The FAA has determined that notice of, and opportunity for prior public comment on, these special conditions is impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected aircraft. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon publication in the Federal Register .

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

On November 29, 2012, Nextant Aerospace applied for an amendment to supplemental type certificate (STC) ST10959SC to replace the existing nickel-cadmium standby power supplies with new rechargeable lithium battery emergency power supplies and to install a module that uses a rechargeable lithium battery for emergency power back-up on the Hawker Beechcraft Model 400A. The Model 400A is a mid-size, nine (9) passenger maximum business jet powered by two turbo fan engines.

The amendment to STC ST10959SC, Rockwell Collins Proline 21 Instrument Display System, includes the installation of Mid-Continent Instrument Co. MD302 Standby Instrument and TS835 Emergency Power Supplies. It also includes the installation of a Midcontinent MD302 Standby Attitude Module for emergency power back-up, all of which use rechargeable lithium batteries and battery systems.

Rechargeable lithium batteries are a novel or unusual design feature in transport category airplanes. This type of battery has certain failure, operational, and maintenance characteristics that differ significantly from those of the nickel-cadmium and lead-acid rechargeable batteries currently approved for installation on transport category airplanes. Because of rapid improvements in airplane technology, the applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature.

Under the provisions of 14 CFR 21.101, Nextant Aerospace must show that the Model 400A, as changed, continues to meet the applicable provisions of the regulations incorporated by reference in STC ST10959SC or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the STC are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in STC ST10959SC are as follows:

The certification basis is 14 CFR part 25 effective February 1, 1965, as amended by 25-1 through 25-40, plus §§ 25.1335, 25.1351(d), 25.1353(c)(5), and 25.1447 at Amendment 25-41; §§ 25.29, 25.255, and 25.1353(c)(6) at Amendment 25-42; §§ 25.361(b) and 25.1329(h) at Amendment 25-46; 14 CFR part 36, effective December 1, 1969, as amended by 36-1 through 36-17; SFAR 27 effective February 1, 1974, as amended by 27-1 through 27-5; and Special Conditions No. 25-ANM-32 dated February 22, 1990, High Altitude Operation, and Special Conditions No. 25-ANM-33 dated June 18, 1990, Lightning and Radio Frequency Energy Protection.

In addition, if the regulations incorporated by reference do not provide adequate standards regarding the change, the applicant must comply with certain regulations in effect on the date of application for the change. The FAA has determined that the Model 400A, as modified by STC ST10959SC, must also comply with the following section of part 25 as amended by Amendment 25-1 through 25-123: § 25.1353.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Hawker Beechcraft Model 400A because of a novel or unusual design feature, special conditions are prescribed under the provisions of 14 CFR 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a STC to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, the special conditions would also apply to the other model.

In addition to the applicable airworthiness regulations and special conditions, the Hawker Beechcraft Model 400A, as modified by STC ST10959SC, must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

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

The Hawker Beechcraft Model 400A will incorporate the following novel or unusual design features: A Mid-Continent TS835 Emergency Power Supply and MD302 Standby Attitude Module that use a rechargeable lithium batteries and battery systems. Rechargeable lithium batteries are a novel or unusual design feature in transport category airplanes for which the applicable airworthiness regulations do not contain adequate or appropriate safety standards. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

The current regulations governing installation of batteries in large transport-category airplanes were derived from Civil Air Regulations (CAR) part 4b.625(d) as part of the re-codification of CAR 4b that established 14 CFR part 25 in February 1965. The new battery requirements, § 25.1353(c)(1) through (c)(4), basically reworded the CAR requirements.

Increased use of nickel-cadmium batteries in small airplanes resulted in increased incidents of battery fires and failures that led to additional rulemaking affecting large transport category airplanes as well as small airplanes. On September 1, 1977, and March 1, 1978, the FAA issued § 25.1353(c)(5) and (c)(6), respectively, governing nickel-cadmium battery installations on large transport-category airplanes. At Amendment 25-123, effective December 10, 2007, the FAA issued a revised § 25.1353, which moved the battery requirements to § 25.1353(b)(1) through (b)(6).

The proposed use of rechargeable lithium batteries for equipment and systems on the Model 400A, modified by STC ST10959SC prompted the FAA to review the adequacy of these existing regulations. Our review indicates that the existing regulations do not adequately address several failure, operational, and maintenance characteristics of rechargeable lithium batteries that could affect the safety of the airplane and its passengers and crew.

At present, commercial aviation has limited experience with use of rechargeable lithium batteries and battery systems in applications involving commercial aviation. However, other users of this technology, ranging from wireless telephone manufacturers to the electric-vehicle industry, have noted potential hazards with rechargeable lithium batteries. These problems include overcharging, over-discharging, and flammability of cell components.

In general, lithium batteries are significantly more susceptible to internal failures that can result in self-sustaining increases in temperature and pressure (i.e., thermal runaway) than their nickel-cadmium or lead-acid counterparts. This condition is especially true for overcharging, which causes heating and destabilization of the components of the cell, leading to the formation (by plating) of highly unstable metallic lithium. The metallic lithium can ignite, resulting in a self-sustaining fire or explosion. Finally, the severity of thermal runaway, due to overcharging, increases with increasing battery capacity due to the higher amount of electrolyte in large batteries.

Discharge of some types of lithium battery cells beyond a certain voltage (typically 2.4 volts), can cause corrosion of the electrodes of the cell, resulting in loss of battery capacity that cannot be reversed by recharging. This loss of capacity may not be detected by the simple voltage measurements commonly available to flightcrews as a means of checking battery status—a problem shared with nickel-cadmium batteries.

Unlike nickel-cadmium and lead-acid batteries, some types of lithium batteries use liquid electrolytes that are flammable. The electrolyte can serve as a source of fuel for an external fire, if there is a breach of the battery container.

These problems experienced by users of lithium batteries raise concern about the use of these batteries in commercial aviation. The intent of the special conditions is to establish appropriate airworthiness standards for lithium battery installations in the Hawker Beechcraft 400A and to ensure, as required by §§ 25.1309 and 25.601, that these batteries are not hazardous or unreliable.

As discussed above, these special conditions are applicable to STC ST10959SC, which modifies the Hawker Beechcraft Model 400A airplane. Should Nextant Aerospace apply at a later date to amend this STC to incorporate the same novel or unusual design feature, the special conditions would apply to that STC as well.

This action affects only certain novel or unusual design features on one airplane model. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, because a delay would significantly affect the certification date for the modification of the airplane, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the Federal Register . The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Hawker Beechcraft Model 400A airplanes modified by Nextant Aerospace.

These special conditions require that (1) All characteristics of the rechargeable lithium batteries and battery installation, that could affect safe operation of the Hawker Beechcraft 400A airplanes, are addressed; and (2) appropriate Instructions for Continued Airworthiness, which include maintenance requirements, are established to ensure the availability of electrical power, when needed, from the batteries.

In lieu of the requirements of Title 14, Code of Federal Regulations (14 CFR) 25.1353(b)(1) through (b)(4) at Amendment 25-123, all rechargeable lithium batteries and battery installations on Hawker Beechcraft 400A airplanes modified by ST10959SC must be designed and installed as follows:

1. Safe cell temperatures and pressures must be maintained during any foreseeable charging or discharging condition and during any failure of the charging or battery monitoring system not shown to be extremely remote. The rechargeable lithium battery installation must preclude explosion in the event of those failures.

2. Design of the rechargeable lithium batteries and battery systems must preclude the occurrence of self-sustaining, uncontrolled increases in temperature or pressure.

3. No explosive or toxic gases emitted by any rechargeable lithium battery in normal operation, or as the result of any failure of the battery charging system, monitoring system, or battery installation which is not shown to be extremely remote, may accumulate in hazardous quantities within the airplane.

4. Installations of rechargeable lithium batteries must meet the requirements of § 25.863(a) through (d).

5. No corrosive fluids or gases that may escape from any rechargeable lithium battery may damage surrounding structure or any adjacent systems, equipment, or electrical wiring of the airplane in such a way as to cause a major or more severe failure condition, in accordance with § 25.1309(b) and applicable regulatory guidance.

6. Each rechargeable lithium battery installation must have provisions to prevent any hazardous effect on structure or essential systems caused by the maximum amount of heat the battery can generate during a short circuit of the battery or of its individual cells.

7. Rechargeable lithium battery installations must have a system to control the charging rate of the battery automatically, so as to prevent battery overheating or overcharging, and,

a. A battery temperature sensing and over-temperature warning system with a means for automatically disconnecting the battery from its charging source in the event of an over-temperature condition, or,

b. A battery failure sensing and warning system with a means for automatically disconnecting the battery from its charging source in the event of battery failure.

8. Any rechargeable lithium battery installation, the function of which is required for safe operation of the airplane, must incorporate a monitoring and warning feature that will provide an indication to the appropriate flight crewmembers whenever the state-of-charge of the batteries has fallen below levels considered acceptable for dispatch of the airplane.

9. The Instructions for Continued Airworthiness required by § 25.1529 must contain maintenance requirements to assure that the battery is sufficiently charged at appropriate intervals specified by the battery manufacturer and the equipment manufacturer that contain the rechargeable lithium battery or rechargeable lithium battery system. This is required to ensure that lithium rechargeable batteries and lithium rechargeable battery systems will not degrade below specified ampere-hour levels sufficient to power the airplane systems for intended applications. The Instructions for Continued Airworthiness must also contain procedures for the maintenance of batteries in spares storage to prevent the replacement of batteries with batteries that have experienced degraded charge retention ability or other damage due to prolonged storage at a low state of charge. Replacement batteries must be of the same manufacturer and part number as approved by the FAA. Precautions should be included in the Instructions for Continued Airworthiness maintenance instructions to prevent mishandling of the rechargeable lithium battery and rechargeable lithium battery systems, which could result in short-circuit or other unintentional impact damage caused by dropping or other destructive means that could result in personal injury or property damage.

On March 14, 2011, we issued AD 2011-07-05, Amendment 39-16642 (76 FR 18020, April 1, 2011). AD 2011-07-05 applied to certain Sicma Aero Seat 9140, 9166, 9173, 9174, 9184, 9188, 9196, 91B7, 91B8, 91C0, 91C2, 91C4, 91C5, and 9301 series passenger seat assemblies; and Sicma Aero Seat 9501311-05, 9501301-06, 9501311-15, 9501301-16, 9501441-30, 9501441-33, 9501311-55, 9501301-56, 9501441-83, 9501441-95, 9501311-97, and 9501301-98 passenger seat assemblies; installed on, but not limited to, various transport category airplanes. AD 2011-07-05 was prompted by reports of cracks on certain backrest links. We issued AD 2011-07-05 to detect and correct cracking of backrest links, which could result in failure of the backrest links during emergency landing conditions and consequent injury to an occupant.

Since we issued AD 2011-07-05, Amendment 39-16642 (76 FR 18020, April 1, 2011), we received a report that new seat backrest links could be affected by cracks similar to those identified on the backrest links with the previous design.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2012-0038, dated March 12, 2012 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

Failure of the backrest links could result in injury to an occupant during emergency landing conditions. The required actions include a general visual inspection for cracking of backrest links, replacement with new links if cracking is found, and eventual replacement of all links with new links.

We have also received additional information from the seat manufacturer regarding the airlines with the affected seats; all of the airlines with the affected seats are foreign air carriers. Since the affected seats are not installed on airplanes in the U.S. registry, we have revised the “Costs of Compliance” information in the preamble of this AD.

You may examine the MCAI on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2014-0730.

Zodiac Seats France has issued Sicma Aero Seat Service Bulletin 90-25-012, Issue 6, dated January 25, 2012, including Annex 1, Issue 3, dated January 25, 2012. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

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

There are no products of this type currently installed on airplanes registered in the United States. However, this rule is necessary to ensure that the described unsafe condition is addressed if any of these products are installed on airplanes that are on the U.S. Register in the future.

Since there are currently no domestic operators of airplanes that are equipped with this product, notice and opportunity for public comment before issuing this AD are unnecessary.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2014-0730; Directorate Identifier 2013-NM-206-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

We estimate that this AD affects 0 seat assemblies installed on, but not limited to, transport airplanes of U.S. registry.

We also estimate that it will take about 1 work-hour per seat assembly to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $227 per product. Based on these figures, we estimate the cost of the actions required by this AD is $312 per seat assembly.

According to the manufacturer, the parts 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.

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

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

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

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

The Agência Nacional de Aviação Civil (ANAC), which is the aviation authority for Brazil, has issued AD No.: 2014-09-01, dated September 4, 2014 (referred to after this as “the MCAI”), to correct an unsafe condition for Empresa Brasileira de Aeronautica S. A. (EMBRAER) Models EMB-110P1 and EMB-110P2 airplanes. The MCAI states:

Empresa Brasileira de Aeronautica S. A. (EMBRAER) has issued EMBRAER Alert Service Bulletin SB No.: 110-27-A095, dated August 21, 2014. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

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

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because corrosion and cracking on the rudder trim tab actuator terminal could cause the terminal to fail and result in loss of control. Since this condition may exist in other airplanes of the same type and affects flight safety, an immediate corrective action is required. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2014-0740; Directorate Identifier 2014-CE-030-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

We estimate that this AD will affect 21 products of U.S. registry. We also estimate that it would take about 4.5 work-hours 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 $50 per product.

Based on these figures, we estimate the cost of the AD on U.S. operators to be $9,082.50, or $432.50 per product.

In addition, we estimate that any necessary follow-on actions would take about 3 work-hours and require parts costing $485, for a cost of $740 per product. We have no way of determining the number of products that may need these actions.

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

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

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

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

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

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

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

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

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 75-20-06, Amendment 39-2372 (40 FR 43484, September 22, 1975, (“AD 75-20-06”). AD 75-20-06 applied to certain Alexandria Aircraft LLC (type certificate previously held by Bellanca Aircraft Corp., Viking Aviation, Inc., and Bellanca, Inc.) Models 14-19-3A, 17-30, 17-30A, 17-31, 17-31A, 17-31ATC, and 17-31TC airplanes. The NPRM published in the Federal Register on July 2, 2014 (79 FR 37679). The NPRM was prompted by reports that cracks are still being found in the vertical side fuselage tube (F.S. 7) in the area near the upper fuselage longeron on airplanes that have had Bellanca Kit SK1234789-0004 installed, which is a terminating action for the repetitive inspections required in AD 75-20-06. The NPRM proposed to retain the inspection requirements of AD 75-20-06, remove the terminating action allowed in AD 75-20-06, and change the applicability to include all serial numbers. We are issuing this AD to correct the unsafe condition on these products.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (79 FR 37679, July 2, 2014) or on the determination of the cost to the public.

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

• Are consistent with the intent that was proposed in the NPRM (79 FR 37679, July 2, 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 37679, July 2, 2014).

We estimate that this AD affects 847 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 will be required based on the results of the inspection. We have no way of determining the number of aircraft that might need these replacements:

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

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

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

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

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

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to adding an AD that would apply to Pacific Aerospace Limited Model 750XL airplanes. The NPRM was published in the Federal Register on July 23, 2014 (79 FR 42721). The NPRM proposed to correct an unsafe condition for the specified products and was based on mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country. The MCAI states:

The MCAI can be found in the AD docket on the Internet at: http://www.regulations.gov/#!documentDetail;D=FAA-2014-0494-0002.

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

Philip Esdaile of Davis Air Repair, Inc, and Ray Ferrell requested the FAA defer inspections until a design change is completed by the manufacturer and then mandate the design change.

Philip Esdaile and Ray Ferrell stated that the inspection is labor intensive and significant damage can be done to the airplane by repeatedly removing the rudder and fin.

We partially agree with the commenter. Requiring a better engineering solution (design change) would allow longer inspection intervals and would cause less wear and tear on the airplane; however, such a design change is not available. The FAA will monitor the progress of the manufacturer's design change and, if considered an acceptable level of safety, consider additional rulemaking or approve it as an alternative method of compliance (AMOC).

We did not change the final rule AD action based on these comments.

Kevin Kelly of Paraclete Aviation stated that the full inspection, as required by the MCAI, is too intrusive and over time causes unnecessary stress and damage to the airplane. The commenter believes that the intent of the inspection can be met by an alternative inspection.

We disagree with the commenter. The mandated inspection is specific; we cannot be certain that the alternative inspection proposed by Kevin Kelly is adequate. However, if someone submits substantiating data, the FAA will review and consider all AMOC requests we receive provided they follow the procedures in 14 CFR 39.19 and this AD.

We did not change the final rule AD action based on these comments.

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

• Are consistent with the intent that was proposed in the NPRM (79 FR 42721, July 23, 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 42721, July 23, 2014).

We estimate that this AD will affect 17 products 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.

Based on these figures, we estimate the cost of the AD on U.S. operators to be $1,445, or $85 per product.

In addition, we estimate that any necessary follow-on actions would take 5 work-hours and require parts costing $328, for a cost of $753 per product. We have no way of determining the number of products that may need these actions.

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, 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 by searching for and locating Docket No. FAA-2014-0494; 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 the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

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

On May 24, 2013, we issued AD 2013-11-14, Amendment 39-17474 (78 FR 35749, June 14, 2013), for certain The Boeing Company Model 777-200 and -300 series airplanes. AD 2013-11-14 required repetitive general visual inspections of the strut forward dry bay for the presence of hydraulic fluid, and related investigative and corrective actions (including checking drain lines for blockage due to hydraulic fluid coking, and cleaning or replacing drain lines to allow drainage) if necessary. AD 2013-11-14 resulted from reports of hydraulic fluid contamination (including contamination caused by hydraulic fluid in its liquid, vapor, and/or solid (coked) form) found in the strut forward dry bay. We issued AD 2013-11-14 to detect and correct hydraulic fluid contamination of the strut forward dry bay, which could result in hydrogen embrittlement of the titanium forward engine mount bulkhead fittings, and consequent inability of the fittings to carry engine loads, resulting in engine separation. Hydrogen embrittlement also could cause a through-crack formation across the fittings through which an engine fire could breach into the strut, resulting in an uncontained strut fire.

Since we issued AD 2013-11-14, Amendment 39-17474 (78 FR 35749, June 14, 2013), we have received reports that a production change installed on certain airplanes that would have eliminated the need for the inspections required by AD 2013-11-14 could not be installed; therefore, the inspection of these airplanes is now necessary. We are issuing this AD to correct the unsafe condition on these products.

We reviewed Boeing Special Attention Service Bulletin 777-54-0028, Revision 1, dated December 10, 2013. For information on the procedures and compliance times, see this service information at http://www.regulations.gov by searching for Docket No. FAA-2014-0654.

We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

Although this AD does not explicitly restate the requirements of AD 2013-11-14, Amendment 39-17474 (78 FR 35749, June 14, 2013), this AD retains all of the requirements of AD 2013-11-14. Those requirements are referenced in the service information identified previously, which, in turn, is referenced in paragraph (g) of this AD. This AD continues to require repetitive general visual inspections of the strut forward dry bay for the presence of hydraulic fluid, and related investigative and corrective actions (including checking drain lines for blockage due to hydraulic fluid coking, and cleaning or replacing drain lines to allow drainage) if necessary, except as discussed under “Differences Between this AD and the Service Information.” This AD also adds airplanes to the applicability.

The phrase “related investigative actions” is used in this AD. “Related investigative actions” are follow-on actions that (1) are related to the primary actions, and (2) further investigate the nature of any condition found. Related investigative actions in an AD could include, for example, inspections.

The phrase “corrective actions” is used in this AD. “Corrective actions” are actions that correct or address any condition found. Corrective actions in an AD could include, for example, repairs.

Boeing Special Attention Service Bulletin 777-54-0028, Revision 1, dated December 10, 2013, specifies to contact the manufacturer for instructions on how to repair certain conditions, but this AD would require repairing those conditions in one of the following ways:

• In accordance with a method that we approve; or

• Using data that meet the certification basis of the airplane, and that have been approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) whom we have authorized to make those findings.

Since the airplanes added to the applicability are not on the U.S. Register, notice and opportunity for public comment before issuing this AD are unnecessary. Therefore, we find that notice and opportunity for prior public comment are unnecessary and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments before it becomes effective. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2014-0654 and directorate identifier 2014-NM-071-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

We estimate that this AD affects 54 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to add an AD that would apply to all Pacific Aerospace Limited Model 750XL airplanes. That NPRM was published in the Federal Register on August 1, 2014 (79 FR 44722), and proposed to supersede AD 2014-04-03, Amendment 39-17761 (79 FR 10344, February 25, 2014).

Since we issued AD 2014-04-03, Amendment 39-17761 (79 FR 10344, February 25, 2014), Pacific Aerospace Limited revised the related service information.

The Civil Aviation Authority (CAA), which is the airworthiness authority for New Zealand, has issued AD DCA/750XL/15A, dated June 26, 2014 (referred to after this as “the MCAI”), to correct an unsafe condition for Pacific Aerospace Limited Model 750XL airplanes. The MCAI states:

The MCAI can be found in the AD docket on the Internet at: http://www.regulations.gov/#!documentDetail;D=FAA-2014-0516-0002.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (79 FR 44722, August 1, 2014) or on the determination of the cost to the public.

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

• Are consistent with the intent that was proposed in the NPRM (79 FR 44722, August 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 44722, August 1, 2014).

We estimate that this AD will affect 17 products of U.S. registry. We also estimate that it will take about 6 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $200 per product.

Based on these figures, we estimate the cost of this AD on U.S. operators to be $12,070, or $710 per product.

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.

The cost difference between AD 2014-04-03, Amendment 39-17761 (79 FR 10344, February 25, 2014), and this AD is the increase in work-hours from 1.5 to 6 and the increase in cost for parts from $100 to $200, for an overall cost difference on U.S. operators to be $8,202.50, or $482.50 per product.

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, 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 by searching for and locating Docket No. FAA-2014-0516; 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 the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

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

Discussion

On October 16, 2012, at 77 FR 63285, the Federal Register published our notice of proposed rulemaking (NPRM), which proposed to amend 14 CFR part 39 by adding an AD that would apply to Brantly Model B-2, Model B-2A, and Model B-2B helicopters, with an M/R blade, part number (P/N) 248-101, 248-202, or 248-404, installed. The proposed requirements were intended to prevent loss of the M/R blade and subsequent loss of control of the helicopter.

The NPRM was prompted by a 2007 incident in New Zealand in which a large inboard section of the M/R blade of a Brantly B-2B helicopter separated from the helicopter during flight. The pilot was able to land the helicopter without further damage. Laboratory analysis concluded that the M/R blade failure was caused by hydrocarbon contaminants inside the blade's skin-to-foam bond and that the fracture originated near the blade's trailing edge. There were three other reports of portions of M/R blades separating during flight and another five reports of M/R blades having cracks or other defects found during inspections.

After our NPRM (77 FR 63285, October 16, 2012), was published, we received comments from 10 commenters.

Two commenters requested that the AD allow cracks in accordance with approved maintenance inspection procedures and criteria. Three commenters requested that the AD allow some delamination as provided for in Brantly's service information, which is up to 10 square inches of delamination outside of the inboard 12 inches of the M/R blade. Four commenters requested that some imperfections be allowed in the blades as listed in the approved factory maintenance inspection procedures. Some of these commenters stated that a small dent, nick, crease, wrinkle, or bend in the skin of the blade, especially in the middle or trailing edge, does not cause the blade to crack and is not necessarily a safety issue. These commenters expressed concern that many Brantly helicopters will be grounded because of slight imperfections in the main rotor blades that are not a safety issue.

We disagree with allowing any crack in a blade, but we agree the AD should allow some delamination and imperfections. A crack in a blade renders it unairworthy, and no data supports that any crack in these blades is a safe condition. Also, no supporting data justifies allowing 10 square inches of delamination to address the unsafe condition, and such a large area is not supported by any known industry standards. We are changing the AD, however, to allow up to 2 square inches of delamination outside of the inboard 12 inches. We are also removing the dent, nick, crease, wrinkle, bends, extra hole, and inadequate rivet spacing requirements from the AD. Although eliminating these conditions is good design practice, the data we have does not support that a crack in the Brantly rotor blade skins was caused by small dents, nicks, creases, wrinkles, bends, extra hole, or inadequate rivet spacing.

Two commenters requested that we remove blade P/Ns 248-101 and 248-202 from the applicability of the AD. These commenters did not believe the unsafe condition applies to these blades because they are significantly different in composition and bonding agent than the P/N 248-404 blade. The commenters stated the -101 and -202 blades develop cracks from improper maintenance, rigging, and operation.

We disagree. Failures and fractures have occurred in the field in the P/N 248-202 blades, and we have been provided with no supporting data that shows they occurred because of improper rigging, maintenance, or operation of the aircraft. Brantly, with help from a laboratory report written by a metallurgical engineering company, concluded that the M/R blade failure was caused by hydrocarbons contamination inside the blades' skin-to-foam bond and that the fractures originated near the trailing edge. The P/N 248-101 and P/N 248-404 blades are similar in construction to the P/N 248-202 blades, and thus are included and addressed in this AD. The AD does, however, address the blades separately by not requiring inspecting the P/N 248-404 blades until after 10 years or 1,000 hours time-in-service (TIS), instead of within 8 hours TIS like the other blades.

Eight commenters requested that we eliminate the eddy current inspection from the AD. Five commenters requested replacing the eddy current inspection with other types (visual, tap test, fluorescent or dye penetrant) of inspection. Some commenters said eddy current testing was impractical because it could not be done successfully at certain locations. Many commenters believed an eddy current inspection would not successfully detect a crack or would provide false readings. One commenter stated that the eddy current inspection would destroy the blade.

We disagree. An eddy current inspection is needed to detect a potential unsafe condition, and it is a reasonable, widely used, and cost-effective procedure. No alternate procedure has been provided that can address the unsafe condition as reliably. Visual or magnifying glass inspections are not as effective as eddy current inspections. The eddy current inspection procedure has been validated and is similar to other blade crack inspections. While there may be some false indication, these should be false positives, which can be re-evaluated. The procedure is a nondestructive inspection and if done correctly, will not destroy any blade. The procedure can be done in the field by a qualified inspector if the inspection area is clean, has proper lighting, and has the proper equipment. We have not been provided with any supporting data that justifies eliminating the eddy current inspection from the AD.

We do agree with one commenter who requested a visual inspection before the first flight of each day being performed by the helicopter owner or operator, since this is best accomplished as part of the other daily inspections and does not require tools. We also agree with reducing the scope of the eddy current inspection area to just the first inboard 12 inches because this is where the fractures have occurred. Eddy current inspecting the outboard area would not be effective in finding the unsafe condition. The AD reflects these changes.

Two commenters suggested replacing the AD requirements with different requirements. One commenter requested a mandatory inspection to identify those main rotor blades not produced or repaired using an FAA approved quality system or materials or processes. The commenter believed such blades alone may contain the unsafe condition due to unapproved blade spars and hinge blocks. Another commenter proposed a check of all used blades because the unsafe condition is caused by incorrect installation of the blade damper units.

We disagree. The lab report concluded that the M/R blade failure was caused by hydrocarbons contamination inside the blades' skin-to-foam bond and that the fracture originated near the trailing edge. No data supports a conclusion that the spar or hinge block were unapproved or that the rivet hole edge distance or pattern caused the unsafe condition. Also, no data shows that the damper caused the unsafe condition and thus an initial check for improper damper installation is not merited. There is history that the incident helicopter may have had quick starts and that the dampers had to be replaced, but the quick starts and damper issues have not been substantiated to be the root cause.

Five commenters stated that routine maintenance inspections are sufficient to detect a crack in the blades. One commenter requested that a revision to the Brantly Service Bulletin would correct the blade problem and provided suggested content.

We disagree. The failures that have occurred in the field show that the blades have an unsafe condition and that the current routine maintenance and inspection procedures do not have adequate methods to address it. The procedures in the commenter's suggested revision of the service bulletin are also inadequate to address the unsafe condition because those procedures do not include a necessary eddy current inspection and allow too much duration between magnifying glass inspections. Additionally, the FAA does not have the authority to require Brantly to revise its service information with a specific maintenance procedure. Rather, we correct an unsafe condition by mandating certain actions through an AD.

One commenter requested we withdraw the AD for more analysis and testing of the blades. The commenter questioned the data and analyses relied upon to conclude an unsafe condition exists on these blades and suggested the FAA has insufficient information upon which to make its determination. The commenter stated the FAA should determine the precise root cause and the exact serial number series of affected blades before issuing an AD. Another commenter requested that we perform “a verification and validation on actual Brantly helicopter blades” before issuing the AD. Four commenters stated that no blade failures have caused an accident or loss of life and that the blade problem that prompted this AD resulted from the aircraft owner's improper maintenance.

We disagree. Improper maintenance and operation has not been shown to be the root cause of the blade failures. The root cause of the failures has been demonstrated by Brantly with help from a laboratory report written by a metallurgical engineering company. The report took into account stresses and loading and determined that skin fracture was propagated by corrosion fatigue and mechanical fatigue. The report concluded that the M/R blades failure was caused by hydrocarbons contamination inside the blades' skin-to-foam bond and that the fracture originated near the trailing edge.

Additional information about the data and analyses we relied upon in issuing this AD includes the following. The original blades were certificated using a crack initiation methodology (e.g., using the S-N curves and Miner's Rule). Shortly after certification, a fatigue test was accomplished on the mid-span of the spar and skin. Stereomicroscopy, wavelength dispersive X-ray spectroscopy, combustion testing, tensile testing, peel testing, scanning electron microscopy, micro Fourier infrared spectroscopy, and hardness testing were all performed to determine the causes of the delamination and crack propagation. An M/R blade failure analysis, risk analysis, cost analysis, and economic analysis were performed before we issued the NPRM. The failures were found in the skin-to-foam bond and in the skin and rivets at the rivet joints attaching the skin to the hinge block and/or spar. The cracks originated near the skins' trailing edge and propagated between rivet holes and into the leading edge rivet holes. These rivets carry shear between the hinge block and skin and the spar and skin. Per the laboratory report, the bonding material between the skin to foam was 3M 1239 & 3M 11239A, the foam core was Stafoam AA604, the type of rivets were AA1100, and the blade was P/N 248-202. No serial number sequence has been determined or is needed since only the part numbers are necessary to identify the applicable blades.

We also disagree that loss of life or significant damage to an aircraft must occur for us to determine that there is an unsafe condition. Because it is a critical component, failure of an M/R blade could have catastrophic consequences. However, the commenters are correct that the event in New Zealand was classified as an incident instead of an accident because the helicopter landed without further damage. We have revised the preamble of this AD to reflect this change.

One commenter requested the FAA license a certified repair center to rebuild the blades if they crack before the spar and hinge-block have reached their life limit. Another commenter asked us to approve a blade re-skinning or repair process instead of the blade replacement requirement in the AD. Three commenters stated that no replacement blades exist, and therefore if the AD is adopted as proposed, it will ground all flying Brantly helicopters until a source for new blades is found or a facility is certified to re-build the blades.

We disagree. We are unaware of any approved process specification or data to rebuild or re-skin blades to an airworthy condition. Assuming such a process does exist, requiring a repair center to rebuild or re-skin the blades is beyond the authority of the FAA. To the extent spare blades may not exist to replace blades that fail the inspection requirements of this AD, the FAA cannot base its AD action on whether spare parts are available or can be produced. While every effort is made to avoid grounding aircraft, we must address the unsafe condition.

One commenter requested that we issue a special airworthiness information bulletin (SAIB) with certain visual inspection and maintenance procedures and provided proposed contents.

We disagree. An SAIB contains non-mandatory information and guidance for certain safety issues. The SAIB is an information tool to alert, educate, and make recommendations to the aviation community about ways to improve the safety of a product. An SAIB may not be issued where there is an unsafe condition. The FAA has data supporting its determination that an unsafe condition exists with the specified Brantly main rotor blades.

We also disagree with the proposed SAIB contents. No supporting data has been provided demonstrating how the proposed inspection and maintenance practices would stop the blade skins from cracking or delaminating from the foam core because of random overload events and improper operation. Also, no supporting data has been provided that shows that an improperly manufactured or installed hinge block caused the unsafe condition. The proposed SAIB content also eliminates the necessary eddy current inspection and reduces the 10x magnifying glass inspection, which we have determined are necessary to correct the unsafe condition.

One commenter requested education and training for maintenance providers, operators, and owners with respect to the blades. Specifically, the commenter wanted the training to include the significance of the placards, type certificate data sheet (TCDS) instructions, and operating limitations. The commenter stated that Brantly helicopters are safe and attributed the blade failures to lack of education and proper maintenance and operation of the aircraft and its components.

We disagree. Individuals responsible for maintaining and operating an airworthy helicopter are required to know the significance of placards, TCDS instructions, and operating limitations. While additional training may be beneficial, we have no information to suggest that it would correct the unsafe condition.

We have reviewed the relevant information, considered the comments received, and determined that an unsafe condition exists and is likely to exist or develop on other products of these same type designs and that air safety and the public interest require adopting the AD requirements as proposed with the changes described previously. We have also made minor editorial changes in referencing the service information to meet current publishing requirements. These changes are consistent with the intent of the proposals in the NPRM (77 FR 63285, October 16, 2012) and will not increase the economic burden on any operator nor increase the scope of the AD.

We reviewed Brantly International Inc. Service Bulletin No. 111, dated February 10, 2011 (SB 111). The bulletin describes procedures for inspecting the M/R blades at intervals not to exceed 300 hours TIS using Eddy Current Procedure ET002, performing a visual inspection using a 10X power magnifying glass, and conducting a tap test every 25 hours TIS and a visual inspection of the M/R blades before the first flight of the day.

SB-111 requires accomplishment of sections 1 and 2 before further flight. The AD requires them to be completed within 8 hours TIS. SB-111 allows up to 10 square inches of delamination outside of the inboard 12 inches of the M/R blade. The AD only allows up to 2 square inches of delamination outside of the inboard 12 inches of the M/R blade. SB-111 requires inspecting for nicks, creases, wrinkles, bends, additional holes, extra rivets, and inadequate rivet spacing and replacing the blade if any of these conditions are found. The AD only requires inspecting for a crack and delamination and replacing the blade if there is a crack or if there is delamination in certain areas or exceeding a certain amount. SB-111 calls for eddy current inspections of the entire blade. The AD requires eddy current inspections for cracks only within the inboard 12 inches. Lastly, SB-111 specifies a daily inspection of the M/R blade. We are making a change from the NPRM to allow an owner/operator (pilot) holding at least a private pilot certificate to perform a daily check of the M/R blade. The performance of the check is required to be entered into the aircraft's maintenance records showing compliance with this AD in accordance with applicable regulations. This authorization marks an exception to our standard maintenance regulations.

We estimate that this AD affects 76 helicopters of U.S. registry. We estimate the following costs to comply with this AD, using an average of $85 per work-hour:

• For the visual check before the first flight of each day, we estimate that it requires about one half work-hour for a labor cost of about $43 per inspection cycle. No parts are needed, so the total cost for the U.S. fleet is $3,268.

• For the eddy current inspection, we estimate that it requires about three work-hours for a labor cost of $255 per inspection cycle. No parts are needed, so the total cost for the 76-helicopter U.S. fleet is $19,380 per inspection cycle.

• For the visual inspection with the magnifying glass and the tap inspection, we estimate that it requires about three work-hours for a labor cost of $255 per inspection cycle. No parts are needed, so the total cost for the U.S. fleet is $19,380 per inspection cycle.

• Replacing an M/R blade, if needed, requires about two work-hours for a labor cost of $170. An M/R blade costs $7,500 for a total cost of $7,670 per helicopter, assuming one M/R blade is replaced.

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 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.

We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

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

The contents of this document are as follows:

Entities potentially impacted by the approval of MOVES2014 are those that adopt, approve, or fund transportation plans, transportation improvement programs (TIPs), or projects under title 23 U.S.C. or title 49 U.S.C. Chapter 53 and those that develop and submit SIPs to EPA. Regulated categories and entities affected by this action include:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by the release of MOVES. Other entities not listed in the table could also be affected. To determine whether your organization is affected by this action, you should carefully examine the transportation conformity applicability requirements in 40 CFR 93.102. If you have questions regarding the applicability of this action to a particular entity, consult the persons listed in the preceding FOR FURTHER INFORMATION CONTACT section.

The official version of the MOVES2014 model, along with user guides and supporting documentation, are available on EPA's MOVES Web site: www.epa.gov/otaq/models/moves/index.htm.

Individuals who wish to receive EPA announcements related to the MOVES2014 model should subscribe to the EPA-MOBILENEWS email listserv. To subscribe to the EPA-MOBILENEWS listserv, send a blank email to EPA at join-EPA-MOBILENEWS@lists.epa.gov. Your email address will then be added to the list of subscribers and a confirmation message will be sent to your email address. For more information about the EPA-MOBILENEWS listserv, visit EPA's Web site at www.epa.gov/otaq/models/mobilelist.htm.

Available guidance on how to apply MOVES2014 for SIPs and transportation conformity purposes can be found on EPA's transportation conformity Web site, http://www.epa.gov/otaq/stateresources/transconf/policy.htm , 1 including “Policy Guidance on the Use of MOVES2014 for State Implementation Plan Development, Transportation Conformity, and Other Purposes” (EPA-420-B-14-008, July 2014).

EPA will continue to update these Web sites as other MOVES support materials and guidance are developed or updated.

MOVES2014 is EPA's latest motor vehicle emissions model for state and local agencies to estimate volatile organic compounds (VOCs), nitrogen oxides (NO X ), particulate matter (PM 2.5 and PM 10 ), carbon monoxide (CO), and other precursors from cars, trucks, buses, and motorcycles for SIP purposes and conformity determinations outside of California. 2 The model is based on analyses of millions of emission test results and considerable advances in the Agency's understanding of vehicle emissions. The first model in the MOVES series, called MOVES2010, was released in December of 2009. MOVES2010 was followed by two minor updates, MOVES2010a and MOVES2010b. Both of these minor MOVES2010 revisions enhanced model performance and did not significantly affect the criteria pollutant emissions results from MOVES2010.

MOVES2014 is a major revision to MOVES2010b and improves upon it in many respects. MOVES2014 includes new data, new emissions standards, and new functional improvements and features. It incorporates substantial new data for emissions, fleet, and activity developed since the release of MOVES2010. These new emissions data are for light- and heavy-duty vehicles, exhaust and evaporative emissions, and fuel effects. MOVES2014 also adds updated vehicle sales, population, age distribution, and vehicle miles travelled (VMT) data.

MOVES2014 incorporates the effects of three new federal emissions standard rules not included in MOVES2010:

• Medium- and heavy-duty engine and vehicle greenhouse gas emission and fuel efficiency standards (promulgated September 2011, 76 FR 57106) began phasing in with the 2014 model year, and will result in lower medium- and heavy-duty engine and vehicle energy consumption rates and some reduction in criteria pollutant emissions as a result of improved aerodynamics and rolling resistance.

• Light-duty vehicle greenhouse gas emission and Corporate Average Fuel Economy standards (promulgated October 2012, 77 FR 62623) will begin phasing in with the 2017 model year, and will result in decreased energy consumption rates and decreased refueling emissions.

• Tier 3 vehicle emission and fuel standards (promulgated April 2014, 79 FR 23414) will begin phasing in with the 2017 model year, and will reduce both tailpipe and evaporative emissions of VOC, NO X , CO, and PM from light-duty cars and trucks, and some heavy-duty vehicles.

MOVES2014 also includes a number of new functional improvements and features. Some of these, such as the addition of multi-day diurnal events to evaporative emissions calculations, directly affect the estimation of criteria pollutant emissions. Others, such as new options for entering start and extended idle activity, make MOVES2014 more flexible and better able to incorporate local data where available.

EPA performed a comparison of MOVES2014 to MOVES2010b using local data for several different urban counties, varying the local data used by fleet age distribution, fraction of light- and heavy-duty VMT, local fuel specifications, meteorology, and other input factors. In general, VOC, NO X , PM, and CO emissions show greater decreases over time compared to MOVES2010b. Differences in total emissions vary by calendar year and location, but in general, VOC and NO X emissions are lower in MOVES2014. PM emissions may be higher in some areas and lower in others. Actual results will vary based on local inputs in a given area, with local variations in fleet age distribution and composition having a significant influence on the final results.

MOVES2014 includes the capability to estimate vehicle exhaust and evaporative emissions as well as brake wear and tire wear emissions for criteria pollutants and precursors. However, MOVES does not include the capability to estimate emissions of re-entrained road dust. To estimate emissions from re-entrained road dust, practitioners should continue to use the latest approved methodologies. 3

MOVES2014 also incorporates the code and database for the NONROAD2008 model, which provides the option of calculating emissions of nonroad equipment. Because the nonroad capability in MOVES2014 is essentially the same as NONROAD2008, either MOVES2014, NONROAD2008, or the nonroad portion of NMIM2008 (which incorporates NONROAD2008) can be used in analyses to meet any regulatory requirements that call for the development of new nonroad inventories. 4

EPA has articulated its policy regarding the use of MOVES2014 in SIP development in its “ Policy Guidance on the Use of MOVES2014 for State Implementation Plan Development, Transportation Conformity, and Other Purposes ” (EPA-420-B-14-008, July 2014). This document highlights certain aspects of the guidance, but state and local governments should refer to the guidance for more detailed information on how and when to use MOVES2014 in reasonable further progress SIPs, attainment demonstrations, maintenance plans, inventory updates, and other SIP submissions.

MOVES2014 should be used in ozone, CO, PM, and nitrogen dioxide (NO 2 ) SIP development as expeditiously as possible, as there is no grace period for the use of MOVES2014 in SIPs. The Clean Air Act requires that SIP inventories and control measures be based on the most current information and applicable models that are available when a SIP is developed. 5 However, EPA also recognizes the time and level of effort that certain states may have already undertaken in SIP development using a version of MOVES2010. States should consult with their EPA Regional Office if they have questions about how MOVES2014 affects SIPs under development in specific nonattainment or maintenance areas. Early consultation can facilitate EPA's adequacy finding for SIP motor vehicle emissions budgets or EPA's SIP approval.

States should use the latest version of MOVES that is available at the time that a SIP is developed, which is currently MOVES2014 to develop the most accurate estimates of emissions possible. However, state and local agencies that have already completed significant work on a SIP with a version of MOVES2010 (e.g., attainment modeling has already been completed with MOVES2010) can continue to do so. It would be unreasonable to require the states to revise these SIPs with MOVES2014 since significant work has already occurred based on the latest information available at the time the SIP was developed, and EPA intends to act on these SIPs in a timely manner.

The Clean Air Act does not require states that have already submitted SIPs or will submit SIPs shortly after the release of a new model to revise these SIPs simply because a new motor vehicle emissions model is now available. This is supported by existing EPA policies and case law [ Sierra Club v. EPA, 356 F.3d. 296, 307-08 (D.C. Cir. 2004)]. Of course, states can choose to use MOVES2014 in these SIPs, for example, if it is determined that it is appropriate to update motor vehicle emissions budgets (“budgets”) with the model for future conformity determinations. However, as stated above, states should use MOVES2014 where SIP development is in its initial stages or has not progressed far enough along that switching from a previous model version would create a significant adverse impact on state resources.

Incorporating MOVES2014 into the SIP now could assist areas in mitigating possible transportation conformity difficulties in the future after the MOVES2014 conformity grace period ends. New regional conformity analyses that are started after the grace period is over must be based on MOVES2014 (40 CFR 93.111), so having MOVES2014-based SIP budgets in place at that time could provide more consistency with transportation conformity determinations.

In this document, EPA is approving MOVES2014 for use in transportation conformity analyses outside of California. EPA is also establishing a two-year conformity grace period before the use of MOVES2014 is required in these transportation conformity determinations. The MOVES2014 grace period for regional conformity and hot-spot analyses applies to the use of MOVES2014 and any future minor revisions that occur during the grace period. 6

Transportation conformity is a Clean Air Act requirement to ensure that federally supported highway and transit activities are consistent with (“conform to”) the SIP. Conformity to a SIP means that a transportation activity will not cause or contribute to new air quality violations; worsen existing violations; or delay timely attainment of national ambient air quality standards or any interim milestones. Transportation conformity applies in nonattainment and maintenance areas for transportation-related pollutants: ozone, CO, PM 2.5 , PM 10 and NO 2 . EPA's transportation conformity regulations (40 CFR parts 51.390 and 93 subpart A) describe how federally funded and approved highway and transit projects meet these statutory requirements.

The remainder of this section describes how the transportation conformity grace period was determined and summarizes how it will be implemented, including those circumstances when the grace period could be shorter than two years. However, for complete explanations of how MOVES2014 is to be implemented for transportation conformity, including details about using MOVES2014 during the grace period, refer to “ Policy Guidance on the Use of MOVES2014 for State Implementation Plan Development, Transportation Conformity, and Other Purposes ” (EPA-420-B-14-008).

The transportation conformity regulation at 40 CFR 93.111 requires that conformity determinations be based on the latest motor vehicle emissions model approved by EPA. Section 176(c)(1) of the Clean Air Act states that “. . . [t]he determination of conformity shall be based on the most recent estimates of emissions, and such estimates shall be determined from the most recent population, employment, travel, and congestion estimates. . . .” When EPA approves a new emissions model such as MOVES2014, a grace period is established before the model is required for conformity analyses. The transportation conformity rule provides for a grace period for new emissions models of between three and 24 months (40 CFR 93.111(b)(1)), depending on the degree of change in the model and the transportation re-planning by the MPO likely to be necessary.

EPA articulated its intentions for establishing the length of a conformity grace period in the preamble to the 1993 transportation conformity rule (November 24, 1993, 58 FR 62211):

“EPA and DOT [the Department of Transportation] will consider extending the grace period if the effects of the new emissions model are so significant that previous SIP demonstrations of what emission levels are consistent with attainment would be substantially affected. In such cases, States should have an opportunity to revise their SIPs before MPOs must use the model's new emissions factors.”

In consultation with DOT, EPA considered many factors in establishing the length of the grace period, including the degree of change in emissions models and the effects of the new model on the transportation planning process (40 CFR 93.111).

EPA considered the time it will take state and local transportation and air quality agencies to conduct and provide technical support for analyses. State and local agencies will need to become familiar with the MOVES2014 emissions model, and to convert existing data for use in MOVES2014. Since 1993, the fundamental purpose of § 93.111(b) of the transportation conformity rule has been to provide a sufficient amount of time for MPOs and other state and local agencies to learn and employ new emissions models. The transition to a new emissions model for conformity involves more than learning to use the new model and preparing input data and model output. After model start-up is complete, state and local agencies also need to consider how the model affects regional conformity analysis results and whether SIP and/or transportation plan/TIP changes are necessary to assure future conformity determinations.

The two-year conformity grace period is also necessary to provide sufficient time for state and local agencies to learn and apply new technical guidance and training courses that reflect MOVES2014. EPA is working diligently to update these guidance documents and training courses as quickly as possible. EPA will notify MOVES2014 users when these important materials are available, and subsequently, EPA will also work with DOT to provide training for current and new users of the model. Training courses are anticipated to be provided in the form of webinars, other web-based courses, conference seminars, or in-person training. Courses will be developed to address different levels of State and local expertise.

In addition, many agencies will be implementing the transition to PM and CO hot-spot analyses with MOVES2014 for applicable projects in those nonattainment and maintenance areas, with each analysis potentially involving multiple state and local agencies. States with previously approved CO hot-spot protocols (40 CFR 93.123(a)(1)) that are based on a previous model will need time to revise them. As stated above, additional time is necessary to revise previously approved SIPs, and the SIP revision process and state requirements can vary. Finally, EPA considered the general time and monetary resource constraints in which state and local agencies currently operate. These agencies need to participate in EPA and DOT training and possibly provide training to other individuals in their offices.

Upon considerations of all these factors, EPA is establishing a two-year grace period, which begins October 7, 2014 and ends on October 7, 2016, before MOVES2014 is required to be used for new transportation conformity analyses, outside of California.

The grace period for regional conformity analyses will be shorter than two years for a given pollutant if an area revises its SIP and motor vehicle emissions budgets with MOVES2014, and such budgets have been found adequate or approved into the SIP prior to the end of the two-year grace period. In this case, the new regional emissions analysis must use MOVES2014 if the conformity determination is based on a MOVES2014-based budget (40 CFR 93.111).

Areas that are designated nonattainment or maintenance for multiple pollutants may rely on both MOVES2014 and MOVES2010  7 to determine conformity for different pollutants during the grace period. For example, if an area revises a previously submitted (but not approved) MOVES2010-based PM 10 SIP with MOVES2014 and EPA finds these revised MOVES2014 budgets adequate for conformity, such budgets would apply for conformity on the effective date of the Federal Register notice announcing EPA's adequacy finding. In this example, if the area is nonattainment for PM 10 and ozone, the MOVES2014 grace period would end for PM 10 regional conformity analyses once EPA found the new MOVES2014-based SIP budgets adequate for PM 10 regional conformity analyses begun after the effective date of adequacy finding. However, MOVES2010 could continue to be used for ozone regional emissions analysis begun before the end of the MOVES2014 grace period. 8 In addition, the length of the grace period for hot-spot analyses would not be affected by an early submission of MOVES2014-based budgets. In this example, the two-year grace period for PM 10 hot-spot analyses would continue to apply even if the grace period is shortened for regional PM 10 conformity analyses. EPA Regional Offices should be consulted for questions regarding such situations in multi-pollutant areas.

In addition, in most cases, if an area revises previously approved MOBILE or MOVES2010-based SIP budgets using MOVES2014, the revised MOVES2014 budgets would be used for conformity purposes once EPA approves the SIP revision. In general, EPA will not make adequacy findings for these SIPs because submitted SIPs cannot supersede approved budgets until they are approved. However, 40 CFR 93.118(e)(1) allows an approved budget to be replaced by an adequate budget if EPA's approval of the initial budgets specifies that the budgets being approved may be replaced in the future by new adequate budgets. This flexibility has been used in limited situations in the past, such as during the transition from MOBILE5 to MOBILE6. In such cases, the MOVES2014-based budgets would be used for conformity purposes once they have been found adequate, if requested by the state in its SIP submission and specified in EPA's SIP approval. States should consult with their EPA Regional Office to determine if this flexibility applies to their situation.

During the conformity grace period, areas should use interagency consultation to examine how MOVES2014 will impact their future transportation plan and TIP conformity determinations, including regional emissions analyses. Isolated rural areas should also consider how future regional conformity analyses will be affected when MOVES2014 is required. Areas should carefully consider whether the SIP and budgets should be revised with MOVES2014 or if transportation plans and TIPs should be revised before the end of the conformity grace period, since doing so may be necessary to ensure conformity in the future.

Finally, the transportation conformity rule provides some flexibility for completing conformity determinations based on regional emissions analyses that use MOVES2010 that are started before the end of the grace period. Regional emissions analyses that are started during the grace period can use either MOVES2010 or MOVES2014. The interagency consultation process should be used if it is unclear if a MOVES2010-based analysis was begun before the end of the grace period. If you have questions about which model should be used in your conformity determination, you can also consult with your EPA Regional Office.

When the grace period ends on October 7, 2016, MOVES2014 will become the only approved motor vehicle emissions model for regional emissions analyses for transportation conformity in states other than California. In general, this means that all new transportation plan and TIP conformity determinations started after the end of the grace period must be based on MOVES2014, even if the SIP is based on MOVES2010, MOBILE6.2, or an older version of the MOBILE model.

The MOVES2014 grace period also applies to the use of MOVES2014 for CO, PM 10 and PM 2.5 hot-spot analyses. Sections 93.116 and 93.123 of the transportation conformity rule contain the requirements for when a hot-spot analysis is required for project-level conformity determinations. 9 The transportation conformity rule provides some flexibility for analyses that are started before the end of the grace period. A conformity determination for a transportation project may be based on a previous model if the analysis was begun before or during the grace period, and if the final environmental document for the project is issued no more than three years after the issuance of the draft environmental document (40 CFR 93.111(c)). Interagency consultation should be used if it is unclear if a previous analysis was begun before the end of the grace period. For CO, PM 10 and PM 2.5 hot-spot analyses that start during the grace period, project sponsors can choose to use MOVES2010 or MOVES2014.

EPA encourages sponsors to use the consultation process to determine which option may be most appropriate for a given situation. Any new CO, PM 10 or PM 2.5 hot-spot analyses for conformity purposes begun after the end of the grace period must be based on MOVES2014. EPA released guidance on how to conduct quantitative PM 2.5 and PM 10 hot-spot modeling for transportation conformity purposes and will update it to include MOVES2014. See EPA's Project-level Web page   10 for latest information and guidance documents on how to conduct CO, PM 10 and PM 2.5 hot-spot modeling for transportation conformity purposes.

Any quantitative new CO, PM 10 or PM 2.5 hot-spot analysis for conformity purposes begun after the end of the grace period must use MOVES2014. The interagency consultation process should be used if it is unclear whether these conditions are met. For questions about which model should be used in a project-level conformity determination, consult with your EPA Regional Office.

Since FHWA's February 2014 CO categorical hot-spot finding  11 for projects affecting intersections is based on MOVES2010b, a project sponsor can continue to rely on this categorical finding during the grace period, as long as the project's parameters fall within the acceptable range of modeled parameters of the categorical hot-spot finding. See http://www.epa.gov/otaq/stateresources/transconf/projectlevel-hotspot.htm#fhwa for additional details. Any new CO hot-spot analyses for conformity purposes begun after the end of the grace period may no longer rely on the February 2014 CO categorical hot-spot finding because the finding was based on MOVES2010b.

Section 93.123(a)(1) of the transportation conformity rule allows areas to develop alternate procedures for determining localized CO hot-spot analyses, when developed through interagency consultation and approved by the EPA Regional Administrator. Some states have chosen in the past to develop such procedures based on previously approved EPA emissions models.

During the MOVES2014 grace period, areas with previously approved CO hot-spot protocols based on MOVES2010 may continue to rely on these protocols. Areas with previously approved CO hot-spot protocols based on MOBILE6.2 or earlier MOBILE versions can no longer be used, and should have been discontinued at the end of the previous MOVES2010 grace period. Once the MOVES2014 grace period ends, any new CO hot-spot analyses for conformity purposes begun after the end of the grace period may no longer use their previously approved CO hot-spot protocols that were based on MOVES2010.

Throughout this document, “we,” “us,” and “our” refer to EPA.

Table 1 lists the rule we are approving with the dates that it was adopted by the local air agency and submitted by the California Air Resources Board.

Background

The Moving Ahead for Progress in the 21st Century Act (MAP-21, Pub. L. 112-141) authorized the Public Transportation Emergency Relief Program at 49 U.S.C. 5324. The Emergency Relief Program allows FTA, subject to the availability of appropriations, to make grants for eligible public transportation capital and operating costs in the event of a catastrophic event, such as a natural disaster, that affects a wide area, as a result of which the Governor of a State has declared an emergency and the Secretary of Transportation has concurred, or the President has declared a major disaster under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act, 42 U.S.C. 5121-5207).

The Disaster Relief Appropriations Act, 2013 (Pub. L. 113-2), enacted on January 29, 2013, provides $10.9 billion for FTA's Emergency Relief Program solely for recovery, relief and resilience efforts in areas affected by Hurricane Sandy. The law required FTA to issue interim regulations (an interim final rule) for the Emergency Relief Program, which FTA did on March 29, 2013 ( See 78 FR 19136, http://www.gpo.gov/fdsys/pkg/FR-2013-03-29/pdf/2013-07271.pdf ). FTA requested comments on the interim regulations, and in this notice FTA is addressing the comments received.

This final rule applies to FTA's Emergency Relief Program, authorized at 49 U.S.C. 5324, and is not limited to Hurricane Sandy response. The rule includes a description of eligible projects, the criteria FTA will use to identify projects for funding, and additional details on how FTA will administer the program.

Section 5324(a)(2) of title 49, United States Code, defines an “emergency” as a natural disaster affecting a wide area (such as a flood, hurricane, tidal wave, earthquake, severe storm, or landslide) or a catastrophic failure from any external cause, as a result of which—

• The Governor of a State has declared an emergency and the Secretary has concurred; or

• the President has declared a major disaster under section 401 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170).

Section 5324(b) of title 49, United States Code, authorizes the Secretary to make grants and enter into contracts and other agreements (including agreements with departments, agencies, and instrumentalities of the Government) for—

• Capital projects to protect, repair, reconstruct, or replace equipment and facilities of a public transportation system operating in the United States or on an Indian reservation that the Secretary determines is in danger of suffering serious damage, or has suffered serious damage, as a result of an emergency; and

• eligible operating costs of public transportation equipment and facilities in an area directly affected by an emergency during—

○ the 1-year period beginning on the date of a declaration; or

○ if the Secretary determines there is a compelling need, the 2-year period beginning on the date of a declaration.

In addition, section 5324(d) provides that a grant awarded under section 5324 shall be subject to the terms and conditions the Secretary determines are necessary, and made only for expenses that are not reimbursed under the Stafford Act. Accordingly, FTA will not fund project expenses that the Federal Emergency Management Agency (FEMA) has funded.

FTA issued the interim final rule and request for comments on March 29, 2013. The interim final rule, which took effect immediately upon publication, and on which FTA sought comment, included definitions, policy, and eligibility, as well as provisions regarding federal share and pre-award authority, grant requirements and application procedures.

The comment period closed on May 28, 2013. FTA received comments from eight entities: five transit agencies, two transportation workers union organizations, and one public transportation trade association. Several comments were outside the scope of the rulemaking and are therefore not addressed in this notice. For example, some comments were specific to Hurricane Sandy response or to the Disaster Relief Appropriations Act, which provided funding for Hurricane Sandy response. Where appropriate, FTA reached out to commenters to address those concerns. Comments pertaining to the rulemaking are addressed in this notice.

In addition, FTA intends to issue an Emergency Relief Manual or Circular later this year that will provide more detail than what is provided in the regulation. Therefore, FTA will address some of the comments by providing guidance in the Manual or Circular rather than including text in this rule. FTA will provide interested stakeholders with notice and an opportunity to provide comment on the Emergency Relief Manual.

In addition to the regulatory text, the interim final rule sought comments on several specific issues: (1) The possibility of imposing a minimum monetary damage threshold for FTA Emergency Relief grants, including the most appropriate method to calculate such a minimum monetary damage threshold; (2) the specificity of the term “forecast with some certainty to hit the affected area,” which under the interim final rule triggers the availability of pre-award authority for evacuations and activities to protect public transportation assets in predictable weather events; (3) the appropriate extent of a benefit-cost analysis in the context of emergency repairs, permanent repairs, and resilience projects, including the extent of risk analysis appropriate for resilience projects, as well as methods for evaluating collateral costs resulting from a decrease in overall transit infrastructure capacity; and (4) whether applications for Emergency Relief should incorporate requirements of Section 1315(b) of MAP-21, which requires a periodic evaluation to determine whether there are reasonable alternatives to roads, highways, or bridges that have repeatedly required repair or reconstruction in the past as a result of emergencies or major disasters. The comments and FTA responses are in the section-by-section discussion of comments, below.

Two commenters suggested amending the purpose section. One commenter suggested removing the term “serious” in relation to the damage suffered, noting that currently FEMA allows reimbursement for minor and major damages, while the proposed FTA Emergency Relief program could make minor costs ineligible, requiring the transit agency to incur the costs or apply to FEMA. The commenter also noted the potential lack of eligibility for damage from terrorist acts, as such acts would not qualify as a “natural disaster,” and might also not meet the definition of a “catastrophic failure.” To address this issue, the commenter suggested including “manmade disasters” within the scope of this section's purpose. Another commenter recommended that the eligibility requirements for resilience projects include projects that enhance network resilience and redundancy, and not just those projects that narrowly target the physical location of a specific piece of infrastructure. The commenter suggested that the regulatory language listing “protection, replacement, repair or reconstruction” should be amended to, for example, “protection, replacement, repair, redundant capability, relief, or reconstruction of public transportation equipment, facilities, capacity or networks. . . .” The commenter expressed specific concern about island communities and the need to access the mainland via multiple means, particularly if bridges and tunnels are impacted by an emergency or disaster.

FTA declines to make the suggested changes to this section. The language included in this section comes directly from the statute, which provides that FTA may fund “capital projects to protect, repair, reconstruct or replace equipment and facilities of a public transportation system . . . that the Secretary determines is in danger of suffering serious damage or has suffered serious damage, as a result of an emergency.” In addition, FTA interprets “catastrophic failure from an external cause” to include manmade disasters.

As for redundancy, FTA agrees that the resilience of a transit system is dependent in part on the availability of backup systems or facilities for critical functions, such as communications, signaling, and power; and that potential alternative service configurations made possible by the availability of redundant infrastructure, such as backup storage, maintenance, or fueling facilities, can significantly improve a transit system's emergency response and recovery efforts, while maintaining service to the public. In so far as projects to construct or install such infrastructure contribute to the protection of the equipment or facilities of a transit system, they may be eligible for funding under this program. Projects that would increase overall system capacity, such as the acquisition of vehicles or construction of infrastructure for permanent additional routes, may increase the overall resilience of a transit system, but would generally not be eligible under this program. In the event a transit agency or community has identified, through the planning process, a need for additional public transit services that may be redundant of existing services, other sources of funds, such as FTA formula funds or Capital Investment Grant program (section 5309) funds, are more appropriate for this purpose, because the primary benefit of “redundant” services would be to provide new capacity on a daily basis—not just in the case of a future emergency that cannot be predicted in terms of time, location, or magnitude.

FTA did not receive any comments on this section, and is not amending this section.

Four entities submitted comments on several of the proposed definitions. The comments and agency responses are sorted by each definition, as follows:

“Building” and “Contents Coverage.” FTA is adding these two definitions, which are consistent with FEMA's National Flood Insurance Program definitions at 44 CFR 59.1, for purposes of FTA's policy on insurance, further discussed in section 602.7, Policy. In particular, for the definition of “building,” FEMA requires flood insurance for “manufactured homes” and includes these in the definition of building as structures “built on a permanent chassis, transported to its site in one or more sections, and affixed to a permanent foundation.” Federal transit recipients often use manufactured or modular office trailers that meet this definition. Therefore, we have included office trailers in the definition of building.

“Catastrophic Failure.” Two commenters expressed concern over the provision that a catastrophic failure must not be primarily attributable to gradual and progressive deterioration or lack of proper maintenance. While both commenters agreed that damage caused by lack of maintenance should not be eligible under the Emergency Relief program, they asserted that the phrase as formulated presents a risk of subjectivity and ambiguous eligibility standards. One of the commenters said that the distinction should be based on the ability to link damages and related costs to the disaster, using, for example, maintenance records, photographs, and/or engineering assessments linking damage to the event. The other commenter said that FTA should clarify the criteria and process it proposes to apply in determining whether a catastrophic failure has been experienced.

FTA disagrees that the definition is ambiguous, and notes that catastrophic failure must be read with the definition of “external cause.” The spontaneous collapse of a transit bridge, not due to external cause, would be primarily attributable to gradual and progressive deterioration or lack of proper maintenance or to a design flaw. A transit bridge that collapses as a result, for example, of being hit by a vehicle or an act of terrorism collapses due to an external cause. In order to be eligible for Emergency Relief funds, the failure must be the result of an external cause. In the event it is not clear whether the failure of an asset is due to an external cause or to an inherent defect in or lack of maintenance of the asset, FTA will consider maintenance records, photographs, and/or engineering assessments.

“Emergency Operations.” Two commenters addressed the definition of “emergency operations.” One commenter suggested that since the term “emergency operations” includes bus or ferry service to replace inoperable rail service or to detour around damaged areas, the definition should also include the deployment of rail service via alternate routes for the same purpose. Another commenter requested that the list of emergency operations include any costs incurred as a result of any memorandum of understanding (MOU) and/or any memorandum of agreement (MOA) that transit agencies may establish pre- or post-disaster.

The definition of “Emergency Operations” in the interim final rule for temporary service stated “including but not limited to . . .” various types of temporary service. Deployment of rail service via alternate routes would fit within the “Emergency Operations” definition as a relocation of public transportation route service before, during, or after an emergency. For clarity, FTA is amending the final rule definition to provide that “bus, ferry or rail service to replace inoperable service or to detour around damaged areas,” is an eligible expense. Regarding the second comment, costs incurred as a result of an MOU and/or MOA that a transit agency may establish pre- or post-disaster would be eligible only to the extent that the costs related to evacuation services; rescue operations; temporary public transportation service; or reestablishing, expanding, or relocating public transportation route service before, during, or after an emergency.

“Emergency Protective Measures.” One commenter requested that FTA depart from FEMA standards under 44 CFR 206.228(a)(2)(iii) and allow regular time as well as standby costs within the definition of emergency protective measures, as these costs were allowed for Hurricane Sandy response. The commenter opined that FEMA's practice of disallowing regular time for in-house personnel rewards applicants who outsource emergency work to contractors, and may not be conducive to restoring transportation in a timely manner in part because a third-party contractor may not have the same expertise or availability as in-house employees or be available. Further, the commenter stated that standby costs are unavoidable during emergency evacuation, reverse evacuation, and transportation restoration. Pre-positioning of resources is part of effective storm planning, and this commenter's labor agreements, for example, require bus operators to be paid for standby time. Finally, the commenter recommended that the definition be revised to include operating costs as well as capital costs for projects undertaken immediately before, during, or after an emergency.

Although this comment was submitted in reference to the definition of “Emergency Protective Measures,” FTA believes that some of the commenter's concerns over regular time and standby costs are addressed within the definition of “Emergency Operations.” The definitions of “Emergency Operations” and “Emergency Protective Measures” are complementary: “Emergency Operations” encompasses operating costs and “Emergency Protective Measures” encompasses costs related to protecting assets and infrastructure. In general, the purpose of the Emergency Relief program is to reimburse affected recipients for extraordinary costs related to an emergency or major disaster. Regular time—as opposed to overtime—is not an extraordinary cost. However, the operating costs the commenter describes relating to regular time and standby costs would be eligible for reimbursement as long as they satisfied the definition of “Emergency Operating Costs,” i.e., costs relating to evacuation service; rescue operations; temporary public transportation service; or reestablishing, expanding, or relocating public transportation route service before, during, or after an emergency. Similarly, operating costs incurred to perform emergency protective measures, such as relocating rolling stock, sandbagging and debris removal, would be eligible for reimbursement.

“Emergency Repairs.” Two commenters expressed concern that the definition of emergency repairs was limited to projects undertaken immediately following the emergency or major disaster. One commenter noted emergency repairs could be delayed for weeks or even months. The other commenter stated that once service is restored, significant time may be needed before permanent repairs are made, requiring interim or temporary repairs conducted in the meantime. The commenter suggested an additional definition for “interim repairs” or “temporary repairs” to accommodate this circumstance.

In response to comments, FTA is removing the word “immediately” from the definition. Since emergency repairs may be either temporary or permanent, we have retained the term “emergency repairs,” but added an additional purpose of emergency repairs: to ensure service can continue to be provided until permanent repairs are made. This will allow interim or temporary repairs to fit within the definition of emergency repairs.

“Incident Period.” FTA is adding a definition for “incident period:” the time interval during which the emergency-causing incident occurs. This definition is relevant with regard to pre-award authority, as FTA will not approve pre-award authority for projects unless the damage to be alleviated resulted from the emergency-causing incident during the incident period or was incurred in anticipation of that incident. The reason for this additional definition is to have consistency with FEMA's definition of “incident period” at 44 CFR 206.32(f). For each Stafford Act incident, FTA will adopt the incident period established by FEMA. The term is used in section 602.11, Pre-Award Authority, and replaces the phrase, “the effective date of a declaration of emergency or major disaster.”

“Major Disaster.” One commenter suggested that the definition of “major disaster” conflicts with the definitions of “resilience” and “resilience projects.” The commenter recommended substituting the term “multi-hazard” for the term “natural catastrophe” to encompass manmade disasters.

Congress defined “Major Disaster” in the Stafford Act, at 42 U.S.C. 5122(2), and FTA includes that definition in the rule without change. Due to the coordination between FEMA, FTA, and Emergency Relief recipients contemplated within the final rule, FTA believes it is prudent to maintain the interim final rule's inclusion of the statutory definition of “Major Disaster.”

“Net Project Cost.” One commenter suggested that the term “net” should be removed and the definition revised since the proposed definition does not stipulate if all costs incurred, including indirect costs, are eligible. FTA notes that Federal cost principles apply to all FTA grants and indirect costs are eligible consistent with those principles. These and other administrative requirements for all FTA programs, including the Emergency Relief program, are explained in FTA Circular 5010.1D, Grant Management Requirements. ( See, http://www.fta.dot.gov/legislation_law/12349_8640.html ).

“Resilience.” FTA is making minor edits to this definition in order for the definition to be consistent with Executive Order 13653, Preparing the United States for the Impacts of Climate Change, Nov. 1, 2013.

“Resilience Project.” Several commenters expressed concern with the proposed definition of “resilience project.” Three of the commenters proposed deleting any reference to whether a future disaster is “likely to occur.” Some commenters noted that a given disaster may be unlikely to occur, but resilience principles encompass protections against unlikely events as well. One commenter suggested that “resilience project” should include the word “sustainability,” to align with FEMA's support of the Department of Housing and Urban Development (HUD) program goals, including combining hazard mitigation objectives with the community development objectives, which include livability, sustainability, and social equity values.

To the extent the eligibility of resilience projects is tied to Emergency Relief funds following a specific event, FTA believes it is important to note probable occurrence or recurrence as a factor in determining eligibility for these projects. In response to comments, FTA is slightly modifying the definition to state, “. . . due to a probable occurrence or recurrence of an emergency or major disaster in the geographic area . . .” FTA will provide additional guidance on this in our proposed Emergency Relief Manual, which we intend to publish later this year. Since the primary purpose of resilience projects is to provide protection to transit infrastructure so the taxpayers do not repeatedly pay to replace the same assets, FTA declines to add “sustainability” to the definition of resilience project.

Several commenters provided comments to this section. One commenter repeated an earlier suggestion to include manmade disasters in the relevant sections of the final rule. One commenter highlighted the connection between the interim final rule and FTA's anticipated regulations regarding transit asset management and a definition of “state of good repair,” and repeated a suggestion for a high-level definition of “state of good repair.”

As stated previously, FTA interprets “catastrophic failure from an external cause” to include manmade disasters. As for the definition of state of good repair, FTA recently published an advance notice of proposed rulemaking (ANPRM) requesting comments on a definition of “state of good repair.” (78 FR 61251, Oct. 3, 2013, available at http://www.gpo.gov/fdsys/pkg/FR-2013-10-03/pdf/2013-23921.pdf ). The comment period has closed, but FTA encourages interested stakeholders to review the notice of proposed rulemaking when it becomes available. For purposes of the Emergency Relief program, until FTA has published a program-wide definition, we will use the definition provided in the May 29, 2013, Federal Register notice (78 FR 32296) announcing the allocation of Hurricane Sandy relief funds: “a project is considered to bring the transit assets up to a `state of good repair' if it consists of the installation of comparable equipment that meets the same basic function, class, or capacity of the equipment replaced and also meets current technological or design standards, or a like-new condition.”

Regarding paragraph (c), which provides that recipients may include projects that increase the resilience of affected public transportation systems in conjunction with repair and reconstruction activities, two commenters supported the overall policy goal and provided further suggestions. One commenter requested clarification that resilience and reconstruction work can be done in conjunction without being part of the same project or contract. In addition, one commenter asked whether near-term, temporary resilience projects designed to protect against the possibility of an event, such as hurricane season, would be eligible under the Emergency Relief program. If funds become available for FTA to allocate for resilience projects, such near-term projects may be eligible on a case-by-case basis.

In some cases, it will make sense to do resilience projects as part of the same repair/reconstruction contract or project, and in other cases it may be more appropriate for the resilience work to be done under a separate contract or project. The language in the rule is flexible enough to allow either scenario.

Regarding paragraph (e), one commenter requested further clarification regarding allocation of global insurance proceeds to prevent duplication of funding with FTA grants under the Emergency Relief program. The commenter sought specific language in this section of the rule related to allocation of insurance proceeds, and the use of insurance proceeds as local match.

In response, FTA is adding language to this paragraph regarding allocation of insurance proceeds when (1) recipients receive proceeds for specified assets, and (2) recipients receive blanket, lump-sum, or otherwise unallocated proceeds. In the first case, and consistent with existing FTA policy on insurance proceeds, the recipient must either apply those proceeds to the cost of replacing or repairing the damaged or destroyed project property; or return to FTA an amount equal to the remaining Federal interest in the lost, damaged, or destroyed project property. Interested stakeholders should review the provisions of chapter IV of FTA Circular 5010.1D, as these provisions will generally apply. In some cases, a recipient's insurance policy may not attribute insurance proceeds to specific assets, and instead will provide unallocated, or lump-sum payments. Such payments may include proceeds for non-transit assets as well as for business interruption if the recipient has this coverage. In this second case, FTA, in consultation with the recipient, will determine the portion of such proceeds that the recipient must attribute to transit assets.

Generally, insurance proceeds may not be used as local match. However, in some circumstances, as when a recipient receives insurance payments for activities not eligible for FTA reimbursement, any share of the proceeds that is not due to FTA may be used as local match. FTA is adding language to this effect in the rule.

FTA is adding new paragraphs (f), (g) and (h) to address the flood insurance requirements for transit assets in special flood hazard areas (i.e., 100-year flood zones), and to state FTA's policy with regard to uninsured property. Although not included in the IFR, paragraphs (f) and (g) merely summarize the preexisting requirements of the Flood Disaster Protection Act of 1973 and describe the types of transit assets that must be insured if they are located in a special flood hazard area. As stated above in Section 602.5 Definitions, FTA is adapting the definitions of “building” and “contents coverage” from FEMA's regulation at 44 CFR 59.1 to provide consistency between the National Flood Insurance Program and FTA's Emergency Relief program.

The requirement for flood insurance for transit assets located in special flood hazard areas is not new. In order to ensure compliance with the Flood Disaster Protection Act, Section 23 of FTA's Master Agreement requires recipients to obtain flood insurance as appropriate, and each recipient certifies annually through the certifications and assurances that it is in compliance with this requirement.

In accordance with section 102 of the Flood Disaster Protection Act of 1973 (42 U.S.C. 4012a), new paragraphs (f) and (g) make clear that a covered structure must be insured through the National Flood Insurance Program or a comparable private policy. The policy must provide coverage at least equal to the project cost for which Federal assistance is provided, or to the maximum limit of coverage available under the National Flood Insurance Act (currently $500,000 for buildings and $500,000 for equipment and fixtures), whichever amount is less.

Finally, commenters were opposed to a minimum monetary damage threshold for FTA emergency relief grants, and expressed concern that setting a minimum monetary threshold for capital projects, emergency protective measures or emergency operations would be challenging to implement, given the varying size of transit agencies and resources available to those agencies, and that the threshold calculation, if based on ridership, passenger miles, or some other metric, could be burdensome. In addition, the cost of repairing or replacing assets varies widely depending on the asset.

In response to comments, FTA is not implementing a minimum monetary damage threshold for the Emergency Relief Program.

One commenter stated that since the Emergency Relief program is intended to fund transit agencies' recovery from unplanned natural disasters, FTA should ensure significant flexibility in the local match funding requirements, which are often unbudgeted. If a one hundred percent federal share is not feasible, the commenter urged FTA to allow for flexibility in the use of matching funds, including the following: Transportation Development Credits, insurance money, over-match budgeted in other FTA funded capital projects already planned or underway in the disaster area, and funds included in approved and funded operating budgets that are intended for identifiable emergency relief tasks.

In response to these comments, FTA notes that the law provides that an Emergency Relief grant shall be for up to 80 percent of the net project cost, and that the Secretary may waive the non-federal share. FTA notes that the federal share for FEMA's Public Assistance grants is 75 percent unless the Federal share is increased, depending on the extent of the damage related to the disaster. The rule provides only information related to the percent federal share, and not the source of local match, as the source of local match is statutory. 49 U.S.C. 5324(e)(2). Sources of local match include an undistributed cash surplus, a replacement or depreciation cash fund or reserve, or new capital. In addition, Transportation Development Credits (i.e., toll credits) are eligible as match pursuant to 23 U.S.C. 120. Further, in accordance with 42 U.S.C. 5305(i), U.S. Department of Housing and Urban Development Community Development Block Grant (CDBG) funds that are available for transportation projects may be used as non-federal match for Emergency Relief fund grants.

Five commenters submitted comments on this section. One commenter suggested that the final rule should clarify whether pre-award authority would encompass resilience projects in addition to emergency preparation and response activities. The commenter also recommended that, rather than limiting pre-award authority “to a maximum amount as determined by FTA” based on facts specific to each disaster, FTA should instead allow pre-award authority generally for “valid and justifiable expenses.” Another commenter suggested that when money has been appropriated specifically for a particular situation, the full amount should be made immediately available through pre-award authority.

FTA appreciates the suggestions made by these commenters. Resilience projects are inherently different from recovery projects, in that there generally needs to be a benefit-cost analysis to determine if the project is reasonable and will in fact protect public transit assets from future damage. Since these projects require FTA approval in advance of incurring costs, pre-award authority will generally not be available for these projects. In addition, FTA generally will not make an entire appropriation available for pre-award authority; however, the amount FTA allocates to a recipient will be available for pre-award authority. In the event a recipient is incurring costs in excess of the pre-award authority FTA has made available, the recipient should contact FTA to discuss the circumstances and the need for a greater amount of pre-award authority.

Another commenter expressed concern that the provision as written would appear to condition pre-award authority on the typical pre-award requirements that projects be on the Transportation Improvement Program/State Transportation Improvement Program (TIP/STIP), have an environmental finding in place, and be included in a grant that is in development. The commenter noted that such requirements are not appropriate in an emergency situation and suggested that the final rule include the statement from FTA's Allocation Notice that agencies may certify that a project does not result in a substantial functional, locational, or capacity change and therefore does not require inclusion on the TIP/STIP.

The joint FTA/Federal Highway Administration (FHWA) metropolitan and statewide planning rule at 23 CFR 450.324(c)(5) and 450.216(g)(5) provides that emergency relief projects that do not involve substantial functional, locational, or capacity changes are not required to be in the TIP or STIP. Resilience projects—both stand-alone projects and projects completed at the same time as repairs—likely will involve substantial functional, locational, or capacity changes and must be included in the TIP/STIP. The joint FTA/FHWA environmental impact and related procedures rule at 23 CFR part 771 provides that many activities undertaken immediately following an emergency will be categorical exclusions. FTA and FHWA issued a final rule on February 19, 2013 (78 FR 11593, available at http://www.gpo.gov/fdsys/pkg/FR-2013-02-19/pdf/2013-03494.pdf ), providing that emergency repairs funded under 49 U.S.C. 5324 are categorically excluded (CE), absent unusual circumstances. Further, the rule provides that the repair, reconstruction, restoration, retrofitting, or replacement of any transit facility is categorically excluded if the transit facility is in operation or under construction when damaged, and the action (1) occurs within the existing right-of-way and substantially conforms to the preexisting design, function, and location, and (2) work is commenced within two years of the declared emergency or disaster. It is important to note that the availability of a categorical exclusion for emergency relief projects does not exempt the applicability of other environmental requirements. FTA recommends that any grant applicant that is concerned that a project may not clearly qualify for the categorical exclusion contact the appropriate FTA Regional Office for assistance in determining the appropriate environmental review process and level of documentation necessary before incurring costs for property acquisition, demolition, construction, and acquisition of vehicles, equipment, or construction materials. Project sponsors should consult with FTA directly on approaches to meeting any requirements that FTA does not determine are exempt. The existing rules ensure that recipients can undertake emergency response activities immediately after a disaster with some assurance that they will not violate Federal planning and environmental requirements. Consequently, FTA does not believe it is necessary to include similar provisions in the Emergency Relief rule.

Several commenters addressed FTA's request for comments regarding the phrase “forecast with some certainty to hit the affected area” with respect to pre-award authority for storms that can be predicted. Three commenters expressed dissatisfaction with the proposed language, but differed in their alternative suggestions. Two commenters suggested adopting current FEMA standards for defining the beginning of an emergency, including FEMA Policy FP 010-4. One commenter suggested that pre-award authority should be linked to an agency's documented disaster preparedness plan, noting that the plans for different disasters require different time periods. Finally, two commenters approved of the phrase suggested by FTA, with one commenter noting that it provides for maximum flexibility for future emergencies.

In response to comments and for consistency with FEMA, FTA is amending this section. FTA is electing not to adopt FEMA's Policy FP 010-4 in its entirety, as it is subject to revision every three years. Instead, we have conferred with FEMA regarding their practice and reviewed FEMA's regulation for requests for emergency declarations at 44 CFR 206.35, and are amending the text as follows: For expected weather events, the Governor must declare a state of emergency and request concurrence by the Secretary of Transportation or make a request to the President for an emergency declaration, in advance or anticipation of the impact of an incident that threatens such damage as could result in a major disaster, and take action under State law to direct execution of the State emergency plan. In addition, the emergency operations and emergency protective measures activities must be required in anticipation of the event. Adopting this text provides affected recipients with certainty as to when FTA will fund emergency protective measures, evacuations, and other activities, and aligns FTA's regulation with FEMA's.

Finally, FTA notes that recipients may use section 5311 and section 5307 formula funds in response to a disaster or emergency. Importantly, if section 5324 emergency relief funds are or become available, the formula funds may not be replenished from section 5324 funds. However, a recipient may find that use of formula funds is the best course of action. In this case, pre-award authority exists from the first day of the incident period, in an amount up to the amount of formula funds available to that recipient. FTA is adding text to this section of the rule to reflect this.

Five entities commented on this section. Commenters were supportive of FTA's decision to allow replacement of damaged assets with new assets. One commenter suggested FTA should clarify that design standards include applicable building codes and general standards of care and best practices for the industry. FTA believes that applicable building codes and best practices are captured in the policy statement that projects should be rebuilt/repaired/replaced to a state of good repair.

One commenter suggested that FTA consider allowing a certain percentage of resilience elements in a grant for emergency repairs, and another commenter stated that FTA should allocate resilience funds as soon as possible in order to allow integrated resilience measures to be funded through dollars allocated for repair. FTA agrees in concept that notification of the availability of funds for resilience projects should be made as soon as possible. However, since the funding for the Emergency Relief (ER) program is subject to congressional appropriations each fiscal year, it is not appropriate to specify that level of detail in the ER rule. Resilience projects are an eligible expense; however, it is likely that the availability of funding for resilience projects may be on a case-by-case basis, and not necessarily for all emergencies or disasters.

One commenter suggested that because bus systems necessarily operate on streets and roads, there should be some eligibility in the FTA Emergency Relief Program for “transit streets” and “transit bridges.” The commenter acknowledged that these roads and bridges fall under the jurisdiction of a different agency. FTA's Emergency Relief program allows FTA to fund capital projects to repair the facilities of a public transportation system. To the extent a bus rapid transit (BRT) system operates on a separated fixed guideway, the guideway would be eligible for ER funding if damaged, in the same way a rail fixed guideway would be eligible for ER funding. However, if the BRT system operates on streets shared with other motor vehicles, damage to the street would not be an eligible expense for FTA's Emergency Relief Program. Repairs to the street or bridge may, however, be eligible for FEMA or FHWA ER funding.

One commenter suggested that FTA be clear that repair or replacement of spare parts held in the normal course of business and damaged or destroyed are an eligible expense. FTA is amending the rule to reflect that replacement of spare parts is eligible for reimbursement. The commenter also noted that some damages could be latent, and the full impact of a disaster may not be known for months or years, and that these damages should be eligible under the Emergency Relief program. Certainly in the case of some disasters, there will be latent damage. Any repairs or replacements would be eligible under the rule as drafted.

Regarding the eligibility of formula and other funds available to the recipient to be used in conjunction with Emergency Relief funds to make substantial changes or improvements to an affected transit asset during the course of an Emergency Relief project, one commenter asked whether formula and other funds could be used as the local match. With the exception of CDBG funds as described above, Federal funds may not be used to match Emergency Relief funds. Affected recipients may use their FTA formula funds to augment their ER funds in order to pay for activities not eligible under the Emergency Relief Program, but may not use formula funds to match ER grants.

FTA requested comment on the extent of the benefit-cost analysis that is appropriate to justify emergency repairs, permanent repairs, and resilience projects, and did not include any regulatory text regarding these analyses in the interim final rule. In response, one commenter had a list of specific suggestions: (1) Projects to restore existing assets and services should be exempt from benefit-cost analysis; (2) wherever possible, FTA should provide standard values to be used in the preparation of benefit-cost analysis to improve comparability across projects and reduce guesswork; (3) the benefit-cost analysis should not be overly onerous, should not require applicants to hire consultants, and should involve mutually supportive interaction between the applicant and FTA; (4) the benefit-cost analysis should recognize transit network benefits and social benefits, including the high-value benefit of network redundancy; and (5) FTA should consider adopting the broad approach to benefits found in the FEMA Hazard Mitigation programs, rather than the narrow criteria present in the FHWA Emergency Response program.

Another commenter recognized the need for benefit-cost analysis, but recommended allowing agencies to use internally-developed processes for evaluating project benefits when identifying resilience measures internally. The commenter further urged that if FTA intends to use benefit-cost analysis to compare resilience projects across properties and allocate funding on that basis, agencies should be able to consider benefits of a project to the transit system as a whole, not merely the line segment where the project will occur. Finally, the commenter suggested that broad economic impacts should also be considered in a benefit-cost analysis to compare projects across agencies, and allowances should be made for regional cost differences in the development of a nation-wide methodology.

A third commenter suggested that the loss of function costs should include economic loss based on the financial status of transit agencies' riders. A fourth commenter also noted that the cost element of a benefit-cost analysis for resilience projects should incorporate the full indirect costs associated with a partial or complete transit system shut-down.

Two commenters suggested that the level of risk analysis performed on a project cost estimate should vary with the type of project, so that routine activities would require minimal review while more complex projects would require deeper risk analysis.

FTA appreciates the comments, and will consider the comments as FTA develops guidance for benefit-cost analyses under this program. FTA is choosing not to include regulatory text related to benefit-cost analysis at this time, as we agree that the submission of a benefit-cost analysis to FTA will usually not be necessary for emergency or permanent repairs. Resilience projects will generally require the completion of some form of benefit-cost analysis, and any future notices of funding availability will specify whether FTA requires a benefit-cost analysis. If a benefit-cost analysis is required for a particular situation, FTA's process will be consistent with OMB Circular A-94. FTA notes that FEMA has developed a rigorous benefit-cost analysis methodology, which FTA considered in developing its procedures for evaluating proposed resilience projects in its recent notice of funding availability for Hurricane Sandy resilience projects (78 FR 78486, Dec. 26, 2013, http://www.gpo.gov/fdsys/pkg/FR-2013-12-26/pdf/2013-30867.pdf ).

Five commenters addressed the provisions in this section, focusing on FTA's case-by-case determination of the 45-day inapplicability of FTA's grant requirements, the requirements for Executive Order 11988 floodplain analysis, and the absence of applicability of labor protections for the Emergency Relief Program.

As stated in the preamble to the interim final rule, FTA may determine the inapplicability of certain requirements associated with public transportation programs as necessary and appropriate for emergency repairs, permanent repairs, and emergency operating expenses that are incurred within 45 days of the emergency or major disaster, or longer as determined by FTA. This 45-day period is consistent with FTA's charter rule at 49 CFR 604.2(f), which provides that the charter rule does not apply to a recipient for actions directly responding to an emergency or major disaster. If FTA determines that any requirement does not apply, this determination shall apply to all eligible activities undertaken with funds authorized under 49 U.S.C. 5324 within the 45-day period, as well as funds authorized under 49 U.S.C. 5307 and 5311 and used for eligible emergency relief activities.

Several commenters stated that the 45-day waiver of the grant requirements was insufficient to provide for effective planning and the reality of disaster response. One commenter said that the Administrator should be given more explicit authority to increase the 45-day waiver period as necessary, commensurate with the intensity of the event and the restoration of normal operating service. Another commenter suggested that, while the 45-day waiver period may be sufficient in many circumstances, FTA should prospectively waive certain requirements for a longer period, and should be as flexible as possible in its implementation of the usual FTA requirements. One commenter recommended a 180-day waiver of normal FTA grant requirements and procurement rules. Two commenters suggested that FTA should be as flexible as possible with regard to procurement requirements, with one commenter recommending that procurement rules should be waived for all emergency work and permanent repairs, and that the use of pre-existing contracts, including those not procured through Federal methods, should be acknowledged and permitted. The commenter also noted that “exigent circumstances”—a justification for sole source procurements allowed in the common grant rule—might last for several years due to the need to stage work in a way that minimizes the adverse impact to customers.

FTA believes that 45 days is sufficient as a starting point for a broad inapplicability of certain FTA requirements, and that the rule provides sufficient flexibility to permit the Administrator to increase that time period as he or she deems necessary. We note that FTA provided a 90-day period after Hurricane Sandy in which certain FTA requirements were relaxed, and this was ample time for most circumstances. As stated in the preamble to the interim final rule, FTA also establishes an emergency relief docket each year, by which affected recipients may request waivers from FTA requirements. See 49 CFR part 601, subpart D.

The common grant rule (49 CFR 18.36) provides that noncompetitive procurement is permitted only when one of a specific set of circumstances applies. One of those circumstances is “the public exigency or emergency for the requirement will not permit a delay resulting from competitive solicitation.” Certainly in the first 45 days after a major disaster, affected recipients will need to respond quickly, and the public exigency circumstance will generally apply. However, in FTA's view, while some permanent repairs will be completed soon after the emergency or disaster, many permanent repairs will be planned many months in advance and there will be ample time for competitive solicitations. Public exigency—by definition “urgency”—is not a circumstance that will last “for several years.” FTA expects agencies to stage permanent repair work subsequent to an emergency or major disaster in the same manner they stage their regular, ongoing maintenance and repair work in a way that minimizes adverse impacts to customers.

Regarding the application of Executive Order (E.O.) 11988, Floodplain Management, one commenter noted that the floodplain management provisions should not be applied to ferry projects, which inherently will almost always be placed in a floodplain (an area subject to a one percent or greater chance of flooding in any given year, also known as a special flood hazard area). Two commenters requested that FTA streamline the E.O. 11988 analysis procedures whenever possible, for example by allowing recipients to group and discuss similar repair and resilience projects that would likely result in similar conclusions and findings regarding floodplain impacts, or by allowing agencies to perform the E.O. 11988 analysis concurrently with FTA project development. Three commenters discussed the impracticability of relocating certain transit infrastructure outside of floodplain boundaries, and one commenter suggested that FTA should incorporate into the final rule, text from the preamble stating that elevating structures within the floodplain is not a necessary precondition to funding. In addition, this commenter recommended that FTA specify that only practical measures to mitigate future damage are required, i.e., measures whose costs are not disproportionate to the protection they provide. One commenter suggested that FTA use other official sources of information in addition to FEMA, including the National Oceanic and Atmospheric Administration (NOAA) and the U.S. Army Corps of Engineers, when determining appropriate flood elevations, and that FTA post the current sources of information to its Web site.

While it is true that ferry facilities will almost always be located in a floodplain, there are actions that ferry operators can take to mitigate or prevent damage to ferry terminals and maintenance facilities, as well as the ferries themselves, in the event of a flood. Further, the Executive Order does not give FTA the discretion to exempt ferries or any other transit system from the E.O. requirements. FTA reminds recipients that while Hurricane Sandy brought a renewed focus to the effects of building in floodplains, E.O. 11988 was signed in 1977, and the analysis required by that Executive Order is not new. U.S. DOT and FTA have published guidance on floodplain management ( see http://www.fta.dot.gov/12347_2237.html ) and FTA expects to provide updated guidance as part of an emergency relief guidance document. Generally, FTA has no objection to recipients “streamlining” the E.O. 11988 analysis procedures as long as the recipients' actions are consistent with the Executive Order and the DOT guidance. As to the practicality of measures to mitigate future damage within a floodplain, the E.O. discusses the “practicability” of alternative site locations and actions to “minimize” potential harm when the only practicable alternative is siting in the floodplain. The U.S. DOT Order for Floodplain Management and Protection ( see http://isddc.dot.gov/OLPFiles/DOT/007652.pdf ), published in 1979, defines “practicable” as “capable of being done within natural, social, and economic constraints.” FTA believes the E.O. and the U.S. DOT Order contemplate the sort of benefit-cost analysis suggested by the commenter, and that it will not be practicable to relocate certain transit infrastructure to non-floodplain areas. As for the suggestion that FTA use other official sources of information for determining appropriate flood elevations, the Executive Order, as amended by E.O. 12148, vests the authority for this function in FEMA. However, as stated in the preamble to the interim final rule, if FEMA data is mutually determined by FTA and the recipient to be unavailable or insufficiently detailed, other Federal, State, or local data may be used as the “best available information” in accordance with E.O. 11988.

In the preamble to the interim final rule, we explained that recipients would also consider the best available data on sea-level rise, storm surge, scouring and erosion before rebuilding in order to comply with the requirements of E.O. 11988. This text was inadvertently left out of the regulatory text, and we have included it in this final rule at section 602.15(d)(6). FTA believes including this requirement in the regulatory text is desirable to clarify that this type of data should be reviewed when determining whether a project is located within a floodplain.

Finally, two commenters urged FTA to include labor protections codified at 49 U.S.C. 5333(b) as grant requirements for the Emergency Relief program. In support of their position, the commenters pointed to the history of labor protections in the Federal transit program, the scope of work to be completed as a result of Hurricane Sandy, and the provision in the ER statute that permits the Secretary to set grant terms and conditions the Secretary determines are necessary.

The Emergency Relief program is not included in the list of programs to which 49 U.S.C. 5333(b) applies, nor does the text of 49 U.S.C. 5324 reference section 5333(b) or the requirements of any other section of chapter 53. Therefore, Congress did not expressly include labor protections as a grant condition for emergency relief grants. Certification of grants by the Department of Labor adds additional time to the grant process, and in an emergency situation, the timing of grant award is often critical, especially for smaller transit agencies that do not have the resources to respond to a disaster and then wait for reimbursement.

FTA understands the concerns raised by the commenters, especially in circumstances such as Hurricane Sandy, with a multi-billion dollar supplemental appropriation and the likelihood that it will take several years to complete repairs. But it is important to note that the final rule will apply to all future emergencies and major disasters, not just Hurricane Sandy response. Hurricane Sandy was the greatest transit disaster in history, and therefore is far from typical. FTA has requested a modest $25 million annual appropriation from Congress in order to provide funding for transit agencies that experience damage as a result of an emergency or major disaster.

One of the commenters acknowledged that labor protections are not required under the Emergency Relief Program, argued that Congress did not prohibit the application of labor protections, and asserted that FTA has the authority to apply labor protections if those protections are deemed necessary. FTA agrees with this commenter, and, given that each disaster is unique, the statutory flexibility to establish grant terms and conditions allows FTA to address the applicability of labor protections to each emergency or disaster on a case-by-case basis. For the above reasons, FTA declines to include specific regulatory text related to this issue.

Five commenters submitted comments addressing provisions of this section.

Commenters suggested that six weeks is insufficient time for the preparation of damage assessment reports, and recommended that FTA adopt a 60-day time period for damage assessment reports consistent with FEMA practice. Commenters also noted that damage assessment is an iterative process, as assets that initially appear undamaged may later require repair. In addition, commenters suggested that it is unreasonable to expect initial damage assessment reports to include permanent repairs and recommended resilience projects, which may not be fully identified until after the initial response period.

While the six week damage assessment report is consistent with the FHWA emergency relief rule, FTA acknowledges that transit systems, particularly rail transit systems, can be more complex, and therefore, FTA is amending the rule to allow 60 days for submission of an initial damage assessment report. As with the interim final rule, this time period is qualified by the phrase, “unless unusual circumstances prevail,” which allows FTA and affected recipients to take more time if needed. In addition, FTA is adding a provision permitting an affected recipient to submit an updated damage assessment report as appropriate, as when latent damage becomes known.

One commenter requested clarification regarding the coordination of damage assessment reports for both FTA and FEMA. The commenter asked whether the agency would be required to file duplicate reports with both agencies; how conflicts between FTA and FEMA guidance and regulations would be resolved; and whether FTA or FEMA would be designated as the lead agency in terms of agency response. The commenter also requested that FTA include a sample damage assessment report as an appendix to Part 602, or as an attachment to the FTA/FEMA MOU to reflect the information required of recipients of both agencies.

The rule requires coordination with FEMA when appropriate because FTA does not want affected recipients to duplicate efforts after an emergency or major disaster. Until FTA has a regular annual appropriation for the Emergency Relief Program, affected recipients will have to apply to FEMA for reimbursement of emergency relief expenses unless there is a specific appropriation for FTA, as there was with Hurricane Sandy. Alternatively, recipients may use FTA section 5307 or section 5311 formula funds to address an emergency, but those funds may not be “replenished” from the FTA Emergency Relief Program, FEMA, or any other Federal source of funds. Generally, affected recipients will not be required to file damage assessment reports with both FTA and FEMA, but working with both agencies prior to a specific appropriation should help to streamline the process in the event FTA receives funding. If FTA has funds, FTA will be the lead agency for disaster response. If FTA does not have funds, FEMA will be the lead agency, and FTA will provide technical assistance to affected recipients. Damage assessment reports will vary widely depending on the nature of the emergency or disaster, as well as the size of the affected recipient and the types of service it provides, so FTA declines to provide a sample as a part of this rulemaking. FTA may develop one or more sample damage assessment reports as part of its guidance for the Emergency Relief Program.

One commenter suggested that, in the interest of efficiency, FTA should not require production of documents, such as disaster declarations, that are a matter of public record. Another commenter requested that as many documents as possible be kept on file and subject to the triennial review or other audit rather than attached in the Transportation Electronic Award Management system (TEAM), including the damage assessment, copy of the disaster declaration, insurance policies, and agreements with other federal agencies. A third commenter suggested that large transit agencies be afforded the discretion to choose and submit those documents that best reflect the impact of the emergency or disaster on the agency's operations.

FTA concurs with the suggestion that publicly available documents not be included in the damage assessment report, and is striking the language requiring a copy of the Governor's or President's declaration of emergency or disaster. If not uploaded into FTA's electronic grant management system, supporting documents need to be provided to FTA by other means, such as email or in-person. Simply having the documents available is not sufficient, as in many cases FTA will need to become familiar with insurance policies, damage assessments, and agreements with other federal agencies. Therefore, FTA must have copies of those documents as early in the response period as possible. As with the interim final rule, the language of the final rule states, “as appropriate, the damage assessment report should include . . .” This allows some latitude to affected recipients to submit the most appropriate documentation.

In the interim final rule, FTA requested comments regarding whether applications for Emergency Relief funds should incorporate requirements of Section 1315(b) of MAP-21, which requires a periodic evaluation to determine whether there are reasonable alternatives to roads, highways, or bridges that have repeatedly required repair or reconstruction in the past as a result of emergencies or major disasters, but did not include at that time any regulatory language. Three entities responded to this request. Two commenters stated that such an analysis would be inappropriate in the context of emergency repairs. One of the commenters noted that this requirement would significantly increase the volume of necessary documentation without adding significant value to the evaluation process. The other commenter noted that compliance with Section 1315(b) provisions would be time-consuming for transit agencies, though the commenter admitted that there should be some mechanism in place to prohibit eligibility for inherently faulty projects, and proposed that alternatively, such projects could be eligible for FEMA's hazard mitigation program. The remaining commenter stated that any evaluation of prior repeated damage should require the applicant to explain whether the current design or proposed redesign more effectively protects against future damage.

After analyzing the comments, FTA has decided to include regulatory language concerning the evaluation of alternatives. Although not included in the IFR, this regulatory language tracks closely both to what FTA requested comment on in the IFR and the comments the agency received and is, therefore, a clear logical outgrowth of the IFR. FTA agrees with commenters that an evaluation is not appropriate in the context of emergency repairs. For other projects, though, today's final rule requires an evaluation of alternatives for infrastructure that has previously required repair or reconstruction as a result of emergencies or major disasters could easily be included in the damage assessment report. Therefore, FTA is adding a new paragraph to section 602.17. As part of the damage assessment report, applicants must include an evaluation of reasonable alternatives, including change of location and addition of resilience/mitigation elements, for any damaged transit facility that has been previously repaired or reconstructed as a result of an emergency or major disaster. If none of a transit agency's damaged assets were previously damaged in an emergency or disaster, the damage assessment report would include that simple statement.

This action is a significant regulatory action within the meaning of Executive Order 12866 and is significant within the meaning of Department of Transportation regulatory policies and procedures because of substantial congressional, State and local government, and public interest. Those interests include restoring public transportation service as quickly as possible after an emergency or major disaster, the receipt of Federal financial support for repairing and replacing public transportation investments damaged or destroyed by emergencies and major disasters as expeditiously as possible, and the receipt of Federal financial support for emergency operations before, during and after emergencies and major disasters.

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. FTA does not know precisely how grants to various entities (i.e., transfer payments) would be affected by the rule. Since the rule may affect transfer payments totaling more than $100 million annually, FTA has determined that this is an “economically significant” rule under Executive Order 12866. This determination is based on the Disaster Relief Appropriations Act of 2013 (Pub. L. 113-2), which appropriated $10.9 billion to FTA to provide assistance to public transportation systems impacted by Hurricane Sandy, and the potential for a major disaster to occur in the future.

The Obama Administration's budget requests included $25 million for each of fiscal years 2013 and 2014 for the Emergency Relief program, and the authorization in 49 U.S.C. 5338(f) is for “such sums as are necessary to carry out section 5324.” Congress did not appropriate any funds for the Emergency Relief Program in the 2014 Consolidated Appropriations Act (Pub. L. 113-76). Hurricane Sandy was an extraordinary event resulting in historic damage to public transportation systems. While it is impossible to predict how much funding Congress might appropriate for the Emergency Relief Program for extraordinary events such as Hurricane Sandy, in a typical year without an extraordinary event such as Hurricane Sandy, FTA does not expect this rule to have an economic impact greater than $100 million.

Eligible projects under the statute and the rule include emergency operating expenses, as well as capital projects to protect, repair, reconstruct or replace public transportation equipment and facilities. In this rule, FTA has given “protection” of assets two distinct meanings: emergency protective measures taken immediately before, during, or after an emergency to protect assets from damage or further damage, and resilience projects that protect against future disasters. FTA's policy, as stated in section 602.7 of this rule, is to assist recipients and subrecipients in restoring public transportation service and in repairing and reconstructing public transportation assets to a state of good repair as expeditiously as possible following an emergency or major disaster. In conjunction with repair and reconstruction activities, recipients may include projects that increase the resilience of affected public transportation systems to protect the systems from the effects of future emergencies and major disasters. Inherent in this policy is a prioritization of emergency operating expenses and emergency recovery and response projects over projects that protect against future emergencies. This prioritization could impact the funds available for resilience projects.

Through the Emergency Relief Program, FTA will reimburse States and local governmental authorities for eligible operating and capital costs incurred as a result of an emergency or major disaster. MAP-21 generally prescribes the criteria and types of projects eligible for emergency relief grants, and FTA has exercised limited discretion in this rulemaking to implement the statute.

This final rule will carry out a new Public Transportation Emergency Relief Program, codified at 49 U.S.C. 5324 and authorized by MAP-21. The Disaster Relief Appropriations Act of 2013 required FTA to issue an interim rule and today's action makes minor changes in response to comments and finalizes the rulemaking. This rule applies not only to Hurricane Sandy, but to future emergencies and disasters that public transportation systems may experience.

The Public Transportation Emergency Relief Program makes funding available to public transportation agencies impacted by emergencies and major disasters. The rule provides that these agencies may apply for funding in order to reimburse the costs incurred as a result of the emergency or major disaster.

Affected recipients that will apply for funding under the Emergency Relief Program are public bodies and agencies (transit authorities and other state and local public bodies and agencies thereof) including states, municipalities, other political subdivisions of states; and public agencies and instrumentalities of one or more states that provide public transportation services. Private non-profit entities that provide public transportation service are eligible subrecipients.

As this rule implements a new program, FTA can only estimate the number of transit agencies that might apply for Emergency Relief funds. Notably, emergencies and major disasters can happen at any place and at any time, in rural, small urbanized as well as large urbanized areas, so any FTA recipient may be affected by this rule.

As stated previously, FTA has exercised limited discretion in interpreting 49 U.S.C. 5324, which defines the eligible activities for the Emergency Relief Program. It is necessary, however, to provide more detail than what the statute provides regarding eligible activities. FTA turned to its sister agency, the Federal Highway Administration (FHWA), for definitions, eligible activities, and process, as FHWA has had an emergency relief rule for many years (23 CFR part 668). FTA also looked at eligible activities under the Stafford Act in order to ensure that affected recipients would be able to apply for all of their emergency needs from FTA, thus allowing for a streamlined application and reimbursement process.

Emergency operations, emergency protective measures, emergency repairs, permanent repairs and resilience projects, as those terms are defined in section 602.5 of this rule, are eligible for emergency relief funding.

FTA's goal is to ensure that all projects eligible under relevant sections of the Stafford Act, including sections 403 (Essential Assistance), 406 (Repair, Restoration and Replacement of Damaged Facilities) and 419 (Emergency Public Transportation), will be eligible under FTA's Emergency Relief Program. Actions taken by public transportation agencies to protect assets in advance of a serious weather event can have substantial financial benefits. For example, moving rolling stock to higher ground to protect it from storm surges can save millions of dollars. Further, actions taken during a weather event and in its immediate aftermath, including debris removal and dewatering, can prevent further damage to public transportation assets. It is in FTA's and the Federal taxpayer's interest to reimburse the cost of these activities.

Public transportation agencies are an integral part of the communities they serve, and these agencies will often assist with evacuations, rescue operations, and transportation of utility workers and other first responders, often without regard to the expense of those services. In addition, reestablishing public transportation service after an emergency or major disaster may cause a public transportation agency to incur extraordinary costs that are not in the agency's budget.

Temporary and permanent repairs undertaken after an emergency or major disaster assist the transit agency with restoring service and bringing the repaired or replaced facilities into a state of good repair. Temporary repairs may be necessary to restore service, and these repairs should, when feasible, be undertaken in such a way as to reduce the cost of permanent repairs. Bringing facilities and equipment into a state of good repair has both quantifiable and non-quantifiable benefits. Systems that are in a state of good repair are more efficient, more reliable, and more attractive to transit riders. Public transportation systems that are in a state of good repair have fewer breakdowns, and it is often less expensive to keep equipment and facilities in a state of good repair than it is to undertake heavy maintenance projects to keep a system running.

Resilience projects to address vulnerabilities to a public transportation facility or system due to the potential future recurrence of emergencies or major disasters have long-term financial benefits. Rebuilding with materials that can withstand weather events, rebuilding in a different location, or adding protective features to a facility or system can prevent the facility or system from experiencing similar damage in the future. These benefits are not only monetary; the ability to restore service in a timelier manner subsequent to an emergency or major disaster, when the facility or system has not sustained serious damage because it was strengthened by a resilience project, helps to restore the community to normalcy more quickly.

Finally, there is a benefit to the public transportation agencies when they can go to FTA for reimbursement of their emergency expenses. Under FEMA's Public Assistance Program a public transportation agency is a subgrantee and therefore receives its funding through the grantee, the State, with which many public transportation agencies do not have an ongoing funding relationship. Therefore, even after Federal obligation of the funds, it can take time before the funds are received by the public transportation agency. The establishment of FTA's Public Transportation Emergency Relief Program should expedite reimbursement to public transportation agencies, resulting in a benefit for these agencies.

The purpose of the Emergency Relief Program is to provide Federal assistance for extraordinary costs resulting from an emergency or major disaster. The Emergency Relief Program should not be a substitute for good management of assets, nor should it be used for minor emergencies that do not cause serious damage. Therefore, heavy maintenance activities are not an eligible expense. In addition, any projects funded by another Federal agency, insurance policies, or already in an FTA grant are not eligible. FTA Emergency Relief funds should supplement, not supplant, these other sources of funds. Revenue losses due to service disruptions are not eligible expenses. The ineligibility of these expenses will help to ensure good stewardship of public transportation assets, and will ensure that FTA is not using Emergency Relief funds to pay for a project or activity that has another funding source. Some transit agencies may experience significant revenue losses due to service disruptions; however, this is something for which transit agencies can plan, and for which they can be insured. The benefit of not covering these expenses is that more funds will be available for the eligible activities.

In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612), FTA has evaluated the effects of this final rule on small entities and has determined the final rule will not have a significant economic impact on a substantial number of small entities. Recipients of Emergency Relief Program funds are generally States and local governmental authorities. The only burden placed upon local governments by this rule is the paperwork burden associated with the application process, which is addressed in the Paperwork Reduction Act section. FTA has sought to minimize the paperwork burdens of the rule. For this reason, FTA certifies that this action will not have a significant economic impact on a substantial number of small entities.

This final rule will not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995, 109 Stat. 48). The Federal share for grants made under the Emergency Relief Program is up to 80 percent, and the Secretary may waive all or part of the non-Federal share. This final rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $143.1 million or more in any one year (2 U.S.C. 1532).

This final rule has been analyzed in accordance with the principles and criteria established by Executive Order 13132, and FTA has determined that this final rule will not have sufficient Federalism implications to warrant the preparation of a Federalism assessment. FTA has also determined that this final rule will not preempt any State law or State regulation or affect the States' abilities to discharge traditional State governmental functions.

The regulations effectuating Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this final rule.

On February 6, 2013, in compliance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq. ) and the Office of Management and Budget (OMB) implementing regulation at 5 CFR 1320.13, FTA received emergency approval from OMB for an Information Collection for funds appropriated by the Disaster Relief Appropriations Act (Information Collection number 2132-0575). In compliance with the PRA and OMB implementing regulation at 5 CFR 1320.8(d), FTA sought longer-term approval from OMB for this Information Collection. On August 28, 2013, OMB approved FTA's request for an information collection for the Emergency Relief Program. The modifications to the regulations in this final rule do not modify this collection. Insurance information is included in the project budget as well as the quarterly milestone/progress reports. FTA estimated that it would take recipients approximately 50 hours to develop a damage assessment report, and the addition of an evaluation of alternatives for only those assets that have previously experienced damage as a result of a disaster or emergency will not appreciably change that estimate. The approval for this information collection will expire on August 31, 2016.

The National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ), requires Federal agencies to analyze the potential environmental effects of their proposed actions either through a Categorical Exclusion, an Environmental Assessment or an Environmental Impact Statement. This final rule is categorically excluded under FTA's NEPA implementing procedures at 23 CFR 771.118(c)(4), which covers planning and administrative activities that do not involve or lead directly to construction, such as the promulgation of rules, regulations and directives. FTA has determined that no unusual circumstances exist and that this Categorical Exclusion is applicable.

Executive Order 12898 and U.S. DOT Order 5610.2(a) (91 FR 27534, May 10, 2012), require DOT agencies to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects, including interrelated social and economic effects, of all programs, policies, and activities on minority populations and low-income populations in the United States. The DOT Order requires DOT agencies to address compliance with the Executive Order and the DOT Order in all rulemaking activities. FTA has developed a program circular addressing environmental justice in transit projects, C 4703.1, Environmental Justice Policy Guidance for Federal Transit Administration Recipients, 77 FR 42077, July 17, 2012 (available online at www.fta.dot.gov/legislation_law/12349_14740.html ).

FTA evaluated this rulemaking under the Executive Order and the DOT Order. FTA determined that the establishment of procedures governing the implementation of FTA's Public Transportation Emergency Relief Program will not cause disproportionately high and adverse effects on minority or low income populations. The rule simply defines the eligibility criteria and outlines the process to apply for assistance under the program.

At the time FTA considers an application for emergency relief, FTA has an independent obligation to conduct an evaluation of the proposed action under the applicable environmental justice (EJ) Orders and guidance as part of the environmental review process. The adoption of this rule does not affect the scope or outcome of any EJ evaluation. Outreach to ensure the effective involvement of minority and low income populations in the environmental review process is a core aspect of the EJ Orders and guidance. This rule does not affect the ability of affected populations to raise any concerns about potential EJ effects at the time FTA considers a grant application. For these reasons, FTA determined no further EJ analysis is needed and no mitigation is required in connection with this rulemaking.

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

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

FTA has analyzed this action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. FTA certifies that this final rule will not cause an environmental risk to health or safety that may disproportionately affect children.

FTA has analyzed this action under Executive Order 13175 (Nov. 6, 2000), and believes that it will not have substantial direct effects on one or more Indian tribes; will not impose substantial direct compliance costs on Indian tribal governments; and will not preempt tribal laws. Therefore, a tribal summary impact statement is not required.

FTA has analyzed this action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). FTA has determined that it is not a significant energy action under that order since it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required.

Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review U.S. DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477).

A regulation identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN set forth in the heading of this document can be used to cross-reference this action with the Unified Agenda.

We are combining two subspecies of markhor currently listed under the Endangered Species Act of 1973, as amended (Act), the straight-horned markhor ( Capra falconeri jerdoni ) and Kabul markhor ( C. f. megaceros ), into one subspecies, the straight-horned markhor ( C. f. megaceros ), based on a taxonomic change. We are listing the straight-horned markhor ( C. f. megaceros ) as threatened under the Act.

We are also finalizing a rule under section 4(d) of the Act that allows the import of sport-hunted straight-horned markhor trophies under certain conditions. This regulation supports and encourages conservation actions for the straight-horned markhor.

This action eliminates the separate listing of the straight-horned markhor and Kabul markhor as endangered and adds the combined straight-horned markhor subspecies as threatened on the List of Endangered and Threatened Wildlife at 50 CFR 17.11(h), and allows the import of sport-hunted straight-horned markhor trophies under certain conditions at 50 CFR 17.40(d). This action is authorized by the Act.

The Endangered Species Act of 1973, as amended (ESA or Act) (16 U.S.C. 1531 et seq. ), is a law that was passed to prevent extinction of species by providing measures to help alleviate the loss of species and their habitats. Before a plant or animal species can receive the protection provided by the Act, it must first be added to the Federal List of Endangered and Threatened Wildlife or the Federal List of Endangered and Threatened Plants; section 4 of the Act and its implementing regulations at 50 CFR part 424 set forth the procedures for adding species to these lists.

On June 14, 1976, we published in the Federal Register a rule listing the straight-horned markhor, or the Suleiman markhor ( Capra falconeri jerdoni ), and the Kabul markhor ( C. f. megaceros ), as well as 157 other U.S. and foreign vertebrates and invertebrates, as endangered under the Act (41 FR 24062). All species were found to have declining numbers due to the present or threatened destruction, modification, or curtailment of their habitats or ranges; overutilization for commercial, sporting, scientific, or educational purposes; the inadequacy of existing regulatory mechanisms; or some combination of the three. However, the main concerns were the high commercial importance and the inadequacy of existing regulatory mechanisms to control international trade.

Subsequent to the listing in 1976, the Suleiman markhor and the Kabul markhor were later considered by some authorities to be the single subspecies C. f. megaceros (straight-horned markhor). However, the Suleiman markhor and the Kabul markhor remained listed as separate subspecies under the Act.

On March 4, 1999, we received a petition from Sardar Naseer A. Tareen, on behalf of the Society for Torghar Environmental Protection and the International Union for Conservation of Nature (IUCN) Central Asia Sustainable Use Specialist Group, requesting that the Suleiman markhor ( C. f. jerdoni or C. f. megaceros ) population of the Torghar Hills region of the Balochistan Province, Pakistan, be reclassified from endangered to threatened under the Act. On September 23, 1999 (64 FR 51499), we published in the Federal Register a finding, in accordance with section 4(b)(3)(A) of the Act, that the petition had presented substantial information indicating that the requested reclassification may be warranted, and we initiated a status review. We opened a comment period, which closed January 21, 2000, to allow all interested parties to submit comments and information. A 12-month finding was never completed.

On August 18, 2010, we received a petition dated August 17, 2010, from Conservation Force, on behalf of Dallas Safari Club, Houston Safari Club, African Safari Club of Florida, The Conklin Foundation, Grand Slam Club/Ovis, Wild Sheep Foundation, Jerry Brenner, Steve Hornaday, Alan Sackman, and Barbara Lee Sackman, requesting the Service downlist the Torghar Hills population of the Suleiman markhor ( Capra falconeri jerdoni or C. f. megaceros ), in the Balochistan Province of Pakistan, from endangered to threatened under the Act. On June 2, 2011, we published in the Federal Register a finding that the petition had presented substantial information indicating that the requested reclassification may be warranted, and we initiated a status review (76 FR 31903).

On February 1, 2012, Conservation Force, Dallas Safari Club, and other organizations and individuals filed suit against the Service for failure to conduct a 5-year status review pursuant to section 4(c)(2)(A) under the Act ( Conservation Force, et al. v. Salazar, Case No. 11 CV 02008 D.D.C.). On March 30, 2012, a settlement agreement was approved by the Court (11-CV-02008, D.D.C.), in which the Service agreed to submit to the Federal Register by July 31, 2012, a 12-month finding on the August 2010 petition. In fulfillment of the court-ordered settlement agreement and the requirement to conduct a 5-year status review under section 4(c)(2)(A) of the Act, the Service published in the Federal Register a 12-month finding and proposed rule to reclassify the straight-horned markhor ( C. f. jerdoni ) from endangered to threatened with a rule issued under section 4(d) of the Act (known as a 4(d) rule) (77 FR 47011) on August 7, 2012.

On December 5, 2013, the Service published in the Federal Register a revised proposed rule to combine the straight-horned markhor and Kabul markhor into one subspecies and reclassify the new subspecies as threatened under the Act with a 4(d) rule (78 FR 73173).

We based this action on a review of the best scientific and commercial information available, including all information received during the public comment period. In the December 5, 2013, revised proposed rule, we requested that all interested parties submit information that might contribute to development of a final rule. We also contacted appropriate scientific experts and organizations and invited them to comment on these proposed rules. We received comments from nine individuals and organizations.

We reviewed all comments we received from the public and peer reviewers for substantive issues and new information regarding the proposed reclassification of this subspecies, and we address those comments below. Six of the commenters, including peer reviewers, supported the revised proposed rule and 4(d) rule. Three commenters opposed the reclassification and 4(d) rule; two commenters believed more genetic studies and a better consensus among scientists was needed before combining the two subspecies into one.

In accordance with our policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from five individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occurs, and conservation biology principles. We received responses from three of the peer reviewers from whom we requested comments. The peer reviewers stated that the revised proposed rule was accurate and our conclusions were logical; no substantive comments were provided. Technical corrections suggested by the peer reviewers have been incorporated into this final rule. In some cases, a technical correction is indicated in the citations by “personal communication” (pers. comm.), which could indicate either an email or telephone conversation; in other cases, the research citation is provided.

(1) Comment: We received updated information on the population of straight-horned markhor in Sheikh Buddin Hills, Khyber Pakhtunkhwa Province, Pakistan. A 2011 field survey found that the straight-horned markhor has been extirpated from this area.

Our Response: We included this updated information under the Range and Population section below.

(2) Comment: The Service has not put forth sufficient population information, especially for populations outside of the Torghar Hills, to support a finding that the subspecies qualifies as a threatened species.

Our Response: Our finding that the straight-horned markhor meets the definition of a threatened species, as defined under the Act, is not based solely on population numbers. Although most remaining populations of straight-horned markhor are critically low, continue to face threats, and will likely continue to decline, the population in Torghar Hills has continued to increase and is the stronghold of the species. Because of the protective measures provided to the Torghar Hills population, we believe the subspecies as a whole is not presently in danger of extinction, and, therefore, does not meet the definition of endangered under the Act. As explained in more detail in our status determination, the Torghar Hills population is considered to be currently stable and increasing; based upon 2011 population surveys in the Torghar Conservation Project (TCP), the markhor population and domestic livestock have minimal range-use overlap, and the markhor's habitat is secure under current management. However, the straight-horned markhor occupies a narrow geographic range, and threats acting on critically low populations outside Torghar Hills are likely to continue in the foreseeable future. Moreover, within the foreseeable future, pressures on habitat in the Torghar Hills and interactions between livestock and markhor are likely to increase with the growth of domestic livestock herds, the biannual migration of local tribes, and the expansion of markhor populations in the TCP, resulting in the subspecies as a whole being at risk of extinction due to the strong likelihood of a catastrophic or stochastic event (e.g., disease) impacting the Torghar Hills population. Should a catastrophic or stochastic event (e.g., disease) impact the Torghar Hills population, this single, stable population would likely not provide a sufficient margin of safety for the subspecies. Thus, these factors indicate that the straight-horned markhor, while not at risk of extinction now, will likely become in danger of extinction in the foreseeable future. Therefore, we find that this subspecies of markhor qualifies as a threatened species.

(3) Comment: The Service states that the subspecies in Torghar Hills is likely to interact with domestic goats and could be catastrophically impacted by disease. A recent study (Ostrowski et al. 2013), not considered by the Service, describes a pneumonia outbreak that killed approximately 20 percent of the markhor population in Tajikistan, concludes that domestic goats can carry a pathogen that poses an insidious risk for cross-species transmission with sympatric wild caprinae, and shows that straight-horned markhor could go extinct due to an outbreak of pneumonia. Therefore, the straight-horned markhor is currently in danger of extinction due to disease.

Our Response: The findings by Ostrowski et al. (2013, p. 3) indicate that the outbreak that killed 20 percent of the markhor population of a separate subspecies in Tajikistan was caused by a pathogen, Mycoplasma capricolum capricolum. The source of the Mycoplasma infection in markhor is unknown, although domestic goats may have been responsible. The findings of the study conclude that the markhor is vulnerable to M. c. capricolum infections and may be at risk of future outbreaks in light of increasing encroachment of livestock into wild habitat. However, we have found no information, in this study or elsewhere, to support the commenter's opinion that this subspecies is currently in danger of extinction due to disease. As noted in the final rule, the Torghar Hills population is considered stable and the overlap of range use with domestic livestock is minimal.

(4) Comment: The 4(d) rule is troubling because the Service recognizes overhunting contributed to the imperiled status and continues to be a threat.

Our Response: Overhunting was a major factor in diminishing the straight-horned markhor population to critical levels. Even today, hunting remains a threat to most remaining populations. However, increases in populations of ungulates, including markhor, have occurred in conservation areas managed specifically for trophy hunting. The 4(d) rule supports and encourages the development of this type of conservation program that addresses the threat of overhunting. A well-managed sport-hunting program that encourages sustainable use can significantly contribute to the conservation of wildlife and improve wildlife populations by providing an economic incentive for local communities to protect these species. Monies received for a hunting permit may be used to build and fund schools and health clinics, improve access to drinking water, and improve sanitation and roads. Local communities see a direct connection between protecting species and improvements to their communities.

(5) Comment: The Service premises the 4(d) rule upon the purported benefits of the proceeds from selling markhor trophies. This approach will only serve to further commercialize endangered and threatened wildlife and sends a message that the United States encourages exchange of imperiled wildlife for cash. This concept runs counter to the intent of the Act to protect and recover species.

Our Response: We are not allowing for the commercialization of the straight-horned markhor. Under this final 4(d) rule, the Director may authorize the importation of noncommercial specimens for personal use, provided the sport-hunted trophy is taken from a conservation program that meets certain criteria. Consistent with the Act, the criteria of the 4(d) rule ensures that imported markhor trophies are only from scientifically-based management programs that provide for the conservation of this subspecies.

(6) Comment: The 4(d) rule does not provide for the conservation of the species because the definition of the term “conservation” under the ESA limits take of a threatened species to “the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved.”

Our Response: The 4(d) rule does not authorize take of straight-horned markhor, rather it authorizes the import of trophy-hunted straight-horned markhor from established conservation programs that meet certain criteria.

(7) Comment: A 4(d) rule authorizing trophy imports must also conserve the species and is, therefore, limited to a finding that overpopulation necessitates the need for regulated take.

Our Response: Take of a wholly foreign species in its native country is not regulated by the Act because the action is not subject to the jurisdiction of the United States. Furthermore, as previously mentioned, the 4(d) rule authorizes the importation, not the taking, of markhor, provided the Director finds that the sport-hunted trophy is from a management program meeting certain criteria. Therefore, we would not make a finding on whether overpopulation necessitates regulated take before authorizing the import of markhor sport-hunted trophies. The criteria of the 4(d) rule ensures that imported markhor trophies are only from scientifically based management programs that provide for the conservation of this subspecies.

(8) Comment: The import of trophies is not carried out for the purpose of promoting conservation; rather the action is undertaken solely for the benefit of the individual hunter.

Our Response: Permitting the import of trophies from scientifically based conservation programs allows the revenue derived from U.S. hunters to be used for markhor conservation, as well as to support the communities that are protecting them.

(9) Comment: The 4(d) rule allows import of sport-hunted trophies from conservation programs that benefit the community and species. Benefits to the community are irrelevant unless they also confer a benefit to the species.

Our Response: We agree. Our 4(d) rule states “the conservation program can demonstrate a benefit to both the communities surrounding or within the area managed by the conservation program and the species, and the funds derived from sport hunting are applied toward benefits to the community and the species.” Involvement of the local community in conservation of a species results in better conservation, especially if it creates sustainable benefits for the community (Damm and Franco in press a, p. 29). Revenue and economic benefits generated for the community from the use of wildlife provide incentives for people to conserve the species and its habitat, thus removing the risk of resource degradation, depletion, and habitat conversion (IUCN SSC 2012, pp. 2-5; Shackleton 2001, pp. 7, 10).

(10) Comment: Allowing the import of hunted trophies based in part on funding communities living near a hunting reserve does not provide for conservation of the species.

Our Response: We disagree. By setting criteria in the 4(d) rule that programs must also benefit the local community to be eligible, we are ensuring that U.S. hunters are participating in conservation programs that truly benefit the species by providing economic incentives that promote community-based conservation of markhor. In essence, the 4(d) rule, provided the criteria is met, ensures that local communities will have sufficient reasons, or incentives, to conserve the species in preference to their domestic livestock and to protect species against poaching.

(11) Comment: The Service inappropriately uses the Conference Resolution 10.15 as a justification for the 4(d) rule by indicating that the rule is necessary to implement the resolution. A CITES Resolution in-and-of-itself is not a proper basis for a 4(d) rule, and the Service must independently determine that the 4(d) rule is “necessary and advisable.”

Our Response: It was not our intent to indicate that the 4(d) rule was necessary to implement or comply with the Conference Resolution, nor did we intend to use the Conference Resolution as a justification for the 4(d) rule. The Conference Resolution recommends that CITES Authorities (authorities under the Convention on International Trade in Endangered Species of Wild Fauna and Flora) in the State of import approve permits of sport-hunted markhor trophies from Pakistan if they meet the terms of the Resolution. Because the Service will take into account the recommendations in the Conference Resolution when determining whether the criteria under the 4(d) are met, we intended to refer to the consideration of these recommendations as an additional benefit. Thus, for clarification, we removed any language suggesting that compliance with the Resolution was a justification for the 4(d) rule.

(12) Comment: Several commenters raised concerns that the 4(d) rule does not ensure revenue generated through sport hunting would benefit the species and that the Service has not established any guidelines for evaluating or monitoring trophy programs or determining whether funds derived from sport hunting are sufficiently applied towards the community or species.

Our Response: Under the 4(d) rule, before a sport-hunted trophy may be imported without a permit issued under 50 CFR 17.32, the Service must publish notice of the authorization in the Federal Register . In that notice, the Service will explain the basis of a decision to exempt the import of markhor trophies from the permitting requirements. The Service does not believe that we need to codify specific guidelines on evaluating and monitoring scientifically based management programs that include sport hunting or how funds generated by sport hunting must be used in relation to enhancing the conservation of the species. Establishing prescriptive guidelines may, in fact, limit or constrain innovative management efforts, grassroots conservation initiatives, or community development programs. The Service believes that the criteria established in the 4(d) rule sufficiently outline the factors that must be considered in order to exempt imports from the requirement for import permits under the Act.

(13) Comment: The 4(d) rule will be difficult to implement as there is no information on who submits the information on the program, how the Service will determine if the local regulatory authorities are capable of obtaining sound data on populations, and whether and how the Service will decide if regulatory authority can determine where the trophy was hunted.

Our Response: Although information submitted and considered under the 4(d) rule will likely be submitted by the exporting country, it is not a requirement. Information made available to the Service relative to the five criteria established in the 4(d) rule will be evaluated to determine its validity. After a thorough evaluation of the information, the Service will publish a Federal Register notice explaining the basis of any decision to exempt the import of markhor trophies from the permitting requirements under the Act.

(14) Comment: Two commenters expressed concern that the 4(d) rule would encourage poaching, create a demand for straight-horned markhor, and facilitate illegal trade or a black market for markhor.

Our Response: It is unclear to the Service how allowing the importation of legally hunted trophies, taken as part of a scientifically based conservation program, would stimulate illegal trade or create an unsustainable demand for straight-horned markhor. While it may be possible to exempt importations from the requirements of a permit issued under the Act at 50 CFR 17.32 if the criteria under the 4(d) rule are met, we must still adhere to CITES requirements. As an Appendix-I species under CITES, straight-horned markhor imports must meet the criteria under 50 CFR part 23. Namely, there is still a requirement that the exporting country make the required findings that the export would not be detrimental to the species and that trophies were legally taken. Moreover, as the authority for the importing country, we would still need to make a finding that the import would be for purposes not detrimental to the survival of the species, and that the specimen will not be used for primarily commercial purposes. Thus, if the Director determines that the conservation program meets the 4(d) criteria, the Service finds that additional authorizations under the Act for importation of sport-hunted trophies would not be necessary and advisable for the conservation of the species, nor appropriate, because such importation already requires compliance with CITES' most stringent international trade controls for this subspecies listed under Appendix I.

(15) Comment: The 4(d) rule is broader than Conference Resolution 10.15 (Establishment of quotas for markhor hunting trophies) and could authorize import of trophies beyond the quota granted to Pakistan under Conference Resolution 10.15. The 4(d) rule should be modified to match Conference Resolution 10.15, including limiting the import of trophies to only those exports from Pakistan.

Our Response: The purpose of the Act is to protect and recover imperiled species and the ecosystems upon which they depend. The 4(d) rule is meant to encourage conservation of straight-horned markhor across its range. Limiting the 4(d) rule to only those trophies exported from Pakistan under the Conference Resolution 10.15 would diminish the conservation benefit to markhor range-wide, since conservation programs established in countries such as Afghanistan would not be eligible. In addition, because the Service will consider the provisions of the Conference Resolution 10.15 when evaluating whether the subject conservation program meets the criteria under the 4(d) rule, incorporating the specific provisions of the Resolution into the 4(d) rule would be impracticable. In the event any future changes to the Resolution are adopted by the Parties to the Convention, the regulatory process for amending the 4(d) rule would take time. During the time taken to amend the 4(d) rule, inconsistencies between the Resolution and our regulations would exist, resulting in possible confusion among the regulated community and potential enforcement difficulties.

(16) Comment: The 4(d) rule eliminates the requirement for a threatened species permit under the Act, thereby also eliminating the public notice and comment requirements typically applicable to CITES and ESA permits. The public should be provided with notice and opportunity for comment on markhor import permits even if they are covered by the 4(d) rule.

Our Response: The Service does not publish notices for receipt of applications for threatened species permits in the Federal Register ; therefore, there is no requirement for public notice and comment. However, under the 4(d) rule, the Service will publish a Federal Register notice explaining the basis of a decision to exempt the import of markhor trophies from the Act's permitting requirements.

(17) Comment: The Service has failed to show how the 4(d) rule is necessary and advisable for the conservation of the species.

Our Response: We have revised the preamble of this final rule to clarify how the 4(d) rule is necessary and advisable. Because the success of markhor conservation is directly related to support from the local community, it is imperative that the 4(d) rule support community-based conservation programs. We set criteria in the 4(d) rule to ensure that U.S. hunters are participating in conservation programs that benefit the species by providing economic incentives that promote community-based conservation of markhor.

(18) Comment: Afghanistan's Ministry of Agriculture, Irrigation, and Livestock (MAIL) stressed that it is imperative that export of markhor trophies be documented as taken from established conservation programs in Torghar Hills only, and not from areas in Afghanistan.

Our Response: Our 4(d) rule establishes that “regulating authorities can determine that the trophies have in fact been legally taken from the populations under an established conservation program.” If the country of export, in this case Pakistan, cannot provide that information to the Service, or if there is a proven indication that animals are being taken from outside approved conservation programs, the import would not meet the enhancement criteria set forth in the 4(d) rule. Further, CITES provides additional protections because markhor are listed under CITES Appendix I. Appendix-I specimens require an export permit to be issued by the Management Authority of the state of export, in this case Pakistan. Prior to issuing the CITES export permit, Pakistan must determine that the specimen was legally obtained, that the trade will not be detrimental to the survival of the species, and that a CITES import permit has already been issued by the importing country (in this case, the United States). We feel that the protections put in place under this 4(d) rule and CITES are sufficient to ensure that animals will not be taken from outside approved conservation programs. However, we would appreciate notification of any such incidences where markhor are taken in violation of CITES or the Act.

(19) Comment: The Service did not adequately address or consider the impacts of the 4(d) rule to endangered snow leopards ( Panthera uncia ), whose range overlaps with the straight-horned markhor in northern Pakistan.

Our Response: The range of the snow leopard overlaps only with the flare-horned markhor ( Capra falconeri falconeri ) and Heptner's markhor ( C. f. heptneri ), not the straight-horned markhor. The 4(d) rule applies only to the straight-horned markhor and has no bearing on the snow leopard.

(20) Comment: The Service has failed to comply with the National Environmental Policy Act (NEPA). The 4(d) rule allows controversial sport-hunting and import under a vague program for conservation and must be fully analyzed.

Our Response: As stated above, the 4(d) rule does not authorize take of straight-horned markhor. Because this subspecies is wholly foreign, the United States and the Act do not have jurisdiction to prohibit or allow take of a listed species. Furthermore, under our 1983 policy, we determined that we do not need to prepare an environmental assessment in connection with regulations adopted under section 4(a) of the Act, including 4(d) rules that accompany listings of threatened species.

(21) Comment: One commenter expressed concerns about the Service's draft Significant Portion of the Range (SPR) policy. Specifically, the commenter disagreed with our analysis of populations of straight-horned markhor outside of Torghar Hills and our conclusion that it did not meet our definition of “significant” as defined in our SPR policy.

Our Response: Since we published our revised proposed rule, the Service and National Marine Fisheries Service published a final rule interpreting the phrase “significant portion of the range” (79 FR 37578, July 1, 2014). The final policy states that, if a species is found to be endangered or threatened throughout a significant portion of its range, the entire species is listed as endangered or threatened, respectively, and the Act's protections apply to all individuals of the species wherever found. Consistent with the final policy, because we found the straight-horned markhor to be threatened throughout its entire range, we did not conduct an additional analysis as to whether any portion of the subspecies' range is “significant.”

(22) Comment: The Service should confirm that the Torghar Hills population meets the criteria set forth in the 4(d) rule and that sport-hunted trophies taken from this population may be imported without a threatened species permit under 50 CFR 17.32.

Our Response: We will review all conservation programs to determine whether they meet the enhancement criteria set forth in the 4(d) rule. We will publish those enhancement findings in a separate Federal Register document.

We fully considered comments from the public and peer reviewers to develop this final reclassification of the straight-horned markhor. We made some technical corrections and incorporated changes to our proposed rule as described above. In addition, we made some non-substantive changes to our analysis under the Significant Portion of the Range section of this rule to reflect the final version of the SPR policy. In the proposed listing rule, after determining the species was threatened throughout its range, we conducted an additional analyses to determine that no portion of the species range was “significant.” Under the final SPR policy, however, once it is determined that a species is threatened or endangered throughout its range, the Service need not analyze whether any portion of its range is “significant.” Accordingly, we revised the text of the Significant Portion of the Range section of this rule to reflect the final version of the SPR policy. Despite this modification, the proposed status determination that the subspecies is threatened throughout its range did not change in this final listing rule.

The markhor ( Capra falconeri ) is a species of wild goat belonging to the Family Bovidae and Subfamily Caprinae (sheep and goats) (Valdez 2008, unpaginated). When the markhor was first listed under the Act in 1975, seven subspecies of markhor were generally recognized: Capra falconeri jerdoni (straight-horned or Suleiman markhor), C. f. megaceros (Kabul markhor), C. f. cashmirensis (Kashmir markhor), C. f. falconeri (Astor markhor), C. f. ognevi (Uzbek markhor), C. f. heptneri (Tajik markhor), and C. f. chialtanensis (Chiltan markhor) (64 FR 51499, September 23, 1999; Roberts 1977, p. 196). In 1975, Schaller and Khan (1975, pp. 188, 191) recognized three subspecies of markhor based on horn shape and body characteristics: C. f. jerdoni and C. f. megaceros were combined into C. f. megaceros (straight-horned markhor); C. f. cashmirensis and C. f. falconeri were combined into C. f. falconeri (flare-horned markhor); and C. f. ognevi and C. f. heptneri were combined into C. f. heptneri (Heptner's markhor). Many authorities consider C. f. chialtanensis to be Capra aegagrus chialtanensis (Chiltan wild goat) (64 FR 51500, September 23, 1999).

In our June 2, 2011, 90-day petition finding, August 7, 2012, proposed rule, and December 5, 2013, revised proposed rule to reclassify the straight-horned markhor ( C. f. jerdoni ), we requested information on the taxonomy of C. f. jerdoni and C. f. megaceros to determine if these constitute a single subspecies. We have reviewed the available information, including information submitted by the public. While scientists have not reached a consensus on the correct classification of markhor (Zahler 2013, pers. comm.; Frisina 2012, pers. comm.) and genetic studies are needed (Rafique 2014, pers. comm.), the Integrated Taxonomic Information System (ITIS), International Union for Conservation of Nature (IUCN), the IUCN Species Survival Commission (IUCN SSC) Caprinae Specialist Group, and CITES all follow Grubb 2005 (p. 701) and Schaller and Khan (1975 pp. 188, 191), which recognizes three subspecies of markhor (Damm and Franco in press, pp. 4-5; ITIS 2013a, unpaginated; ITIS 2013b, unpaginated; Smithsonian National Museum of Natural History 2011, unpaginated; CITES Resolution Conf. 12.11. (Rev. CoP15) 2010, p. 3; Valdez 2008, unpaginated; CITES 10.84 (Rev.) 1997, p. 894; Shackleton 1997, p. 12).

Currently, the straight-horned markhor ( C.f. jerdoni ) and Kabul markhor ( C.f. megaceros ) are listed as separate subspecies under the Act. Based on the information available and our present understanding of taxonomic relationships, we are revising the List of Endangered and Threatened Wildlife at 50 CFR 17.11(h) to maintain consistency with ITIS, IUCN, and CITES to reflect the current scientifically accepted taxonomy and nomenclature. In the Regulation Promulgation section of this document, we implement a taxonomic change to reflect the combining of the straight-horned markhor ( C. f. jerdoni ) and Kabul markhor ( C. f. megaceros ) into one subspecies, the straight-horned markhor ( C. f. megaceros ). We will also refer to the straight-horned markhor as “markhor” in this final rule.

Markhor are sturdy animals with strong, relatively short, thick legs and broad hooves. They are a reddish-grey color, with more buff tones in the summer and grey in the winter. The legs and belly are a cream color with a conspicuous dark-brown pattern on the forepart of the shank interrupted by a white carpal patch. They also have a dark brown mid-dorsal stripe that extends from the shoulders to the base of the tail. The tail is short and sparsely covered with long black hairs, but is naked underneath. Adult males have an extensive black beard followed by a long, shaggy mane extending down the chest and from the fore part of the neck. There is also a crest of long black and dark brown hair that hangs like a mane down either side of the spine from the shoulders to the croup (Roberts 1977, p. 197). Horns are straight with an open, tight spiral resembling a corkscrew (Schaller and Khan 1975, p. 189).

Markhor are associated with extremely rugged terrain with precipitous cliffs, rocky caves, and bare rock surfaces interspersed with patches of arid, steppe vegetation. They can be found from 600 meters (m) (1,969 feet (ft)) up to 3,300 m (10,827 ft) in elevation (Woodford et al. 2004, p. 181; Mitchell 1989, p. 8; Johnson 1994b, p. 5).

Markhor are diurnal in feeding activity. They are most active in the early morning and late evening (Mitchell 1989, p. 8). Wild pistachios are a preferred food for straight-horned markhor (Johnson 1994, p. 12; Roberts 1977, p. 198), although in general they are known to feed on grasses and leaves, and twigs of bushes. Markhor seek water in the late afternoon; they may need to descend to valley bottoms for water, but only after darkness (Roberts 1977, p. 198).

Markhor are gregarious, with females, their young, and immature males associating in small herds, but competition with domestic goat flocks may drive markhor populations to higher terrain and result in larger herds. Adult males live solitary lives, taking shelter under rock overhangs or natural caves. They join the females and young only during the rut, which for the straight-horned markhor peaks around mid-November and lasts about 2 weeks. Males may attach themselves to one particular territory or herd. Fighting between rival males also occurs during this time. Markhor reach sexual maturity around 3 years of age. Females usually give birth to one young, but twins are not uncommon. A young markhor will remain with its mother until the rutting season or until the next young is born. After this, the female will drive the older young away if it approaches too closely. In the wild, it is possible that markhor can live up to 18 years of age, but few males are estimated to live beyond 11 or 12 years (Ali 2008, p. 16; Mitchell 1989, p. 9; Roberts 1977, pp. 198-199).

For most of the straight-horned markhor populations, there is no detailed information on distribution, population estimates, or threats to the subspecies; most information that is available predates the onset of hostilities in the region in 1979. However, the Torghar Hills population of the straight-horned markhor has been extensively studied since the mid-1980s due to the implementation of a conservation plan in this area. Therefore, this status review mainly consists of information related to this population. When possible, we have included general information on the status of the populations outside of the Torghar Hills.

Historically, the straight-horned markhor inhabited a wide range in the mountains of eastern Afghanistan and Pakistan. In Afghanistan, it has been reported that this subspecies survives only in the Kabul Gorge and the Kohe Safi area of Kapissa Province, and in some isolated pockets in between (Ali 2008, pp. 17-18; Valdez 2008, unpaginated; Habibi 1997, p. 208; Schaller and Khan 1975, pp. 195-196). However, no surveys have been conducted in the area, and it is likely that this subspecies has been extirpated from Afghanistan (Zahler 2013, pers. comm.). In Pakistan, the straight-horned markhor is found in the mountains of Balochistan and Khyber Pakhtunkhwa provinces. There is one unconfirmed report of the subspecies in Punjab Province (Valdez 2008, unpaginated; CITES 10.84 (Rev.) 1997, p. 894). For a species range map, please see the IUCN Red List species account for Capra falconeri ( http://maps.iucnredlist.org/map.html?id=3787 ); zooming in on populations will reveal subspecies labels.

Within Balochistan, the straight-horned markhor has been reduced to small, scattered populations on all the mountain ranges immediately to the north and east of Quetta, including Murdar, Takhatu, Zarghun, Kaliphat, Phil Garh, and Suleiman. It is reported that the straight-horned markhor still survives in the Shingar Range on the border of Balochistan and South Waziristan. However, surveys are needed to confirm these localities. The greatest concentration is in the Torghar Hills of the Toba Kakar Range on the border with Afghanistan, within a community-based management program, the Torghar Conservation Project (Rafique 2014, pers. comm.; Frisina and Tareen 2009, pp. 142-143; Johnson 1994b, p. 16; Roberts 1977, p. 198; Schaller and Khan 1975, p. 196).

Within Khyber Pakhtunkhwa, the subspecies is reported to still survive in the Sakra Range, Murghazar Hills, Khanori Hills, and Safed Koh Range. Surveys are needed to confirm these localities; the occurrence in Safed Koh has been questioned due to a lack of information. A 2011 survey found that the straight-horned markhor has been extirpated from the Sheikh Buddin Hills (Rafique 2014, pers. comm.; Ali 2008, p. 18; Valdez 2008, unpaginated; Hess et al. 1997, p. 255; Roberts 1977, p. 198).

Limited information is available for populations throughout most of the straight-horned markhor's range. Many historical populations were extirpated due to overhunting (Johnson 1994b, p. 5; Johnson 1994, p. 10). In Afghanistan, very few straight-horned markhor survive; perhaps as few as 50-80 occur in the Kohe Safi region, with few in other isolated pockets (Valdez 2008, unpaginated; Habibi 1997, pp. 205, 208; Schaller and Khan 1975, p. 195). However, as stated above, this subspecies may be extirpated from Afghanistan (Zahler 2013, pers. comm.). In Pakistan, Schaller and Khan (1975, pp. 195-196) estimated 150 in Takhatu, 20 to 30 in Kalifat, 20 in Zarghum, 20 in Shinghar, 20 around Sheikh Buddin, 50 in the Sakra Range, and at least 100 in Safed Koh. Few were estimated to survive in the Murdar Range, and a remnant population may have existed near Loralei in the Gadabar Range. Roberts (1969 in Valdez, 2008, unpaginated) believed the number of markhor in the Toba Kakar range was fewer than 500. In 1984, Tareen estimated fewer than 200 remained in the Torghar Hills (Mitchell, 1989, p. 9). Overall, Schaller and Khan (1975, pp. 195-196) estimated fewer than 2,000 straight-horned markhor survived throughout the subspecies' range.

In general, markhor populations are reported as declining (Kanderian et al. 2011, p. 287; Valdez 2008, unpaginated). Hess et al. (1997, p. 255) and Habibi (1997, p. 208) concluded that the straight-horned markhor had likely not increased in recent years. Current estimates for populations of straight-horned markhor are lacking, with the exception of the population in the Torghar Hills of the Toba Kakar Range. This population has been extensively studied due to the implementation of a community-based management program. In addition, as part of the use of annual export quotas for markhor sport-hunted trophies granted to Pakistan at the 10th meeting of the Conference of the Parties to CITES, Pakistan submits annual surveys of markhor populations, including populations within the Torghar Conservation Area (Resolution Conf. 10.15 (Rev. CoP 14); see discussion below under Summary of Threats). Based on surveys conducted from 1985 through 1988, Mitchell (1989, p. 9) estimated 450 to 600 markhor inhabited the Torghar Hills. Regular surveys of the managed area have taken place since 1994, when Johnson (1994b, p. 12) estimated the population of markhor to be 695. Later surveys estimated the population to be 1,296 in 1997; 1,684 in 1999; 2,541 in 2005; 3,158 in 2008; and 3,518 in 2011 (Frisina and Rasheed 2012, p. 5; Arshad and Khan 2009, p. 9; Shafique 2006, p. 6; Frisina 2000, p. 8; Frisina et al. 1998, p. 6). Although most of the mountain ranges in Balochistan have not been formally surveyed, Johnson (1994b, p. 16) concluded that Torghar was the last remaining stronghold for the subspecies.

Throughout the range of the straight-horned markhor, overhunting, keeping of large herds of livestock for subsistence, deforestation, and the lack of effective federal and provincial laws have devastated populations of straight-horned markhor and destroyed vital habitat (Valdez 2008, unpaginated; Habibi 1997, pp. 205, 208; Hess et al. 1997, p. 255).

Small-scale hunting has been a long-standing tradition of the people of Afghanistan and Pakistan (Zahler 2013, pers. comm.; Kanderian et al. 2011, p. 283; Frisina and Tareen 2009, p. 146; Ahmed et al. 2001, p. 2). However, prior to the beginning of the Soviet-Afghan War in 1979, few animals were hunted, as weapons were primitive and ammunition scarce and expensive. After the beginning of the war, there was an influx of more sophisticated weapons, such as semi- and fully-automatic rifles, and cheap ammunition was more accessible. This proliferation of arms and increased likelihood of a successful kill, combined with millions of displaced people dependent on wild meat for subsistence, led to excessive hunting of wildlife and critically low populations of straight-horned markhor (Zahler 2013, pers. comm.; Kanderian et al. 2011, p. 284; Frisina and Tareen 2009, p. 145; MAIL 2009, p. 4; Woodford et al. 2004, p. 181; Ahmed et al. 2001, pp. 2, 4; CITES 10.84 (Rev.) 1997, p. 895; Habibi 1997, pp. 205, 208; Hess et al. 1997, p. 255; Johnson 1994b, p. 1).

In an effort to manage diminishing wildlife populations, national bans on hunting were implemented in Pakistan in 1988, 1991, and 2000. However, the ban had little impact on the recovery of wildlife populations (Ahmed et al. 2001, p. 5). In 2005, Afghanistan banned hunting for 5 years, but there was no enforcement and most Afghans were either unaware of the decree or ignored it (Kanderian et al. 2011, p. 291; MAIL 2009, pp. 4, 23, 24). Additionally, the markhor ( Capra falconeri ) is a protected species under Afghanistan's Environmental Law of 2007, the Balochistan Wildlife Protection Act of 1974 (BWPA), and the North-West Frontier Province Wild-life (Protection, Preservation, Conservation, and Management) Act (NWFPWA) of 1975, which extends to all of the Khyber Pakhtunkhwa Province. Under these laws, hunting, killing, or capturing of markhor is prohibited (MAIL 2009, p. 23; Aurangzaib and Pastakia 2008, p. 58; Official Gazette No. 912, dated 25 January 2007, Article 49; BWPA 1977, p. 15; NWFPWA 1975, Third Schedule).

Today, the straight-horned markhor has been extirpated from much of its former range due to overhunting, and they survive only in the most inaccessible regions of its range (Habibi 1997, p. 205; Johnson 1994b, p. 5; Johnson 1994, p. 10), despite laws intended to provide protection from hunting. We have no information on the extent of poaching currently taking place in most of the subspecies' range, but information suggests that uncontrolled hunting remains a threat to most remaining populations of this subspecies (United Nations Environment Programme (UNEP) 2009, p. 10; NEPA and UNEP 2008, p. 17; Valdez 2008, unpaginated; CITES 10.84 (Rev.) 1997, p. 895; Hess et al. 1997, p. 255). However, increases in populations of ungulates, including markhor, have occurred in conservation areas managed specifically for trophy hunting (University of Montana 2013, unpaginated; Frisina and Rasheed 2012, p. 5; Wildlife Conservation Society 2012, unpaginated; Arshad and Khan 2009, p. 9; Government of Pakistan 2009, p. viii; Ali 2008, pp. 21, 38, 64; Shafique 2006, p. 6; Frisina 2000, p. 8; Virk 1999, p. 142; Frisina et al. 1998, p. 6). Currently, only one conservation plan is being implemented for the straight-horned markhor, the Torghar Conservation Project (TCP) in Torghar Hills, Pakistan.

In the early 1980s, local tribal leaders became alarmed at the significant decline in the markhor population in the Torghar Hills (Frisina and Tareen 2009, p. 145; Ahmed et al. 2001, p. 4; Johnson 1994b, p. 1). The population had dropped to a critical level, estimated at fewer than 200 animals (Ahmed et al. 2001, p. 4; Johnson 1994b, p. 14; Mitchell, 1989, p. 9). Tribal leaders attributed the decline to an increase in poaching due to the significant increase in weapons in the area during the Soviet-Afghan War (Frisina and Tareen 2009, p. 145; Johnson 1994b, p. 1). After unsuccessful attempts to receive assistance from the Balochistan Forest Department, they turned to wildlife biologists in the United States, including the U.S. Fish and Wildlife Service. Together, they developed the TCP, an innovative, community-based conservation program that allows for limited trophy hunting to conserve local populations of markhor, improve habitat for both markhor and domestic livestock, and improve the economic conditions for local tribes in Torghar (Frisina and Tareen 2009, p. 146; Woodford et al. 2004, p. 182; Ahmed et al. 2001, p. 4 Johnson 1994b, pp. 1-2).

In 1985, the TCP was launched and covered most of the Torghar area (approximately 1,000 square kilometers (386 square miles)). First, tribal leaders implemented a ban on all hunting activities by tribesmen in the Torghar Hills. Then, local tribesmen were hired as game guards to assist in population surveys and prevent poachers from entering the Torghar Hills. Guards were placed at points of entry into the protected area to inform migrating tribesmen of the hunting ban, who, in turn, agreed to the ban so as not to jeopardize their passage through the Torghar Hills. Support for the program, including salaries for the game guards, is raised through fees for limited trophy hunting of markhor within the TCP, mostly by foreign game hunters. Currently, markhor fees are $35,000 U.S. dollars, 80 percent of which goes to the TCP and the other 20 percent goes to the Pakistani Government. In the beginning, 7 game guards were hired; currently, 90 game guards are employed. The number of markhor allowed to be hunted each year is based on surveys conducted by game guards and wildlife biologists (Bellon, 2010, p. 117; Frisina and Tareen 2009, pp. 142, 146-147; Ahmed et al. 2001, p. 5; Johnson 1994b, p. 3). Numbers of animals taken have ranged from 1 to 5 animals per hunting season, or less than the 2 percent of the total population recommended by Harris (Harris 2012, pers. comm.; 1993 in Woodford et al. 2004, p. 182) annually for trophy hunting (Frisina and Tareen 2009, pp. 146-147, 149; Ali 2008, p. 20; Woodford et al. 2004, p. 182; Johnson 1997, pp. 403-404). Because markhor have a polygynous mating system, reproduction rates have not been affected by the removal of a limited number of adult males (Woodford et al. 2004, p. 182), as evidenced by the continuing increase in the Torghar Hills population.

As a result of the TCP, poaching has been eliminated in the Torghar Hills (Woodford et al. 2004, p. 182; Johnson 1994b, p. 3). Johnson (1994b, p. 15) attributed the markhor population growth to the substantial reduction in mortality when uncontrolled hunting was stopped.

The markhor ( Capra falconeri ) is protected under CITES, an international agreement between governments to ensure that the international trade of CITES-listed plant and animal species does not threaten species' survival in the wild. Under this treaty, CITES Parties (member countries or signatories) regulate the import, export, and reexport of specimens, parts, and products of CITES-listed plant and animal species. Trade must be authorized through a system of permits and certificates that are provided by the designated CITES Management Authority of each CITES Party. Both Afghanistan and Pakistan are Parties to CITES.

The straight-horned markhor was listed in CITES Appendix I, effective July 1, 1975. An Appendix-I listing includes species threatened with extinction whose trade is permitted only under exceptional circumstances, which generally precludes commercial trade. The import of an Appendix-I species generally requires the issuance of both an import and export permit. Import permits for Appendix-I species are issued only if findings are made that the import would be for purposes that are not detrimental to the survival of the species and that the specimen will not be used for primarily commercial purposes (CITES Article III(3)). Export permits for Appendix-I species are issued only if findings are made that the specimen was legally acquired and trade is not detrimental to the survival of the species, and if the issuing authority is satisfied that an import permit has been granted for the specimen (CITES Article III(2)).

Straight-horned markhor in the Torghar Hills, and other subspecies of markhor within community-managed conservation areas in Pakistan, may be legally hunted and exported. In 1997, at the 10th meeting of the Conference of the Parties to CITES, the Government of Pakistan submitted a proposal for approval of an annual export quota for sport-hunted markhor trophies to act as an incentive to communities to conserve markhor. During that same meeting, the Conference of the Parties approved an annual export quota of six sport-hunted markhor trophies for Pakistan (Resolution Conf. 10.15). Due to the success of conservation programs in Pakistan, CITES increased the annual export quota to 12 markhor in 2002, to further encourage community-based conservation; four were allotted to the TCP (Bellon 2010, p. 117; Ali 2008, p. 24; Resolution Conf. 10.15 (Rev. CoP 14)).

Furthermore, because the straight-horned markhor is listed as an Appendix-I species under CITES, legal international trade is very limited; most of the international trade in straight-horned markhor specimens consists of trophies and live animals. Data obtained from the United Nations Environment Programme—World Conservation Monitoring Center (UNEP-WCMC) CITES Trade Database show that, from July 1975, when the straight-horned markhor was listed in Appendix I, through 2012, a total of 136 specimens were reported to UNEP-WCMC as (gross) exports. Of those 136 specimens, 55 were trophies, 80 were live animals, and 1 was a body. In analyzing these data, it appears that one record may be an overcount due to a slight difference in the manner in which the importing and exporting countries reported their trade. It is likely that the actual number of straight-horned markhor specimens in international trade during this period was 134, including 55 trophies, 78 live animals, and 1 body. Exports from range countries included: 48 trophies from Pakistan, 1 trophy from Afghanistan, and 1 body from Afghanistan. It should be noted that the straight-horned markhor trade data provided above are based on reported trade to UNEP-WCMC in both the subspecies Capra falconeri jerdoni and the subspecies Capra falconeri megaceros. It should also be noted that the markhor at the species level ( Capra falconeri ), except for C. f. chialtanensis, C. f. megaceros, and C. f. jerdoni, was listed in Appendix II in 1975, but was transferred Appendix I in 1992. Since then, international trade was likely in some cases reported to UNEP-WCMC at the species level rather than the subspecies level. Therefore, it is possible that, between 1992 and 2012, some international trade in Capra falconeri jerdoni and Capra falconeri megaceros may have been reported to UNEP-WCMC at the species level. It was not possible to determine whether the trade reported at the species level represented trade in straight-horned markhor or trade in other markhor subspecies. Because there has been limited trade in straight-horned markhor, totaling 136 specimens over 38 years, we believe that international trade controlled via valid CITES permits is not a threat to the subspecies.

Habitat modification has also contributed to the decline of the straight-horned markhor. People living in rural areas heavily depend on natural resources; habitat throughout the range of the straight-horned markhor has been negatively impacted by domestic livestock overgrazing and deforestation (Kanderian et al. 2011, pp. 281, 284, 287; World Wildlife Fund (WWF) 2011, unpaginated; MAIL 2009, p. 5; UNEP 2009, p. 6; NEPA and UNEP 2008, p. 15; Valdez 2008, unpaginated; WWF 2008, unpaginated; Hess et al. 1997, p. 255; CITES 10.84 (Rev.) 1997, p. 895).

Much of the land where straight-horned markhor occur is owned by local tribes whose subsistence is largely dependent on keeping large herds of primarily sheep and goats. Livestock often exceed the carrying capacity of rangelands, leading to overgrazing, a halt to natural regeneration, and subsequent desertification of native vegetation. Overgrazing and competition with domestic livestock for forage is known to have resulted in the decline of wild ungulates and pushed their occurrence to range edges (WWF 2011, unpaginated; Frisina and Tareen 2009, pp. 145, 154; UNEP 2009, p. 8; NEPA and UNEP 2008, pp. 15-17; Valdez 2008, unpaginated; WWF 2008, unpaginated; Woodford et al. 2004, p. 180; Tareen 1990, p. 4; Mitchell 1989, pp. 4-5; Schaller and Khan 1975, p. 197).

Throughout the markhor's range, millions of displaced people and a high human population growth rate have created a tremendous demand for natural resources. Straight-horned markhor habitat and food sources are suffering significant declines due to deforestation from illegal logging and collection of wood for building materials, fuel, and charcoal (Zahler 2013, pers. comm.; Smallwood et al. 2011, p. 507; WWF 2011, unpaginated; MAIL 2009, pp. 3, 5; UNEP 2009, p. 6; NEPA and UNEP 2008, pp. 15-16; Valdez 2008, unpaginated; WWF 2008, unpaginated; Hess et al. 1997, p. 255; Hasan and Ali 1992, pp. 8-9, 12-13).

Several Afghan and Pakistani laws protect wildlife and its habitat in these countries. Protected areas, such as national parks, sanctuaries, and game reserves may be designated under Afghanistan's Environmental Law, the BWPA, and the NWFPWA (MAIL 2009, pp. 22-23; Aurangzaib and Pastakia 2008, pp. 58, 65-67; Environmental Law 2007, Articles 38, 39, 40, and 41; NWFPWA 1975, sections 15, 16, and 17). However, no designated protected areas contain the straight-horned markhor.

Article 45 of Afghanistan's Environmental Law dictates that grazing of livestock shall be managed and controlled by the Ministry of Agriculture, Animal Husbandry, and Food to minimize the impact on, and optimize use of, vegetation cover. Given that overgrazing of livestock is a wide-ranging threat to Afghanistan's environment (UNEP 2009, p. 8; NEPA and UNEP 2008, pp. 15-17; Valdez 2008, unpaginated), it appears that the Environmental Law has not yet been effectively implemented. Also, Presidential Decrees No. 405 and No. 736 prohibit the cutting of forests to preserve and maintain forests as a national asset. However, these decrees are unfamiliar to most Afghans or are ignored (MAIL 2009, pp. 5, 23).

In Balochistan, the Forest Act of 1927 allows for the creation of various classes of forests, the reservation of state-owned forest land, and for the provincial government to assume control of privately owned forest land and declare government-owned land to be a protected area. It also prohibits grazing, hunting, quarrying, and clearing land for cultivation; removal of forest produce; and the felling or lopping of trees and branches in reserved and protected forests (Aurangzaib and Pastakia 2008, p. 46). However, this law does not provide for sustainable use, conservation, or the protection of endangered wildlife within forests. Other legislation related to forests in Balochistan restricts subsistence use, but focuses on maximizing commercial exploitation. This may be because these laws date back to the early 20th century and reflect priorities of that time. Provincial amendments have done little to alter the focus of these laws. Enforcement of forest laws is lacking, and where enforcement is possible, penalties are not severe enough to serve as a deterrent to violators. Furthermore, these laws may be overridden by other laws in favor of development and commercial uses (Aurangzaib and Pastakia 2008, pp. 42-43).

The Land Preservation Act of 1900 is a Punjab law that, by default, was applied to the Balochistan province shortly after its establishment in 1970. This law allows the government to prevent soil erosion and conserve subsoil water. Activities such as clearing, breaking up, and cultivating land not ordinarily under cultivation; quarrying stone and burning lime; cutting trees and removing forest produce; setting fire to trees, timber, and forest produce; and herding and pasturing goats and sheep are prohibited. However, the government may permit inhabitants to carry out such activities (Aurangzaib and Pastakia 2008, p. 39).

In Khyber Pakhtunkhwa, the North-West Frontier Province Forest, Ordinance, 2002 (No. XIX of 2002) consolidates and amends the laws relating to protection, conservation, management, and sustainable development of the forests and natural resources of the province. It allows the government to declare forest land as a reserved forest (Forest Ordinance 2002, section 4). Within a reserved forest, it is illegal for a person to cultivate, clear, break up, or occupy any land; construct a building, road, enclosure, or any infrastructure, or alter or enlarge any such existing structures; trespass, graze, browse, or drive cattle; set fire, cut, fell, uproot, lop, tap, or burn any tree listed in Schedule I; quarry stone, burn lime or charcoal, or collect or remove forest produce; pollute; or hunt, shoot, fish, or set snares or traps (Forest Ordinance 2002, section 26). Given that deforestation is a widespread problem in Pakistan, it appears that this provincial law has not been effectively implemented.

Despite federal and provincial laws, declines in markhor populations and significant degradation of habitat have continued. Enforcement is lacking and very difficult to achieve due to the remoteness of many areas, the political situation in remote areas, conflicting policies, lack of understanding of the need and importance of conservation, and economic constraints (MAIL 2009, pp. 5, 23; UNEP 2009, pp. 4, 29; Aurangzaib and Pastakia 2008, pp. 39, 42-43; Hess et al. 1997, p. 243). Additionally, many of the areas where the straight-horned markhor occurs are on tribal lands, which are generally governed by tribal law, and Provincially Administered Tribal Areas where federal and provincial laws do not apply (Frisina and Tareen 2009, p. 144; Ahmed and Khazi 2008, pp. 13, 24; Aurangzaib and Pastakia 2008, p. 23; CITES 10.84 (Rev.) 1997, p. 895; Johnson 1994a, p. 1). In areas where existing laws are applicable, it does not appear that they have provided adequate protection given the severe declines in straight-horned markhor and threats the markhor continues to face from habitat loss and poaching.

Afghanistan and Pakistan are Parties to major multilateral treaties that address natural resource conservation and management (MAIL 2009, p. 32; Ahmed and Khazi 2008, p. 31). Among these are the Convention on Biological Diversity and the Convention on Combating Desertification (MAIL 2009, p. 34; Ahmed and Khazi 2008, pp. 14, 31). In becoming a Party to these treaties, both countries assumed obligations to implement the treaties' provisions, which in many cases require legislation. However, participation in treaty activities or laws to implement obligations is lacking (MAIL 2009, pp. 32-33; Ahmed and Khazi 2008, pp. 14, 31; Aurangzaib and Pastakia 2008, pp. 65, 58). Therefore, these treaties do not provide adequate protections to ameliorate threats faced by the straight-horned markhor.

Although international, federal, and provincial laws do not appear to effectively provide protection to markhor habitat from overgrazing and deforestation, the TCP has taken steps to create better habitat for both markhor and domestic livestock.

In our August 7, 2012, proposed rule, we determined that key areas in the steeper, upland slopes and higher elevation of the Torghar Hills are not easily accessible and, therefore, are not impacted by human settlement or grazing pressure. However, we expressed concern that grazing pressure may increase in these upland areas due to a combination of drought conditions and the tradition of keeping large herds of domestic livestock. The lower slopes and valleys have been denuded of trees for livestock grazing and collection of fuel wood (Ahmed et al. 2001, pp. 3, 8; Frisina et al. 1998, pp. 9-10). Demand on these resources increases during the biannual migration of local and nearby tribes and their herds through the Torghar Hills (Woodford et al. 2004, p. 180; Ahmed et al. 2001, p. 4). As forage becomes limited in the lower slopes and valleys, due to drought conditions and grazing pressure, domestic herds are likely to move to higher elevations in search of forage (Frisina et al. 2002, p. 13).

Recognizing that protecting markhor and its habitat can generate greater income for the community than relying solely on traditional livestock production, tribesmen of the Torghar Hills requested that the Society for Torghar Environmental Protection (STEP), the community-based, nongovernmental organization established to administer the TCP, integrate habitat management measures to protect markhor, and create better habitat for both markhor and domestic animals.

A habitat management plan was developed in 2001. The plan emphasizes range management, improved agriculture, and water storage projects to improve habitat conditions, and reduce grazing pressure, eliminate the need for domestic herds to utilize upper slope areas, and, therefore, reduce interactions between domestic livestock and markhor around forage and water resources (Frisina and Tareen 2009, p. 152; Woodford et al. 2004, pp. 180, 184; Frisina et al. 2002, pp. 3, 8, 16; Ahmed et al. 2001, pp. 7, 11). Agriculture is seen as an alternative to raising livestock, thus reducing grazing pressure (Frisina and Tareen 2009, p. 152; Ahmed et al. 2001, p. 11). Revenue raised by trophy hunting has been used to fund projects for community needs, including construction of water tanks, dams, and irrigation channels to water fruit trees, and to supply water for the community during times of drought (IUCN SSC 2012, p. 10). STEP plans to plant woodlots of indigenous trees to meet the fuel wood and timber requirements of the local tribes. STEP will also train locals in livestock management and agricultural practices (Bellon 2010, p. 117; Frisina and Tareen 2009, p. 152).

Although we do not know the extent to which the different stages of the management plans described above have been implemented, we have received new information on the markhor and its habitat in the TCP. Frisina and Rasheed (2012, p. 8) concluded from the 2011 population surveys in the TCP that the markhor population and its habitat are secure under the current management scenario.

Currently, there is no evidence of disease transmission between livestock and markhor in the Torghar Hills (Woodford et al. 2004, p. 184; Frisina et al. 2002, p. 13), although disease transmission was identified as a potential threat to the Torghar Hills straight-horned markhor in our August 7, 2012, proposed rule. The potential for disease transmission stems from livestock-wildlife interactions due to overgrazing by large herds of livestock, drought conditions, and the migration of flocks through the Torghar Hills. The risk of transmission was linked to future and continued habitat and livestock management. The risk of disease transmission is particularly severe if large numbers of domestic livestock are present during periods of drought. During these circumstances, resources are limited and interactions would be more frequent around available water sources and in the vegetated upper slopes. Additionally, researchers are concerned that interactions would likely increase in the TCP if domestic livestock herds grow and the markhor population expands (Woodford et al. 2004, p. 183).

In addition to implementing measures to improve habitat conditions at lower elevations, eliminating the need for domestic herds to utilize upper slope areas, and, thereby, reduce interactions between domestic livestock and markhor around forage and water resources, STEP has discussed the establishment of a community-based Animal Health Service. The herdsmen within the TCP have agreed to this measure. As it is not feasible to vaccinate markhor in mountainous terrain, STEP will train and equip tribesmen to act as “barefoot vets” with the responsibility of vaccinating domestic sheep and goats, and administering appropriate anthelmintics (drugs that expel parasitic worms) as they travel through the TCP. Veterinary care will be effective only if range and livestock management plans are implemented, and have the potential to result in smaller, healthier domestic livestock herds (Woodford et al. 2004, p. 185).

The plans developed by STEP to improve habitat for markhor also lower the risk of disease transmission by addressing livestock management and minimizing interactions between domestic livestock and wildlife. With these actions, coupled with the planned Animal Health Service, the risk of diseases being transferred from domestic livestock to markhor is significantly reduced. Although we do not know the status of the habitat management plans or the Animal Health Service, Frisina and Rasheed (2012, p. 8) concluded from the 2011 population surveys in the TCP that the markhor population and domestic livestock have minimal range-use overlap, and the markhor's habitat is secure under the current management scenario. Therefore, we have no information that indicates that disease transmission is a current threat to the Torghar Hills markhor. However, because the larger Torghar Hills population is within an area that heavily relies on domestic livestock for subsistence, it is more likely to interact with domestic sheep and goats than the other populations. In the event of a disease outbreak, the Torghar Hills population would be particularly vulnerable. Because the other extant populations are critically low, declining, and continue to face threats from poaching and habitat loss, a reduction in the single population in the Torghar Hills will not provide a sufficient enough margin of safety for the subspecies to withstand this type of stochastic event.

In the rest of the straight-horned markhor's range, we have no information on the occurrence of disease or the risk of disease transmission from domestic sheep and goats. Overgrazing of domestic livestock has contributed to habitat loss in other mountain ranges, suggesting large livestock herds have also been maintained in these areas, but we do not have information on herd size or the likelihood of livestock-wildlife interactions. Given the extremely small population estimates of straight-horned markhor outside of the Torghar Hills, interactions may be rare.

We found no information indicating that the current threats to the straight-horned markhor, as described above, are likely to improve in the future. Threats to this subspecies are driven by past and current conflict, the needs of millions of displaced people, and an expanding human population. Current regulatory mechanisms in place to protect the markhor and its habitat are not being implemented effectively in most of the range to reduce or remove threats to the subspecies. With the exception of the TCP in the Torghar Hills, no other management plans are in place to specifically address the straight-horned markhor. Therefore, the tremendous pressure put on natural resources, and the impacts to the straight-horned markhor and its habitat, will likely continue unless the natural resources of Afghanistan and Pakistan are effectively protected.

In the Torghar Hills, the TCP has eliminated poaching of straight-horned markhor and managed the habitat such that the population has steadily increased since the TCP's inception and both the population and its habitat are currently secure. Because the TCP has incorporated economic incentives for the local community and is supported by the community, we believe the protections and management provided by the TCP will continue.

The narrow geographic range of the straight-horned markhor and the small, scattered, and declining populations make this subspecies particularly vulnerable to threats. Furthermore, small, scattered populations may experience decreased demographic viability and increased susceptibility to extinction from stochastic environmental factors (e.g., weather events, disease) and an increased threat of extinction from genetic isolation and subsequent inbreeding depression and genetic drift. Although the Torghar Hills population is subject to a management plan, and the protections provided by that management plan have led to an increasing population, a reduction in this single stable population would not provide a sufficient margin of safety for the subspecies to withstand effects from catastrophic or stochastic events.

Section 4 of the Act (16 U.S.C. 1533) and implementing regulations (50 CFR part 424) set forth procedures for adding species to, removing species from, or reclassifying species on the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, a species may be determined to be endangered or threatened based on 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; or

(E) Other natural or manmade factors affecting its continued existence.

In considering whether a species may warrant listing under any of the five factors, we look beyond the species' exposure to a potential threat or aggregation of threats under any of the factors, and evaluate whether the species responds to those potential threats in a way that causes actual impact to the species. The identification of threats that might impact a species negatively may not be sufficient to compel a finding that the species warrants listing. The information must include evidence indicating that the threats are operative and, either singly or in aggregation, affect the status of the species. Threats are significant if they drive, or contribute to, the risk of extinction of the species, such that the species warrants listing as endangered or threatened, as those terms are defined in the Act.

As required by the Act, we conducted a review of the status of the subspecies and considered the five factors in assessing whether the straight-horned markhor is endangered or threatened throughout all or a significant portion of its range. We examined the best scientific and commercial information available regarding the past, present, and future threats faced by the straight-horned markhor. We reviewed the 1999 petition submitted by the Society for Torghar Environmental Protection and IUCN, the 2010 petition submitted by Conservation Force, information available in our files, other available published and unpublished information, and information received in response to the August 7, 2012, proposed rule and the December 5, 2013, revised proposed rule.

Today, the straight-horned markhor occurs in small, scattered populations in the mountains of Balochistan and Khyber Pakhtunkhwa provinces, Pakistan. Although we have found reports that this subspecies survives in Afghanistan, we believe it has likely been extirpated. In general, markhor populations are reported as declining and have likely not increased since 1975. However, one exception to this declining population trend is the Torghar Hills population in the Toba Kakar Range. Due to the implementation of a conservation plan, which includes revenues brought in from trophy hunting, the Torghar Hills population has increased from fewer than 200 in the mid-1980s to 3,518 currently.

Straight-horned markhor have been significantly impacted by years of conflict and the accompanying influx of sophisticated weapons. Easy access to accurate weapons and millions of displaced people dependent on wild meat for subsistence led to excessive hunting and the extirpation of the straight-horned markhor from much of its former range and a severe reduction in remaining populations. Additionally, tremendous pressure has been placed on natural resources from millions of displaced people and an expanding human population. Deforestation for livestock grazing, illegal logging, and collection of wood for building materials, fuel, and charcoal, to meet the needs of the growing population, continue to impact straight-horned markhor habitat.

Several federal and provincial laws are in place to provide some protection to natural resources, but they are subject to broad exemptions, allowing for overriding laws favoring development and commercial use, and enforcement is lacking. However, in the Torghar Hills, the population of straight-horned markhor and its habitat have been effectively managed by the TCP such that both are secure under the current management scenario. Due to the establishment of the TCP, the cessation of uncontrolled poaching, and the hunting of only a limited number of trophies in the Torghar Hills, the population has increased substantially since TCP's inception in 1985. Furthermore, due to the TCP, straight-horned markhor habitat is currently secure and is presently no longer impacted by overgrazing or collection of wood. Because the TCP has incorporated economic incentives derived from trophy hunting for the local community and is supported by the community, we believe the protections and management provided by the TCP will continue. We are not aware of other populations of straight-horned markhor under the same level of management. Information indicates that hunting and habitat loss remain as threats in the rest of the straight-horned markhor's range; without effective enforcement of federal and provincial laws, we believe these threats will continue into the foreseeable future.

Section 3 of the Act defines an “endangered species” as “any species which is in danger of extinction throughout all or a significant portion of its range,” and a “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.” Most of the straight-horned markhor populations are small and declining. Threats to this subspecies from hunting and habitat loss still exist and will likely continue into the foreseeable future. Current regulatory mechanisms are inadequate to ameliorate the negative effects of these threats on the subspecies and will likely remain ineffective until changes in implementation are made. Therefore, we expect that most straight-horned populations will continue to decline into the foreseeable future.

However, although most remaining populations of straight-horned markhor are critically low, continue to face threats from overhunting and habitat loss, and will likely continue to decline, implementation of the TCP has eliminated threats from hunting and habitat loss in the Torghar Hills. This population has continued to increase since the inception of the TCP and, today, is the only stronghold of the species.

Furthermore, because of the protective measures provided to the Torghar Hills population by the TCP, we believe that the threats identified under Factors A, B, and D are not of sufficient imminence, intensity, or magnitude to indicate that the subspecies is presently in danger of extinction, and, therefore, does not meet the definition of endangered under the Act. The Torghar Hills population is considered to be currently stable and increasing; based upon 2011 population surveys in the TCP, the markhor population and domestic livestock have minimal range-use overlap, and the markhor's habitat is secure under current management. However, the straight-horned markhor occupies a narrow geographic range and threats acting on those critically low populations outside Torghar Hills are likely to continue in the foreseeable future. Moreover, within the foreseeable future, pressures on habitat in the Torghar Hills and interactions between livestock and markhor are likely to increase with the growth of domestic livestock herds, the biannual migration of local tribes, and the expansion of markhor populations in the TCP, resulting in the subspecies as a whole being at risk of extinction due to the strong likelihood of a catastrophic or stochastic event (e.g., disease) impacting the Torghar Hills population. Should a catastrophic or stochastic event (e.g., disease) impact the Torghar Hills population, this single stable population would likely not provide a sufficient margin of safety for the subspecies. Thus, these factors indicate that the straight-horned markhor, while not at risk of extinction now, will likely become in danger of extinction in the foreseeable future due to those continuing threats. Therefore, on the basis of the best scientific and commercial information, we have determined that the straight-horned markhor meets the definition of a “threatened species” under the Act. Consequently, we are listing the straight-horned markhor as threatened in its entirety.

Section 3(16) of the Act defines “species” to include any species or subspecies of fish and wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature (16 U.S.C. 1532(16)). Under the Service's “Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act” (61 FR 4722, February 7, 1996), three elements are considered in the decision concerning the establishment and classification of a possible distinct population segment (DPS). These elements, which are applied similarly for additions to or removals from the Federal List of Endangered and Threatened Wildlife, include:

(1) The discreteness of a population in relation to the remainder of the species to which it belongs;

(2) The significance of the population segment to the species to which it belongs; and

(3) The population segment's conservation status in relation to the Act's standards for listing, delisting, or reclassification ( i.e., is the population segment endangered or threatened?).

Under the DPS policy, a population segment of a vertebrate taxon may be considered discrete if it satisfies either one of the following conditions:

(1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation.

(2) It is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act.

We reviewed available information to determine whether any population, including the Torghar Hills population, of the straight-horned markhor meets the first discreteness condition of our 1996 DPS policy. We found no evidence that any population was markedly separated from other markhor populations as a consequence of physical, physiological, ecological, or behavioral factors. Additionally, we are not aware of measures of genetic or morphological discontinuity that provide evidence of marked separation. With respect to Torghar Hills, the boundaries are unclear and appear to grade into other ranges within the Toba Kakar Mountains. Additionally, Johnson (1994b, p. 15) noted that, if the Torghar Hills population reaches carrying capacity, it could become a source of emigrants for other mountain ranges in the area and that intermountain movement is probably already taking place. Since that publication, the Torghar Hills population has increased from 695 markhor to 3,518, indicating a greater likelihood that intermountain movement of markhor will or is already taking place. We currently do not know the extent, if any, that markhor are moving from the Torghar Hills into other mountain ranges; however, it appears that they could. Movement may require markhor to cross unsuitable habitat (e.g., the TCP is surrounded by less severe topography and valleys typically not preferred by markhor), but there is no reason that they could not cross, especially if carrying capacity is met, thereby creating a need to emigrate to other suitable areas in adjacent ranges. Therefore, without evidence of marked separation, we determine that none of the populations of the straight-horned markhor meet the first discreteness condition of the 1996 DPS policy.

We next evaluated whether any of the straight-horned markhor populations meet the second discreteness condition of our 1996 DPS policy. A population segment may be considered discrete if it is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act. Although the straight-horned markhor is reported to occur in Afghanistan, it has likely been extirpated. Additionally, we found no significant differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms in Afghanistan and Pakistan; therefore, none of the populations of the straight-horned markhor meet the second discreteness condition of the 1996 DPS policy.

We determine, based on a review of the best available information, that none of the populations of the straight-horned markhor, including the Torghar Hills population, meet the discreteness conditions of the 1996 DPS policy. Because we found that the straight-horned markhor populations do not meet the discreteness element under the Service's DPS policy, we need not conduct an evaluation of significance under that policy. We conclude that none of the straight-horned markhor populations qualify as a DPS under the Act.

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

The 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 endangered (or threatened) and no additional SPR analysis is required. We found the straight-horned markhor to be threatened throughout its range. Therefore, no portions of the species' range are “significant” as defined in our SPR policy and no additional SPR analysis is required.

Conservation measures provided to species listed as endangered or threatened under the Act include recognition, requirements for Federal protection in the United States, and prohibitions against certain practices. Recognition through listing results in public awareness, and encourages and results in conservation actions by Federal and State governments in the United States, foreign governments, private agencies and groups, and individuals.

Section 7(a) of the Act, as amended, and as implemented by regulations at 50 CFR part 402, requires Federal agencies to evaluate their actions within the United States or on the high seas with respect to any species that is proposed or listed as endangered or threatened and with respect to its critical habitat, if any is being designated. However, given that the straight-horned markhor is not native to the United States, we are not designating critical habitat for this species under section 4 of the Act.

Section 8(a) of the Act authorizes the provision of limited financial assistance for the development and management of programs that the Secretary of the Interior determines to be necessary or useful for the conservation of endangered and threatened species in foreign countries. Sections 8(b) and 8(c) of the Act authorize the Secretary to encourage conservation programs for foreign endangered species and to provide assistance for such programs in the form of personnel and the training of personnel.

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered and threatened wildlife. These prohibitions, at 50 CFR 17.21 and 17.31, in part, make it illegal for any person subject to the jurisdiction of the United States to “take” (take includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or to attempt any of these) within the United States or upon the high seas; import or export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any endangered or threatened wildlife species. It also is illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken in violation of the Act. Certain exceptions apply to agents of the Service and State conservation agencies.

Permits may be issued to carry out otherwise prohibited activities involving endangered and threatened wildlife species under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22 for endangered species and 17.32 for threatened species. For endangered wildlife, a permit may be issued for scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities. For threatened species, a permit may be issued for the same activities, as well as zoological exhibition, education, and special purposes consistent with the Act.

Section 4(d) of the Act states that the Secretary may, by regulation, extend to threatened species prohibitions provided for endangered species under section 9 of the Act. Our implementing regulations for threatened wildlife (50 CFR 17.31) incorporate the section 9 prohibitions for endangered wildlife, except when a 4(d), or special, rule is promulgated. For threatened species, section 4(d) of the Act gives the Secretary discretion to specify the prohibitions and any exceptions to those prohibitions that are appropriate for the species, and provisions that are necessary and advisable to provide for the conservation of the species. A 4(d) rule allows us to include provisions that are tailored to the specific conservation needs of the threatened species and which may be more or less restrictive than the general provisions at 50 CFR 17.31.

Wildlife often competes with humans and land uses upon which human livelihoods depend (e.g., agriculture and pastoralism). In areas where wildlife does not provide any benefits to the local people or imposes substantial costs, it is often killed and its habitat degraded or lost to other, more beneficial land uses (IUCN SCC 2012, p. 5). Well-managed sport hunting programs that encourage sustainable use can contribute to the conservation of wildlife and improve wildlife populations. The primary objective of a well-managed trophy-hunting program is not hunting, but the conservation of large mammals (Shackleton 2001, p. 7). The IUCN SSC Caprinae Specialist Group specifically states that trophy hunting usually generates substantial funds that can be used for conservation activities, such as habitat protection, population monitoring, law enforcement, research, or management programs (IUCN SSC 2012, p. 3). Additionally, involvement of the local community in conservation of a species results in better conservation outcomes, which improve even more if those efforts generate sustainable benefits for the community (Damm and Franco in press a, p. 29). Revenue, employment, improved livelihoods, and/or other benefits generated from the use of wildlife provide incentives for people to conserve the species and its habitat, thus removing the risk of resource degradation, depletion, and habitat conversion (IUCN SSC 2012, pp. 2-5; Shackleton 2001, pp. 7, 10).

Recognizing the potential of sport-hunting-based conservation programs to contribute to the conservation of straight-horned markhor, we are finalizing the following 4(d) rule to allow the import of sport-hunted markhor trophies taken from established conservation programs without a threatened species permit issued under 50 CFR 17.32, provided that certain criteria are met. Importation of a personal sport-hunted straight-horned markhor may be authorized by the Director of the U.S. Fish and Wildlife Service (Director) without a threatened species permit if the trophy is taken from a conservation program that meets the following criteria:

(1) Populations of straight-horned markhor within the conservation program's areas can be shown to be sufficiently large to sustain sport-hunting, and the populations are stable or increasing.

(2) Regulatory authorities have the capacity to obtain sound data on populations.

(3) The conservation program can demonstrate a benefit to both the communities surrounding or within the area managed by the conservation program and the species, and the funds derived from sport hunting are applied toward benefits to the community and the species.

(4) Regulatory authorities have the legal and practical capacity to provide for the long-term survival of the populations.

(5) Regulatory authorities can determine that the trophies have in fact been legally taken from the populations under an established conservation program.

Many hunters are willing to pay relatively large fees for the privilege to hunt, but only if they are able to import their trophy. The United States is a major market country for trophy hunting (IUCN SCC 2012, p. 10). Authorizing the importation of personal sport-hunted straight-horned markhor according to the 4(d) rule without a threatened species permit under the Act facilitates the participation of U.S. hunters in scientifically based conservation programs that include hunting. In the case of the markhor, the revenue generated by hunters has directly supported a community-based conservation program and has resulted in measurable improvements in straight-horned markhor populations. Furthermore, the criteria of the 4(d) rule ensure that U.S. hunters participate in sustainable sport-hunting programs. Additionally, while it may be possible to exempt importations from the requirements of a permit issued under the Act at 50 CFR 17.32 if the criteria under the 4(d) rule are met, we must still adhere to CITES requirements. As an Appendix-I species under CITES, straight-horned markhor imports must meet the criteria under 50 CFR 23. Namely, there is still a requirement that the exporting country make the required findings that the export would not be detrimental to the species and that trophies were legally taken. Moreover, as the authority for the importing country, we would still need to make a finding that the import would be for purposes not detrimental to the survival of the species, and that the specimen will not be used for primarily commercial purposes. Thus, if the Director determines that the conservation program meets the 4(d) criteria, the Service finds that additional authorizations under the Act for importation of sport-hunted trophies would not be necessary and advisable for the conservation of the species, nor appropriate, because such importation already requires compliance with CITES' most stringent international trade controls for this subspecies listed under Appendix I. Therefore, we find that this 4(d) rule contains appropriate provisions, as well as measures that are necessary and advisable for the conservation of the species.

We have determined that we do not need to prepare an environmental assessment, as defined under the authority of the National Environmental Policy Act of 1969, in connection with regulations adopted under section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

A list of all references cited in this document is available at http://www.regulations.gov at Docket No. FWS-R9-ES-2011-0003, or upon request from the U.S. Fish and Wildlife Service, Endangered Species Program, Branch of Foreign Species (see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this rule are staff members of the Branch of Foreign Species, Endangered Species Program, U.S. Fish and Wildlife Service.

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

The snapper-grouper fishery of the South Atlantic Region is managed under the FMP. The FMP was prepared by the Council and implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

On August 1, 2014, NMFS published the proposed changes to management measures for Regulatory Amendment 21 and requested public comment (79 FR 44735). The proposed changes to management measures and Regulatory Amendment 21 outline the rationale for the actions contained herein. A summary of the actions implemented by Regulatory Amendment 21 is provided below.

Regulatory Amendment 21 redefines the minimum stock size threshold (MSST) for red snapper, blueline tilefish, gag, black grouper, yellowtail snapper, vermilion snapper, red porgy, and greater amberjack as 75 percent of spawning stock biomass at maximum sustainable yield (SSB MSY ). The MSST is used to determine if a species is overfished. Redefining the MSST for these species will help prevent species from being designated as overfished when small drops in biomass are due to natural variation in recruitment or other environmental variables such as storms, and extreme water temperatures, and will ensure that rebuilding plans are applied to stocks only when truly appropriate.

NMFS received eight unique comment submissions on the Regulatory Amendment 21 proposed rule. The comments were submitted by six individuals and two fishing organizations. One individual and two fishing organizations expressed general support for the action in the amendment. Two individuals recommended fishery management techniques other than modifying the MSST. Three comments were not related to the actions in the rule. A summary of the comments and NMFS' responses to comments related to the rule appears below.

Comment 1: Two commenters generally agree with the action in Regulatory Amendment 21. One commenter wrote that abundance may vary for certain species at different times, and the action may help reduce regulatory discards that are created when restrictive regulations are implemented.

Response: NMFS agrees that redefining the overfished threshold for red snapper, blueline tilefish, gag, black grouper, yellowtail snapper, vermilion snapper, red porgy, and greater amberjack is likely to prevent these species from frequently fluctuating between overfished and not overfished conditions. This will help ensure that rebuilding plans and subsequent management measures to rebuild a stock are only implemented when they are biologically necessary.

Comment 2: One commenter suggested that NMFS reexamine how fisheries data on deep-water species are determined. The commenter used snowy grouper as an example of mismanagement of deep-water snapper-grouper species, stating there are many snowy grouper in southern Florida and the bag limit should be one snowy grouper per person per day rather than one per vessel per day.

Response: Snowy grouper has a low natural mortality rate (M = 0.12). Thus, similar to the species affected by the action in Regulatory Amendment 21, the MSST for snowy grouper was changed in 2009 to 75 percent of SSB MSY (spawning stock biomass of the stock at the maximum sustainable yield) through Amendment 15B to the Snapper-Grouper FMP. A new Southeast Data Assessment and Review (SEDAR) stock assessment was completed for snowy grouper in 2014 (SEDAR 32), which indicates that the stock is still overfished according to the MSST definition established in 2009, and that the stock is rebuilding and is no longer undergoing overfishing. The Council is developing an amendment which could change the recreational bag limit for snowy grouper.

Similar to snowy grouper, the species included in Regulatory Amendment 21 were selected because they have a natural mortality rate at or below 0.25, with an MSST defined as a function of the natural mortality rate (M) where MSST = SSB MSY *(1−M or 0.5, whichever is greater). When the natural mortality rate is small (less than 0.25) there is little difference between the biomass threshold for determining when a stock is overfished (MSST) and when the stock is rebuilt (SSB MSY ). Thus, for species which have a low rate of natural mortality, even small fluctuations in biomass due to natural conditions rather than fishing mortality may unnecessarily cause a stock to be classified as overfished.

To prevent red snapper, blueline tilefish, gag, black grouper, yellowtail snapper, vermilion snapper, red porgy, and greater amberjack from unnecessarily being considered overfished, NMFS is modifying the definition of MSST for those species as 75 percent of SSB MSY , which would help prevent overfished designations when small drops in biomass are due to natural variation in recruitment or other environmental variables such as extreme water temperatures, and would ensure that rebuilding plans are applied to stocks when truly appropriate.

Comment 3: One commenter disagrees with the current overfished determination for red snapper, and recommends that NMFS take into account anecdotal information when assessing whether or not red snapper is overfished. Additionally, the commenter suggests different times to harvest red snapper, but those comments are beyond the scope of this amendment.

Response: The overfished determination for red snapper is based on a stock assessment (SEDAR 24) completed in October 2010 using the previous overfished definition of MSST = SSB MSY *(1−M or 0.5, whichever is greater). Modifying the overfished definition will make a species less likely to be categorized as overfished when reductions in biomass are actually due to natural variations in recruitment or environmental variables rather than fishing-related mortality. However, modifying the overfished definition for red snapper does not change the current overfished determination made during the last completed stock assessment (SEDAR 24) in October 2010 because the assessment indicates that biomass is below 75 percent of SSB MSY .

Anecdotal information is not used in Southeast Data Assessment and Review (SEDAR) stock assessments. SEDAR is a quantitative assessment process that uses data from fishery-dependent and fishery-independent sources to determine the health of a stock. SEDAR is organized around three workshops. First is the Data Workshop, during which fisheries monitoring and life history data are reviewed and compiled. Second is the Assessment Workshop, which may be conducted via a workshop and several webinars, during which assessment models are developed and population parameters are estimated using the information provided from the Data Workshop. Third and final is the Review Workshop, during which independent experts review the input data, assessment methods, and assessment products. The completed assessment, including the reports of all three workshops and all supporting documentation, is then forwarded to the Council's Scientific and Statistical Committee (SSC). The SSC considers whether the assessment represents the best scientific information available and develops fishing level recommendations for Council consideration. SEDAR workshops are public meetings organized by SEDAR. Workshop participants appointed by the lead Council are drawn from state and Federal agencies, non-government organizations, Council members, Council advisors, and the fishing industry with a goal of including a broad range of disciplines and perspectives.

A new stock assessment for red snapper is currently under way (SEDAR 41) and is expected to be completed in spring 2015. The new overfished definition of 75 percent of SSB MSY contained in Regulatory Amendment 21 will be used to determine the overfished status of the stock in the new assessment.

Comment 4: One commenter states that Regulatory Amendment 21 does not define the overfished criteria. Additionally, the commenter suggests other management actions that are beyond the scope of this amendment.

Response: Regulatory Amendment 21 defines criteria used for determining if a stock is overfished, and lists the MSST values established by the new overfished definition for each of the affected species. Currently the stocks addressed by Regulatory Amendment 21 would be overfished if MSST = SSB MSY *(1−M or 0.5, whichever is greater). Regulatory Amendment 21 modifies the overfished definition to be 75 percent of SSB MSY .

The Regional Administrator, Southeast Region, NMFS, has determined that these final changes to management measures are necessary for the conservation and management of the South Atlantic snapper-grouper species contained in Regulatory Amendment 21 and are consistent with the FMP, the Magnuson-Stevens Act and other applicable law.

The final changes to the management measures have been determined to be not significant for purposes of Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the SBA during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification was published in the proposed rule 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. No changes to the final rule were made in response to public comments. As a result, a final regulatory flexibility analysis was not required and none was prepared.

NMFS manages the groundfish fishery in the (BSAI) exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2014 initial total allowable catch (ITAC) of BS Greenland turbot in the BSAI was established as 1,410 metric tons (mt), the 2014 ITAC of BS Pacific ocean perch was established as 6,531 mt, the 2014 ITAC of BSAI Kamchatka flounder was established as 6,035 mt, the 2014 ITAC of BSAI squids was established as 264 mt, and the 2014 total allowable catch (TAC) of BSAI sharks was established as 125 mt by the final 2014 and 2015 harvest specifications for groundfish of the BSAI (79 FR 12108, March 4, 2014). In accordance with § 679.20(a)(3) the Regional Administrator, Alaska Region, NMFS, has reviewed the most current available data and finds that the ITACs for BS Greenland turbot, BS Pacific ocean perch, BSAI Kamchatka flounder, BSAI squids and the total allowable catch of BSAI sharks need to be supplemented from the non-specified reserve to promote efficiency in the utilization of fishery resources in the BSAI and allow fishing operations to continue.

Therefore, in accordance with § 679.20(b)(3), NMFS apportions from the non-specified reserve of groundfish 71 mt to the BS Greenland turbot ITAC, 1,153 mt to the BS Pacific ocean perch ITAC, 1,065 mt to the BSAI Kamchatka flounder ITAC, 1,500 mt to the BSAI squids ITAC, and 100 mt to the BSAI sharks TAC in the BSAI. These apportionments are consistent with § 679.20(b)(1)(i) and do not result in overfishing of any target species because the revised ITACs and TAC are equal to or less than the specifications of the acceptable biological catch in the final 2014 and 2015 harvest specifications for groundfish in the BSAI (79 FR 12108, March 4, 2014).

The harvest specification for the 2014 ITACs included in the harvest specifications for groundfish in the BSAI are revised as follows: 1,481 mt for BS Greenland turbot, 7,684 mt for BS Pacific ocean perch, 7,100 mt for BSAI Kamchatka flounder, 1,764 mt for BSAI squids, and 225 mt for BSAI sharks.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA) finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) and § 679.20(b)(3)(iii)(A) as such a requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the apportionment of the non-specified reserves of groundfish to the BS Greenland turbot, BS Pacific ocean perch, BSAI Kamchatka flounder, BSAI squids, and BSAI sharks fisheries in the BSAI. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet and processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 30, 2014.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

Under § 679.20(b)(3)(iii), interested persons are invited to submit written comments on this action (see ADDRESSES ) until October 20, 2014.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.