014 (79 FR 45872), make the following corrections:

1. On page 45910, Table 8: Quality Measures Finalized in the FY 2014 IRF PPS Final Rule Affecting the FY 2016 and 2017 Adjustments to the IRF Annual Increase Factors and Subsequent Year Increase Factors, the table is corrected to read as follows:

2. On page 45911, first column, section C.1, first paragraph, lines 2 and 3, the Federal Register citation “78 FR 47094” is corrected to read “78 FR 47904.”

3. On page 45915, first column following Table 9, first paragraph, line 3, the acronym “IRP” is corrected to read “IRF.”

4. On page 45917, first column, lines 9 through 18, the hyperlink, “ http://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/Post-Acute-CareQualityInitiatives/Downloads/The-Development-and-Testing-of-the-Continuity-Assessment-Record-and- Evaluation-CARE-Item-Set-Final-Report-on-the-Development-of-the-CARE-Item-Set-and-Current-Assessment-Comparisons-Volume-3-of-3.pdf.” is corrected to read “ http://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/Post-Acute-Care-Quality-Initiatives/Downloads/The-Development-and-Testing-of-the-Continuity-Assessment-Record-and-Evaluation-CARE-Item-Set-Final-Report-on-the-Development-of-the-CARE-Item-Set-and-Current-Assessment-Comparisons-Volume-3-of-3.pdf.”

5. On page 45917, first column, lines 19 through 27, the hyperlink, “ http://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/Post-Acute-Care-Quality-Initiatives/Downloads/The-Development-and-Testing-of-the-Continuity-Assessment-Record-and-Evaluation-CARE-Item-Set-Final-Report-on-the-Development-of-the-CARE-Item-Set-Volume-1-of-3.pdf.” is corrected to read “ http://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/Post-Acute-Care-Quality-Initiatives/Downloads/The-Development-and-Testing-of-the-Continuity-Assessment-Record-and-Evaluation-CARE-Item-Set-Final-Report-on-the-Development-of-the-CARE-Item-Set-Volume-1-of-3.pdf.”

6. On page 45918, Table 11: Summary of IRF QRP Measures Affecting the FY 2017 Adjustments to the IRF PPS Annual Increase Factor and Subsequent Year Increase Factors, the superscript “+”is added at the end of “NQF #1716: National Healthcare Safety Network (NHSN) Facility-Wide Inpatient Hospital-Onset Methicillin-Resistant Staphylococcus aureus (MRSA) Bacteremia Outcome Measure.”

7. On page 45918, Table 11: Summary of IRF QRP Measures Affecting the FY 2017 Adjustments to the IRF PPS Annual Increase Factor and Subsequent Year Increase Factors, the superscript “+”is added at the end of “NQF #1717: National Healthcare Safety Network (NHSN) Facility-Wide Inpatient Hospital-Onset Clostridium difficile Infection (CDI) Outcome Measure.”

8. On page 45921, first column, section J, first paragraph, lines 17 through 20, the phrase “monthly submission of such quality data for the healthcare-associated infection or vaccination data” is corrected to read “submission of healthcare-associated infection or vaccination data covering each month of the applicable reporting period.”

9. On page 45922, first column, line 8, the phrase “Chapter 4” is corrected to read “Section 4.”

10. On page 45922, first column, lines 11 through 15, the hyperlink, “ http://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/IRF-Quality-Reporting/” “is corrected to read “ http://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/IRF-Quality-Reporting/Training.html.”

The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR Part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. We recognize that some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue to be eligible for the sale of NFIP flood insurance. A notice withdrawing the suspension of such communities will be published in the Federal Register .

In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities. The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA's initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment procedures under 5 U.S.C. 553(b), are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Considerations. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, Section 1315, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless remedial action takes place.

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

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

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

Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Accordingly, 44 CFR part 64 is amended as follows:

The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR Part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. We recognize that some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue to be eligible for the sale of NFIP flood insurance. A notice withdrawing the suspension of such communities will be published in the Federal Register .

In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities. The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA's initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment procedures under 5 U.S.C. 553(b), are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Considerations. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, Section 1315, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless remedial action takes place.

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

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

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

Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Accordingly, 44 CFR part 64 is amended as follows:

I. Background

The Health Insurance Portability and Accountability Act of 1996 (HIPAA), Public Law 104-191, 110 Stat. 1936, added title XXVII of the Public Health Service Act (PHS Act), part 7 of the Employee Retirement Income Security Act of 1974 (ERISA), and chapter 100 of the Internal Revenue Code (the Code), providing portability and nondiscrimination provisions with respect to health coverage. These provisions of the PHS Act, ERISA, and the Code were later augmented by other consumer protection laws, including the Mental Health Parity Act of 1996, 1 the Mental Health Parity and Addiction Equity Act of 2008, 2 the Newborns' and Mothers' Health Protection Act, 3 the Women's Health and Cancer Rights Act, 4 the Genetic Information Nondiscrimination Act of 2008, 5 the Children's Health Insurance Program Reauthorization Act of 2009, 6 Michelle's Law, 7 and the Affordable Care Act. 8

The Affordable Care Act reorganizes, amends, and adds to the provisions of part A of title XXVII of the PHS Act relating to group health plans and health insurance issuers in the group and individual markets. The term “group health plan” includes both insured and self-insured group health plans. 9 Section 715(a)(1) of ERISA and section 9815(a)(1) of the Code, as added by the Affordable Care Act, incorporate the provisions of part A of title XXVII of the PHS Act into ERISA and the Code to make them applicable to group health plans and health insurance issuers providing health insurance coverage in connection with group health plans. The PHS Act sections incorporated by these references are sections 2701 through 2728.

Sections 2722 and 2763 of the PHS Act, section 732 of ERISA, and section 9831 of the Code provide that the requirements of title XXVII of the PHS Act, part 7 of ERISA, and chapter 100 of the Code, respectively, generally do not apply to excepted benefits. Excepted benefits are described in section 2791 of the PHS Act, section 733 of ERISA, and section 9832 of the Code.

The parallel statutory provisions establish four categories of excepted benefits. The first category includes benefits that are generally not health coverage 10 (such as automobile insurance, liability insurance, workers compensation, and accidental death and dismemberment coverage). The benefits in this category are excepted in all circumstances. In contrast, the benefits in the second, third, and fourth categories are types of health coverage but are excepted only if certain conditions are met.

The second category of excepted benefits is limited excepted benefits, which may include limited-scope vision or dental benefits, and benefits for long-term care, nursing home care, home health care, or community-based care. Section 2791(c)(2)(C) of the PHS Act, section 733(c)(2)(C) of ERISA, and section 9832(c)(2)(C) of the Code authorize the Secretaries of Health and Human Services (HHS), Labor, and the Treasury (collectively, the Secretaries) to issue regulations establishing other similar limited benefits as excepted benefits. The Secretaries exercised this authority previously with respect to certain health flexible spending arrangements (health FSAs). 11 To be excepted under this second category, the statute (specifically, ERISA section 732(c)(1), PHS Act section 2722(c)(1), and section 9831(c)(1) of the Code) provides that limited benefits must either: (1) Be provided under a separate policy, certificate, or contract of insurance; or (2) otherwise not be an integral part of a group health plan, whether insured or self-insured.

The third category of excepted benefits, referred to as “noncoordinated excepted benefits,” includes both coverage for only a specified disease or illness (such as cancer-only policies), and hospital indemnity or other fixed indemnity insurance. In the group market, these benefits are excepted only if all of the following conditions are met: (1) The benefits are provided under a separate policy, certificate, or contract of insurance; (2) there is no coordination between the provision of such benefits and any exclusion of benefits under any group health plan maintained by the same plan sponsor; and (3) the benefits are paid with respect to any event without regard to whether benefits are provided under any group health plan maintained by the same plan sponsor. 12

The fourth category of excepted benefits is supplemental excepted benefits. Such benefits must be: (1) Coverage supplemental to Medicare, coverage supplemental to the Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA) or to Tricare, or similar coverage that is supplemental to coverage provided under a group health plan; and (2) provided under a separate policy, certificate, or contract of insurance. 13

In 2004, the Departments of the Treasury, Labor, and HHS published final regulations with respect to excepted benefits (the HIPAA regulations). 14 (Subsequent references to the “Departments” include all three Departments, unless the headings or context indicate otherwise.) On December 24, 2013, the Departments issued proposed regulations with respect to the second category of excepted benefits, limited excepted benefits (2013 proposed regulations). 15 The 2013 proposed regulations proposed to: (1) Eliminate the requirement that participants pay an additional premium or contribution for limited-scope vision or dental benefits to qualify as benefits that are not an integral part of the plan; (2) set forth the criteria under which employee assistance programs (EAPs) constitute excepted benefits; and (3) allow plan sponsors in limited circumstances to offer, as excepted benefits, coverage that wraps around certain individual health insurance coverage. The Departments stated that, until rulemaking is finalized, through at least 2014, for purposes of enforcing the provisions of title XXVII of the PHS Act, part 7 of ERISA, and chapter 100 of the Code, the Departments will consider dental and vision benefits and EAP benefits meeting the conditions of the 2013 proposed regulations to qualify as excepted benefits.

After consideration of comments on the 2013 proposed regulations, the Departments are publishing final regulations regarding dental and vision benefits and EAP benefits. The Departments also intend to publish regulations that address limited wraparound coverage in the future, taking into account the extensive comments received on this issue.

Under the HIPAA regulations, vision and dental benefits are excepted if they are limited in scope (described as benefits, substantially all of which are for treatment of the eyes or mouth, respectively) and are either: (1) Provided under a separate policy, certificate, or contract of insurance; or (2) are otherwise not an integral part of a group health plan. While only insured coverage may qualify under the first test, both insured and self-insured coverage may qualify under the second test. The HIPAA regulations provided that benefits are not an integral part of a plan if participants have the right to elect not to receive coverage for the benefits, and, if participants elect to receive coverage for such benefits, they pay an additional premium or contribution for the coverage. By contrast, health FSA benefits could qualify as excepted benefits without any participant contribution under the HIPAA regulations. 16

As stated in the preamble to the 2013 proposed regulations, following enactment of the Affordable Care Act, various stakeholders asked the Departments to amend the HIPAA regulations in order to remove conditions for limited-scope vision and dental benefits to be treated as excepted benefits. Specifically, some employers represented that, although their vision and dental benefits complied with the pre-Affordable Care Act requirements in title XXVII of the PHS Act, part 7 of ERISA, and chapter 100 of the Code (such as the nondiscrimination and preexisting condition exclusion provisions), compliance with certain Affordable Care Act provisions presented additional challenges. These employers argued that, where employers are providing such benefits on a self-insured basis and without a contribution from employees, employers should not be required to charge a nominal contribution from participants simply for the benefits to qualify as excepted benefits. In some cases, the cost of collecting the nominal contribution would be greater than the contribution itself. Moreover, they pointed out that employers providing dental and vision benefits through a separate insurance policy are not required to charge a participant any premium or contribution in order for the dental or vision benefits to be considered excepted benefits. Similarly, consumer groups argued that, if an employer offers primary group health coverage that is treated as unaffordable under the Code, but offers limited-scope vision or dental coverage, such limited-scope vision or dental coverage should qualify as excepted benefits so as not to make such individuals ineligible to receive a premium tax credit under section 36B of the Code if they enroll in coverage under a Qualified Health Plan (QHP) through an Affordable Insurance Exchange, or “Exchange” (also called a Health Insurance Marketplace or Marketplace).

In response to these concerns, and to achieve greater consistency between insured and self-insured coverage, the 2013 proposed regulations proposed eliminating the requirement under the HIPAA regulations that participants pay an additional premium or contribution for limited-scope vision or dental benefits to qualify as benefits that are not an integral part of a plan (and therefore to qualify as excepted benefits).

The Departments invited comments on this approach. Many comments supported the concept of achieving greater consistency regarding the excepted benefits requirements for dental and vision benefits between insured and self-insured plans. One comment argued that the proposal undermined the inclusion of pediatric vision and dental coverage as an essential health benefit. Other comments requested clarification as to whether separately-administered and stand-alone dental and vision benefits offered separate from, or without a connection to, a primary plan could qualify as excepted benefits.

Consistent with the 2013 proposed regulations, these final regulations eliminate the requirement under the HIPAA regulations that participants pay an additional premium or contribution for limited-scope vision or dental benefits to qualify as excepted benefits. As explained in the preamble to the 2013 proposed regulations, without this change, an employer that establishes or maintains a self-insured plan could be required to charge a nominal contribution from participants simply for limited-scope vision and dental benefits to qualify as excepted benefits and, in some cases, the cost of collecting the nominal contribution would be greater than the contribution itself. In addition, if an employer offers primary group health coverage that is unaffordable to individuals, but limited-scope vision or dental coverage, without this modification, accepting the vision or dental coverage could make such individuals ineligible to receive a premium tax credit under section 36B of the Code if they enroll in coverage under a QHP through the Exchange.

In addition, it is the Departments' view that the final regulations do not undermine the inclusion of pediatric vision or dental coverage as essential health benefits. The requirement that issuers in the small group market offer coverage of essential health benefits is not changed, and that rule does not apply to large or self-insured plans. Moreover, PHS Act section 2711 (as incorporated into ERISA by section 715 and the Code by section 9815) allows self-insured plans to choose any definition of essential health benefits that is authorized by the Secretary of HHS for purposes of the prohibition on lifetime or annual dollar limits on essential health benefits. 17

These final regulations clarify that limited-scope vision or dental benefits do not have to be offered in connection with a separate offer of major medical or “primary” group health coverage under the plan, in order to meet the statutory criterion that such benefits are “otherwise not an integral part of the plan.” To meet this criterion, limited-scope vision or dental benefits can be provided without connection to a primary plan, or the limited-scope vision or dental benefits can be offered separately from the major medical or “primary” coverage under the plan (as described in these final regulations). Under the 2013 proposed regulations, in order to satisfy the statutory excepted benefits criterion that such benefits cannot otherwise be “an integral part of the plan,” participants must be able to decline coverage. These final regulations provide that this criterion is satisfied if participants may decline coverage or the claims for the benefits are administered under a contract separate from claims administration for any other benefits under the plan.

While coverage for long-term care benefits is not the focus of this rule, such benefits are also subject to the “not an integral part of a group health plan” standard in order to be classified as excepted benefits. Accordingly, the revisions discussed in this section of the preamble also apply to coverage of long-term care benefits.

EAPs are typically programs offered by employers that can provide a wide-ranging set of benefits to address circumstances that might otherwise adversely affect employees' work and health. Benefits may include referral services and short-term substance use disorder or mental health counseling, as well as financial counseling and legal services. They are typically available free of charge to employees and are often provided through third-party vendors. Benefits for medical care provided through an EAP would generally be considered group health plan coverage (and, therefore, minimum essential coverage), which would generally be subject to the HIPAA and Affordable Care Act market reform requirements (and could make individuals receiving benefits under an EAP ineligible to receive a premium tax credit under section 36B of the Code if they enroll in coverage under a QHP through the Exchange), unless the EAP meets the criteria for being excepted benefits.

Since enactment of the Affordable Care Act, various stakeholders have asked the Departments to treat EAPs as excepted benefits for reasons analogous to the arguments described above with respect to vision and dental benefits. Specifically, some employers represented that compliance with the prohibition on annual dollar limits could be problematic as such benefits are typically very limited, and that EAPs generally are intended to provide benefits in addition to those provided under other group health plans sponsored by employers. Moreover, consumer groups have represented that EAPs with very limited benefits, which may be the only coverage offered to employees, could make such employees ineligible to receive a premium tax credit under section 36B of the Code if they enroll in coverage under a QHP through the Exchange. At the same time, the Departments recognize that no universal definition exists for EAPs, and are concerned that employers not act to shift primary coverage to a separate “EAP plan,” exempt from the consumer protection provisions of title XXVII of the PHS Act, part 7 of ERISA, and chapter 100 of the Code, including the mental health parity provisions. 18

In guidance issued on September 13, 2013, the Departments stated their intent to amend the excepted benefits regulations with respect to EAPs. 19 The guidance also provided transition relief, stating, “[u]ntil rulemaking is finalized, through at least 2014, the Departments will consider an employee assistance program or EAP to constitute excepted benefits only if the employee assistance program or EAP does not provide significant benefits in the nature of medical care or treatment. For this purpose, employers may use a reasonable, good faith interpretation of whether an employee assistance program or EAP provides significant benefits in the nature of medical care or treatment.”

The 2013 proposed regulations set forth criteria for an EAP to qualify as excepted benefits beginning in 2015. Under the 2013 proposed regulations, benefits provided under EAPs are excepted if four criteria are met. First, the program cannot provide significant benefits in the nature of medical care. The Departments invited comments on how to define “significant.” For example, the Departments requested comments as to whether a program that provides no more than 10 outpatient visits for mental health or substance use disorder counseling, an annual wellness checkup, immunizations, and diabetes counseling, with no inpatient care benefits, should be considered to provide significant benefits in the nature of medical care. 20

The second proposed criterion for an EAP to constitute excepted benefits under the 2013 proposed regulations is that its benefits cannot be coordinated with benefits under another group health plan. The Departments outlined three conditions to meet this proposed criterion: (i) participants in the separate group health plan must not be required to exhaust benefits under the EAP (making the EAP a “gatekeeper”) before an individual is eligible for benefits under the other group health plan; (ii) participant eligibility for benefits under the EAP must not be dependent on participation in another group health plan; and (iii) benefits under the EAP must not be financed by another group health plan.

The third proposed criterion for an EAP to constitute excepted benefits under the 2013 proposed regulations is that no employee premiums or contributions be required to participate in the EAP. The fourth proposed criterion is that there is no cost sharing under the EAP.

The criteria in the 2013 proposed regulations were intended to ensure that employers are able to continue offering EAPs as supplemental benefits to other coverage, and to ensure that in circumstances in which an EAP with limited benefits is the only coverage, or the only affordable coverage provided to an employee, that the coverage does not unreasonably disqualify an employee from potential eligibility to receive a premium tax credit under section 36B of the Code if the employee enrolls in coverage under a QHP through the Exchange. The Departments requested comments on whether the criteria proposed are sufficient to prevent the potential for abuse, including the evasion of compliance with the mental health parity provisions, and whether different or additional standards should be included.

The Departments received a number of comments relating to the treatment of EAPs as excepted benefits. While the comments generally supported treating EAPs as excepted benefits, there were many suggestions for clarifying or modifying the specific requirements in the 2013 proposed regulations for EAPs to constitute excepted benefits. In particular, many comments included suggestions for clarifying what is meant by significant benefits in the nature of medical care. Most of these comments raised concerns about the suggestion in the preamble to propose using numerical limits on the number of visits.

Some comments requested that EAPs be allowed to provide wellness and disease management programs, provided such programs do not provide significant benefits in the nature of medical care. However, treating wellness programs as excepted benefits by including them in an EAP would circumvent consumer protections contained in the statutory standards for wellness programs under section 2705(j) of the PHS Act as enacted by the Affordable Care Act. This suggestion is not adopted in these final regulations.

Several comments opposed the prohibition in the 2013 proposed regulations on an EAP being financed by the other group health plan to qualify as excepted benefits. In particular, the comments noted that often the EAP and the group health plan are financed by a single payment or otherwise combined, and the requirement would result in disruptions of existing commercial arrangements. Moreover, these comments noted, the other requirements sufficiently protected against inappropriate coordination of the EAP benefits with the benefits of the other group health plan. In addition, there were a number of comments concerning EAPs that were beyond the scope of the 2013 proposed regulations.

After consideration of the comments, the Departments are finalizing the proposal, with one modification related to financing, described below. 21 As with the 2013 proposed regulations, these final regulations provide that, for an EAP to constitute excepted benefits, the EAP must satisfy four requirements.

The first requirement of the 2013 proposed regulations and these final regulations is that the EAP does not provide significant benefits in the nature of medical care. For this purpose, the amount, scope, and duration of covered services are taken into account. For example, an EAP that provides only limited, short-term outpatient counseling for substance use disorder services (without covering inpatient, residential, partial residential or intensive outpatient care) without requiring prior authorization or review for medical necessity does not provide significant benefits in the nature of medical care. At the same time, a program that provides disease management services (such as laboratory testing, counseling, and prescription drugs) for individuals with chronic conditions, such as diabetes, does provide significant benefits in the nature of medical care. The Departments may, through guidance, provide additional clarification in the future regarding when a program provides significant benefits in the nature of medical care.

The second requirement of these final regulations is that for an EAP to constitute excepted benefits, its benefits cannot be coordinated with the benefits under another group health plan. This requirement has two elements: (1) Participants in the other group health plan must not be required to use and exhaust benefits under the EAP (making the EAP a “gatekeeper”) before an individual is eligible for benefits under the other group health plan; and (2) participant eligibility for benefits under the EAP must not be dependent on participation in another group health plan. In response to comments, these final regulations do not include the requirement set forth in the 2013 proposed regulations that EAP benefits cannot be financed by another group health plan in order to qualify as excepted benefits.

The third requirement of the 2013 proposed regulations and these final regulations for EAPs to constitute excepted benefits is that no employee premiums or contributions may be required as a condition of participation in the EAP. Finally, as with the 2013 proposed regulations, the final regulations provide that an EAP that constitutes excepted benefits may not impose any cost-sharing requirements.

In the preamble to the 2013 proposed regulations, the Departments stated that, until rulemaking is finalized, through at least 2014, for purposes of enforcing the provisions of title XXVII of the PHS Act, part 7 of ERISA, and chapter 100 of the Code, the Departments will consider dental and vision benefits, and EAP benefits, meeting the conditions of the 2013 proposed regulations to qualify as excepted benefits and that, to the extent final regulations or other guidance with respect to vision or dental benefits or EAPs is more restrictive on plans and issuers than the 2013 proposed regulations, the final regulations or other guidance will not be effective prior to January 1, 2015. These final regulations apply to group health plans and group health insurance issuers for plan years beginning on or after January 1, 2015. They do not apply to health insurance issuers offering individual health insurance coverage. Until the applicability date of these final regulations, the Departments will consider dental and vision benefits and EAP benefits meeting the conditions of the 2013 proposed regulations or these final regulations to qualify as excepted benefits.

As stated above, these final regulations eliminate the requirement under the HIPAA regulations that participants pay an additional premium or contribution for limited-scope vision or dental benefits to qualify as excepted benefits, and set forth four requirements for an EAP to constitute excepted benefits.

OMB has determined that this regulatory action is significant within the meaning of section 3(f)(4) of the Executive Order, and the Departments accordingly provide the following assessment of its potential benefits and costs. The Departments expect the impact of these final regulations to be limited.

Specifically, with respect to vision and dental benefits, the final regulations allow group health plans to offer dental and vision benefits to employees without charging a premium or contribution. As stated earlier in the preamble, this eliminates a difference that would otherwise exist between insured and self-insured coverage. With respect to EAPs, the final regulations clarify the conditions that be must be satisfied for such benefits to constitute excepted benefits, which are not subject to the group market requirements under the PHS Act, ERISA, and the Code.

Some employers represented to the Departments that compliance with the Affordable Care Act presented challenges for their limited-scope vision and dental benefits and EAPs. The clarifications provided in these final regulations will benefit employees by ensuring continued access to these benefits. The Departments expect these final regulations to have some costs, but these costs will be limited because the Departments expect the primary result of the final regulations will be that employers providing limited-scope dental and vision and EAP benefits will continue to provide such benefits and that the number of employers who will begin providing such benefits for the first time will be small.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA) imposes certain requirements with respect to Federal rules that are subject to the notice and comment requirements of section 553(b) of the Administrative Procedure Act (5 U.S.C. 551 et seq.) and that are likely to have a significant economic impact on a substantial number of small entities. Unless an agency certifies that a proposed rule is not likely to have a significant economic impact on a substantial number of small entities, section 603 of RFA requires that the agency present an initial regulatory flexibility analysis at the time of the publication of the notice of proposed rulemaking describing the impact of the rule on small entities and seeking public comment on such impact. Small entities include small businesses, organizations and governmental jurisdictions.

For purposes of the RFA, the Departments continue to consider a small entity to be an employee benefit plan with fewer than 100 participants. The basis for this definition is found in section 104(a)(2) of the act, which permits the Secretary of Labor to prescribe simplified annual reports for pension plans that cover fewer than 100 participants. Pursuant to the authority of section 104(a)(3), the Department of Labor has previously issued at 29 CFR 2520.104-20, 2520.104-21, 2520.104-41, 2520.104-46 and 2520.104b-10 certain simplified reporting provisions and limited exemptions from reporting and disclosure requirements for small plans, including unfunded or insured welfare plans covering fewer than 100 participants and satisfying certain other requirements.

Further, while some large employers may have small plans, in general small employers maintain most small plans. Thus, the Departments believe that assessing the impact of these final regulations on small plans is an appropriate substitute for evaluating the effect on small entities. The definition of small entity considered appropriate for this purpose differs, however, from a definition of small business that is based on size standards promulgated by the Small Business Administration (13 CFR 121.201) pursuant to the Small Business Act (15 U.S.C. 631 et seq.).

As noted above, the Departments expect the costs imposed by these regulations to be limited for those employers that provide dental, vision and EAP benefits, and that they will not affect employers who do not provide such benefits. The final regulations allow employers to decide based on their own costs and benefits what action to take. This is true for large and small plans alike. Accordingly, the Departments believe that these final regulations do not have a significant economic impact on a substantial number of small entities. Accordingly, pursuant to section 605(b) of the RFA, the Departments hereby certify that these final regulations will not have a significant economic impact on a substantial number of small entities.

For purposes of the Department of the Treasury it has been determined that these final regulations are not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these final regulations, and, because these final regulations do not impose a collection of information on small entities, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is not required. Pursuant to section 7805(f) of the Code, these final regulations have been submitted to the Small Business Administration for comment on its impact on small business.

For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq. ), as well as Executive Order 12875, these final regulations do not include any Federal mandate that may result in expenditures by State, local, or tribal governments, or the private sector, which may impose an annual burden of $100 million adjusted for inflation since 1995.

Executive Order 13132 outlines fundamental principles of federalism. It requires adherence to specific criteria by Federal agencies in formulating and implementing policies that have “substantial direct effects” on the States, the relationship between the national government and States, or on the distribution of power and responsibilities among the various levels of government. Federal agencies promulgating regulations that have these federalism implications must consult with State and local officials, and describe the extent of their consultation and the nature of the concerns of State and local officials in the preamble to the final regulation.

In the Departments' view, the final regulations, by clarifying policy regarding certain excepted benefits options that can be designed by employers to support their employees, would provide more certainty to employers and others in the regulated community as well as States and political subdivisions regarding the treatment of such arrangements under the PHS Act, ERISA and the Code. Through the regular course of outreach the Departments normally engage in with officials of States (and political subdivisions), the Departments are aware of no special federalism implications presented by these final regulations. The Departments will continue to conduct regular outreach activities with States.

These final regulations are subject to the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.), and will be transmitted to the Congress and to the Comptroller General for review in accordance with such provisions.

The Department of the Treasury regulations are adopted pursuant to the authority contained in sections 7805 and 9833 of the Code.

The Department of Labor regulations are adopted pursuant to the authority contained in 29 U.S.C. 1027, 1059, 1135, 1161-1168, 1169, 1181-1183, 1181 note, 1185, 1185a, 1185b, 1191, 1191a, 1191b, and 1191c; sec. 101(g), Public Law 104-191, 110 Stat. 1936; sec. 401(b), Public Law 105-200, 112 Stat. 645 (42 U.S.C. 651 note); sec. 512(d), Public Law 110-343, 122 Stat. 3765; Public Law 110-460, 122 Stat. 5123; Secretary of Labor's Order 1-2011, 77 FR 1088 (January 9, 2012).

The Department of Health and Human Services regulations are adopted pursuant to the authority contained in sections 2701 through 2763, 2791, and 2792 of the PHS Act (42 U.S.C. 300gg through 300gg-63, 300gg-91, and 300gg-92), as amended.

Accordingly, 26 CFR part 54 is amended as follows:

For the reasons stated in the preamble, the Department of Labor amends 29 CFR part 2590 as follows:

For the reasons stated in the preamble, the Department of Health and Human Services amends 45 CFR part 146 as set forth below:

The Patient Protection and Affordable Care Act; Exchange and Insurance Market Standards for 2015 and Beyond final rule (the “Final Rule”), which appeared in the May 27, 2014 Federal Register (79 FR 30240), contained a number of technical and typographical errors. Therefore, on July 24, 2014, we published a correction notice in the Federal Register (79 FR 42984), to correct some of those errors. The provisions of the correction notice were effective as if they had been included in the May 27, 2014 final rule. Accordingly, those corrections were effective July 28, 2014.

We have identified additional technical and typographical errors that appeared in the May 27, 2014 Federal Register . Therefore, we are publishing an additional correcting document to correct these errors. The provisions of this correcting document are effective October 1, 2014.

On page 30339, we amended the structure of § 147.104(b)(1)(i), removed duplicate regulatory text regarding the Small Business Health Options Program (SHOP), and made other minor revisions. However, when amending paragraph (b)(1)(i)(B) to remove duplicate regulatory text, we inadvertently cross referenced the incorrect regulatory section. The regulation should have referenced the SHOP group participation rules at § 156.285(e), not § 156.1250(c). We are correcting this error in this correcting document.

On page 30348, at § 155.420, we added a new paragraph (b)(2)(iv) to establish coverage effective dates for plan selections made during a special enrollment period, clarifying a consumer's ability to select a plan 60 days before and after a loss of coverage. However, we inadvertently omitted the amendatory instruction in the regulations text for adding this paragraph. As a result, this paragraph was published in the May 27, 2014 Federal Register but was not codified in the Code of Federal Regulations. We also published a subsequent correction notice amending language to this paragraph on July 24, 2014 (79 FR 42984). However, because the original text had not been codified, the change to this paragraph could not be codified. We are correcting this oversight. Specifically, we are adding a new (b)(2)(iv), which reflects the original language we intended to codify in the Federal Register as would have been modified by the July 24, 2014 correction notice.

On page 30350, at § 155.705(b)(3), we describe options with respect to employee choice requirements in the Small Business Health Options Program (SHOP). We are removing the comma after the word “may” in § 155.705(b)(3)(vi) to read, “For plan years beginning in 2015 only, the SHOP may elect. . . .” This was a typographical error that should be made for grammatical correctness.

We ordinarily publish a notice of proposed rulemaking in the Federal Register to provide a period for public comment before the provisions of a rule take effect, in accordance with section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)), and section 553(d) of the APA ordinarily requires a 30-day delay in the effective date of final rules after the date of their publication in the Federal Register . These requirements may be waived if an agency finds for good cause that the delay is impracticable, unnecessary, or contrary to the public interest, and the agency incorporates a statement of the findings and its reasons in the rule issued.

This correcting document merely corrects technical and typographical errors in the “Exchange and Insurance Market Standards for 2015 and Beyond” final rule that was published on May 27, 2014 and which became effective on July 28, 2014, except for amendments to 45 CFR 155.705, which became effective on May 27, 2014. The changes are not substantive. Therefore, we believe that undertaking further notice and comment procedures to incorporate these corrections and delaying the effective date of these changes is unnecessary. In addition, we believe it is important for the public to have the correct information as soon as possible, and believe it is contrary to the public interest to delay the dissemination of it. For the reasons stated above, we find there is good cause to waive notice and comment procedures and the 30-day delay in the effective date for this correcting amendment.

For the reasons set forth in the preamble, the Department of Health and Human Services amends 45 CFR parts 147 and 155 as set forth below:

The Federal Communications Commission published a rule document in the Federal Register on June 4, 2014, (79 FR 32366), FCC 14-31, which inadvertently removed § 27.50(d)(5) through (10). This document corrects the final regulations by restoring paragraphs (d)(5) through (10) to § 27.50.

Accordingly, 47 CFR part 27 is amended by making the following correcting amendment:

Legal Basis

The Secretary of Transportation has statutory authority to set minimum standards for commercial motor vehicle safety. These minimum standards must ensure that: (1) CMVs are maintained, equipped, loaded, and operated safely; (2) the responsibilities imposed on operators of CMVs do not impair their ability to operate the vehicles safely; (3) the physical condition of operators of CMVs is adequate to enable them to operate the vehicles safely; (4) the operation of CMVs does not have a deleterious effect on the physical condition of the operators; and (5) an operator of a CMV is not coerced by a motor carrier, shipper, receiver, or transportation intermediary to operate a commercial motor vehicle in violation of a regulation. (49 U.S.C. 31136(a)(1)-(5), as amended). The Secretary also has broad power in carrying out motor carrier safety statutes and regulations to “prescribe recordkeeping and reporting requirements” and to “perform other acts the Secretary considers appropriate.” (49 U.S.C. 31133(a)(8) and (10)).

The Administrator of FMCSA has been delegated authority under 49 CFR 1.87(f) to carry out the functions vested in the Secretary of Transportation by 49 U.S.C. chapter 311, subchapters I and III, relating to commercial motor vehicle programs and safety regulation.

On December 23, 1936, as part of its newly-promulgated “Motor Carrier Safety Regulations,” the Interstate Commerce Commission (ICC) established an English language requirement for drivers of motor vehicles operated in interstate or foreign commerce by common and contract carriers. The original wording, as contained in paragraph 3 of Part I [Qualification of Drivers] required that:

On May 27, 1939, the ICC made certain changes and additions to the Motor Carrier Safety Regulations, including elimination of the exceptions granted by the original rules for those drivers unable to read and speak English. As stated in that notice,

Section 391.11(b)(2) of the Federal Motor Carrier Safety Regulations (FMCSRs) currently states that a person is qualified to drive a commercial motor vehicle if he/she “can read and speak the English language sufficiently to converse with the general public, to understand highway traffic signs and signals in the English language, to respond to official inquiries, and to make entries on reports and records.”

Currently, FMCSA's physical qualifications standards under 49 CFR 391.41(b)(11) require that drivers be capable of hearing a forced whispered voice in the better ear at not less than 5 feet with or without the use of a hearing aid or, if tested by use of an audiometric device, does not have an average hearing loss in the better ear greater than 40 decibels at 500 Hz, 1,000 Hz, and 2,000 Hz with or without a hearing aid.

Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the safety regulations for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the 2-year period.

On February 1, 2013, FMCSA announced its decision to grant requests from 40 individuals for exemptions from the Agency's physical qualifications standard concerning hearing for interstate drivers (78 FR 7479). After notice and opportunity for public comment, the Agency concluded that granting exemptions for these CMV drivers will provide a level of safety that is equivalent to or greater than the level of safety maintained without the exemptions. As part of the process for reaching this decision, the Agency considered the medical status of each applicant and evaluated their crash and violation data; some of the applicants were driving CMVs in intrastate commerce. The Commercial Driver's License Information System and Motor Carrier Management Information System were searched for crash and violation data on the applicants and each of them demonstrated a safe driving history. The FMCSA granted exemptions that allow these 40 individuals to operate CMVs in interstate commerce for a 2-year period. Subsequently, FMCSA granted an additional 20 exemptions and requested public comment on more than 70 applications for exemptions from the hearing standard. The exemptions preempt State laws and regulations and may be renewed by FMCSA.

Following the decision to grant exemptions, because some hearing-impaired drivers granted exemptions do not speak English, it has been asserted that they may not meet the requirements of § 391.11(b)(2) and may not be qualified to operate CMVs in interstate commerce, even though they can read and write in English. This issue was first raised by the National Association of the Deaf in discussions with the Agency prior to the granting of the exemptions and continues to be an issue in need of clarification.

In consideration of the above, FMCSA has determined that regulatory guidance should be issued to make clear that, for drivers exempted from the hearing standard in 49 CFR 391.41(b)(11) who cannot speak English, the ability to read and write in English is sufficient to satisfy the English-language requirement of 49 CFR 391.11(b)(2). The FMCSA adds Question 7 to its guidance for 49 CFR 391.11, to read as follows:

Question 7: Would a driver who fails to meet the hearing standard under 49 CFR 391.41(b)(11) but has obtained an exemption from that requirement, be considered unqualified under the English language proficiency requirement in 49 CFR 391.11(b)(2) if the driver cannot communicate orally in English?

Guidance: No, if the hearing impaired driver with an exemption is capable of reading and writing in the English language. In that circumstance, the hearing impaired driver satisfies the English language requirement. The absence of an ability to speak in English is not an indication that the individual cannot read and write in English sufficiently to communicate with the general public, to understand highway traffic signs and signals in the English language, to respond to official inquiries, and to make entries on reports and records.

Background

Section 4(b)(3)(B) of the Act (16 U.S.C. 1531 et seq. ) requires that, for any petition to revise the Federal Lists of Endangered and Threatened Wildlife and Plants that contains substantial scientific or commercial information that listing the species may be warranted, we make a finding within 12 months of the date of receipt of the petition. In this finding, we will determine that the petitioned action is: (1) Not warranted, (2) warranted, or (3) warranted, but the immediate proposal of a regulation implementing the petitioned action is precluded by other pending proposals to determine whether species are endangered or threatened, and expeditious progress is being made to add or remove qualified species from the Federal Lists of Endangered and Threatened Wildlife and Plants. Section 4(b)(3)(C) of the Act requires that we treat a petition for which the requested action is found to be warranted but precluded as though resubmitted on the date of such finding, that is, requiring a subsequent finding to be made within 12 months. We must publish these 12-month findings in the Federal Register .

On February 25, 1998, we received a petition from the Southwest Center for Biological Diversity requesting that the Rio Grande cutthroat trout be listed as an endangered or threatened species. We subsequently published a notice of a 90-day petition finding in the Federal Register (63 FR 49062) on September 14, 1998, concluding that the petition did not present substantial information indicating that listing of the Rio Grande cutthroat trout may be warranted.

On June 9, 1999, the Southwest Center for Biological Diversity sued the Service in regard to our September 14, 1998, 90-day petition finding. While this litigation was pending, we received information (particularly related to the presence of whirling disease in hatchery fish in the wild) that led us to believe that further review of the status of the subspecies was warranted. On November 8, 2001, the Service and the Southwest Center for Biological Diversity entered into a settlement agreement stipulating that the Service would initiate a status review for the Rio Grande cutthroat trout; make a determination on or before June 3, 2002; and shortly thereafter, publish our determination in the Federal Register . On June 11, 2002, after reviewing the best available scientific and commercial data, including data related to the presence of whirling disease, we published a determination that listing of Rio Grande cutthroat trout was not warranted (67 FR 39936).

Subsequently, on February 25, 2003, the Center for Biological Diversity (formerly Southwest Center for Biological Diversity), along with several other organizations, sued the Service for the 2002 decision that the subspecies did not warrant listing under the Act. On June 7, 2005, the district court ruled that our finding was not arbitrary and capricious, but also required that we explain in more detail our analysis of “significant portion of the range.” The court ordered the Service to provide supplemental briefing discussing in more detail our analysis of “significant portion of the range.” Following submission of this briefing, on December 22, 2005, the Court ruled in favor of the Service and upheld our interpretation of “significant portion of the range” and determined that our evaluation of the Rio Grande cutthroat trout's status under the listing criteria was not arbitrary and capricious. Plaintiffs appealed this decision.

The appeal was pending with the Tenth Circuit Court of Appeals, when other courts issued opinions in regard to decisions for other species that required the Service to reexamine our legal position on “significant portion of the range.” On March 16, 2007, the Solicitor of the Department of the Interior issued a formal legal opinion titled “The Meaning of In Danger of Extinction Throughout All or a Significant Portion of Its Range” (M-37013, U.S. DOI 2007). Because of this new formal legal opinion and because of our knowledge of changes in status of some populations that we had previously defined as secure in our 2002 review, the Service initiated a new status review. We subsequently published notices seeking new information concerning the status of Rio Grande cutthroat trout on May 22, 2007 (72 FR 28664) and August 16, 2007 (72 FR 46030). On May 14, 2008 (73 FR 27900), we found that the Rio Grande cutthroat trout warranted listing as an endangered or threatened species under the Act based on threats to the subspecies related to population fragmentation and isolation, small population size, nonnative trout, drought, and fire. However, the Service determined that developing a proposed rule to list the Rio Grande cutthroat trout as endangered or threatened at that time was precluded by other, higher priority listing actions. The subspecies became a candidate for listing at that time.

On September 9, 2011, the Service entered into a settlement agreement regarding species on the candidate list in multi-district litigation (MDL settlement agreement; Endangered Species Act Section 4 Deadline Litigation, No. 10-377 (EGS), MDL Docket No. 2165 (D.D.C. May 10, 2011)). Per the MDL settlement agreement, the Service is required to submit a proposed rule or a not warranted 12-month finding to the Federal Register for Rio Grande cutthroat trout in Fiscal Year 2014, which ends September 30, 2014. This 12-month finding fulfills that requirement of the MDL settlement agreement.

We completed the Species Status Assessment Report for the Rio Grande Cutthroat Trout (SSA Report; Service 2014a, entire), which is available online at http://www.regulations.gov, Docket No. FWS-R2-ES-2014-0042. The SSA Report documents the results of the comprehensive biological status review for the Rio Grande cutthroat trout ( Oncorhynchus clarkii virginalis ) and provides an account of the subspecies' overall viability and thus extinction risk through a forecasting of the number and distribution of surving populations in the future (Service 2014a, entire). In the SSA Report we summarized the relevant biological data and a description of past, present, and likely future risk factors (causes and effects) and conducted a new analysis of the viability of the subspecies. The SSA Report provides the scientific basis that informs our regulatory decision regarding whether this subspecies should be listed as endangered or threatened under the Act. This decision involves the application of standards within the Act, its implementing regulations, and Service policies (see Finding). The SSA Report contains the risk analysis on which this finding is based, and the following discussion is a summary of the results and conclusions from the SSA Report.

Rio Grande cutthroat trout (a subspecies of cutthroat trout) inhabit high-elevation streams in New Mexico and southern Colorado, where they need clear, cold, highly oxygenated water; clean gravel substrates; a network of pools and runs; and an abundance of food (typically aquatic and terrestrial invertebrates) to complete their life history. The subspecies needs multiple resilient populations widely distributed across its range to maintain its persistence into the future and to avoid extinction. Resilient populations require long, continuous, suitable stream habitats to support large numbers of individuals and to withstand stochastic events; the populations should be free from the impacts of nonnative trout. The resilient populations (the term resiliency is defined below) should be distributed in each of the four geographic management units (GMUs) where the subspecies currently occurs. This distributional pattern will provide redundancy and representation (these terms are defined below) to increase the probability that the subspecies will withstand future catastrophic events and maintain future adaptive capacity in terms of genetic and ecological diversity (Service 2014a, Table ES-1). The likelihood of the Rio Grande cutthroat trout's persistence depends upon the number of populations, its resilience to threats, and its distribution. As we consider the future viability of the subspecies, more populations with greater resiliency and wider geographic distributions are associated with higher overall subspecies viability.

The Rio Grande cutthroat trout historically occurred in New Mexico and southern Colorado. Its distribution has been divided into five GMUs reflecting major hydrologic divisions. The subspecies no longer occurs in one GMU, the Caballo GMU, where only one population was historically known. The remaining four GMUs are managed by the States of Colorado and New Mexico and other agencies as separate units to maintain genetic and ecological diversity within the subspecies where it exists and to ensure representation of the subspecies across its historical range. GMUs were not created to necessarily reflect important differences in genetic variability, although fish in the Pecos and Canadian GMUs do exhibit some genetic differentiation from those in the Rio Grande basin GMUs. From a rangewide perspective, multiple Rio Grande cutthroat trout populations should be dispersed throughout the various GMUs to maintain subspecies viability and to reduce the likelihood of extinction.

Currently the subspecies is distributed in 122 populations across the four GMUs (ranging from 10 to 59 populations per GMU), and most of the populations are isolated from other populations. The total amount of currently occupied stream habitat is estimated to be about 11 percent of the historically occupied range. This large decline in distribution and abundance is primarily due to the impacts of the introduction of nonnative trout. Nonnative rainbow trout ( O. mykiss ) and other nonnative subspecies of cutthroat trout invaded most of the historical range of the Rio Grande cutthroat trout and resulted in their extirpation because the nonnative trout readily hybridize with Rio Grande cutthroat trout. In addition, brown trout ( Salmo trutta ) and brook trout ( Salvelinus fontinalis ) have also displaced Rio Grande cutthroat trout in some historical habitats through competition and predation pressures. We evaluated the current condition of the 122 populations and categorized the condition of each population based on the absence of nonnative trout, the effective population size, and the occupied stream length. Fifty-five populations were in either the “best” or “good” condition in this categorization. Table ES-2 in the SSA Report identifies the number of populations placed in each category by GMU (see Service 2014a, Chapter 3 for a description of the categories).

We next reviewed the past, current, and future factors that could affect the persistence of Rio Grande cutthroat trout populations. Seven risk factors were evaluated in detail to estimate their individual and cumulative contributions to the overall risk to the subspecies' viability. We focused on these seven factors because they were found to potentially have population-level effects on the subspecies (Service 2014a, Chapter 4, Appendix B, and Appendix C). The seven factors were:

(1) Demographic Risk: Small population sizes are at greater risk from inbreeding, demographic fluctuations, and reduced genetic diversity, and they are more vulnerable to extirpation from other risk factors.

(2) Hybridizing Nonnative Trout: Nonnative rainbow and other cutthroat trout subspecies have historically been introduced throughout the range of Rio Grande cutthroat trout for recreational angling, and they are known to readily hybridize with Rio Grande cutthroat trout. Climate change may exacerbate this risk factor as warmer waters may make high-elevation habitats more susceptible to invasion by rainbow trout.

(3) Competing Nonnative Trout: Brook and brown trout compete with Rio Grande cutthroat trout for food and space, and larger adults will prey upon young Rio Grande cutthroat trout.

(4) Wildfire: Ash and debris flows that occur after a wildfire can eliminate populations of fish from a stream, and wildfires within the range of Rio Grande cutthroat trout have depressed or eliminated fish populations. As drought frequency increases due to climate change, dry forests are more likely to burn and burn hotter than they have in the past.

(5) Stream Drying: Drying of streams occupied by Rio Grande cutthroat trout populations may occur as a result of drought or, in a few cases, water withdrawals. Drought frequency is expected to increase as a result of climate change due to a combination of increased summer temperatures and decreased precipitation.

(6) Disease: Whirling disease damages cartilage, killing young fish or causing infected fish to swim in an uncontrolled whirling motion, making it impossible to avoid predation or feed.

(7) Water Temperature Changes: Changes in air temperature and precipitation patterns expected from climate change could result in elevated stream temperatures that make habitat unsuitable for Rio Grande cutthroat trout to complete their life history.

We considered other potential factors as well, including hydrologic changes related to future climate change, effects to habitat related to land management, and angling. Our review of the best available information did not demonstrate a relationship between hydrologic changes and the potential negative effects on the subspecies to allow for reasonably reliable conclusions; therefore, we did not consider that factor further. We found that land management activities are not likely to have a measurable population-level effect on the subspecies, and angling was also not found to be a substantial factor affecting the subspecies. Therefore, these factors were not evaluated further in our analysis (Service 2014a, Chapter 4).

We included future management actions as an important part of our overall assessment. The Rio Grande Cutthroat Trout Conservation Team (Conservation Team) is composed of biologists from Colorado Parks and Wildlife (CPW), New Mexico Department of Game and Fish (NMDGF), U.S. Bureau of Land Management (BLM), U.S. Forest Service (USFS), National Park Service (NPS), Mescalero Apache Nation, Jicarilla Apache Nation, Taos Pueblo, and the Service. The Conservation Team developed the Conservation Agreement and Strategy in 2013 (revised from the previous Conservation Agreements in 2003 and 2009), which formalized many ongoing management actions. The Conservation Agreement and Strategy includes activities such as stream restorations, barrier construction and maintenance, nonnative species removals, habitat improvements, public outreach, and database management. Over the 10-year life of the Conservation Agreement and Strategy, the Conservation Team has committed to restoration of between 11 and 20 new Rio Grande cutthroat trout populations to historical habitat. We included these activities in our analysis of the future status of the subspecies over the next 10 years (see PECE Analysis, below) and projected various scenarios of active management beyond that.

We developed a species status assessment model to quantitatively incorporate the risks of extirpation from the seven risk factors listed above (including cumulative effects) in order to estimate the future probability of persistence of each extant population of Rio Grande cutthroat trout. We used this model to forecast the future status of the Rio Grande cutthroat trout in a way that addresses viability in terms of the subspecies' resiliency, redundancy, and representation. As a result, we developed two distinct modules. Module 1 estimates the probability of persistence for each Rio Grande trout population by GMU for three future time periods (2023, 2040, and 2080) under a range of conditions, and Module 2 estimates the number of surviving populations by GMU for the three future time periods under several scenarios related to future management actions and the effects of climate change. A detailed explanation of the methodology used to develop the model is provided in Appendix C of the SSA Report (Service 2014a, Appendix C), and the results are summarized in Chapter 5 (Service 2014a, Chapter 5).

We used the results of this analysis to describe the viability of the Rio Grande cutthroat trout (viability is the ability of a species to persist over time and thus avoid extinction; “persist” means that the species is expected to sustain populations in the wild beyond the end of a specified time period) by characterizing the status of the subspecies in terms of its resiliency, redundancy, and representation.

Resiliency is having sufficiently large populations for the subspecies to withstand stochastic events. We measured resiliency at the population scale for the Rio Grande cutthroat trout by quantifying the persistence probability of each extant population under a range of assumed conditions. As expected because of the way the status assessment model was developed to forecast linearly increasing risks over time, all of the population persistence probabilities decrease in our three time periods. Our results do not necessarily mean that any one population will, in fact, be extirpated by 2080; they simply reflect the risks that we believe the populations face due to their current conditions and the risk factors influencing their resiliency.

Rangewide, the resiliency of the subspecies has declined substantially due to the large decrease in overall distribution in the last 50 years. In addition, the remnant Rio Grande cutthroat trout populations are now mostly isolated to headwater streams due to the fragmentation that has resulted from the historical, widespread introduction of nonnative trout across the range of Rio Grande cutthroat trout. Therefore, if an extant population is extirpated due to a localized event, such as a wildfire and subsequent debris flow, there is little to no opportunity for natural recolonization of that population. This reduction in resiliency results in a lower probability of persistence for the subspecies as a whole. To describe the remaining resiliency of the subspecies, we evaluated the individual populations in detail to understand the subspecies' overall capacity to withstand stochastic events.

Redundancy is having a sufficient number of populations for the subspecies to withstand catastrophic events. For the Rio Grande cutthroat trout, we measured redundancy based our forecasting of the number of populations persisting across the subspecies' range. The results suggest that, depending on the particular scenario related to risk factors and restoration efforts, the overall number of populations may decline to some extent by 2080 (Service 2014a, Table ES-1, Column 4). We are focusing on the estimates for 2080, because if the subspecies has sufficient redundancy by 2080, it will also have sufficient redundancy in the more recent time periods. Rangewide there are currently 122 populations, and we forecast between 50 and 132 populations surviving in 2080 (with an intermediate forecast of 68 populations). The wide range in the estimated number of surviving populations is due to the various projections of management and climate change intensity. Some GMUs may decline more than others; for example, our forecasts suggest the Lower Rio Grande GMU may have the largest decline. We estimate the current 59 populations in this GMU could be between 21 and 47 populations by 2080 (with an intermediate forecast of 28 populations). The GMU with the least populations, the Canadian GMU, is forecasted to change from 10 current populations to between 3 and 14 populations by 2080 (with an intermediate forecast of 6 populations).

Representation is having the breadth of genetic and ecological diversity of the subspecies to adapt to changing environmental conditions. For the Rio Grande cutthroat trout, we evaluated representation based on the extent of the geographical range expected to be maintained in the future as indicated by the populations occurring within each GMU for a measure of ecological diversity. For genetic diversity, there are important genetic differences between the Rio Grande basin populations and the populations in the Canadian and Pecos GMUs (though the Pecos and Canadian GMUs are not genetically different from each other). The variation in persistence probabilities is distributed across the GMU so that none of the risk is particularly associated with any particular geographic area within the GMU. Combined, the Canadian and Pecos GMUs are forecasted to have 8 to 30 populations surviving in 2080 (with an intermediate forecast of 14 populations).

We used the best available information to forecast the likely future condition of the Rio Grande cutthroat trout. Our goal was to describe the viability of the subspecies quantitatively in a way that characterizes the needs of the subspecies in terms of resiliency, redundancy, and representation. We considered the possible future condition of the subspecies out to about 65 years from the present (see discussion regarding foreseeable future, below, in the Threatened Species Throughout Range section). We considered nine different scenarios that spanned a range of potential conditions that we believe are important influences on the status of the subspecies. Our results describe a range of possible conditions in terms of the probability of persistence of individual populations across the GMUs and a forecast of the number of populations surviving in each GMU.

Although we evaluated nine different scenarios in our assessment, for this finding we report the foreseeable worse case and best case results that show the full range of outcomes. In each of the relevant conclusions, we focus on the foreseeable worse case results. Logically, if the subspecies does not warrant listing under our worst-case scenario, the eight remaining scenarios will also not warrant listing the subspecies. We also provide in this finding the best case results of each scenario for each of the relevant conclusions. This provides a context for the range of possible outcomes for the future populations of the subspecies.

Considering the worst case scenario allowed us to view the viability of the subspecies under conditions of low management and severe climate change, which are aspects of the model with high uncertainty. None of our “worst case scenario” forecasts results in a predicted loss of all of the populations within any of the GMUs. Therefore, at a minimum, our results suggest the subspecies will have persisting populations in 2080 across its range. Most of the scenarios generally show a declining number of populations over time. However, the rate of this decline, or whether it occurs at all, depends largely on the likelihood of future management actions occurring, the most important of which are the future restoration and reintroduction of populations within the historical range and the control of nonnative trout. While other factors are important to each population, the future management efforts will probably determine the future viability of the Rio Grande cutthroat trout. These conservation efforts were an important consideration in the SSA analysis.

The Service's 2003 Policy for Evaluation of Conservation Efforts When Making Listing Decisions (PECE) provides guidance on how to evaluate conservation efforts that have not yet been fully implemented or have not yet demonstrated effectiveness (68 FR 15100, March 28, 2003). The purpose of PECE is to ensure consistent and adequate evaluation of recently formalized conservation efforts when making listing decisions. The policy presents criteria for evaluating the certainty of implementation and the certainty of effectiveness for such conservation efforts. We evaluated two formalized conservation efforts and their specific conservation measures under PECE (see PECE Evaluation, Service 2014b, entire): the Conservation Agreement and Strategy and the Vermejo Park Ranch Candidate Conservation Agreement with Assurances (Vermejo CCAA). We found the specific conservation measures in each of the formalized conservation efforts to have high levels of certainty of implementation and effectiveness and both were considered as part of the basis for our listing determination for the Rio Grande cutthroat trout. Below is a brief summary of each effort, and more detail is provided in our separate PECE analysis (Service 2014b, entire).

The Conservation Agreement and Strategy for the Conservation of Rio Grande Cutthroat Trout was signed in 2013 by NMDGF, CPW, USFS, NPS, BLM, Mescalero Apache Nation, Jicarilla Apache Nation, Taos Pueblo, and the Service. The 2013 Conservation Agreement and Strategy was a revision to the Conservation Agreement that was originally signed in 2003. The measures in the Conservation Agreement and Strategy are made up of cooperative efforts by the parties to develop and implement the necessary conservation measures for the Rio Grande cutthroat trout to have sufficient resiliency, representation, and redundancy to provide for long-term viability. Conservation measures include:

(1) Identify and characterize all Rio Grande cutthroat trout conservation populations and occupied habitat. Characterization includes gathering data on Rio Grande cutthroat trout density, length of occupied habitat, genetic status, and habitat quality.

(2) Secure and enhance conservation populations.

(3) Restore populations.

(4) Secure and enhance watershed conditions.

(5) Public outreach.

(6) Data sharing.

(7) Coordination.

Throughout the 10-year life of the Conservation Agreement and Strategy, the parties have committed to restoring 11 to 20 new populations of Rio Grande cutthroat trout rangewide. In our PECE analysis, we found that the conservation efforts in the Rio Grande Cutthroat Trout Conservation Agreement and Strategy have a high level of certainty of implementation and effectiveness because of the demonstrated ability of the participants in carrying out an effective conservation program for this subspecies. Therefore, we considered these efforts as part of the basis for our listing determination for the Rio Grande cutthroat trout under the Act.

The goal of the Vermejo CCAA, signed in 2013, is to facilitate and promote the conservation and restoration of the Rio Grande cutthroat trout on certain non-Federal lands owned by Vermejo Park Ranch, LLC. Vermejo Park Ranch consists of 590,823 acres (2,391 square kilometers) in Costilla County, Colorado, and Taos County, New Mexico, managed for conservation, hunting, and fishing. Vermejo Park Ranch is implementing the conservation measures specified in the Vermejo CCAA and has received assurances from the Service that if the Rio Grande cutthroat trout is listed under the Act, no further conservation measures will be required. Conservation measures being implemented by Vermejo Park Ranch include nonnative trout removal, Rio Grande cutthroat trout reintroductions, and increasing existing populations so they are capable of migrating among tributaries. Overall, the project encompasses the restoration of approximately 190 kilometers (118 miles) of stream habitat, and to date nearly 100 kilometers (62 miles) of restoration have been completed and are being monitored. In our PECE analysis, we found that the conservation efforts in the Vermejo CCAA have a high level of certainty of implementation and effectiveness because of the demonstrated ability of the Vermejo Park Ranch for carrying out effective conservation actions for the subspecies. Therefore, we considered these conservation efforts as part of the basis for our listing determination for the Rio Grande cutthroat trout.

Section 4 of the Act, and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(b)(1)(a), the Secretary is to make endangered or threatened determinations required by subsection 4(a)(1) solely on the basis of the best scientific and commercial data available to her after conducting a review of the status of the subspecies and after taking into account conservation efforts by States or foreign nations. The standards for determining whether a species is endangered or threatened are provided in section 3 of the Act. An endangered species is any species that is “in danger of extinction throughout all or a significant portion of its range.” A threatened species is any species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Per section 4(a)(1) of the Act, in reviewing the status of the species to determine if it meets the definition of endangered or of threatened, we determine whether any species is an endangered species or a threatened species because of any of the following five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; and (E) other natural or manmade factors affecting its continued existence.

Until recently the Service has presented its evaluation of information under the five listing factors in an outline format, discussing all of the information relevant to any given factor and providing a factor-specific conclusion before moving to the next factor. However, the Act does not require findings under each of the factors, only an overall determination as to the species' status (for example, endangered species, threatened species, or not warranted). Ongoing efforts to improve the efficiency and efficacy of the Service's implementation of the Act have led us to present this information in a different format that we find leads to greater clarity in our understanding of the science, its uncertainties, and our application of our statutory framework to that science. Therefore, while the presentation of information in this document differs from past practice, it differs in format only. We have evaluated the same body of information that, in the past, we have discussed under an outline of the five listing factors. In this analysis, we are applying the same information standard, and we are applying the same statutory framework in reaching our conclusions and ultimate determination of the status of the subspecies under the Act.

The biological information we reviewed and analyzed as the basis for our findings is documented in the Rio Grande Cutthroat Trout Species Status Assessment Report (Service 2014a, entire), a summary of which is provided in the background of this finding. The projections for the number of future persisting populations are based on the Species Status Assessment Model (SSA Model; Service 2014a, Chapter 5 and Appendix C), which incorporates the potential risk factors (in other words, threats) that were found to have possible population-level effects. The risk factors we evaluated in detail are demographic risk (Factor E from the Act), nonnative trout (Factors C and E), wildfire (Factor A), stream drying (Factor A), disease (Factor C), and water temperature changes (Factor A). For four of the factors (hybridizing nonnative trout, wildfire, stream drying, and water temperature changes), we also considered the exacerbating effects of climate change. We reviewed, but did not evaluate in further detail because of a lack of population-level effects, the effects of land management activities and hydrologic changes (Factor A), and recreational angling (Factor B).

The overall results of the status assessment found that the best available information indicates that large declines (approximately 89 percent loss) in the distribution and abundance of Rio Grande cutthroat trout have occurred in the past 50 years or so due mainly to the impacts from introduced nonnative trout. This declining trend has been abated in recent years to a large extent due to management efforts to control nonnative trout and limit new introductions and the spread of nonnative trout. However, the results of the past impacts have left the Rio Grande cutthroat trout in a remnant of its former habitat, which is now primarily high-elevation headwater streams. The purpose of the status assessment was to characterize the future viability of the subspecies in the face of this reduced distribution and the ongoing factors that put populations at risk of extirpation.

In the SSA Report, we described the viability of the Rio Grande cutthroat trout in terms of redundancy, representation, and resiliency (Service 2014a, Chapter 5). These characteristics have all been reduced in the subspecies because of the historical declines in its distribution and abundance. In addition, the reduction in population sizes and the isolated nature of most remaining populations makes many of the potential stressors to the Rio Grande cutthroat trout more significant than they would have been historically. This is because small populations are more susceptible to extirpation from negative events, whether those events are natural or human-caused. In addition, in the event of a local extirpation due to a negative stochastic event, isolated populations are unable to be recolonized by natural dispersal from nearby populations. Therefore, the Rio Grande cutthroat trout has an overall reduced viability compared to historical conditions.

Our forecasts take into consideration a range of the likely number of populations that could be restored in the future through work of the agencies under the multi-agency Conservation Agreement and Strategy. Numerous conservation efforts are ongoing for Rio Grande cutthroat trout. The conservation measures for the Conservation Agreement and Strategy and the Vermejo CCAA are evaluated in the PECE analysis (Service 2014b) discussed above. The formal agreements extend for 10 years, but in the case of the Conservation Agreement and Strategy, in particular, we expect efforts to continue further into the future. We cannot predict the number and type of efforts that will be performed in the future with as much accuracy as the Conservation Agreement and Strategy specifies for the next 10 years. However, given the history of the Conservation Team and the motivation of the States in the conservation of this subspecies (Service 2014b), we expect management efforts to continue past the life of the Conservation Agreement and Strategy, either formally (through renewal of the Conservation Agreement and Strategy) or informally. As such, we have included varying levels of conservation efforts in the different scenarios of our model forecasting.

Our status assesment characterized Rio Grande cutthroat trout viability (future persistence) in terms of number and distribution of populations expected to persist through 2080. These outputs form the basis for our determinations under the Act. Because of uncertainty, mainly related to climate change and the level of future conservation efforts, our forecasts include a variety of scenarios. For these findings, we refer to our results under the best and worst case scenarios over two time horizons: 2023 and 2080. The fundamental question before the Service is whether the projections of extinction risk, described in terms of the number of future populations and their distribution (taking into account the risk factors and their effects on those populations), indicate that the subspecies warrants protection as endangered or threatened under the Act. The lower the number and smaller the distribution of the persisting populations, the higher the extinction risk and lower the overall viability. In making our determinations, we focused on the worst case scenario because, if the worst case scenario does not rise to a level for which the subspecies meets the definition of an endangered or a threatened species, then the more optimistic forecasts are considerably better and likewise would not warrant an endangered or threatened conclusion. We also included the best case scenario outcome in order to provide context of the likely range of the number of persisting populations of the subspecies.

As described in the determinations below, we first evaluated whether the Rio Grande cutthroat trout is in danger of extinction throughout its range now (an endangered species). We then evaluated whether the subspecies is likely to become in danger of extinction throughout its range in the foreseeable future (a threatened species). We considered future voluntary conservation efforts in the information used in these determinations, consistent with PECE. We finally considered whether the Rio Grande cutthroat trout is an endangered or threatened species in a significant portion of its range (SPR).

Under the Act, an endangered species is any species that is “in danger of extinction throughout all or a significant portion of its range.” Because of the fact-specific nature of listing determinations, there is no single metric for determining if a species is currently in danger of extinction. We used the best available scientific and commercial information to evaluate the viability (and thus risk of extinction) for the Rio Grande cutthroat trout to determine if it meets the definition of an endangered species. In this finding, we used a projection of the number and distribution of populations to measure the Rio Grande cutthroat trout's viability and then determine the subspecies' status under the Act.

Our review found that there are currently 122 existing populations of the Rio Grande cutthroat trout in four GMUs. We consider each of these populations genetically pure enough to be Rio Grande cutthroat trout; that is, each population has 90 percent or more of the native Rio Grande cutthroat trout genes. To assess the current status of these populations, we sorted each of them into four categories to consider their current status, which was based on effective population size, occupied stream length, presence of competing nonnative trout, and presence of hybridizing nonnative trout. We categorized 55 of the populations (45 percent) as currently in the best or good condition of having no nonative trout, relatively large effective population sizes, and relatively long occupied stream lengths (Service 2014a, pp. 14-15). This current number of populations in the best or good condition existing across the subspecies' range provides resiliency (45 percent of populations considered sufficiently large to withstand stochastic events), redundancy (55 populations spread across all four extant GMUs to withstand catastrophic events), and representation (multiple populations are persisting across the range of the subspecies to maintain ecological and genetic diversity).

The Rio Grande cutthroat trout also historically occurred in a fifth GMU—the Caballo GMU. We only know of one historical population in this GMU, which was extirpated more than 30 years ago. With only one population, this area would not have significantly contributed to the resiliency and redundancy of the subspecies. However, it could have had some important genetic or ecological diversity that would have contributed to the adaptive capacity of the subspecies. Losing this population likely lowered the overall viability of the subspecies but would not be a substantial enough impact rangewide to meaningfully increase the overall risk of extinction of the Rio Grande cutthroat trout.

To further consider the status of the Rio Grande cutthroat trout, we analyzed the condition of the subspecies over the next 10 years to evaluate its viability. In 2023, we projected an estimated range of between 104 and 131 populations will persist under worst case and best case scenarios, respectively. According to our forecasts, these populations would be distributed throughout the subspecies' range, with multiple populations persisting in all four of the currently extant GMUs (see Service 2014a, pp. 44-45 for complete results). Therefore, because this worst case estimate of the number and distribution of populations provides resiliency, representation, and redundancy for the subspecies, we conclude the subspecies does not meet the definition of an endangered species under the Act. Although the subspecies has experienced substantial reduction from its historical distribution, the number of Rio Grande cutthroat trout populations currently persisting and expected to persist in the next 10 years across its range does not put the subspecies in danger of extinction.

Having found that the Rio Grande cutthroat trout is not an endangered species throughout its range, we next evaluated whether the subspecies is a threatened species throughout its range.

Under the Act, a threatened species is any species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The foreseeable future refers to the extent to which the Secretary can reasonably rely on predictions about the future in making determinations about the future conservation status of the species (U.S. Department of Interior, Solicitor's Memorandum, M-37021, January 16, 2009). A key statutory difference between a threatened species and an endangered species is the timing of when a species may be in danger of extinction, either now (endangered species) or in the foreseeable future (threatened species).

In considering the foreseeable future, our analysis used two timeframes to forecast the status of the Rio Grande cutthroat trout as measured by the number of possible surviving populations based on the risk factors and conservation efforts the subspecies is facing. We forecasted out to the years 2040 (about 25 years from present) and 2080 (about 65 years from present). We based these timeframes on the outputs of downscaled climate forecasting models that often project climate scenarios to the year 2080. Since potential effects of climate change were important considerations in our status assessment, it was necessary to consider a long enough timeframe to adequately evaluate those potential effects. The 2080 timeframe represents about 13 to 21 Rio Grande cutthroat trout generations and is a reasonably long time to consider for potential future effects of stressors on populations of the subspecies. This timeframe also represents our outermost estimate for forecasting, where our confidence decreases in our ability to forecast future environmental conditions related to the risk factors evaluated and to the responses of Rio Grande cutthroat trout populations.

To assist us in evaluating the status of the subspecies in the foreseeable future, we considered the risk factors that we found to have potential population-level effects over time. These future risk levels were incorporated into our status assessment model to forecast the number of surviving populations into the foreseeable future. We increased the risk levels linearly over time to account for the cumulative increase in the risks of chance events occurring in the future. In addition, for four risk factors (hybridizing nonnative trout, wildlife, stream drying, and water temperature) we provided a further increase in risks over time to account for the potential effects of climate change. We used our best professional judgment to estimate the effects of increasing risks due to climate change. In addition, because of the high uncertainty associated with climate change we considered a “moderate” and a “severe” effect of climate change. For the moderate climate change effect, we increased the risk function over time by 5 percent for the 2040 forecast and 10 percent for the 2080 forecast. For the severe climate change effect, we increased the risk function over time by 20 percent for the 2040 forecast and 40 percent for the 2080 forecast, as explained in greater detail in our SSA Report. We also included management activities in our analysis of the future status of the subspecies over the next 10 years (see PECE Analysis, above), and projected various scenarios of active management beyond that.

In 2080, our model forecasted 50 to 132 populations will persist rangewide under our worst and best case scenarios, respectively, with multiple populations in all four of the currently extant GMUs (Service 2014a, pp. 44-48). Therefore, because this worst-case forecast of the number and distribution of populations provides resiliency, redundancy, and representation for the subspecies, we conclude the subspecies is not likely to become in danger of extinction in the foreseeable future. Therefore, we find that the subspecies does not meet the definition of a threatened species under the Act.

Having found that the Rio Grande cutthroat trout is not an endangered or threatened species throughout its range, we next evaluated whether the subspecies warrants listing based on any significant portion of the subspecies' range.

Under the Act and our implementing regulations, a species may warrant listing if it is an endangered or a threatened species throughout all or a significant portion of its range. The Act defines “endangered species” as any species which is “in danger of extinction throughout all or a significant portion of its range,” and “threatened species” as any species which is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The term “species” includes “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” We published a final policy interpretating the phrase “significant portion of its range” (79 FR 37578, July 1, 2014). The final policy states that (1) if a species is found to be an endangered or a threatened species throughout a significant portion of its range, the entire species is listed as an endangered or a threatened species, respectively, and the Act's protections apply to all individuals of the species wherever found; (2) a portion of the range of a species is “significant” if the species is not currently an endangered or a threatened species throughout all of its range, but the portion's contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range; (3) the range of a species is considered to be the general geographical area within which that species can be found at the time the Service or NMFS makes any particular status determination; and (4) if a vertebrate species is an endangered or a threatened species throughout an SPR, and the population in that significant portion is a valid distinct population segment (DPS), we will list the DPS rather than the entire taxonomic species or subspecies.

The SPR policy is applied to all status determinations, including analyses for the purposes of making listing, delisting, and reclassification determinations. The procedure for analyzing whether any portion is an SPR is similar, regardless of the type of status determination we are making. The first step in our analysis of the status of a species is to determine its status throughout all of its range. If we determine that the species is in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range, we list the species as an endangered (or threatened) species and no SPR analysis will be required. If the species is neither an endangered nor a threatened species throughout all of its range, we determine whether the species is an endangered or a threatened species throughout a significant portion of its range. If it is, we list the species as an endangered or a threatened species, respectively; if it is not, we conclude that listing the species is not warranted.

When we conduct an SPR analysis, we first identify any portions of the species' range that warrant further consideration. The range of a species can theoretically be divided into portions in an infinite number of ways. However, there is no purpose to analyzing portions of the range that are not reasonably likely to be significant and either an endangered or a threatened species. To identify only those portions that warrant further consideration, we determine whether there is substantial information indicating that (1) the portions may be significant and (2) the species may be in danger of extinction in those portions or likely to become so within the foreseeable future. Answering these questions in the affirmative is not a determination that the species is an endangered or a threatened species throughout a significant portion of its range—rather, it is a step in determining whether a more detailed analysis of the issue is required. In practice, a key part of this analysis is whether the threats are geographically concentrated in some way. If the threats to the species are affecting it uniformly throughout its range, no portion is likely to warrant further consideration. Moreover, if any concentration of threats apply only to portions of the range that clearly do not meet the biologically based definition of “significant” (i.e., the loss of that portion clearly would not be expected to increase the vulnerability to extinction of the entire species), those portions will not warrant further consideration.

If we identify any portions that may be both (1) significant and (2) endangered or threatened, we engage in a more detailed analysis to determine whether these standards are indeed met. The identification of an SPR does not create a presumption, prejudgment, or other determination as to whether the species in that identified SPR is an endangered or a threatened species. We must go through a separate analysis to determine whether the species is an endangered or a threatened species in the SPR. To determine whether a species is an endangered or a threatened species throughout an SPR, we will use the same standards and methodology that we use to determine if a species is an endangered or a threatened species throughout its range.

Depending on the biology of the species, its range, and the threats it faces, it may be more efficient to address the “significant” question first, or the status question first. Thus, if we determine that a portion of the range is not “significant,” we do not need to determine whether the species is an endangered or a threatened species there; if we determine that the species is not an endangered or a threatened species in a portion of its range, we do not need to determine if that portion is “significant.”

Our SSA Report and supporting model (Service 2014a, Appendix C) evaluated population persistence (i.e., resiliency), incorporating the threats to the populations, within the four extant GMUs. Additionally, our description of the viability of the subspecies considered resiliency, representation, and redundancy in terms of the expected persistence of future populations at the GMU spatial scale. Therefore, our existing analysis quantitatively forecasts the future condition of Rio Grande cutthroat trout in a way that addresses viability in terms of the subspecies' resiliency, redundancy, and representation. Because the analysis was conducted by GMU, we are able to use the model's output to analyze whether there is a significant portion of the range that is more vulnerable to extirpation than other parts of the range.

Therefore, the following evaluation first considers whether each of the four extant GMUs may be significant under our definition of SPR. In other words, we evaluated whether that GMU's contribution to the viability of the Rio Grande cutthroat trout is so important that, without the members in that GMU, the subspecies would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range. For the GMUs that we determined could meet this standard of significance, we then considered whether the forecasted future condition of that GMU, based on our species status assessment, would be an endangered or a threatened species.

Rio Grande Headwaters GMU— The Rio Grande Headwaters GMU contains 34 percent (41 of 122) of the extant Rio Grande cutthroat trout rangewide populations. If the populations in this GMU were all extirpated, the subspecies in the remainder of the range could be an endangered or threatened species because of the effects to the subspecies' viability due to a substantial reduction in redundancy (loss of large number of populations from a large portion of the range). Therefore, the Rio Grande Headwaters GMU could be significant according to our definition of SPR under the Act.

We next evaluated whether the Rio Grande Headwaters GMU is endangered or threatened. Our review found that there are currently 41 existing populations of the Rio Grande cutthroat trout in the Rio Grande Headwaters GMU. To assess the current status of these populations, we sorted each of them into four categories to consider their current status, which was based on effective population size, occupied stream length, presence of competing nonnative trout, and presence of hybridizing nonnative trout. We categorized 19 of the 41 populations (46 percent) as currently in the best or good condition (Service 2014a, pp. 14-15). This number of reasonably resilient populations within this GMU provides resiliency (46 percent of populations considered sufficiently large to withstand stochastic events), redundancy (19 populations in the GMU to withstand catastrophic events), and representation (multiple populations are persisting within the GMU to maintain ecological and genetic diversity).

To consider the current risk of extinction of the Rio Grande cutthroat trout, we analyzed the condition of this potential SPR over the next 10 years to evaluate its viability (and thus its risk of extinction) and considered all threats with possible population-level effects. In 2023, we projected 41 to 49 populations will persist in the Rio Grande Headwaters GMU under our worst and best case scenarios, respectively (Service 2014a, p. 46). Therefore, because the worst case scenario forecast of the number and distribution of populations provides resiliency, representation, and redundancy for the subspecies in the Rio Grande Headwaters GMU, we conclude the subspecies does not meet the definition of an endangered species under the Act.

Having found that the Rio Grande cutthroat trout is not endangered in the Rio Grande Headwaters GMU, we next evaluated whether the subspecies is threatened in this potential SPR. As with the subspecies rangewide (and for the same reasons), we used about 65 years from present, the year 2080, as the foreseeable future to consider whether the potential SPR is likely to become an endangered species. We also used the same rationale for future forecasting of persisting populations. In 2080, we forecasted 21 to 55 populations will persist in the Rio Grande Headwaters GMU under our worst and best case scenarios, respectively (Service 2014a, p. 46). Therefore, because the worst case scenario forecast of the number and distribution of populations provides resiliency, representation, and redundancy for the subspecies in the Rio Grande Headwaters GMU, we conclude the subspecies does not meet the definition of a threatened species under the Act.

Lower Rio Grande GMU— The Lower Rio Grande GMU contains 48 percent (59 of 122) of the extant Rio Grande cutthroat trout rangewide populations. If the populations in this GMU were all extirpated, the subspecies in the remainder of the range could be an endangered or threatened species because of the effects to the subspecies' viability due to a substantial reduction in redundancy (loss of large number of populations from a large portion of the range). Therefore, the Lower Rio Grande GMU could be significant according to our definition of SPR under the Act.

We next evaluated whether the Lower Rio Grande GMU is endangered or threatened. Our review found that there are currently 59 existing populations of the Rio Grande cutthroat trout in the Rio Grande Headwaters GMU. To assess the current status of these populations, we sorted each of them into four categories to consider their current status, which was based on effective population size, occupied stream length, presence of competing nonnative trout, and presence of hybridizing nonnative trout. We categorized 28 of the populations (47 percent) as currently in the best or good condition (Service 2014a, pp. 14-15). This number of populations in the best or good condition within this GMU provides resiliency (47 percent of populations considered sufficiently large to withstand stochastic events), redundancy (28 populations in the GMU to withstand catastrophic events), and representation (multiple populations are persisting within the GMU to maintain ecological and genetic diversity).

To consider the current risk of extinction of the Rio Grande cutthroat trout, we analyzed the condition of this potential SPR over the next 10 years to evaluate its viability (and thus its risk of extinction) and considered all threats with possible population-level effects. In 2023, we projected 43 to 51 populations will persist in the Lower Rio Grande GMU under our worst and best case scenarios, respectively (Service 2014a, p. 46). Therefore, because the worst case scenario forecast of the number and distribution of populations provides resiliency, representation, and redundancy for the subspecies in the Lower Rio Grande Headwaters GMU, we conclude that the subspecies does not meet the definition of an endangered species under the Act.

Having found that the Rio Grande cutthroat trout is not an endangered species in the Lower Rio Grande GMU, we next evaluated whether the subspecies is a threatened species in this potential SPR. As with the subspecies rangewide (and for the same reasons), we used about 65 years from present, the year 2080, as the foreseeable future to consider whether the potential SPR is likely to become an endangered species. We also used the same rationale for future forecasting of persisting populations . In 2080, we projected 21 to 47 populations will persist in the Lower Rio Grande GMU, respectively (Service 2014a, p. 46). Therefore, because the worst case scenario forecast of the number and distribution of populations provides resiliency, representation, and redundancy for the subspecies in the Lower Rio Grande GMU, we conclude that the subspecies does not meet the definition of a threatened species under the Act.

Canadian GMU— The Canadian GMU contains a small percentage of the existing populations: Currently 8 percent (10 of 122) of current Rio Grande cutthroat trout populations occur in this GMU. If this GMU were extirpated, there would be a decrease in overall viability of the subspecies, as there would be if any proportion of the populations were extirpated. However, 112 populations would remain in the rest of the range, and the subspecies would still have levels of redundancy, resiliency, and representation for sufficient viability to persist into the future. Although one GMU would no longer be contributing to the representation of the subspecies based on ecological diversity, we are not aware of any particular adaptive capacity of the subspecies represented in that GMU. While there is unique genetic diversity within the combined Canadian and Pecos GMUs, the Canadian GMU independently has not been found to contain unique diversity. Therefore, the lower overall viability resulting from the potential loss of only the Canadian GMU would not lead the remaining portion of the subspecies' range to meet the definition of an endangered or threatened species under the Act. As such, the Canadian GMU is not found to be significant as we define SPR under the Act. Therefore, the subspecies is not an endangered or threatened species in the potential Canadian GMU SPR.

Pecos GMU— The Pecos GMU also contains a small percentage of the existing populations: 10 percent (12 of 122) of current Rio Grande cutthroat trout populations occur in this GMU. If the Pecos GMU were extirpated, there would be a decrease in overall viability of the subspecies, as there would be if any proportion of the populations were extirpated. However, 110 populations would remain in the rest of the range, and the subspecies would still have levels of redundancy, resiliency, and representation for sufficient viability to persist into the future. Although one GMU would no longer be contributing to the representation of the subspecies based on ecological diversity, we are not aware of any particular adaptive capacity of the subspecies represented in that GMU. While there is unique genetic diversity within the combined Canadian and Pecos GMUs, the Pecos GMU independently has not been found to contain unique diversity. Therefore, the lower overall viability resulting from the potential loss of only the Pecos GMU would not lead the remaining portion of the subspecies' range to meet the definition of an endangered or threatened species under the Act. As such, the Pecos GMU is not significant as we define SPR under the Act. Therefore, the subspecies is not an endangered or threatened species in the potential Pecos GMU SPR.

Pecos and Canadian GMUs Combined— The combined Pecos and Canadian GMUs contain a moderate percentage of the existing populations: Currently 18 percent (22 of 122 populations) occur in these GMUs. If the populations in these GMUs were to be extirpated, the loss of the unique genetic diversity contained collectively in these two GMUs and the loss of a sizable portion of the range could cause the subspecies in the remainder of the range to be endangered or threatened. Consequently, the Pecos and Canadian GMUs combined could meet the definition of “significant” under the SPR policy. Therefore, we evaluated whether the Rio Grande cutthroat trout is an endangered or a threatened species in the potential SPR of the combined Pecos and Canadian GMUs.

Our review found that there are currently 22 existing populations of the Rio Grande cutthroat trout in the potential Pecos-Canadian SPR. To assess the current status of these populations, we sorted each of them into four categories to consider their current status, which was based on effective population size, occupied stream length, presence of competing nonnative trout, and presence of hybridizing nonnative trout. We categorized eight of the populations (36 percent) as currently in the best or good condition (Service 2014a, pp. 14-15). This number of populations in the best or good condition within this potential SPR provides resiliency (36 percent of populations considered sufficiently large to withstand stochastic events), redundancy (eight populations spread across the potential SPR to withstand catastrophic events), and representation (multiple populations are persisting across the potential SPR to maintain ecological and genetic diversity).

To consider the current risk of extinction of the Rio Grande cutthroat trout, we analyzed the condition of this potential Pecos-Canadian SPR over the next 10 years to evaluate its viability, considering all threats with possible population-level effects. In 2023, we projected an estimated 19 to 30 populations will persist in the potential Pecos-Canadian SPR under our worst and best case scenarios, respectively (Service 2014a, p. 46). Therefore, because this worst case estimate of the number and distribution of populations provides resiliency, representation, and redundancy for the subspecies, we conclude the potential Pecos-Canadian SPR is not in danger of extinction and does not meet the definition of an endangered species under the Act.

Having found that the Rio Grande cutthroat trout is not an endangered species in the potential Pecos-Canadian SPR, we next evaluated whether the subspecies is a threatened species in this potential SPR. As with the subspecies rangewide (and for the same reasons), we used about 65 years from present, the year 2080, as the foreseeable future to consider whether the potential SPR is likely to become an endangered species. We also used the same rationale for future forecasting of persisting populations as discussed above under the rangewide determinations. In 2080, we forecast 8 to 29 populations will persist in the potential Pecos-Canadian SPR under worst and best case scenarios, respectively (Service 2014a, p. 46). Therefore, because the worst case estimate of the number and distribution of populations provides resiliency, representation, and redundancy for the subspecies, we conclude the potential Pecos-Canadian SPR is not likely to be in danger of extinction in the foreseeable future and does not meet the definition of a threatened species under the Act.

Rio Grande Headwaters and Lower Rio Grande GMUs Combined— The combined Rio Grande Headwaters and Lower Rio Grande GMUs contain a large proportion of the range: Currently 82 percent (100 of 122 populations) occur in these GMUs. If the populations in these GMUs were to be extirpated, the loss of the unique genetic diversity contained collectively in these two GMUs and the loss of a large portion of the range could cause the subspecies in the remainder of the range to be endangered or threatened. Consequently, this potential SPR could meet the definition of “significant” under the SPR policy. Therefore, we evaluated whether the Rio Grande cutthroat trout is an endangered or a threatened species in the potential SPR of the combined Rio Grande Headwaters and Lower Rio Grande GMUs.

Our review found that there are currently 100 existing populations of the Rio Grande cutthroat trout in the potential Rio Grande Headwaters-Lower Rio Grande SPR. To assess the current status of these populations, we sorted each of them into four categories to consider their current status, which was based on effective population size, occupied stream length, presence of competing nonnative trout, and presence of hybridizing nonnative trout. We categorized 47 of the populations (47 percent) as currently in the best or good condition (Service 2014a, p. 14-15). This number of populations in the best or good condition within this potential Rio Grande Headwaters-Lower Rio Grande SPR provides resiliency (47 percent of populations considered sufficiently large to withstand stochastic events), redundancy (47 populations spread across the potential SPR to withstand catastrophic events), and representation (multiple populations are persisting across the potential SPR to maintain ecological and genetic diversity).

To consider the current risk of extinction of the Rio Grande cutthroat trout, we analyzed the condition of this potential Rio Grande Headwaters-Lower Rio Grande SPR over the next 10 years to evaluate its viability, considering all threats with possible population-level effects. In 2023, we forecasted 84 to 101 populations will persist in the potential Rio Grande Headwaters-Lower Rio Grande SPR under our worst and best case scenarios, respectively (Service 2014a, p. 46). Therefore, because the worst case scenario for the number and distribution of populations provides resiliency, representation, and redundancy for the subspecies, we conclude the potential Rio Grande Headwaters-Lower Rio Grande SPR is not in danger of extinction and does not meet the definition of an endangered species under the Act.

Having found that the Rio Grande cutthroat trout is not an endangered species in the potential Rio Grande Headwaters-Lower Rio Grande SPR, we next evaluated whether the subspecies is a threatened species in this potential SPR. As with the subspecies rangewide (and for the same reasons), we used about 65 years from present, the year 2080, as the foreseeable future to consider whether the potential SPR is likely to become endangered. We also used the same rationale for future forecasting of persisting populations as discussed above under the rangewide determinations. In 2080, we forecasted 42 to 102 populations would persist in this potential SPR under our worst and best case scenarios, respectively, with multiple populations in each GMU (Service 2014a, p. 46). Therefore, because the worst case scenario for the number and distribution of populations provides resiliency, representation, and redundancy for the subspecies, we conclude the potential Rio Grande Headwaters-Lower Rio Grande SPR is not likely to be in danger of extinction in the foreseeable future and does not meet the definition of a threatened species under the Act.

We found two GMUs (Canadian and Pecos GMUs) did not meet our definition of significant in the SPR policy. We found four portions of the range that could meet our definition of significant under the SPR policy: Rio Grande Headwaters GMU, Lower Rio Grande GMU, Pecos and Canadian GMUs Combined, and Rio Grande Headwaters and Lower Rio Grande GMUs Combined. However, none of these portions of the range was found to meet the definition of an endangered or a threatened species under the Act. As a result, none of the potential SPR categorizations result in the subspecies meeting the definition of endangered or threatened under the Act.

In conclusion, we find that the Rio Grande cutthroat trout is not in danger of extinction throughout its range, nor is it likely to become so in the foreseeable future. We also considered a number of areas concerning the potential for the subspecies to be an endangered or threatened species in a significant portion of its range. We found that four areas could meet our definition of significant; however, none of the potential SPRs was found to be in danger of extinction now or in the foreseeable future. Therefore, we determine that the Rio Grande cutthroat trout is not warranted for listing as an endangered or a threatened species under the Act throughout its rangewide or in any significant portion of its range.

We request that you submit any new information concerning the status of, or threats to, the Rio Grande cutthroat trout to our New Mexico Ecological Services Field Office (see ADDRESSES ) whenever it becomes available. New information will help us monitor the Rio Grande cutthroat trout and encourage its conservation. If an emergency situation develops for Rio Grande cutthroat trout, we will consider an appropriate response under the Act.

A complete list of references cited is available in Appendix D of the SSA Report (Service 2014a, Appendix D), available online at http://www.regulations.gov, under Docket Number FWS-R2-ES-2014-0042. The Service's PECE Evaluation (Service 2014b) is also available online at http://www.regulations.gov, under Docket Number FWS-R2-ES-2014-0042.

The primary authors of this notice are the staff members of the Service's New Mexico Ecological Services Field Office and Southwest Regional Office.

The authority for this section is section 4 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ).

Background

In 2005, at the request of the U.S. Food and Drug Administration (FDA), NMFS closed an area of Federal waters off the coasts of New Hampshire and Massachusetts to fishing for bivalve shellfish due to the presence in those waters of the toxins that cause paralytic shellfish poisoning (PSP) pursuant to section 305(c)(3) of the Magnuson-Stevens Fishery Conservation and Management Act. Shellfish contaminated with the toxin, if eaten in large enough quantity, can cause illness or death from PSP. NMFS modified the closure area several times from 2005-2008, and subsequently continued the closure through 2013. Beginning in 2014, NMFS also prohibited the harvest of gastropods (whelks/conchs) in the closed area.

Recently, NMFS, the FDA, the clam industry, and the Massachusetts Division of Marine Fisheries (MA DMF) investigated whether this closure is still warranted. On May 19, 2014, the FDA requested that NMFS reopen the area known as the Northern Temporary PSP Closed Area for bivalve harvesting. This request is based on the premise that the closed area has not been subject to a toxic algal bloom for several years, and that testing of bivalve shellfish has demonstrated toxin levels well below those known to cause human illness. In addition, the FDA has developed an agreement with the Commonwealth of Massachusetts to conduct PSP monitoring of bivalves from the area in accordance with currently accepted PSP testing procedures. MA DMF agreed to test the reopened waters to determine whether samples of bivalve shellfish harvested from the closed area exceed the threshold for public safety. The MA DMF will inform NMFS if samples from the closed area exceed the threshold for public safety, and we would work with the FDA to reinstate the closure, if necessary.

This action reopens the area referred to as the Northern Temporary PSP Closed Area to bivalve harvesting in the Atlantic surfclam, ocean quahog, mussels, and other bivalve fisheries. The areas defined at 50 CFR 648.81(d) and (e), referred to as the Cashes Ledge and the Western Gulf of Maine Essential Fish Habitat Areas (EFH), respectively, overlap with the area that would be reopened. These overlapping EFH areas remain closed to hydraulic clam dredge gear. The area remains closed to the harvest of whole or roe-on scallops and gastropods. Whole and roe-on scallops and gastropods are believed to be more susceptible to PSP, and may accumulate and retain much higher levels of toxicity. In addition, sufficient data do not exist to demonstrate that it would be safe to lift the closure for gastropods or whole and roe-on scallops. NMFS, the FDA, and MA DMF are working with the fishing industry to collect samples to help determine whether the area could also be opened to whole or roe-on scallops and gastropods in the future.

NMFS published a proposed rule in the Federal Register on July 7, 2014 (79 FR 38274), and accepted public comments until July 22, 2014. We received 17 comments: 11 in support of lifting the closure; 5 opposed; and a comment from the New England Fishery Management Council requesting that we extend the comment period.

Comments Received in Support of Lifting the Closure: Comments received in support of lifting the closure were from the surfclam industry including vessel captains, crew members, and dealers. These comments were similar in nature, and explained that it would be beneficial for the industry to be able to access resources in the area. These commenters requested that we open the area as soon as possible, suggesting that the closure should have been lifted a long time ago.

Response: Because there have been no recent occurrence of PSP causing toxins with the area, this action reopens the Northern Temporary PSP Closed Area for Atlantic surfclam, ocean quahog, mussel, and other bivalves. Sufficient testing protocols have been established to determine if samples of bivalve shellfish exceed the threshold for public safety.

Comments Received Opposing Lifting the Closure: We received comments in opposition to lifting the closure from surfclam dealers and business interests, primarily the Mid-Atlantic and offshore components of the fishery. These commenters did not support the reopening because they believe that the proposed testing procedure is less intensive than the testing that is currently required in the recently reopened offshore Georges Bank area. The commenters are concerned that the proposed protocol is not rigorous enough, and could potentially allow surfclams into the market that are not safe for human consumption, which would damage the surfclam market. They also raised equity concerns in that the costs of the George Banks testing are funded by the surfclam industry; the testing protocols proposed in this area would be funded and carried out by MA DMF.

Response: While the comments in opposition to lifting the closure appear to make some valid points, there is a rationale for the differences in the testing procedures for the offshore versus inshore areas. The protocol used on Georges Bank was evaluated extensively via a pilot study prior to being approved as a biotoxin management strategy for this specific purpose. The FDA states that there may be distinctions between the toxin profiles in offshore waters versus inshore areas and that the offshore protocol would need to be evaluated for each specific purpose, including extending its application to different geographical regions and/or different species of molluscs. The offshore Georges Bank protocol has not yet been used in inshore areas and, as such, it is not known if the Georges Bank testing protocol would be adequate for testing in the inshore areas, including the Northern PSP Area. However, there are efforts underway that would evaluate the extension of the protocol. The testing procedure that we proposed in this rule reflects the testing that is commonly done in state waters, and is readily accepted and proven to work for inshore waters. In considering these comments, the FDA and MA DMF remain confident that the testing procedure we proposed is adequate to ensure public safety while allowing bivalves to be harvested from the Northern Temporary PSP Closed Area.

In addition, the fishery that would be carried out in the inshore Northern Temporary PSP Closed Area would be done at a much smaller scale than the offshore Georges Bank area. As such, it would likely not be feasible at this time to use the Georges Bank protocol in the Northern PSP Area. The offshore protocol includes onboard testing done by trained crew members, product segregation, acquiring additional permits, and dockside laboratory testing to be paid for by the industry. Given the smaller scale fishery that would likely occur in the Northern PSP Area, MA DMF is capable of funding and conducting testing of the inshore areas as we proposed based on the expected effort in that area. However, MA DMF would be not capable of doing the testing for the offshore Georges Bank area given the large scale of that type of operation.

Comment Requesting an Extension on the Comment Period: The New England Fishery Management Council submitted a comment requesting that we extend the comment period until after its September 30-October 2, 2014, meeting. The Council expressed concern about potential impacts on species that might be vital to the recovery of important groundfish stocks such as Gulf of Maine cod. The Council is concerned that there may be gear impacts specific to this area that have not been evaluated with respect to the harvest of a variety of bivalve species.

Response: We do not think it is necessary to extend the comment period. The Council's rationale for extending is largely due to habitat concerns. However, the area reopened as part of this action is already open to mobile bottom-tending gear such as scallop dredge gear. Because we do not anticipate a lot of clam fishing in the area, we do not expect significant additional habitat impacts. In addition, the PSP area does not overlap with any currently pending habitat management areas under consideration in the Council's Omnibus Habitat Amendment. The regulations prohibiting mobile bottom-tending gear fishing in the current Western Gulf of Maine Closure Area would continue to apply to clam dredges. It is also impractical to delay this action due to the timelines associated with the rulemaking process. Extending the comment period as suggested could result in the closure not being lifted until close to the end of the year, and just before the closure is set to expire anyway. This would unnecessarily reduce the potential economic benefit of reopening the area, and would not likely result in additional information that would affect efforts to protect bottom habitat under other Council initiatives.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the Assistant Administrator for Fisheries, NOAA, has determined that this final rule is consistent with the Atlantic Surfclam and Ocean Quahog Fishery Management Plan, other provisions of the Magnuson-Stevens Act, and other applicable law.

Pursuant to the APA, 5 U.S.C. 553(d)(1), NMFS has determined that good cause exists to waive the 30-day delay in effectiveness of this rule because delaying the effectiveness of this rule is contrary to the public interest. This final rule will reopen an area that has been closed to the harvest of surfclams and ocean quahogs since 2005 due to red tide blooms that cause PSP. Recent testing in the Northern Temporary PSP Closed Area has demonstrated that PSP toxin levels were below the regulatory limit established for public health safety. Therefore, continued closure of the area may not be necessary and could unnecessarily restrict Atlantic surfclam and ocean quahog fishing. This closure spans a large portion of the inshore coast of New England, which has prevented this fishery from occurring within the area. As a result, harvesting has been limited to the Mid-Atlantic, where Atlantic surfclam and ocean quahog stocks have recently become less abundant. A 30-day delay in effectiveness would continue to prohibit harvest from this area, and would continue to put pressure on Mid-Atlantic stocks. Waiving the 30-day delay would allow the area to be reopened sooner, which could relieve fishing pressure on southern stocks, and would allow for greater distribution of Atlantic surfclam and ocean quahog harvest effort in the region. Thus, a delay in effectiveness could result in continued loss of revenue for the Atlantic surfclam and ocean quahog fishing fleet. In addition, waiving the 30-day delay in effectiveness will not have a negative impact on any entities, as there are no new compliance requirements or other burdens placed on the fishing community with this rule. Therefore, because this action relieves the industry of regulations, NMFS has determined that good cause exists to waive the 30-day delay in effectiveness of this rule.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

This final rule does not contain policies with federalism or “takings” implications, as those terms are defined in E.O. 13132 and E.O. 12630, respectively.

This action does not contain any new recordkeeping or reporting requirements, and does not impose any additional costs to affected vessels.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this final rule will not have a significant economic impact on a substantial number of small entities. The factual basis for this certification was provided in the proposed rule for this action (July 7, 2014; 79 FR 38274) and is not repeated here. No comments were received regarding the certification and NMFS has not received any new information that would affect its determination. As a result, a final regulatory flexibility analysis is not required and none has been prepared.

For the reasons set out in the preamble, 50 CFR part 648 is amended to read as follows: