The Office of Management and Budget (OMB) designated this rule as not significant under Executive Order 12866 and, therefore, OMB will not review this interim rule.

Executive Order 12866, as supplemented by Executive Order 13563, requires each agency to write all rules in plain language. In addition to your substantive comments on this interim rule, we invite your comments on how to make its provisions easier to understand. For example:

• Are the requirements in the rule clearly stated? Are the scope and intent of the rule clear?

• Does the rule contain technical language or jargon that is not clear?

• Is the material logically organized?

• Would changing the grouping or order of sections or adding headings make the rule easier to understand?

• Could we improve clarity by adding tables, lists, or diagrams?

• Would more, but shorter, sections be better? Are there specific sections that are too long or confusing?

• What else could we do to make the rule easier to understand?

It has been determined that the Regulatory Flexibility Act is not applicable to this interim rule because NRCS is not required by 5 U.S.C. 553, or any other provision of law, to publish a notice of proposed rulemaking with respect to the subject matter of this rule.

The 2014 Act made changes in statutory authority and administrative delegations that require conforming amendments to existing program regulations. The changes made to these regulations by this rule will ensure that the regulations conform to the new statutory authorities and delegations. Such changes are mandatory and, therefore, do not require analysis under the National Environmental Policy Act. In addition, a number of minor administrative improvements are made to the regulations as a result of continuing evaluations of NRCS program implementation efforts. Such administrative changes fall within a categorical exclusion for policy development, planning, and implementation which relate to routine administrative activities (7 CFR 1b.3(a)(1)).

NRCS has determined through a Civil Rights Impact Analysis that this interim rule discloses no disproportionately adverse impacts for minorities, women, or persons with disabilities. The mandatory changes in these existing regulations present no issues that our analysis identified as posing a risk of adverse impacts. Outreach and communication strategies are in place to ensure all producers will be provided the same information to allow them to make informed compliance decisions regarding the use of their lands that will affect their participation in the U.S. Department of Agriculture (USDA) programs. NRCS conservation programs apply to all persons equally regardless of their race, color, national origin, gender, sex, or disability status. Therefore, the conservation program rules portend no adverse civil rights implications for women, minorities, and persons with disabilities.

Section 1246 of the Food Security Act of 1985 (1985 Act), Public Law 99-198, states that implementation of programs authorized by Title XII of the 1985 Act be made without regard to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Therefore, NRCS is not reporting recordkeeping or estimated paperwork burden associated with this interim rule.

NRCS is committed to compliance with the Government Paperwork Elimination Act and the Freedom to E-File Act, which require government agencies, in general, to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. To better accommodate public access, NRCS has developed an online application and information system for public use.

This interim rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. Executive Order 13175 requires Federal agencies to consult and coordinate with Tribes on a government-to-government basis on policies that have Tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have been substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. NRCS has assessed the impact of this interim rule on Indian Tribes and determined that this rule does not have Tribal implications that require Tribal consultation under EO 13175. The rule neither imposes substantial direct compliance costs on Tribal governments nor preempts Tribal law. The 2014 Act change addressed in this interim rule that impact participation by Indian Tribes was limited to expanding land eligibility under HFRP to include trust lands. The agency has developed an outreach/collaboration plan that it will implement as it develops its Farm Bill policy. If a Tribe requests consultation, NRCS will work with the Office of Tribal Relations to ensure meaningful consultation is provided where changes, additions, and modifications identified herein are not expressly mandated by Congress.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, requires Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments or the private sector of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA requires NRCS to prepare a written statement, including a cost benefit assessment, for proposed and final rules with “Federal mandates” that may result in such expenditures for State, local, or Tribal governments, in the aggregate, or to the private sector. UMRA generally requires agencies to consider alternatives and adopt the more cost effective or least burdensome alternative that achieves the objectives of the rule.

This rule contains no Federal mandates, as defined under Title II of the UMRA, for State, local, and Tribal governments or the private sector. Thus, this rule is not subject to the requirements of sections 202 and 205 of UMRA.

NRCS has considered this interim rule in accordance with Executive Order 13132, issued August 4, 1999. NRCS has determined that the interim rule conforms with the Federalism principles set out in this Executive Order; would not impose any compliance costs on the States; and would not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, NRCS concludes that this interim rule does not have Federalism implications.

Pursuant to section 304 of the Federal Crop Insurance Reform Act of 1994 (Pub. L. 103-354), USDA has estimated that this regulation will not have an annual impact on the economy of $100,000,000 in 1994 dollars, and therefore, is not a major regulation. Therefore, a risk analysis was not conducted.

This rule is not a significant regulatory action subject to Executive Order 13211, Energy Effects.

This rule is not a major rule under the Small Business Regulatory Enforcement Fairness Act of 1996, (Pub. L. 104-121, SBREFA). Therefore, neither NRCS nor the Commodity Credit Corporation (CCC) is required to delay the effective date for 60 days from the date of publication to allow for congressional review. Accordingly, this rule is effective August 1, 2014.

OMB published two regulations, 2 CFR part 25 and 2 CFR part 170, to assist agencies and recipients of Federal financial assistance comply with the Federal Funding Accountability and Transparency Act of 2006 (Pub. L. 109-282, as amended). Both regulations have implementation requirements effective as of October 1, 2010.

The regulations at 2 CFR part 25 require, with some exceptions, recipients of Federal financial assistance to apply for and receive a Dun and Bradstreet Universal Numbering Systems (DUNS) number and register in the Central Contractor Registry. The regulations at 2 CFR part 170 establish new requirements for Federal financial assistance applicants, recipients, and subrecipients. The regulation provides standard wording that each agency must include in its awarding of financial assistance that requires recipients to report information about first-tier subawards and executive compensation under those awards.

NRCS has determined that 2 CFR part 25 and 2 CFR part 170 apply to awards of financial assistance provided under its conservation programs. Though the Farm Service Agency (FSA) and NRCS have identified these requirements in program announcements and awards, this interim rule updates the VPA-HIP regulation to reflect these Transparency Act requirements. NRCS will continue to include the requisite provisions as part of its financial assistance awards.

NRCS invites interested persons to participate in this rulemaking by submitting written comments or views about the changes made by this interim rule. The most helpful comments reference a specific portion of the regulation, explain the reason for any recommended changes, and include supporting data and references to statutory language. All comments received on or before the closing date for comments will be considered. This regulation may be changed because of the comments received. All comments received, as well as a report summarizing each substantive public comment received concerning this interim rule, will be filed in the docket. The docket, including any personal information provided, will be made available for public inspection at: http://www.regulations.gov.

This interim rule makes a number of minor changes to existing NRCS rules for various reasons. The 2014 Act made nondiscretionary changes to several conservation programs, including requiring review of operating procedures of the State Technical Committee (7 CFR part 610, subpart C); authorizing the use of the Watershed Protection and Flood Prevention Act to implement the RCPP in Critical Conservation Areas; expanding the definition of “acreage owned by Indian Tribes” under the HFRP (7 CFR part 625) and authorizing the use of HFRP to implement RCPP; and simplifying and streamlining the Regional Equity requirement (7 CFR part 662). The Secretary of Agriculture delegated authority to NRCS to implement the VPA-HIP (7 CFR part 1455), requiring conforming amendments to the regulation originally published by FSA. Internal NRCS administrative changes warrant updating the appropriate delegated official in the TSP provision (7 CFR part 652). Finally, slight adjustments are needed to the AMA program regulation (7 CFR part 1465) to maintain its historic consistency with the amended administrative provisions of EQIP.

The Food, Conservation, and Energy Act of 2008 (the 2008 Act) amended section 1261(b)(1) of the 1985 Act to require the Secretary to develop standard operating procedures for committees within 180 days of enactment of the 2008 Act. The 2014 Act further requires the Secretary to review and update State Technical Committee operating standards as necessary. The standard operating procedures outline items such as the best practice approach to establishing, organizing, and effectively utilizing State Technical Committees and Local Working Groups; direction on publication of meeting notices, agendas, and State Technical Committee meeting summaries; how to provide feedback on State Conservationist decisions regarding State Technical Committee recommendations; and other items as determined by the Chief.

The 2014 Act changes regarding the review and update of the operating procedures do not require any changes to the regulations themselves. NRCS has initiated the necessary review of the operating procedures. The operating procedures, and any changes made through the current review of their provisions, will be made available at: http://directives.sc.egov.usda.gov/.

The current regulation at 7 CFR 610.24 identifies the programs under Title XII of the 1985 Act about which the State Technical Committee provides advice and input and also provides flexibility to encompass any additional programs authorized by Title XII of the 1985 Act. However, to ensure that there is no confusion, NRCS is amending 7 CFR 610.24 to include a current listing of programs as amended by the 2014 Act.

The Watershed Protection and Flood Prevention Act of 1954, as amended (Pub. L. 83-566) (Watershed Operations) authorizes NRCS to install watershed improvement measures to reduce flooding, sedimentation, and erosion damage; improve the conservation, development, utilization, and disposal of water; and advance the conservation and proper utilization of land. Working in cooperation with soil conservation districts and other local sponsoring organizations, NRCS prepares detailed watershed plans that outline soil and water management problems and proposals to alleviate the problems, including estimated benefits and costs, cost-sharing arrangements, and operation and maintenance arrangements.

Section 1271F(c)(3) of the 1985 Act, as amended by the 2014 Act authorizes the Secretary to use the Watershed Operations program to carry out projects for the purposes of RCPP (Subtitle I of Title XII of the 1985 Act, as amended) in Critical Conservation Areas designated by the Secretary. RCPP replaces the Agricultural Water Enhancement Program, Chesapeake Bay Watershed Program, Cooperative Conservation Partnership Initiative, and the Great Lakes Basin Program for soil erosion and sediment control. Like the programs it replaces, RCPP will operate through regulations in place for contributing programs. The other RCPP contributing programs include EQIP, Conservation Stewardship Program, HFRP, and the new Agricultural Conservation Easement Program. NRCS is adding reference to part 622 to identify that eligible watershed projects include projects selected for funding under RCPP. This language is needed to facilitate the use of the Watershed Operations programs to carry out projects for the purposes of RCPP in Critical Conservation Areas identified by the Secretary.

HFRP is authorized by Title V of the Healthy Forests Restoration Act of 2003 (Pub. L. 108-148). HFRP restores and enhances forest ecosystems in order to: (1) Promote the recovery of threatened and endangered species, (2) improve biodiversity, and (3) enhance carbon sequestration. Land enrolled in HFRP is subject to a forest restoration plan, and NRCS enrolls land through the purchase of a permanent conservation easement, an easement for the maximum duration allowed under State law, a 30-year conservation easement or contract, or through entering a 10-year restoration agreement. In addition to permanent and 30-year easements, HFRP offers an additional enrollment option to Indian Tribes to enroll “acreage owned by Indian Tribes” through 30-year contracts.

The 2014 Act amended section 502(e)(3) of the Healthy Forests Restoration Act by adding a definition of “acreage owned by Indian Tribes” which includes lands held in Trust by the United States and allotted lands which contain restraints against alienation. This definition is inconsistent with the current regulatory definition of “acreage owned by Indian Tribes.” Therefore, NRCS must amend the definition of HFRP regulation at 7 CFR 625.2 to conform the regulatory definition to the new statutory definition.

Additionally, section 2401 of the 2014 Act identifies HFRP as a covered program under RCPP. As mentioned above, RCPP will operate through regulations in place for contributing programs, and NRCS is adding reference to part 625 to identify that eligible projects include HFRP projects selected for funding under RCPP. In addition, NRCS is adding language to allow the Chief to waive nonstatutory discretionary regulatory provisions and operational procedures where the Chief determines that the waiver will further the purposes of HFRP in accordance with the 2014 Act. This language is needed to facilitate RCPP implementation using HFRP in RCPP partner project areas.

The 2014 Act did not make any changes to the implementation the TSP provision; however, internal NRCS administrative changes warrant updating the appropriate delegated official in the TSP provision. Since the TSP final rule was published in 2004, NRCS has modified what official has delegated responsibility for several aspects of the decertification process for TSPs. In particular, the existing TSP regulation identifies the decertification official as the State Conservationist. However, having a relatively large number of State Conservationists as decertification officials increases the difficulty of consistently applying the TSP decertification process. Many TSPs also provide services across State boundaries, further complicating the implementation of TSP decertification policy. NRCS has determined that the decertification process will be more uniformly implemented at the national level.

NRCS is updating subpart C of the TSP rule by replacing the State Conservationist with the Deputy Chief for Programs as the decertification official. The role of the State Conservationist will be to propose decertification, through a notice, identifying the causes for decertification to the Deputy Chief for Programs. Once the Deputy Chief for Programs has issued a written determination, TSPs will continue to be able to appeal in writing to the Chief of NRCS, if necessary.

Section 2701 of the Farm Security and Rural Investment Act of 2002 (the 2002 Act) amended Subtitle H of the 1985 Act to include Regional Equity. Regional Equity, as established in the 2002 Act, required the Secretary to give priority for funding under conservation programs in Subtitle D of the 1985 Act, excluding the Conservation Reserve Program, the Wetlands Reserve Program, and the Conservation Security Program.

The Secretary was to give priority to approved applications in any States that did not receive an aggregate amount of at least $12 million for those conservation programs specified in the statute. The funding made available to these States in order to reach the $12 million requirement, was taken from those States that had initial aggregate funding allocations of specified conservation programs greater than $12 million. NRCS implemented the Regional Equity provision utilizing multiple funding procedures from fiscal year (FY) 2004 through FY 2008.

The 2008 Act amended the Regional Equity provision, increasing the regional equity threshold used to identify regional equity States from $12 million to $15 million, and adding language to require consideration of the respective demand in each regional equity State. NRCS developed the Regional Equity regulation to reflect the statutory language.

The 2014 Act amends and simplifies the Regional Equity provision. The new Regional Equity provision eliminates the previous April 1 deadline for funding applications, replacing it with a requirement to allow States to establish their ability to utilize funding of at least 0.6 percent of the funds made available for covered conservation programs. States that establish their ability to use the funds would receive at least this amount as part of the normal allocation process. This process is consistent with the agency's regular process used to allocate funding to all States, whether they are covered by the regional equity provision or not.

Therefore, the revised Regional Equity provision can be implemented as an internal administrative matter that does not require a stand-alone regulation. Agency efficiency would be enhanced by having the entire allocation process developed and carried out through the existing internal allocation process. This would improve consistency in the allocation process.

Though the regulation was considered necessary after the 2008 Farm Bill, the new provision in the 2014 Farm Bill is less prescriptive and can be implemented through the agency's regular process to allocate funding, making a regulation unnecessary. Additionally, the report on the Senate version of the 2014 Farm Bill, (the “Agriculture Reform, Food and Jobs Act of 2013,” S. 954 (2013)) on which the language in the 2014 Farm Bill was based, indicated that the changes were intended to assist in streamlining agency process, stating that the change to a target of 0.6 percent rather than $15 million was made “in order to allow allocations to synchronize with annual appropriations.” (S. Rep. 113-88, Sept. 4, 2013, p. 100.)

Regional Equity is a statutory funding requirement that requires NRCS to shift overall funding levels between States as compared to the results of the regular agency merit-based allocation formulas. Implementing Regional Equity simply adds a step to the process to identify the Regional Equity States and to shift a relatively minor level of funding to each of those States to reach the statutory threshold. Depending upon the available funding for allocation, the threshold may range anywhere from more than $10 million to less than $20 million per State, with much of the threshold being met through the normal program allocation process. In FY 2013, only nine States were identified as Regional Equity States, and only five had a total need to have funds shifted in an amount over $4 million.

The Regional Equity provision does not affect a participant's eligibility in any of the conservation programs, nor affect any roles and responsibilities between the agency and a program participant under a conservation program contract. The existing regulation does not govern any program benefit to which any applicant or participant may be entitled. Removing the current regulation would be consistent with the way this provision was carried out from FY 2002-2008.

The 2014 Act only directs NRCS to promulgate regulations necessary to implement conservation programs, not internal allocation and budget procedures. Therefore, NRCS is removing the Regional Equity regulation from the CFR.

The VPA-HIP is authorized by section 1240R of the 1985 Act. VPA-HIP provides, within funding limits, grants to State and Tribal governments to encourage owners and operators of privately-held farm, ranch, and forest land to voluntarily make that land available for access by the public for wildlife-dependent recreation, including hunting and fishing under programs administered by State and Tribal governments. VPA-HIP is not an entitlement program, and no grant will be made unless the application is acceptable to the CCC. The program was originally delegated to the Administrator of FSA to administer on behalf of the CCC. The program is now delegated to the Chief of NRCS. NRCS seeks to use the same regulation that FSA promulgated on CCC's behalf and update the regulation to reflect the new delegation.

FSA promulgated the final rule for VPA-HIP in July 2010, and OMB published regulations in September 2010 for the Federal Funding Accountability and Transparency Act of 2006 (Pub. L. 109-282, as amended). Therefore, NRCS is amending the VPA-HIP regulation to add the requirements that grantees must comply with OMB regulations at 2 CFR parts 25 and 170.

NRCS is also updating the VPA-HIP regulation to reflect that the program is subject to the provisions of 2 CFR 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.

Through the AMA program, NRCS provides technical and financial assistance to participants in 16 States to address issues such as water management, water quality, and erosion control by incorporating conservation practices into their agricultural operations. Producers may construct or improve water management structures or irrigation structures; plant trees for windbreaks or to improve water quality; and mitigate risk through production diversification or resource conservation practices including soil erosion control, integrated pest management, or organic farming. The 2014 Act did not make any changes to AMA, but NRCS administers AMA conservation program contract requirements consistent with EQIP. Due to changes to the EQIP statute, minor changes are needed to the AMA program regulation to maintain this consistency. The AMA statute did not specify contract duration requirements. NRCS incorporated into the AMA regulation the EQIP contract duration requirements that a contract be in effect for at least one year after final conservation practice implementation. The 2014 Act removed this minimal duration requirement from EQIP, thus NRCS is modifying the AMA regulation to similarly remove this requirement to keep the two programs administrative requirements consistent.

For the reasons stated in the preamble, and under the authority of 16 U.S.C. 3841(d), the Natural Resources Conservation Service amend parts 610, 622, 625, 652, 662, and the Commodity Credit Corporation amends parts 1455 and 1465 of Title 7 of the Code of Federal Regulations (CFR) as follows:

The information presented in this preamble is organized as follows:

The Guidelines for Designating Biobased Products for Federal Procurement (the Guidelines) are established under the authority of section 9002 of the Farm Security and Rural Investment Act of 2002 (FSRIA), as amended by the Food, Conservation, and Energy Act of 2008 (FCEA), 7 U.S.C. 8102. (Section 9002 of FSRIA, as amended by FCEA, is referred to in this document as “section 9002”).

As originally enacted, section 9002 provides for the preferred procurement of biobased products by Federal agencies. USDA proposed the Guidelines for implementing this preferred procurement program on December 19, 2003 (68 FR 70730-70746). The Guidelines were promulgated on January 11, 2005 (70 FR 1792), and are contained in 7 CFR part 3201, “Guidelines for Designating Biobased Products for Federal Procurement.”

On June 18, 2008, the FCEA was signed into law. Section 9001 of the FCEA includes several provisions that amend the provisions of section 9002 of FSRIA. On February 4, 2011, USDA published in the Federal Register a direct final rule amending the Guidelines to make them consistent with certain technical changes to section 9002 of FSRIA as required by the FCEA. The technical changes made in 2011 clarified specific terminology and definitions used in the Guidelines.

The purpose of today's rule amendments, which were proposed in the Federal Register on May 1, 2012, is to revise the Guidelines to incorporate programmatic changes to section 9002 of FSRIA that were included in the FCEA. These rule amendments do not affect products that have already been designated for Federal procurement preference. Any changes necessary to the existing designation status of products will be established by future rulemaking actions.

USDA is amending 7 CFR part 3201 for two reasons. The first reason is to incorporate statutory changes to section 9002 of the Farm Security and Rural Investment Act made by enactment of the Food, Conservation, and Energy Act on June 18, 2008. The second reason is to make improvements to the existing rule based on several years of operating experience.

The designation of intermediate ingredient or feedstock categories will follow the same process that USDA uses in the ongoing designation of product categories. USDA will establish a minimum biobased content for each intermediate ingredient or feedstock category based on an evaluation of the available biobased content data. The minimum biobased content requirement will be set at the highest level practicable, considering technological limitations.

USDA recognizes that, in general, the Federal government does not purchase large quantities of intermediate ingredients and feedstocks. Designating such materials, then, represents a means to include finished products made from such designated materials in the Federal biobased products procurement preference program.

Today's final rule establishes the procedure for designating product categories for those final products that are made from designated intermediate ingredients or feedstocks. The FCEA states that USDA shall “automatically designate” final products composed of designated intermediate ingredients or feedstocks if the content of the designated intermediate ingredients or feedstocks exceeds 50 percent of the final product (unless the Secretary determines a different composition percentage is appropriate). Even though the FCEA uses the term “automatically” when specifying that final products in these product categories are eligible for the Federal procurement preference, they still must be incorporated into the Guidelines by publication in the Federal Register . USDA is establishing a procedure whereby the designation of product categories that include these final products would be done in conjunction with the designation of the intermediate ingredient or feedstock categories.

Today's final rule establishes procedures for designating complex assembly products (multi-component assembled products with one or more component(s) being made with biobased material) within the scope of the Federal biobased products procurement preference program. Although section 9001 of FCEA does not specifically mention these multi-component assembled products, USDA believes that including this type of finished product in the BioPreferred program will encourage the increased use of biobased materials and, thus, further advance the objectives of the program.

Today's final rule specifies a procedure for determining the biobased content of complex assemblies. USDA is finalizing an equation that yields the ratio of the mass of biobased carbon in the assembly to the mass of total organic carbon in the assembly. USDA selected this approach because it yields the same biobased content that would be determined by ASTM D6866 if the assembly could be tested.

Previously, the Guidelines used the term “designated item” to refer to a generic grouping of biobased products identified in subpart B as eligible for the procurement preference. The use of this term created some confusion, however, because the word “item” is also used in the Guidelines to refer to individual products rather than a generic grouping of products. USDA is replacing the term “designated item” with the term “designated product category.” In addition, USDA is adding a definition for the term “qualified biobased product” to refer to an individual product that meets the definition and minimum biobased content criteria for a designated product category and is, therefore, eligible for the procurement preference. Although these changes are not required by section 9001 of FCEA, USDA believes the changes add clarity to the rule.

USDA is deleting the text previously found in paragraph (c)(2) of section 3201.5 that excluded products that were considered to be mature market products. This exclusion has been challenged by numerous stakeholder groups. The Agricultural Act of 2014, which was signed into law on February 7, 2014, includes provisions that remove the mature market exclusion. With today's final rule, USDA has removed the text previously found in paragraph (c)(2). USDA will proceed with a separate rulemaking package to address the provisions of the Agricultural Act of 2014.

As a result of public comments received on the proposed amendments to the Guidelines, USDA has made changes in finalizing the amendments. These changes are summarized in the remainder of this section. A summary of each comment received, USDA's response to the comment or group of related comments, and the rationale for any change made in the final rule is presented in section V.

A. 7 CFR 3201.1—Purpose and scope.

This section has been finalized as proposed.

B. 7 CFR 3201.2—Definitions.

The definition of “designated intermediate ingredients or feedstocks” was revised to clarify that finished products made from those materials qualify for preferred procurement only if they contain more than 50 percent (or another amount as specified in subpart B of this part) of the designated intermediate. The definition of “intermediate ingredients or feedstocks” was revised to provide clarity to the term “value added processing” that is used in the definition.

C. 7 CFR 3201.3—Applicability to Federal procurements; and 7 CFR 3201.4—Procurement programs.

These two sections have been finalized as proposed.

D. 7 CFR 3201.5—Category designation.

The text of paragraphs 3201.5(a) and (b) was edited to clarify that USDA will designate product categories rather than individual products. A new sentence was added to paragraph 3201.5(a)(3) to state that when intermediate ingredients or feedstocks are used in the production of products that fall within a previously designated product category, the minimum biobased content for those products (to qualify for the procurement preference) is the minimum specified for the product category in subpart B.

The language previously found in paragraph 3201.5(c)(2) specifying that “mature market” products would be excluded from the designation process has been deleted as proposed. However, the new language that was proposed to be added to paragraph (b)(2) has been dropped and the paragraph has been reserved for future use to address changes as a result of the Agricultural Act of 2014.

E. 7 CFR 3201.6—Providing product information to Federal agencies.

This section has been finalized as proposed.

F. 7 CFR 3201.7—Determining biobased content.

USDA has revised the procedure for determining the biobased content of final products composed of designated intermediate ingredient or feedstock materials. The revised procedure calculates biobased content as a percentage of the total organic carbon content in the final product. USDA has also revised the equation for calculating the biobased content of complex assemblies to be based on the ratio of the amount of biobased material in the assembly to the amount of total organic carbon in the assembly.

G. 7 CFR 3201.8—Determining life cycle costs, environmental and health benefits, and performance.

USDA has revised the new title for the section, “Determining relative price, environmental and health benefits, and performance,” by deleting the word “relative.”

H. 7 CFR 3201.9—Funding for testing.

This section has been reserved, as proposed.

USDA solicited comments on the proposed amendments for 60 days ending on July 2, 2012. USDA received 19 comments by that date. Three of the comments were from individual citizens, 12 were from trade groups, and 4 were from biobased product manufacturers. The comments are presented below, along with USDA's responses, and are grouped by the Code of Federal Regulation (CFR) section numbers to which they apply.

Comment: One commenter stated that, given the need for consistency between the two elements of the overall BioPreferred program, and the addition of the ingredients and feedstocks to both elements of the program, USDA should combine both parts of the program into a single program to most effectively effectuate Congressional intent. The commenter recommended that all products that qualify for inclusion in USDA's BioPreferred Catalog should also qualify for Federal procurement preference. The commenter stated that designated product categories of biobased products approved for Federal procurement preference could be used as an organizing guide for the catalog. Having a difference between the list of products that can be labeled and those that are subject to a purchasing preference is confusing. The commenter also stated that, as a corollary, all products approved for procurement should be entitled to use a label. The commenter stated that it would remain entirely voluntary with the manufacturer or seller whether to place a label on the product. The commenter stated that the label has value as a specifying tool, where a government contractor soliciting bids from suppliers can simply require that products be within categories found in the catalog and must bear a label or be qualified to bear a label. The commenter stated that these changes would be easy to apply, would simplify the program, and would make it more effective.

Response: USDA appreciates the recommendations provided by the commenter. USDA will consider these and other comments that relate to the structure and operation of the BioPreferred program and will, at a later date, evaluate changes that could be made to streamline the program.

A. 7 CFR 3201.1—Purpose and scope.

No comments were received on the revisions proposed for this section.

B. 7 CFR 3201.2—Definitions.

Comment: One commenter noted that the terms “distinct materials” and “component” (used in the definition of “complex assembly”) have not been defined. The commenter stated that, if USDA continues to pursue the approach of measuring biocontent on a component-by-component basis, the following definition of component would be appropriate: “a component is a homogeneous material in a uniquely identifiable part or piece of an assembled product that (a) is required to complete or finish an item; (b) performs a distinctive and necessary function on the operation of a system; or (c) is intended to be included as part of a finished item.” The commenter added that the definition of homogeneous is “uniform composition throughout an item's entirety.” The commenter stated that many automotive components are made of various types of materials including metals that would be included in the component weight if a component were defined as a heterogeneous material. For instance, a seat consists of foam, framework, brackets, buckle mechanisms, fabric, etc. The commenter concluded that because not every part of a seat assembly can be biobased, only the homogeneous materials that can be biobased should be included in the component definition and biobased content calculation.

Response: USDA agrees with the commenter that the recommended definitions may be necessary when designating complex assemblies used within the automotive industry. However, because the Guidelines are the regulatory foundation for the entire program, USDA believes that they need to remain generic and allow flexibility in implementation. In industry-specific situations such as those described by the commenter, the Guidelines definitions can be supplemented on a case-by-case basis by applicable definitions included in the regulatory text for the particular complex assembly being designated.

Comment: One commenter agreed that the definition of “complex assembly” is appropriate, but stated that the proposed rulemaking should provide additional guidance by including examples of complex assemblies. According to the commenter, carpets would fall under the definition of complex assemblies because of their various components, such as the carpet itself, carpet backing, adhesive, insulation material, etc. Each of these components may be composed of varying levels of biobased materials. The commenter stated that many of these biobased products (components) may meet the biobased content criteria by themselves within the complex assembly definition. However, there will be instances where certain renewable chemicals (such as an enzyme in cleaning fluids), intermediate ingredients or feedstocks may not meet the threshold in the “designated product category.” Therefore, it is not clear from the proposed rulemaking whether these biobased products will be accounted for in the final biobased complex assembly products. The commenter stated that more clear guidelines through Federal Register comments are requested for biobased content requirements of complex assembly biobased products.

Response: USDA appreciates the commenter's support of the proposed definition of “complex assembly.” With regard to the commenter's example of an enzyme used in a cleaning fluid, USDA points out that a product like cleaning fluid would not be a complex assembly. Cleaning fluids and similar products may contain several ingredients, some of which may be biobased and some of which may not be. In such a product, however, the ingredients are blended together to form a uniform mixture from which a sample can be taken and tested for biobased content using ASTM D6866. Thus, in such a product, each ingredient that contributes toward the overall biobased content of the product is counted, regardless of the amount.

Comment: One commenter stated that, in the definition of intermediate ingredient or feedstock, USDA should consider further clarification regarding biomaterials that are used as “fillers” (e.g., corn starch, bamboo fiber, etc.). The commenter recommended that these fillers have been adequately “processed” to be distinguished from raw agricultural ingredients and should be part of the designation allowance.

Response: USDA agrees with the commenter that “fillers” used as routine ingredients in biobased products have been adequately processed and should count toward the overall biobased content of the final product. USDA does not consider the role that the various biobased ingredients may play in the formulation of finished products (i.e., carriers, fillers, or inactive ingredients versus active ingredients) when determining the minimum required biobased content. Thus, any biobased material that is an ingredient in the tested product would count toward the reported biobased content of the product.

Comment: Another commenter recommended the following modification to the definition of intermediate ingredient or feedstock: Intermediate ingredient or feedstock. A material or compound made in whole or in significant part from biological products, including renewable agricultural materials (including plant, animal, and marine materials) or forestry materials that have undergone a significant amount of value added processing (including thermal, chemical, biological, and or a significant amount of mechanical processing), excluding harvesting operations, offered for sale by a manufacturer or vendor and that is subsequently used to make a more complex compound or product.

Response: USDA agrees that the commenter's suggested revisions to the proposed definition clarify that the value added processing steps may be thermal, chemical, biological, or mechanical. The definition in the final rule has been revised as suggested by the commenter.

Comment: One commenter suggested amending the definition of “intermediate ingredient or feedstock” by inserting “ (including a renewable chemical)” after “material or compound.” The commenter also suggested adding a definition of “renewable chemical,” as follows: “ The term `renewable chemical' means a monomer, polymer, plastic, formulated product, or chemical substance produced from renewable biomass. ” The commenter stated that these amendments will be consistent with the definitions of “intermediate ingredient or feedstock,” and “renewable chemical,” as defined in recent legislation in the 112th Congress (viz. S.2155, S.3240, and H.R.5955.)

Response: USDA based the proposed definitions on the language in the 2008 Farm Bill. USDA will re-visit the definitions and other aspects of the BioPreferred program subsequently, given passage of Agricultural Act of 2014.

Comment: One commenter stated that the proposed definition of “intermediate ingredient or feedstock” is inconsistent with both the statutory definition and the definition of the same term in the labeling rule. The commenter stated that the proposed definition conflicts with the statute's definition of the same term, has unintended negative consequences to the program, and should not be adopted. The statute requires only that an intermediate ingredient or feedstock be a qualifying biological material that is “subsequently used to make a more complex compound or product.” The commenter stated that USDA is proposing to narrow Congress's definition to materials: “That have undergone a significant amount of value added processing (including thermal, chemical, biological, and mechanical), excluding harvesting operations, offered for sale by a manufacturer or vendor that is subsequently used to make a more complex product.” The commenter stated that USDA explains that this narrowing is necessary to distinguish between raw materials and intermediate ingredients or feedstock, so that such raw ingredients will not qualify for government purchases under this program. The commenter further stated that the proposed rule does not explain why this distinction is necessary, and that the commenter saw no apparent reason. The commenter stated that, in reality, depending on the process and end-product involved, a “raw” forestry or agricultural product may range from many steps removed from the end-product to one step away. The commenter provided the example of a log, produced by harvesting a tree, and processing the tree to remove limbs and cutting the resultant stem to a length deemed suitable for further manufacture into any of a number of products or feedstocks. An example of further processing would be the debarking of the log, slicing it into veneer and gluing the veneer together to make laminated veneer lumber, clearly a more complex product than the log. The commenter stated that in the plain words of the statute, a log is a “forestry material” “that is subsequently used to make a more complex compound or product.” Thus, according to the commenter, it should qualify under the statute as an ingredient and that no program advantage or disadvantage is provided by excluding it. In addition, with respect to forestry materials, and in light of the stated goal of advancing rural domestic economic activity through the program, the commenter recommended that USDA reference the categories of forestry sources identified in ASTM D7612-10 to describe forestry ingredients or feedstocks. The commenter stated that reference to this ASTM standard can be useful for manufacturers seeking to specify standards to suppliers when procuring ingredients or feedstock for the manufacture of biobased products.

Response: For any type of material or product to be “designated” for a procurement preference, there must exist at least two competing versions of that material or product (so that the biobased material may be preferred). In the case of the BioPreferred program, the two competing versions are almost always one that is composed of, or derived from, petroleum-based material and another version in which a substantial percentage of the petroleum-based ingredient is replaced by an ingredient made from renewable biomass. The designation process results in the requirement that Federal agencies give a preference to the competing product made from renewable biomass. In the view of the BioPreferred program, then, a biobased product is generally an alternative to a petroleum-based product that serves the same functional purpose. It follows, therefore, that USDA would not consider “designating for preferred procurement” a category of products for which there is only one “version.” For example, it may be possible to produce hydraulic fluid from either crude oil or soybeans. While the two different versions of the hydraulic fluid compete in the marketplace and hydraulic fluid could be “designated” to give a procurement preference to the soybean-derived version, the crude oil and the soybeans do not directly compete with each other within the marketplace and neither would be “designated” by the BioPreferred program. Likewise, USDA does not believe that a bale of cotton or a log are items that should be designated for preferred procurement. However, once the barrel of crude oil or the bale of cotton or the log undergo various processing steps, the resulting materials enter the marketplace as intermediate ingredients or feedstocks and compete for selection as the building blocks for the manufacture of consumer-use products. The biobased version of these competing intermediate ingredients or feedstocks would then be candidates for designation, as would the finished products manufactured from them. USDA recognizes and agrees that the number and extent of the “processing steps” can vary depending on what the raw materials and the finished products are. However, USDA continues to believe that the definition of an intermediate ingredient or feedstock should exclude harvested commodities such as raw cotton, soybeans, and logs.

USDA also notes that, in response to the Agricultural Act of 2014, it will make additional revisions to the Guidelines in subsequent rulemaking.

C. 7 CFR 3201.3—Applicability to Federal procurements; and 7 CFR 3201.4—Procurement programs.

No comments were received on the revisions proposed for these sections.

D. 7 CFR 3201.5—Category designation.

Comment: One commenter questioned whether setting a minimum biobased content for each intermediate ingredient or feedstock category is needed. The commenter stated that what is most critical is the total biobased content of the product in which the intermediate ingredient or feedstock is used.

The commenter stated that the FCEA requires that a minimum biobased content be established to designate intermediate ingredients and feedstocks and that the FCEA further requires the USDA to automatically designate finished products composed of designated intermediate ingredients and feedstocks, if the content of the designated intermediate ingredients and feedstocks exceeds 50 percent of the product (unless the Secretary determines a different composition percentage is appropriate). The commenter stated that these FCEA requirements are then interdependent. According to the commenter, the net effect appears to create an entirely different, and potentially conflicting, route to finished product designation. The commenter provided the following example; assume USDA establishes a minimum biobased content for designated intermediate category “polyolefin resins” at 50 percent. If a polyolefin has 100 percent biobased content, then this polyolefin would be a designated intermediate. Next consider a blend consisting of 60 percent of this designated polyolefin intermediate with 40 percent of fossil-based polyolefin. Finished products made with the blend would be “automatically designated” because the blend contains at least 50 percent of a designated intermediate. Now suppose a manufacturer of non-woven fabrics makes “erosion control materials” of this blend—these products would be automatically designated based on the proposal in this Federal Register notice. The commenter next stated that the minimum biobased content for “Erosion Control Materials” was established as 77 percent. The commenter stated that the current proposal would automatically designate and allow a product with 60 percent biobased content to be designated even though it is below the 77 percent minimum content required for finished product designation of “erosion control materials.”

Another commenter also disagreed with the concept of “automatic designation” for finished products, agreeing with the first commenter that this represents a separate and potentially conflicting route to designation of finished products. The commenter provided, as another example, a finished product formulated with 50 percent of a designated biobased intermediate, said intermediate having 20 percent biobased content, then the net biobased content of the finished product is only 10 percent. The commenter stated that this is well below the minimum biobased content established for many of the product categories. The commenter recommended that all finished products be subject to the minimum biobased content established for the relevant product category. The commenter stated that there should not be an alternative “automatic designation” process, as such an alternative process would merely cause confusion and potentially harm the credibility of the BioPreferred program.

The first commenter recommended a more streamlined approach for the USDA to simply “approve” biobased intermediates which meet the following criteria: (a) They have “undergone significant value-adding processing,” and (b) the biobased content is quantitatively reported with adequate supporting data. The commenter further recommended that the biobased content is reported and has supporting documentation (i.e., ASTM D6866). The commenter stated that it is reasonable for the supplier of these intermediate ingredients and feedstocks to be responsible for applying for and obtaining designation for these materials. Then the finished product manufacturers could calculate and report their biobased content as described elsewhere in the proposal.

The commenter acknowledged the challenges of changing the requirements of the FCEA but stated that the BioPreferred program may want to wait until the FCEA requirements have been amended, and then launch a more streamlined and consistent method of handling intermediates, rather than launch a potentially flawed method now.

Lastly, the commenter stated that the FCEA requires use of the terminology “designate” with respect to intermediate ingredients and feedstocks. However the commenter stated that use of this term is confusing because the BioPreferred program also “designates” finished products that are directly available for Federal procurement. To avoid confusion, the commenter recommended that USDA may want to consider use of alternative terminology, such as “approved.”

Response: The commenter questioned the need to set minimum biobased contents for intermediate ingredients or feedstocks but then, correctly, pointed out that the FCEA specifies that USDA set such minimum contents. USDA intends to continue to evaluate and establish the minimum biobased content for each designated product category on a case-by-case basis.

USDA evaluated the commenter's statements that the current requirements of the FCEA create potentially conflicting routes to finished product designation and believes that such conflicts can be avoided. USDA has always considered that the term “designated” applies to a generic grouping of biobased products that is eligible for the procurement preference. Thus, individual products are not designated and are not eligible for the procurement preference unless they meet the definition of (and, therefore, are included within) a designated product category. When setting the minimum biobased content for a designated product category, USDA typically considers the biobased content of several representative products that fall within the product category and selects the level found to be appropriate. The selected minimum level is usually not based on the lowest or the highest biobased content among the products. Rather, the selected minimum is considered typical of products within the category. USDA expects this same process to be followed when designating finished products made from designated intermediate ingredients or feedstocks. Thus, individual finished products will be required to meet the minimum biobased content that is established for whatever product category the product falls within.

With regard to the commenter's example of a polyolefin resin, if such an intermediate ingredient or feedstock material were designated, USDA would investigate and consider for designation those finished product categories (not individual products) that could be made from the intermediate. If the intermediate ingredient were used by a manufacturer of erosion control materials, the applicable minimum biobased content for the product would still be 77 percent because that product category has already been designated and there are individual products available that meet the 77 percent. The product described by the commenter would fall into the designated product category of “erosion control materials” but would not be eligible for preferred procurement. The final rule has been revised to clarify that when final products made from intermediate ingredients fall within an existing designated product category, those products are subject to the minimum biobased content and other established criteria for the applicable product category.

If, on the other hand, a manufacturer used the designated polyolefin intermediate to manufacture a product that does not fall into an already-designated product category, USDA would move to designate a new product category based on that product and that product's biobased content (along with the biobased content of other products that fall within the new designated product category) would be considered when setting the minimum biobased content for the new designated product category.

Response: USDA points out that the use of the term “designate” is consistent with the language in the FCEA. In addition, once an intermediate ingredient or feedstock category is designated by rulemaking, Federal agencies would have the same legal obligation to purchase the biobased version of products within the category as they do when purchasing products within designated finished product categories. USDA acknowledges that such purchases of designated intermediate ingredients or feedstocks by Federal agencies may rarely occur, but the obligation to give a preference to the biobased version of these materials, if they are ever purchased, would still apply.

Comment: One commenter expressed concern about how USDA will determine what is a “generic grouping” under the proposed definition of “ designated intermediate ingredient or feedstock category. ” The commenter stated that groupings could be broad, such as vegetable oils, fibers, resins, polymers, polyols, polyesters, etc., or the groupings could be more narrow such as soybean oil (including crude, refined, deodorized, epoxidized). The commenter further stated that it is critical that USDA seek extensive industry input on how best to define “generic groupings” prior to proposing categories for designation. Groupings should take into account the chemical structure of a material or compound as well as functionality and end-use applications. The commenter recommended that USDA establish a process through its Web site and stakeholder meetings to solicit nominations for intermediate ingredients and feedstocks that should be considered for designation prior to issuing proposed rulemakings. This would allow USDA to view the range of commercially available biobased intermediate ingredients and feedstocks and sort them by chemical class, functionality, and end use application to best determine how to establish “groupings” for the purpose of designations. The commenter stated that USDA should remain flexible about how narrow or broad to make the “groupings” until it has solicited and carefully evaluated information from industry stakeholders. The commenter also stated that USDA should establish a process whereby final product categories not designated as part of the initial intermediate ingredient and feedstock rulemaking have the opportunity to petition for inclusion at a later date.

Response: USDA appreciates the commenter's recommendations and agrees that extensive industry input will be critical for the success of the program. USDA believes that the BioPreferred Program Guidelines, as being finalized in this rulemaking, establishes a framework whereby USDA can work in conjunction with stakeholders to implement the requirements of the FCEA.

Comment: One commenter acknowledged that the USDA will establish a minimum biobased content for each intermediate category, entirely analogous to how it establishes a minimum biobased content for each finished product category. The commenter then pointed out that this could effectively double the effort needed to manage the BioPreferred program, with minimal benefit. Rather, the commenter recommended that the USDA establish one minimum biobased content for all ingredients and feedstocks. This universal minimum should be high enough to be meaningful, to represent a real technical advance. The commenter stated that it is obviously more challenging to make biobased some classes of materials as compared with others, so the minimum should not be so high as to rule out many deserving materials in these more challenging areas. The commenter recommended that a universal minimum biobased content of 20 percent strikes the right balance.

Response: USDA disagrees with the concept of setting a “universal” minimum biobased content. Setting the minimum biobased content of categories on a case-by-case basis, as has been done since the program began, allows flexibility to address both those categories that can be formulated with very high biobased contents and the “more challenging” areas mentioned by the commenter. USDA believes there are numerous intermediate categories where the commenter's recommended 20 percent minimum biobased content would be significantly below what is achievable.

Comment: One commenter stated that limits of certain performance applications or compliance with federal specifications in some end-use applications may not allow for the final product to contain 50 percent of the biobased material. This lower limit should be considered case by case.

Response: As discussed in the previous response, USDA expects that minimum biobased content requirements will continue to be set on a case-by-case basis as they have in the past by considering the availability, performance, and cost of representative products within each product category being evaluated for designation.

Comment: USDA received numerous comments on the proposed revision to replace the “mature market” exclusion in paragraph 3201.5(c)(2) with language proposed to be added as a new paragraph (b)(2) stating USDA's intention to “designate for preferred procurement those product categories and intermediate ingredient or feedstock categories that are determined to create new and emerging markets for biobased material.” Some of the comments were in agreement with the proposal, but most opposed both the original language in the paragraph and the proposed revision. The consensus among those opposed to either the original paragraph 3201.5(c)(2) or the text proposed to be added as paragraph (b)(2) is that the date of entry into the marketplace and extent of national market penetration should not be a factor in determining whether a product category is designated for preferred procurement.

Response: The Agricultural Act of 2014, signed by the President on February 7, 2014, includes new provisions that effectively remove both the “mature markets” and the proposed “new and emerging markets” considerations when designating product categories and intermediate ingredient or feedstock categories. USDA has decided that in this final rule the proposed new language for paragraph 3201.5(b)(2) will be dropped and the paragraph will be reserved. USDA is today announcing its intention to develop rulemaking actions to propose and promulgate another final rule amending the Guidelines to incorporate the appropriate new language into paragraph 3201.5(b)(2).

Comment: One commenter stated that the deletion of the mature markets exclusion from 3201.5(c)(2) must be carried into the USDA Voluntary Labeling Program. The authorizing statute requires USDA to maintain consistency between the two programs.

Response: As discussed in the response to the previous comment, the Agricultural Act of 2014 removed the exclusion of products that are considered to be mature market products. USDA intends to proceed with two new rulemaking activities in response to the provisions of the Agricultural Act of 2014; one proposing additional amendments to the Guidelines and one proposing corresponding amendments to the voluntary labeling rule.

Comment: One commenter stated that the current proposed rule does not fit the needs or technical requirements for the automotive sector. The commenter stated that the fundamental equation proposed for determining biobased content in automobiles will not work for vehicles as the denominator cannot be standardized and will not remain a fixed number. The commenter also stated that there are further deficiencies in the proposal with lack of definitions for key terms and concepts. The commenter stated that the proposed use of the ASTM method for determining biobased content is not practical for the automotive applications. The commenter concluded that it is not clear what alternative proposals might look like given the lack of definition and uncertainty of technical criteria, the rapid changes in automotive materials technologies, feedstocks, sources, availability of materials, and infrastructure to manage the materials.

Response: USDA agrees with the commenter that the designation of product categories within the automotive industry will be difficult. USDA also agrees that at this stage in the evolution of the BioPreferred program the designation of an automobile as a complex assembly would be extremely difficult. USDA has no plans to attempt such a designation within the immediate future. USDA expects that when complex assemblies such as those found in the automobile industry (and many others) are designated, case-by-case alternative equations may be necessary. At this point in the process of considering the designation of complex assemblies, it is not possible to anticipate all cases where an exception to the generic process adopted today may be needed.

USDA does expect, however, that some automotive components, and the biobased intermediate ingredients and feedstock used to make those components, will be designated within the next few years. Biobased intermediate ingredients that could be used to make products such as carpets and carpet backing, upholstery fabrics or headliners, and foam that might be used in automobile seats are expected to be evaluated for designation soon. USDA believes that with the cooperation of the manufacturers the designation of products such as these can be accomplished. USDA points out that a parallel to the automobile example would be a house or office building where components such as carpets, plastic insulating foam, composite panels, and interior paints have been designated by the BioPreferred program but the actual house or office building has not.

E. 7 CFR 3201.6—Providing product information to Federal agencies.

No comments were received on the revisions proposed for this section.

F. 7 CFR 3201.7—Determining biobased content.

Comment: One commenter stated that the proposed methodology for determining biobased content of products based on intermediates could use some additional requirements. Testing should still be required on these materials to ensure the biobased content is truly what is claimed. The testing fee for procurement is very inexpensive compared to other certification programs and the rules that are currently in place as far as changes in formulations and products similar to compositions that already have certification cuts down on multiple testing fees. Another alternative could be to develop simpler test methods based on NMR data/IR spectra to determine the amount of a specific biobased material in a complex mixture.

Response: While the voluntary labeling program requires independent testing to confirm the biobased content of products for which certification is sought, the preferred procurement program requires only that manufacturers certify the claimed biobased content. However, the Guidelines (at 3201.7(a)) require that manufacturers must provide information to verify the biobased content of products offered for preferred procurement if such verification is requested by USDA or other Federal agencies. Section 3201.7(c) states that verification of biobased content must be based on third party testing using ASTM D6866. Also, as part of the designation process, USDA routinely obtains and tests several representative products from the product categories being designated. USDA agrees that documenting the biobased content of intermediate ingredients or feedstocks, as well as finished products, is critical to the success of the program. USDA plans to increase the effort applied to confirming manufacturers' biobased content claims, as resources allow. Also, efforts to develop alternative test methods are continuing and USDA will consider allowing the use of an alternative method once it has been approved by a certifying entity such as ASTM.

Comment: One commenter stated that, in the proposed rule, USDA does not address the documentation required to support the calculated biobased content of the finished product. The commenter stated that, logically, the finished product manufacturer applying for designation would disclose the full formulation to USDA, including suppliers of these ingredients. The commenter further stated that it is reasonable that the suppliers of ingredients would provide documentation supporting the biobased content of that ingredient. According to the commenter, such documentation may present a potential issue regarding confidential business information (CBI). The commenter proposed the following two options for consideration by USDA in cases where the manufacturer wishes to protect CBI: (a) Including “undisclosed ingredients” in the formulation—the manufacturer could not claim any contribution toward overall biobased content from these ingredients because the biobased content of those ingredients would not be verifiable; and, (b) Claiming biobased content contributions from “undisclosed ingredients”—if the manufacturer wanted to claim contributions from such undisclosed ingredients toward overall biobased content, the manufacturer would have the option of paying for and having ASTM D6866 performed on the finished product itself.

Response: USDA disagrees that the submission of confidential product formulation data would be necessary under the BioPreferred program. Section 3201.7(a) requires that manufacturers must certify that their product meets the minimum biobased content requirements for the designated product category. Thus, the requirement to certify the biobased content of a product does not involve the submission of specific formulation data, confidential or otherwise. The section further states that manufacturers must, upon request, provide USDA and Federal agencies information to verify the biobased content for products certified to qualify for preferred procurement. Section 3201.7(c) states that verification of biobased content must be based on third party testing using ASTM D6866. Because intermediate ingredients or feedstocks, and the finished products made from them, can be tested using ASTM D6866, it is expected that test results would be submitted as verification of biobased content. No specific formulation data would be required or expected.

Comment: One commenter expressed concern about the procedure that USDA is proposing for determining the biobased content of final products made with intermediate ingredients and feedstocks. The commenter stated that USDA's proposed approach is not consistent with the statutory language. The commenter stated that the statutory language is clear that products composed of more than 50 percent (or a different percentage as determined by USDA) of the designated intermediate ingredient or feedstock must be automatically designated. The commenter stated that the statute does not direct USDA to take into account the biobased percentage content of the designated intermediate ingredient or feedstock when calculating the 50 percent. According to the commenter, if a final product contains 50 percent by mass weight of a designated intermediate ingredient or feedstock, the final product should also be designated even if the designated intermediate ingredient or feedstock has a biobased content of less than 100 percent. Also, if a final product contains more than one designated intermediate ingredient or feedstock then the mass weight of each should be added together to determine if the overall content reaches 50 percent or more. The commenter also stated that to be consistent with the intent of the statute and the BioPreferred Program Guidelines, the mass weight calculation should be based on organic carbon content only and not other materials in the final product such as water or inorganic materials.

The commenter recommended the following modification to proposed section 3201.7 (c)(2): Final products composed of designated intermediate ingredient or feedstock materials. The biobased content of final products composed of designated intermediate ingredient or feedstock materials will be determined by multiplying the percentage by weight (mass) of each intermediate ingredient or feedstock material in the final product times the percentage of biobased content of each intermediate ingredient or feedstock material, calculating the percentage by weight (mass) that each designated intermediate ingredient or feedstock material represents of the total organic carbon content of the final product and summing the results (if more than one designated intermediate ingredient or feedstock is used), and dividing the resultant value by 100.

Another commenter stated that the text and equations in 3201.7(c)(2) and (3) need to be revised. The commenter stated that the calculation should be based on the organic carbon content of the product and provided a recommendation for a revised equation.

Response: USDA evaluated the comments and recommendations submitted by these commenters and agrees with most of their positions. Most significantly, USDA agrees that the equations presented in the proposed amendments to the Guidelines should be revised so that they determine the biobased content of complex assemblies and finished products made from designated intermediate ingredients or feedstocks based on the total mass of organic carbon in the components of the assembly or in the finished product. The equations have been revised in today's final rule.

The first commenter is correct that the statutory language in the FCEA states that products composed of more than 50 percent of designated intermediate ingredients or feedstocks must be automatically designated. However, USDA believes that the current approach of designating “product categories” rather than individual products is appropriate even when finished products are made from intermediate ingredients that have been designated. The designation of product categories that include these finished products involves multiple steps. These steps are shown in Figure 1 and are discussed in the paragraphs that follow Figure 1.

First, at the time that an intermediate ingredient or feedstock category is selected for designation, the categories of finished products that are made from the intermediate ingredients or feedstocks will be identified. The list of product categories that is developed will then be compared to the list of previously designated product categories. For those individual products that fall within a product category that has already been designated, the applicable minimum biobased content to qualify for preferred procurement is the minimum specified for the product category in subpart B of section 3201. Those individual products that do not fall within an existing designated product category will be investigated to determine whether their formulation includes more than 50 percent  1 of the intermediate ingredients or feedstocks selected for designation. If the products contain more than 50 percent  1 of the selected intermediates, USDA will proceed with “auto-designating” a new product category based on the products evaluated. If new product categories are needed, USDA will gather information on as many individual products from within the new product category as possible. Biobased content information from the testing of individual products (using ASTM D6866) will be evaluated and a minimum biobased content set for the new product category. Then, after the designation of the new product category (based on products composed of more than 50 percent designated intermediate ingredients), manufacturers can determine whether their individual products qualify for preferred procurement. They can do this by using the procedure in the final Guidelines to determine the biobased content of their products and comparing that to the minimum biobased content established for the product category.

As stated above, the equations for determining the biobased content of complex products and finished products was revised in the final rule. The first commenter's recommended revision to the procedure for calculating the biobased content of finished products made from designated intermediate ingredients was generally accepted. However, a second sentence was added to the procedure because when determining whether an individual finished product meets the established minimum biobased content of a product category, biobased intermediate ingredients that have not been designated may also be present and should be included in the determination of the total biobased content of the product.

Comment: One commenter stated appreciation for USDA's intent that the biobased content of complex assemblies reflects only that portion of the entire assembly that has the potential to be biobased. However, the commenter expressed concerned with the use of vague terms such as “potentially” biobased as its use does not clarify who or what entity will make the determination as to what is potentially biobased. The commenter suggested that use of the term “organic carbon” is a more precise and scientifically valid term to identify components which are potentially biobased. According to the commenter, use of this term also has the benefit of congruence with the terminology used in ASTM D6866.

The commenter expressed doubts as to whether reporting only the percentage of organic carbon that is biobased is sufficient to drive the desired behaviors that USDA seeks. The commenter stated that many beneficial innovations in complex assemblies entail replacing glass, steel, etc. with advanced polymer resins and composites. This modification has the effect of increasing the overall organic carbon content of the assembly, but because it increases the denominator of the complex assembly calculation, could decrease the calculated biobased content and be counterproductive. The commenter recommended that two metrics be reported for complex assemblies: a) The weight percent of the entire assembly which is organic carbon, and b) the percentage of that organic carbon that is biobased. The commenter stated that designation of complex assemblies should be based on some combination of these two metrics, in such a way to incentivize increased organic carbon content and increased percentage of that organic carbon that is biobased.

The commenter also recommended that when determining the total biobased content of complex assemblies, all materials that have biobased content should be included in the calculations and not just those materials that meet a USDA proposed minimum biobased content. The commenter provided as an example a complex assembly that is construed from other “finished products” (i.e., subassemblies) that are part of the BioPreferred catalog and have minimum biobased content levels set per the catalog. The commenter recommended that even if the subassemblies do not meet the minimum biobased content per the BioPreferred catalog, they should still be included in the calculation as contributing to the overall biobased content. The commenter stated that such inclusion will: (a) Provide a higher level of accuracy when determining total biobased content of a complex assembly, and (b) be consistent with USDA's emphasis “to improve demand for biobased products” and “to spur development of the industrial base through value-added agricultural processing and manufacturing.”

Response: USDA agrees with several commenters who recommended using “total organic carbon” as the basis for determining biobased content and has revised the procedures accordingly. This eliminates the need to consider whether materials or components have the potential to be biobased. USDA also agrees with the commenter that all biobased material in a component should be included when determining the biobased content. The calculation procedure does not distinguish between components that “finished products” and those that are not, so all biobased content in a complex assembly is counted.

Comment: One commenter stated that they are concerned about how USDA will reliably determine which individual components “could” contain biobased material. The commenter urged USDA to establish a process through its Web site as well as through stakeholder meetings to solicit nominations for which complex assemblies should be considered for designation and to collect available information on components that are being made with biobased materials. In terms of components that “could” contain biobased materials, the commenter urged USDA to only include components for which there are commercially available biobased alternatives that meet relevant industry performance standards.

Response: USDA has revised the procedures to eliminate the need to determine whether components “could” contain biobased material. However, USDA agrees with the commenter that stakeholder involvement is critical to the designation of complex assemblies. USDA expects that there will be extensive efforts to gather information and opinions from stakeholders. USDA also agrees that commercial availability of biobased components that meet relevant industry performance standards is an essential criteria that must be met.

G. 7 CFR 3201.8—Determining life cycle costs, environmental and health benefits, and performance.

Comment: Numerous commenters provided opinions on whether, and to what extent, life cycle analysis (LCA) requirements should be included in the designation process for biobased products. Three commenters stated that USDA should retain the requirement for an LCA to assure that qualified products are appropriate for preferred procurement and labeling. One of the commenters stated that without the LCA, USDA risks approving products that may have detrimental qualities that the Federal government would not want to support. The second commenter stated that LCA requirements are critical to assure that USDA does not continue to place products onto the BioPreferred catalogue that do not demonstrate better environmental or health benefits than their non‐biobased competitors. The third commenter stated that LCA is necessary to provide transparency in the USDA's evaluation of biobased content and that the assessment provides assurance that products in the Biobased Market program demonstrate substantial environmental benefits compared to alternative products. The commenter noted that the USDA Forest Service supports the use of LCA as a tool to identify materials that reduce environmental burdens and urged OPPM to follow their lead by maintaining the LCA requirement as part of the Biobased Market program.

One commenter recommended that USDA reconsider the “voluntary” approach to the development of LCA data and information. According to the commenter, LCA information is critical to understanding the full range of environmental impacts from product content or material substitution. The commenter also stated that LCA data inform agencies of the unseen or unanticipated costs and benefits from making preference selections based solely on biobased or non-biobased content. The commenter stated that LCA data help better inform interagency review, and provide critical information needed by other agencies, particularly those agencies with regulatory authority over greenhouse gas emissions and other environmental impacts related to material substitution. The commenter also stated that LCA data provide benchmarked and updated data so agencies can more effectively perform regulatory look-back. According to the commenter, the President made clear in Executive Order 13563 (Jan. 21, 2011) that regulatory agencies “must measure, and seek to improve, the actual results of regulatory requirements.” The order emphasizes the importance of retrospective analysis of rules with a “look back requirement,” so the agency can, in effect, better engage in ongoing cost-benefit analysis of the regulation after it is promulgated. An LCA requirement is critical because it helps provide the data and information necessary to complete that review.

The commenter stated that, while some argue that requiring the submission of LCA data and information is unfair or imposes additional costs on biobased manufacturers, the FCEA and the Guidelines acknowledge that the beneficiaries of the biobased preference are generally expected to gain market share compared to those who do not. The commenter supported the application of an LCA requirement on an equal basis with respect to any Federal procurement program premised on the notion that certain material content preferences are preferred over others, and with respect to any supplier.

One commenter requested further clarity on LCA requirements for “complex assembly” biobased products. The commenter stated that it is not clear from the proposed rulemaking whether complex assemblies will require their own LCA, or whether LCAs for the individual components with biobased content will suffice, for example. The commenter recommended further guidelines for complex assemblies be published in the Federal Register for public comment. The commenter further stated that harmonization and alignment of product carbon footprint (PCF) standards need to be developed. The commenter stated that several standards (ISO 14067, GHG protocol, and PAS 2050) are being developed in parallel and that it is important that their approach and principles be consistent with one another and with generally accepted LCA guidance, such as ISO 14040/14044, and the International Reference Life Cycle Data System (ILCD) handbook. The commenter stated that discrepancies between PCF and LCA methods will cause confusion, waste resources and hinder the acceptance of PCF results.

One commenter stated that the inclusion of LCA considerations would provide additional information to the BioPreferred program, but that it also would add enormous complexity and cost to participating companies. The commenter stated that the type of LCA needed will vary depending upon whether the item being studied is an intermediate or a finished product as well as what end-of-life options are possible. Currently, ample industry forces are driving toward reduced environmental impact, and many manufacturers are voluntarily conducting LCAs to augment their marketing messaging. The commenter recommended that the USDA not codify LCA requirements into the BioPreferred program but, rather, incorporation of this information should be voluntary.

One commenter stated that the BioPreferred program should encourage the development of LCAs using ASTM/ISO methodology but not mandate or require it for procurement. The commenter stated that it is a useful tool to document continual environmental process improvements but that an LCA alone is not a sufficient tool to tell you if a product is on its way to being sustainable. The commenter explained that the fundamental value of biobased plastics arises from using biomass carbon feedstock in place of petro-fossil carbon feedstock.

One commenter stated that it is important that USDA consider the burden that providing life cycle information may place on suppliers of finished products. The commenter stated that it is reasonable that the suppliers of ingredients and feedstocks provide LCA information and data, while finished product suppliers might do so on a voluntary basis where it is reasonable to do so.

The commenter stated that information about costs over the full life cycle (including operating costs and environmental impacts) is an important consideration. The commenter stated that a UNEP/SETAC publication notes the role of such data in procurement decisions: “[L]ife cycle costing as a technique to calculate and manage costs, especially for large investments has been used to support decision-makers in procurement for decades. . .”. The commenter stated that cost information is needed to verify that the qualifications for procurement awards have been met and may confirm whether the qualified biobased product is reasonably priced in comparison. The commenter further stated that the Guidelines should also encourage the preparation of the potential cost impacts of material substitution that could result from the procurement preference, including an analysis of commodity price trends.

Response: In the original Guidelines, manufacturers were required, under section 3201.8(a), to provide life cycle cost information from either a BEES analysis or a similar analysis using ASTM D7075 when such information was requested by a Federal agency. In the 2008 Farm Bill, Congress included language stating the Federal agencies could not, as a condition of purchase of a biobased product, require manufacturers or vendors of biobased products to provide to procuring agencies more data than would be required to be provided by other manufacturers or vendors offering products for sale. As a result of this language in the 2008 Farm Bill, USDA previously amended section 3201.8 (76 FR 6322) to eliminate this requirement. While Federal agencies may no longer require such information from manufacturers of biobased products, USDA believes that information from LCA developed using industry-accepted approaches, such as the ASTM D7075 standard or the BEES analytical tool, will be valuable in the marketing of biobased products. USDA also believes that the availability of LCA information may be valuable in Federal procurements that take into account human health, environmental, or disposal considerations in the product selection process. Therefore, while USDA does not have the authority to require LCA data, USDA has, in today's final rule, added the proposed language to paragraph (a) encouraging stakeholders to develop and provide information on environmental and public health benefits, including life cycle costs, associated with their biobased products.

Comment: One commenter stated concern that the term “relative price” in section 3201.8 is an entirely new concept and that the term suggests that a government agency has the authority to use the data to adjust the market, negotiated, or contracted price of a product to a “relative price.” The commenter stated that the use of the term is inappropriate, problematic, and confusing and that USDA should retain the original wording of this section (“determining life cycle costs, environmental and health benefits, and performance”).

Response: USDA agrees with the commenter that the term “relative price” is not appropriate in this situation. USDA does believe, however, that providing some information on the price of products is useful to purchasers as they consider whether biobased products meet their purchasing criteria. USDA still encourages manufacturers to provide information to prospective buyers on the price of their products, either on the BioPreferred Web site or in their marketing material. In the final rule, USDA has dropped the word “relative” from the title of section 3201.8 and from the text within the section.

H. 7 CFR 3201.9—Funding for testing.

No comments were received on the revisions proposed for this section.

Executive Orders 13563 and 12866 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. This rule has been designated a “significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget.

Today's final rule amends the BioPreferred Program Guidelines to establish the regulatory framework for the designation of complex assemblies and intermediate ingredients or feedstocks for Federal procurement preference. The designation of such products is specifically required under the Food, Conservation, and Energy Act of 2008, which states that:

We expect that this final rule will result in benefits that justify its cost, but we lack the information to quantify those benefits. This rule expands the scope of products that may be considered for Federal procurement preference. The eligibility of intermediate ingredients or feedstocks and complex assemblies is expected to increase demand for these products once designated, which, in turn, is expected to increase demand for those agricultural products that can serve as ingredients and feedstocks. This Federal procurement preference will thus benefit businesses producing these ingredients and feedstocks.

The anticipated costs of this action would stem from reduced demand for products that do not receive Federal Procurement Preference designation. Producers of ingredients and feedstocks that are not so designated could face a loss of market share within Federal procurement; however, this cost to some producers is a result of implementing the provisions of the statute.

Although today's final rule establishes procedures for designating qualified biobased product categories, no product categories are proposed to be designated today. The actual designation of biobased product categories under this program will be accomplished through future rulemaking actions and the effect of those rulemakings on the economy will be addressed at that time.

The RFA, 5 U.S.C. 601-602, generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

Although the BioPreferred program ultimately may have a direct impact on a substantial number of small entities, USDA has determined that today's final rule itself does not have a direct significant economic impact on a substantial number of small entities. This rule directly affects Federal agencies, which are required to consider designated products for purchase. In addition, private sector manufacturers and vendors of biobased products voluntarily may provide information to USDA through the means set forth in this rule. However, the rule imposes no requirement on manufacturers and vendors to do so, and does not differentiate between manufacturers and vendors based on size. USDA does not know how many small manufacturers and vendors may opt to participate at this stage of the program.

As explained above, when USDA issues a proposed rulemaking to designate product categories for preferred procurement under this program, USDA will assess the anticipated impact of such designations, including the impact on small entities. USDA anticipates that this program will positively impact small entities that manufacture or sell biobased products. For example, once product categories are designated, this program will provide additional opportunities for small businesses to manufacture and sell biobased products to Federal agencies. This program also will impact indirectly small entities that supply biobased materials to manufacturers. Additionally, this program may decrease opportunities for small businesses that manufacture or sell non-biobased products or provide components for the manufacturing of such products. It is difficult for USDA to definitively assess these anticipated impacts on small entities until USDA proposes product categories for designation. This rule does not designate any product categories.

This final rule has been reviewed in accordance with Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, and does not contain policies that have implications for these rights.

This final rule has been reviewed in accordance with Executive Order 12988, Civil Justice Reform. This rule does not preempt State or local laws, is not intended to have retroactive effect, and does not involve administrative appeals.

This final rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. The provisions of this rule do not have a substantial direct effect on States or their political subdivisions or on the distribution of power and responsibilities among the various government levels.

This final rule contains no Federal mandates under the regulatory provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538, for State, local, and tribal governments, or the private sector. Therefore, a statement under section 202 of UMRA is not required.

For the reasons set forth in the Final Rule Related Notice for 7 CFR part 3015, subpart V (48 FR 29115, June 24, 1983), this program is excluded from the scope of the Executive Order 12372, which requires intergovernmental consultation with State and local officials. This program does not directly affect State and local governments.

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

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 through 3520), the information collection under the Guidelines is currently approved under OMB control number 0503-0011.

USDA is committed to compliance with the E-Government Act, which requires Government agencies, in general, to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. USDA is implementing an electronic information system for posting information voluntarily submitted by manufacturers or vendors on the products they intend to offer for Federal preferred procurement under each designated item. For information pertinent to E-Government Act compliance related to this rule, please contact Ron Buckhalt at (202) 205-4008.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, that includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. USDA has submitted a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register .

For the reasons stated in the preamble, the Department of Agriculture is amending 7 CFR chapter XXXII as follows:

Background

On August 25, 2008, Airbus applied for a type certificate for their new Model A350-900 airplane. Later, Airbus requested and the FAA approved, an extension to the application for FAA type certification to November 15, 2009. The Model A350-900 airplane has a conventional layout with twin wing-mounted Rolls-Royce Trent XWB engines. It features a twin-aisle, 9-abreast, economy-class layout, and accommodates side-by-side placement of LD-3 containers in the cargo compartment. The basic Airbus Model A350-900 airplane configuration accommodates 315 passengers in a standard two-class arrangement. The design cruise speed is Mach 0.85 with a maximum take-off weight of 602,000 lbs.

These special conditions for control-surface awareness, applicable to Airbus Model A350-900 airplanes, require suitable flight-control-position annunciation and control-system mode of operation to be provided to the flightcrew when a flight condition exists in which nearly full surface authority (not crew-commanded) is being utilized. Suitability of such a display must take into account that some pilot-demanded maneuvers (e.g., rapid roll) are necessarily associated with intended full performance, which may saturate the surface. Therefore, simple alerting systems, which would function in both intended or unexpected control-limiting situations, must be properly balanced between needed crew awareness and nuisance features. A monitoring system that might compare airplane motion and surface deflection, and pilot side-stick controller (SSC) demand, could be useful for elimination of nuisance alerting.

Under Title 14, Code of Federal Regulations (14 CFR) 21.17, Airbus must show that the Model A350-900 airplane meets the applicable provisions of 14 CFR part 25, as amended by Amendments 25-1 through 25-129.

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 Model A350-900 airplane because of a novel or unusual design feature, special conditions are prescribed under § 21.16.

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

In addition to the applicable airworthiness regulations and special conditions, the Airbus Model A350-900 airplane 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 must issue a finding of regulatory adequacy under section 611 of Public Law 92-574, the “Noise Control Act of 1972.”

The FAA issues special conditions, as defined in 14 CFR 11.19, under § 11.38, and they become part of the type-certification basis under § 21.17(a)(2).

The Airbus Model A350-900 airplane incorporates the following novel or unusual design features: Electronic flight-control system providing control-surface awareness and mode annunciation to the flightcrew.

With a response-command type flight-control system and no direct coupling from cockpit controller to control surface, the pilot is not aware of actual surface position utilized to fulfill the requested demand. Some unusual flight conditions, arising from atmospheric conditions and/or airplane or engine failures, may result in full or nearly full surface deflection. Unless the flightcrew is made aware of excessive deflection or impending control-surface limiting, piloted or auto-flight system control of the airplane might be inadvertently continued in such a manner as to cause loss of control or other unsafe stability or performance characteristics.

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.

Notice of proposed special conditions No. 25-13-15-SC for Airbus Model A350-900 airplanes was published in the Federal Register on December 17, 2013 (78 FR 76254). No comments were received, and the special conditions are adopted as proposed.

As discussed above, these special conditions apply to Airbus Model A350-900 airplanes. Should Airbus apply later for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.

This action affects only certain novel or unusual design features on the Airbus Model A350-900 airplanes. It is not a rule of general applicability.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Airbus Model A350-900 airplanes.

Current airworthiness standards do not contain adequate safety standards for the design. In addition to the requirements of §§ 25.143, 25.671 and 25.672, the following special conditions apply:

Background

On August 25, 2008, Airbus applied for a type certificate for their new Model A350-900 airplane. Later, Airbus requested, and the FAA approved, an extension to the application for FAA type certification to November 15, 2009. The Model A350-900 airplane has a conventional layout with twin wing-mounted Rolls-Royce Trent XWB engines. It features a twin-aisle, 9-abreast, economy-class layout, and accommodates side-by-side placement of LD-3 containers in the cargo compartment. The basic Model A350-900 airplane configuration will accommodate 315 passengers in a standard two-class arrangement. The design cruise speed is Mach 0.85 with a maximum take-off weight of 602,000 lbs.

A special condition to supplement § 25.143 concerning pitch and roll limits was developed for the Airbus Model A320, A330, A340, and A380 airplanes wherein performance of the limiting functions was monitored throughout the flight-test program. The FAA expects similar monitoring to take place during the A350 flight-test program to substantiate the pitch- and roll-attitude limiting functions, and the appropriateness of the chosen limits.

Under Title 14, Code of Federal Regulations (14 CFR) 21.17, Airbus must show that the Model A350-900 airplane meets the applicable provisions of 14 CFR part 25, as amended by Amendments 25-1 through 25-129.

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 Model A350-900 airplane because of a novel or unusual design feature, special conditions are prescribed under § 21.16.

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

In addition to the applicable airworthiness regulations and final special conditions, the Model A350-900 airplane 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 must issue a finding of regulatory adequacy under section 611 of Public Law 92-574, the “Noise Control Act of 1972.”

The FAA issues special conditions, as defined in 14 CFR 11.19, under § 11.38, and they become part of the type-certification basis under § 21.17(a)(2).

The Airbus Model A350-900 series will incorporate the following novel or unusual design features: an EFCS that, when operating in its normal mode, will prevent airplane pitch attitudes greater than +30 degrees and less than −15 degrees, and roll angles greater than plus or minus 67 degrees. In addition, positive spiral stability is introduced for roll angles greater than 33 degrees at speeds below V MO /M MO . At speeds greater than V MO and up to V DF , maximum aileron-control force is limited to only 45 degrees maximum bank angle.

It is expected that high thrust-to-weight ratios provide the most critical cases for the positive-pitch limit. A margin in pitch control must be available to enable speed control in maneuvers such as climb after takeoff, and balked landing climb. The pitch limit must not impede likely maneuvering made necessary by collision avoidance efforts. A negative-pitch limit must similarly not interfere with collision-avoidance capability, or with attaining and maintaining speeds near V MO /M MO for emergency descent.

Spiral stability, which is introduced above 33 degrees roll angle, and the roll limit must not restrict attaining roll angles up to 66 degrees (approximately 2.5g level turn) with flaps up and 60 degrees (approximately 2.0g level turn) with flaps down. The implementation of this spiral stability requires a steady aileron-control force to maintain a constant bank angle above 33 degrees. This force must not require excessive pilot strength as stated in § 25.143(f).

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.

Notice of proposed special conditions no. 25-13-25-SC for the Airbus Model A350-900 airplane was published in the Federal Register on November 12, 2013 (78 FR 67320). One comment supporting the special conditions was received. These special conditions are adopted as proposed.

As discussed above, these special conditions apply to Airbus Model A350-900 airplanes. Should Airbus apply later for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.

This action affects only certain novel or unusual design features on the Airbus Model A350-900 airplanes. It is not a rule of general applicability.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Airbus Model A350-900 airplanes. In addition to § 25.143, the following requirements apply:

1. The pitch-limiting function must not impede normal maneuvering for pitch angles up to the maximum required for normal maneuvering, including a normal all-engines-operating takeoff, plus a suitable margin to allow for satisfactory speed control.

2. The pitch and roll limiting functions must not restrict or prevent attaining pitch attitudes necessary for emergency maneuvering, or roll angles up to 66 degrees with flaps up or 60 degrees with flaps down. Spiral stability, which is introduced above 33 degrees roll angle, must not require excessive pilot strength to achieve these roll-limit angles. Other protections, which further limit the roll capability under certain extreme angle-of-attack, attitude, or high-speed conditions, are acceptable as long as they allow at least 45 degrees of roll capability.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2014-0146, dated June 11, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A319-111, -112, -115, -132, and -133 airplanes; Model A320-214, -232, and -233 airplanes; and Model A321-211, -231, and -232 airplanes. The MCAI states:

You may examine the MCAI on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2014-0486.

Airbus has issued the following service information. 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 these same type designs.

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

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

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

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

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

To address this misunderstanding and misinterpretation of the Airworthy Product paragraph, we have changed that paragraph and retitled it “Contacting the Manufacturer.” This paragraph now clarifies that for any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the FAA, the European Aviation Safety Agency (EASA), or Airbus's EASA DOA.

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

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

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 missing fasteners on the frame may affect the structural integrity of the circumferential joint, which might result in rapid decompression. 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-20**-*****; Directorate Identifier 2014-NM-126-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD based on those comments.

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

We estimate that this AD affects 7 airplanes of U.S. registry.

We also estimate that it will 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 this AD on U.S. operators to be $595, or $85 per product.

In addition, we estimate that any necessary follow-on actions will take about 39 work-hours and require parts costing $0, for a cost of $3,315 per product. We have no way of determining the number of aircraft that might need these actions.

We have received no definitive data that would enable us to provide cost estimates for the on-condition repair specified in this AD.

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.

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this AD is 2120-0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at 800 Independence Ave. SW., Washington, DC 20591, ATTN: Information Collection Clearance Officer, AES-200.

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 by adding an AD that would apply to all Airbus Model A330-200 Freighter, A330-200 and -300, and A340-200, -300, -500, and -600 series airplanes. The NPRM published in the Federal Register on April 14, 2014 (79 FR 20839).

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2013-0251 dated October 15, 2013; Correction dated October 16, 2013 (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:

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov/#!documentDetail;D=FAA-2014-0228-0002.

Since the NPRM (79 FR 20839, April 14, 2014) was published, we have received the following revised service information:

We have determined that this service information does not add any additional actions to those proposed in the NPRM (79 FR 20839, April 14, 2014); therefore, we have revised paragraph (g) of this AD to refer to that service information. We have also added a new paragraph (h) to this AD (and redesignated subsequent paragraphs accordingly) to provide credit for actions performed before the effective date of this AD using the following service information:

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (79 FR 20839, April 14, 2014) or on the determination of the cost to the public.

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

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

In the NPRM (79 FR 20839, April 14, 2014), we proposed to prevent the use of repairs that were not specifically developed to correct the unsafe condition, by requiring that the repair approval provided by the State of Design Authority or its delegated agent specifically refer to this FAA AD. This change was intended to clarify the method of compliance and to provide operators with better visibility of repairs that are specifically developed and approved to correct the unsafe condition. In addition, we proposed to change the phrase “its delegated agent” to include a design approval holder (DAH) with State of Design Authority design organization approval (DOA), as applicable, to refer to a DAH authorized to approve required repairs for the proposed AD.

No comments were provided to the NPRM (79 FR 20839, April 14, 2014) about these proposed changes. However, a comment was provided for an NPRM having Directorate Identifier 2012-NM-101-AD (78 FR 78285, December 26, 2013). The commenter stated the following: “The proposed wording, being specific to repairs, eliminates the interpretation that Airbus messages are acceptable for approving minor deviations (corrective actions) needed during accomplishment of an AD mandated Airbus service bulletin.”

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

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

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

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

Other commenters to the NPRM having Directorate Identifier 2012-NM-101-AD (78 FR 78285, December 26, 2013) pointed out that in many cases the foreign manufacturer's service bulletin and the foreign authority's MCAI might have been issued some time before the FAA AD. Therefore, the DOA might have provided U.S. operators with an approved repair, developed with full awareness of the unsafe condition, before the FAA AD is issued. Under these circumstances, to comply with the FAA AD, the operator would be required to go back to the manufacturer's DOA and obtain a new approval document, adding time and expense to the compliance process with no safety benefit.

Based on these comments, we removed the requirement that the DAH-provided repair specifically refer to this AD. Before adopting such a requirement, the FAA will coordinate with affected DAHs and verify they are prepared to implement means to ensure that their repair approvals consider the unsafe condition addressed in this AD. Any such requirements will be adopted through the normal AD rulemaking process, including notice-and-comment procedures, when appropriate.

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

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

• Are consistent with the intent that was proposed in the NPRM (79 FR 20839, April 14, 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 20839, April 14, 2014).

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

We estimate that this AD affects 77 airplanes of U.S. registry.

We also estimate that it takes about 6 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the AD on U.S. operators to be $39,270, or $510 per product.

We estimate that it takes about 3 work-hours per product to do any necessary SSC replacement that would be required based on the results of the operational test. Required parts cost about $35,000 per SSC. 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 determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

You may examine the AD docket on the Internet at http://www.regulations.gov/#!docketDetail;D=FAA-2013-0597; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section.

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc. Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes, Model CL-600-2D15 (Regional Jet Series 705) airplanes, Model CL-600-2D24 (Regional Jet Series 900) airplanes, and Model CL-600-2E25 (Regional Jet Series 1000) airplanes. The NPRM published in the Federal Register on April 14, 2014 (79 FR 20829).

Transport Canada Civil Aviation (TCCA), which is the airworthiness authority for Canada, has issued Canadian Airworthiness Directive CF-2014-02, dated January 8, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”). The MCAI states:

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (79 FR 20829, April 14, 2014) or on the determination of the cost to the public.

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

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

In the NPRM (79 FR 20829, April 14, 2014), we proposed to prevent the use of repairs that were not specifically developed to correct the unsafe condition, by requiring that the repair approval provided by the State of Design Authority or its delegated agent specifically refer to this FAA AD. This change was intended to clarify the method of compliance and to provide operators with better visibility of repairs that are specifically developed and approved to correct the unsafe condition. In addition, we proposed to change the phrase “its delegated agent” to include a design approval holder (DAH) with State of Design Authority design organization approval (DOA), as applicable, to refer to a DAH authorized to approve required repairs for the proposed AD.

No comments were provided to the NPRM (79 FR 20829, April 14, 2014) about these proposed changes. However, a comment was provided for a similar NPRM, Directorate Identifier 2012-NM-101-AD (78 FR 78285, December 26, 2013). The commenter stated the following: “The proposed wording, being specific to repairs, eliminates the interpretation that Airbus messages are acceptable for approving minor deviations (corrective actions) needed during accomplishment of an AD mandated Airbus service bulletin.”

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

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

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

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

Other commenters to the NPRM discussed previously, Directorate Identifier 2012-NM-101-AD (78 FR 78285, December 26, 2013), pointed out that in many cases the foreign manufacturer's service bulletin and the foreign authority's MCAI might have been issued some time before the FAA AD. Therefore, the DOA might have provided U.S. operators with an approved repair, developed with full awareness of the unsafe condition, before the FAA AD is issued. Under these circumstances, to comply with the FAA AD, the operator would be required to go back to the manufacturer's DOA and obtain a new approval document, adding time and expense to the compliance process with no safety benefit.

Based on these comments, we removed the requirement that the DAH-provided repair specifically refer to this AD. Before adopting such a requirement, the FAA will coordinate with affected DAHs and verify they are prepared to implement means to ensure that their repair approvals consider the unsafe condition addressed in this AD. Any such requirements will be adopted through the normal AD rulemaking process, including notice-and-comment procedures, when appropriate.

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

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

• Are consistent with the intent that was proposed in the NPRM (79 FR 20829, April 14, 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 20829, April 14, 2014).

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

We estimate that this AD affects 400 airplanes of U.S. registry.

We also estimate that it takes about 3 work-hours per product to comply with the basic inspection requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $102,000, or $255 per airplane, per inspection cycle.

In addition, we estimate that any necessary replacement of the rudder pedal tubes takes about 6 work-hours and require parts costing $2,850, for a cost of $3,360 per product. We have no way of determining the number of aircraft that might need this action.

We have received no definitive data that would enable us to provide cost estimates for the on-condition repairs specified in this AD.

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

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

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

You may examine the AD docket on the Internet at http://www.regulations.gov/#!docketDetail;D=FAA-2014-0196; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section.

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Beechcraft Corporation (Type Certificate Previously Held by Hawker Beechcraft Corporation; Raytheon Aircraft Company) Model Hawker 800XP, 850XP, and 900XP airplanes. The NPRM published in the Federal Register on April 24, 2014 (79 FR 22783). The NPRM was prompted by a design review that revealed there were no instructions to apply sealant to structural components in the fuel tank during the winglet installation process. The sealant is part of the lightning protection design for the fuel tanks. The NPRM proposed to require an inspection for the presence of sealant on doubler plate edges, doubler plate rivets, and adjacent skin in the fuel vent surge tanks; and corrective actions if necessary. We are issuing this AD to detect and correct missing sealant, which, during a lightning strike, could result in a potential source of ignition in a fuel tank and consequent explosion or fire and subsequent in-flight breakup of the airplane.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (79 FR 22783, April 24, 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 22783, April 24, 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 22783, April 24, 2014).

We estimate that this AD affects 50 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2003-18-10, Amendment 39-13301 (68 FR 53503, September 11, 2003). AD 2003-18-10 applied to The Boeing Company Model 767 airplanes. The NPRM published in the Federal Register on February 22, 2012 (77 FR 10403). That NPRM proposed to continue to require revising the Airworthiness Limitations Section of the MPD document. That NPRM also proposed to require revising the maintenance program to incorporate an additional limitation, which terminates the existing requirements; and adding airplanes to the applicability.

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal (77 FR 10403, February 22, 2012) and the FAA's response to each comment.

ABX Air requested that we reduce the scope of the NPRM (77 FR 10403, February 22, 2012).

ABX Air stated that the “SUMMARY” and “Actions Since Existing AD was Issued” sections of the NPRM imply that it is a result of an unsafe condition relating to certain cargo doors and flaps. ABX Air stated that the NPRM would require incorporation of the July 2011 revision of Section 9 of the Boeing 767 MPD Document into the operator's maintenance program. ABX Air stated that requiring the complete revision is overreaching the AD's scope.

We disagree with reducing the scope of this final rule. The NPRM (77 FR 10403, February 22, 2012) stated that re-evaluation of certain doors and flaps prompted the new rulemaking. However, the re-evaluation was not limited to certain doors and flaps, but rather a complete review of the entire July 2011 revision of Subsection B, Airworthiness Limitations—Structural Limitations, of Section 9 of the Boeing 767 MPD Document. The AD is intended to detect and correct fatigue cracking of the principal structural elements (PSEs) listed in the July 2011 revision of Subsection B, Airworthiness Limitations—Structural Limitations, of Section 9 of the Boeing 767 MPD Document, as stated in the preamble of the NPRM. We have not changed this final rule in this regard.

Boeing requested that we revise the reference in Note 1 to paragraph (c) of the NPRM (77 FR 10403, February 22, 2012) from FAA Advisory Circular (AC) 25.1529-1A ( http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgAdvisoryCircular.nsf/0/E4111B5537E0B345862573B0006FA23B?OpenDocument&Highlight=ac 25.1529 1a ) to FAA AC 120-93, dated November 20, 2007 ( http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgAdvisoryCircular.nsf/0/F73FD2A31B353A71862573B000521928?OpenDocument&Highlight=faa ac 120-93 ). Boeing stated that the FAA has revised AC 25.1529-1 at Revision A, dated November 20, 2007 ( http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgAdvisoryCircular.nsf/0/E4111B5537E0B345862573B0006FA23B?OpenDocument&Highlight=ac 25.1529 1a) , to apply only to airplanes below 7,500 pounds gross weight; therefore, AC 25.1529-1A no longer applies to Model 767 airplanes.

We agree that FAA AC 25.1529-1A ( http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgAdvisoryCircular.nsf/0/E4111B5537E0B345862573B0006FA23B?OpenDocument&Highlight=ac 25.1529 1a ) does not apply to airplanes identified in this final rule, and have determined that Note 1 to paragraph (c) of the NPRM (77 FR 10403, February 22, 2012) is not needed. That note has been removed from this final rule.

United Parcel Service (UPS) requested that we remove the reference to Subsection B, Airworthiness Limitations—Structural Inspections, of Section 9, Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D622T001-9, Revision July 2011, of the Boeing 767 MPD Document from paragraph (g) of the NPRM (77 FR 10403, February 22, 2012). UPS stated that, if paragraph (g) of the NPRM is a restatement of the requirements of AD 2003-18-10, Amendment 39-13301 (68 FR 53503, September 11, 2003), then the July 2011 revision is not required. UPS stated that, if the intent was to indicate those revisions previously approved by rule or Alternative Method of Compliance (AMOC) approval, then paragraph (g) of the NPRM should state that those revisions were previously approved instead of referring to specific revision dates.

We disagree with the request to remove the reference. Including this reference in paragraph (g) of this final rule gives an option to the operator, and is not a requirement. No change has been made to this final rule in this regard.

Boeing and AA requested that we permit the use of later revisions of Section 9, Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D622T001-9, of the Boeing 767 MPD Document. Boeing stated that since the NPRM (77 FR 10403, February 22, 2012) was published, new revisions of that document have been released.

We agree to allow use of the most recent revision of the MPD (Subsection B, Airworthiness Limitations—Structural Inspections, of Section 9, Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D622T001-9, Revision February 2014, of the Boeing 767 MPD Document), and have added this reference in paragraph (i) of this final rule accordingly. Operators may also request approval to use prior revisions of the referenced MPD as an alternative method of compliance, under the provisions of paragraph (l) of the final rule.

ABX Air, Japan Air Lines (JAL), and All Nippon Airways (ANA) requested that we add a grace period to paragraph (i) of the NPRM (77 FR 10403, February 22, 2012).

ABX Air requested a 44-month grace period to allow operators to revise their maintenance program and do the initial inspection and repair without putting the fleet out of compliance. ABX Air stated that airplanes that have exceeded the existing 25,000-flight-cycle compliance time would be out of compliance when the AD is published. ABX believes that extending the compliance time to 44 months will provide an acceptable level of safety.

JAL requested we add a 24-month grace period to paragraph (i) of the NPRM (77 FR 10403, February 22, 2012). JAL stated that it has airplanes that have exceeded the proposed compliance time.

ANA requested that we change the compliance time for revising the maintenance program from 18 months to 45 months, or establish a grace period to coordinate with ANA's C-check maintenance schedule.

American Airlines (AA) requested clarification of the compliance times to address airplanes that are beyond the thresholds of the new tasks specified in Section 9 of the Boeing 767 MPD Document. AA stated that operators will have airplanes out of compliance with the maintenance program when Section 9 of the Boeing 767 MPD Document is incorporated.

We find that clarification of the compliance time for the initial inspection is necessary. We have added a sentence to paragraph (i)(1) of this final rule to specify that the initial compliance times for the inspections are to be done at the applicable times specified in Subsection B, Airworthiness Limitations—Structural Inspections, of Section 9, Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D622T001-9, Revision July 2011 or Revision February 2014, of the Boeing 767 MPD Document; or within 18 months after the effective date of this AD; whichever occurs later.

In developing an appropriate compliance time, we considered the safety implications, the time necessary to design an acceptable modification, and normal maintenance schedules for timely accomplishment of the modification. In light of these items, we have determined that the times specified in Subsection B, Airworthiness Limitations—Structural Inspections, of Section 9, Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D622T001-9, Revision July 2011 or Revision February 2014, of the Boeing 767 MPD Document; or within 18 months after the effective date of this AD; for the initial inspection is appropriate. However, under the provisions of paragraph (l) of the final rule, we will consider requests for approval of an extension of the compliance time if sufficient data are submitted to substantiate that the extension would provide an acceptable level of safety.

Boeing requested that we change paragraph (i) of the NPRM (77 FR 10403, February 22, 2012) to allow Appendix 7 of FAA AC 120-93, dated November 20, 2007 ( http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgAdvisoryCircular.nsf/0/F73FD2A31B353A71862573B000521928?OpenDocument ), or another method approved by a principal maintenance inspector (PMI), as an alternative to the method for tracking rotable parts. Boeing stated that the current statement in Subsection B, Airworthiness Limitations—Structural Inspections, of Section 9, Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D622T001-9, Revision July 2011, of the Boeing 767 MPD Document, is overly restrictive for the purpose of identifying fleet problems with an exploratory inspection program for removable structural components.

We do not agree with the commenter's request to change the method of compliance for tracking rotable parts. The Boeing MPD method is identical to, or less restrictive for fleet age than, the method described in FAA AC 120-93, dated November 20, 2007 ( http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgAdvisoryCircular.nsf/0/F73FD2A31B353A71862573B000521928?OpenDocument ). This AC permits a “conservative” implementation schedule to be established. However, a “conservative” schedule is undefined and, therefore, unenforceable. As a result, the FAA guidance in the AC is inappropriate for inclusion in this final rule. No change has been made to this final rule in this regard. However, under the provisions of paragraph (l) of the final rule, we will consider requests for approval of an alternative method for compliance if sufficient data are submitted to substantiate that the alternative method would provide an acceptable level of safety.

UPS requested that we revise the text of paragraph (g) of the NPRM (77 FR 10403, February 22, 2012) to require revising the maintenance program to incorporate the identified MPD documents. UPS stated that paragraph (g) of the NPRM requires operators to revise Subsection B of Section 9 of the Boeing 767 MPD Document and Appendix B of Boeing 767 MPD Document. UPS noted that operators do not have control or revision authority over the Boeing 767 MPD documents.

We agree with this request. We have revised paragraph (g) of this final rule to clarify how to revise the maintenance program.

Boeing and JAL requested that we permit the use of future FAA-approved revisions of the service information.

We disagree. Using the phrase “later-approved revisions” violates the Office of the Federal Register regulations for approving materials that are incorporated by reference. According to the provisions of paragraph (l) of this final rule, operators may request approval of an alternative method of compliance (AMOC) to use a later revision of the referenced MPD document as an alternative, if the request is submitted with substantiating data that demonstrate the later revision will provide an adequate level of safety. We have not changed this final rule in this regard.

United Airlines (United), AA, and UPS requested that we expand the AMOC section of the NPRM (77 FR 10403, February 22, 2012) to include previous approvals for AMOCs for AD 2003-18-10, Amendment 39-13301 (68 FR 53503, September 11, 2003).

We agree with the request. Repairs previously approved as AMOCs in accordance with AD 2003-18-10, Amendment 39-13301 (68 FR 53503, September 11, 2003), are acceptable for compliance with the corresponding actions required by this final rule. We have added a new paragraph (l)(4) to this final rule accordingly.

AA and Boeing requested that we expand the AMOC section to include repairs approved under section 25.571 of the Federal Aviation Regulations (14 CFR 25.571) and section 26.43(d) of the Federal Aviation Regulations (14 CFR 26.43(d)) as acceptable methods of compliance. AA recommended that we approve as AMOCs to the NPRM (77 FR 10403, February 22, 2012) all repairs approved by a Boeing-authorized representative on parts listed in Section 9 of the Boeing 767 MPD Document that were found to be compliant with 14 CFR 25.571 and 14 CFR 26.43(d). Boeing recommended “grandfathering” existing repairs to new CMRs/structural significant items (SSI) provided adequate damage tolerance has been performed at repair approval.

We agree with the commenter. We have added a new paragraph (l)(5) to this final rule to allow the following repairs done before the effective date of this AD as acceptable methods of compliance where the inspections of the baseline structure cannot be accomplished: Repairs that are approved under both section 25.571 of the Federal Aviation Regulations (14 CFR 25.571) and section 26.43(d) of the Federal Aviation Regulations (14 CFR 26.43(d)) by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle Aircraft Certification Office (ACO), to make those findings; provided that the repair specified an inspection program (inspection threshold, method, and repetitive interval); and that operators revised their maintenance or inspection program, as applicable, to include the inspection program for the repair.

Boeing requested that we revise paragraph (k)(3) of the NPRM (77 FR 10403, February 22, 2012) to include inspecting as an alternative method to satisfy the damage tolerance requirements. (Paragraph (k)(3) of the NPRM corresponds to paragraph (l)(3) of this final rule.) Boeing stated that doing so would clarify that, in cases where an operator cannot perform an inspection “per D622T001-9 Subsection B and D622T001-DTR in baseline configuration,” an alternate inspection type that satisfies the damage tolerance requirements can be used with an appropriate AMOC approval.

We disagree with adding the requested text to this final rule. Paragraph c. of Section 2-7 of Chapter 2, DER (designated engineering representative) Authority and Limitations, of FAA Order 8110.37E, DER Handbook, effective March 30, 2011 ( http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgOrders.nsf/0/3679F39DB79BB62A8625786A0066C662?OpenDocument&Highlight=8110.37e ), does permit an authorized DER or other authorized representative to approve an alternative inspection method, threshold, or interval, where a new repair or modification results in the inability to accomplish the existing AD-mandated inspection, or necessitates a change in the existing AD-mandated inspection threshold. This delegation is already provided in paragraph (l)(3) of this final rule. No change has been made to the final rule in this regard.

Delta Airlines (Delta) requested that we clarify the compliance time for the proposed reporting requirements. Delta stated that the instruction in Subsection B, Airworthiness Limitations—Structural Inspections, of Section 9, Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), Revision July 2011, or Revision February 2014, of the Boeing 767 MPD Document, specifies reporting within 10 days. Delta requested a change to state that reporting is required within 10 days after the airplane is returned to service, instead of 10 days after each individual finding.

We agree with the commenter's request. We have added new paragraph (i)(3) to this final rule to clarify that the compliance time for reporting is within 10 days after the airplane is returned to service, instead of 10 days after each individual finding. We have also added new paragraph (j) to this final rule to include the Paperwork Reduction Act Burden Statement, and re-designated subsequent paragraphs accordingly.

We have moved the information from Note 2 of the NPRM (77 FR 10403, February 22, 2012) into paragraph (i)(2) of this final rule.

We have clarified the language in paragraph (k) of this AD and added a reference to paragraph (l) of this AD.

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

• Are consistent with the intent that was proposed in the NPRM (77 FR 10403, February 22, 2012) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (77 FR 10403, February 22, 2012).

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

We estimate that this AD affects 417 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this AD is 2120-0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at 800 Independence Ave. SW., Washington, DC 20591, ATTN: Information Collection Clearance Officer, AES-200.

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:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Beechcraft Corporation (Type Certificate Previously Held by Hawker Beechcraft Corporation; Raytheon Aircraft Company; Mitsubishi Heavy Industries, Inc. Ltd.) Model MU-300 airplanes Type Certificate previously held by Mitsubishi; Raytheon Aircraft Company) Model MU-300 airplanes, and Hawker Beechcraft Corporation (Type Certificate Previously Held by Hawker Beechcraft Corporation; Raytheon Aircraft Company; Beech Aircraft Corporation) Model 400, 400A, and 400T airplanes. The NPRM published in the Federal Register on April 4, 2014 (79 FR 18848). The NPRM was prompted by multiple reports of fatigue cracking in the horizontal stabilizer ribs. The NPRM proposed to require repetitive inspections of the horizontal stabilizer rib assemblies for cracking, and replacement if necessary. We are issuing this AD to detect and correct such cracking, which could result in the failure of the horizontal stabilizer and loss of pitch control of the airplane.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (79 FR 18848, April 4, 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 18848, April 4, 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 18848, April 4, 2014).

We estimate that this AD affects 735 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by adjusting the geographic coordinates, within Class D and Class E airspace, of Hartford-Brainard Airport, Hartford, CT, to coincide with the FAA's aeronautical database. This is an administrative change and does not affect the boundaries, altitudes, or operating requirements of the airspace, therefore, notice and public procedure under 5 U.S.C. 553(b) are unnecessary.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace at Hartford-Brainard Airport, Hartford, CT.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR Part 71 as follows:

The Entity List (Supplement No. 4 to Part 744) notifies the public about entities that have engaged in activities that could result in increased risk of diversion of exported, reexported or transferred (in-country) items to weapons of mass destruction (WMD) programs. Since its initial publication, grounds for inclusion on the Entity List have expanded to include activities sanctioned by the State Department and activities contrary to U.S. national security or foreign policy interests. Certain exports, reexports, and transfers (in-country) to entities on the Entity List require licenses from BIS. License applications are reviewed with a presumption of denial. The availability of license exceptions for exports, reexports on transfers (in-country) is very limited. The license review policy for each entity is identified in the license review policy column on the Entity List. The availability of license exceptions is noted in the Federal Register notices adding persons to the Entity List. BIS places entities on the Entity List based on certain sections of part 744 (Control Policy: End-User and End-Use Based) of the EAR.

The End-user Review Committee (ERC), composed of representatives of the Departments of Commerce (Chair), State, Defense, Energy and, where appropriate, the Treasury, makes all decisions regarding additions to, removals from, or other modifications to the Entity List. The ERC makes all decisions to add an entry to the Entity List by majority vote and all decisions to remove or modify an entry by unanimous vote.

This rule implements the decision of the ERC to add sixteen persons under nineteen entries to the Entity List on the basis of § 744.11 (License requirements that apply to entities acting contrary to the national security or foreign policy interests of the United States) of the EAR. The nineteen entries added to the Entity List consist of five entries in Afghanistan, seven entries in China, two entries in Hong Kong, one entry in Iran, and four entries in the U.A.E.

The ERC reviewed § 744.11(b) (Criteria for revising the Entity List) in making the determination to add these sixteen persons to the Entity List. Under that paragraph, entities for whom there is reasonable cause to believe, based on specific and articulable facts, have been involved, are involved, or pose a significant risk of being or becoming involved, in activities that are contrary to the national security or foreign policy interests of the United States, and those acting on behalf of such persons may be added to the Entity List. Paragraphs (b)(1) through (b)(5) of § 744.11 include an illustrative list of activities that could be contrary to the national security or foreign policy interests of the United States.

The ERC determined to add four persons—FIMCO FZE, Crescent International Trade and Services FZE, Khosrow Kasraei, and Mujhid Ali- to the Entity List under five entries under the destinations of Iran and the U.A.E. on the basis of their involvement in activities contrary to the national security and foreign policy of the United States, under § 744.11(b)(2). These companies and their affiliates have been engaging in conduct that poses a risk of violating the EAR, specifically with regard to the attempted illicit reexport of U.S.-origin items to Iran, under § 744.11(b)(2). These four persons were involved in the attempted export of a lathe machine subject to the EAR to Iran in violation of Department of the Treasury, Office of Foreign Assets Control regulations and the EAR. Lathe machines are used in the production of high grade steel or “bright steel”, which in turn may be used, among other things, in the manufacture of automobile and aircraft parts.

The ERC determined to add five persons—Emal Bilal Construction Company, Wahab Karwan Construction Company, Mohammad Jan Khan Mangal, Shan Mahmoud Khan Mangal, and Emal Bilal Mangal—to the Entity List under the destination of Afghanistan for involvement in activities contrary to the national security and foreign policy interests of the United States, specifically the activities described under paragraph (b)(1) (Supporting persons engaged in acts of terror) of § 744.11 of the EAR. These persons have engaged in activities in support of persons designated by the Secretary of State as a Foreign Terrorist Organization (FTO). The persons designated as FTOs were so designated as a result of their activities against U.S. and coalition forces in Afghanistan contrary to the national security and foreign policy of the United States.

The ERC determined to add four persons—Beijing Aeronautics Yangpu Technology Investment Company (BAYTIC), Chengdu GaStone Technology Co. Ltd. (CGTC), China Electronics Technology Group Corporation 29 (CETC 29) Research Institute, and Jiangsu Leidian Technology Company (JLTC)—to the Entity List under the destination of China on the basis of their involvement in activities contrary to the national security and foreign policy interests of the United States. Specifically, the ERC determined that these persons have been involved in the activities described under paragraph § 744.11(b)(5) of the EAR. Paragraph (b)(5) specifies that the types of activities that could be contrary to the national security or foreign policy interests of the United States include engaging in conduct that poses a risk of violating the EAR when such conduct raises sufficient concern that the ERC believes that prior review of exports, reexports, or transfers (in-country) involving the party and the possible imposition of license conditions or license denial enhances BIS's ability prevent violations of the EAR. The ERC has reasonable cause to believe that BAYTIC, CGTC, CETC 29 Research Institute and JLTC, have been involved in the illicit procurement of commodities and technologies for unauthorized military end use in China.

The ERC also determined to add one person located in China—Qing'an International Trading Group (QTC)—to the Entity List on the basis of its involvement in activities contrary to the national security and foreign policy interests of the United States. Specifically, the ERC determined that this person has been involved in the activities described under paragraph § 744.11(b)(5) of the EAR. The ERC has reasonable cause to believe that Qing'an International Trading Group has been involved in the illicit procurement of commodities and technologies for unauthorized military end use in China.

Finally, the ERC determined that PRC Lode Technology Company and Su Bin, both located in both China and Hong Kong, should be added to the Entity List on the basis of their involvement in activities contrary to the national security and foreign policy interests of the United States. Specifically, the ERC determined that these two persons have been involved in the activities described under paragraph § 744.11(b)(5) of the EAR. The ERC has reasonable cause to believe that PRC Lode Technology Company and Su Bin have been involved in the unauthorized exploitation of computer systems of U.S. companies and Department of Defense contractors to illicitly obtain and export information, including controlled technology related to military projects, contrary to U.S. law.

For the sixteen persons recommended for addition, the ERC specified a license requirement for all items subject to the EAR and a license review policy of presumption of denial. The license requirements apply to any transaction in which items are to be exported, reexported, or transferred (in-country) to any of the persons or in which such persons act as purchaser, intermediate consignee, ultimate consignee, or end-user. In addition, no license exceptions are available for exports, reexports, or transfers (in-country) to the persons being added to the Entity List in this rule.

This final rule adds the following sixteen persons under nineteen entries to the Entity List:

(1) Emal Bilal Construction Company (EBCC), a.k.a., the following two aliases:

(2) Emal Bilal Mangal, a.k.a., the following three aliases:

(3) Mohammad Jan Khan Mangal

(4) Shan Mahmoud Khan Mangal

(5) Wahab Karwan Construction Company (WKCC)

(1) Beijing Aeronautics Yangpu Technology Investment Company (BAYTIC), a.k.a., the following three aliases:

(2) Chengdu GaStone Technology Co., Ltd. (CGTC),

(3) China Electronics Technology Group Corporation 29 (CETC 29) Research Institute, a.k.a., the following two aliases:

(4) Jiangsu Leidian Technology Company (JLTC),

(5) PRC Lode Technology Company,

(7) Su Bin, a.k.a., the following two aliases:

(1) PRC Lode Technology Company,

(2) Su Bin, a.k.a., the following two aliases:

(1) FIMCO FZE,

(1) Crescent International Trade and Services FZE,

(2) FIMCO FZE,

(3) Khosrow Kasraei,

(4) Mujahid Ali, a.k.a. the following one alias:

Shipments of items removed from eligibility for a License Exception or export or reexport without a license (NLR) as a result of this regulatory action that were en route aboard a carrier to a port of export or reexport, on August 1, 2014, pursuant to actual orders for export or reexport to a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export or reexport without a license (NLR).

Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as amended by Executive Order 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013) and as extended by the Notice of August 8, 2013, 78 FR 49107 (August 12, 2013), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Export Administration Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222 as amended by Executive Order 13637.

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This rule has been determined to be not significant for purposes of Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to respond to nor be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA) unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This regulation involves collections previously approved by OMB under control number 0694-0088, Simplified Network Application Processing System, which includes, among other things, license applications and carries a burden estimate of 43.8 minutes for a manual or electronic submission.

Total burden hours associated with the PRA and OMB control number 0694-0088 are not expected to increase as a result of this rule. You may send comments regarding the collection of information associated with this rule, including suggestions for reducing the burden, to Jasmeet K. Seehra, Office of Management and Budget (OMB), by email to Jasmeet_K._Seehra@omb.eop.gov, or by fax to (202) 395-7285.

3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.

4. For the sixteen persons added under nineteen entries to the Entity List in this final rule, the provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public comment and a delay in effective date are inapplicable because this regulation involves a military or foreign affairs function of the United States. ( See 5 U.S.C. 553(a)(1)). BIS implements this rule to protect U.S. national security or foreign policy interests by preventing items from being exported, reexported, or transferred (in country) to the persons being added to the Entity List. If this rule were delayed to allow for notice and comment and a delay in effective date, then entities being added to the Entity List by this action would continue to be able to receive items without a license and to conduct activities contrary to the national security or foreign policy interests of the United States. In addition, because these parties may receive notice of the U.S. Government's intention to place these entities on the Entity List if a proposed rule is published, doing so would create an incentive for these persons to either accelerate receiving items subject to the EAR to conduct activities that are contrary to the national security or foreign policy interests of the United States, or to take steps to set up additional aliases, change addresses, and other measures to try to limit the impact of the listing on the Entity List once a final rule was published. Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are not applicable. Accordingly, no regulatory flexibility analysis is required and none has been prepared.

Accordingly, part 744 of the Export Administration Regulations (15 CFR parts 730-774) is amended as follows:

Background on Viticultural Areas TTB Authority

Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the FAA Act pursuant to section 1111(d) of the Homeland Security Act of 2002, codified at 6 U.S.C. 531(d). The Secretary has delegated various authorities through Treasury Department Order 120-01 (Revised), dated December 10, 2013, to the TTB Administrator to perform the functions and duties in the administration and enforcement of this law.

Part 4 of the TTB regulations (27 CFR 4) authorizes the establishment of definitive viticultural areas and the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR 9) sets forth the standards for the preparation and submission of petitions for the establishment or modification of American viticultural areas (AVAs) and lists the approved AVAs.

Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region having distinguishing features, as described in part 9 of the regulations, and a name and a delineated boundary, as established in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to the wine's geographic origin. The establishment of AVAs allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of an AVA is neither an approval nor an endorsement by TTB of the wine produced in that area.

Section 4.25(e)(2) of the TTB regulations (27 CFR 4.25(e)(2)) outlines the procedure for proposing an AVA and provides that any interested party may petition TTB to establish a grape-growing region as an AVA. Section 9.12 of the TTB regulations (27 CFR 9.12) prescribes standards for petitions for the establishment of AVAs. Petitions to establish an AVA must include the following:

• Evidence that the area within the proposed AVA boundary is nationally or locally known by the AVA name specified in the petition;

• An explanation of the basis for defining the boundary of the proposed AVA;

• A narrative description of the features of the proposed AVA that affect viticulture, such as climate, geology, soils, physical features, and elevation, that make the proposed AVA distinctive and distinguish it from adjacent areas outside the proposed AVA boundary;

• The appropriate United States Geological Survey (USGS) map(s) showing the location of the proposed AVA, with the boundary of the proposed AVA clearly drawn thereon; and

• A detailed narrative description of the proposed AVA boundary based on USGS map markings.

TTB received a petition from Mark Livingston, of Cedar Crest Vineyards, on behalf of Cedar Crest Vineyards and other vineyard and winery owners in Manton, California, proposing the establishment of the 11,178-acre “Manton Valley” AVA in portions of Shasta and Tehama Counties in northern California. Eleven commercial vineyards, covering approximately 200 acres, are distributed across the proposed AVA. The proposed AVA also has six bonded wineries. The proposed AVA is not located within any other AVA.

According to the petition, the distinguishing features of the proposed Manton Valley AVA are its topography, climate, and soils. The proposed AVA is stream-cut valley with a flat-to-gently-rolling floor and slope angles ranging from 0 to 30 percent and elevations between 2,000 and 3,500 feet. The moderately warm daytime temperatures within the proposed AVA are suitable for growing warmer varieties of grapes such as Merlot, Cabernet Sauvignon, and Zinfandel. At night, the temperature within the proposed AVA drops lower than in the surrounding regions, giving the proposed AVA an average diurnal temperature difference of 38.3 degrees at the peak of the growing season. The annual rainfall amount within the proposed AVA is a moderate 33.65 inches, with most rainfall occurring outside the growing season. Finally, the soils within the proposed AVA are comprised primarily of volcanic ash and weathered volcanic rock and are mainly Cohasset gravelly loams, Forward sandy loams, and Manton sandy loams.

To the north of the proposed Manton Valley AVA, the terrain is steeper and elevations are higher. Daytime temperatures are similar to those of the proposed AVA, but the nighttime temperatures are higher, resulting in a lower diurnal temperature difference. Rainfall amounts are higher north of the proposed AVA, and the soils are predominately Windy and McCarthy stony loams. To the east of the proposed AVA, elevations are higher and slope angles are greater. The growing season temperatures are significantly cooler, and rainfall amounts are higher. Soils east of the proposed AVA are very shallow and stony and are predominately of the Sheld series. To the south of the proposed AVA, elevations are lower and slope angles are greater. Growing season temperatures are significantly higher than within the proposed AVA. The soils south of the proposed AVA are of the Supan and Toomes series, which are excessively stony and are primarily used for grazing livestock. The region to the west of the proposed AVA is characterized by low elevations and large plateaus. Temperatures in the region are significantly warmer than within the proposed AVA, and there is less rainfall. Soils west of the proposed AVA are mainly of the Guenoc and Toomes series, which are excessively stony and lacking in nutrients.

TTB published Notice No. 141 in the Federal Register on January 14, 2014 (79 FR 2399), proposing to establish the Manton Valley AVA. In the notice, TTB summarized the evidence from the petition regarding the name, boundary, and distinguishing features for the proposed AVA. For a description of the evidence relating to the name, boundary, and distinguishing features of the proposed Manton Valley AVA, and for a comparison of the distinguishing features of the proposed AVA to the surrounding areas, see Notice No. 141.

In Notice No. 141, TTB solicited comments on the accuracy of the name, boundary, climatic, and other required information submitted in support of the petition. The comment period closed on March 17, 2014.

In response to Notice No. 141, TTB received a total of six comments, all of which supported the establishment of the Manton Valley AVA. The commenters included a local farm owner who previously worked at a local vineyard, a local vineyard owner, a geographer at Eastern Illinois University who has studied the geology and geography of the region of the proposed AVA, a winery owner who consults with a local winery, and two individuals who listed no affiliation. The comments did not raise any new issues concerning the proposed AVA. TTB received no comments opposing the Manton Valley AVA as proposed.

After careful review of the petition and the comments received in response to Notice No. 141, TTB finds that the soil, climate, and topography evidence provided by the petitioner sufficiently distinguishes the proposed Manton Valley AVA from the surrounding regions. Accordingly, under the authority of the FAA Act, section 1111(d) of the Homeland Security Act of 2002, and part 4 of the TTB regulations, TTB establishes the 11,178-acre “Manton Valley” AVA in portions of Shasta and Tehama Counties, California, effective 30 days from the publication date of this document.

In the regulatory text of this final rule, TTB is also correcting a typographical error that occurred in the publication of the proposed rule. In paragraph (c)(7) of the regulatory text, the phrase “proceed westerly on Rock Creek Road,” which appeared in the proposed rule, has been corrected in this final rule to read “proceed easterly on Rock Creek Road.” No other changes have been made to the regulatory text.

See the narrative description of the boundary of the AVA in the regulatory text published at the end of this final rule.

The petitioner provided the required maps, and they are listed below in the regulatory text.

Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. For a wine to be labeled with an AVA name or with a brand name that includes an AVA name, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name, and the wine must meet the other conditions listed in § 4.25(e)(3) of the TTB regulations (27 CFR 4.25(e)(3)). If the wine is not eligible for labeling with an AVA name and that name appears in the brand name, then the label is not in compliance, and the bottler must change the brand name and obtain approval of a new label. Similarly, if the AVA name appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label. Different rules apply if a wine has a brand name containing an AVA name that was used as a brand name on a label approved before July 7, 1986. See § 4.39(i)(2) of the TTB regulations (27 CFR 4.39(i)(2)) for details.

With the establishment of this AVA, its name, “Manton Valley,” will be recognized as a name of viticultural significance under § 4.39(i)(3) of the TTB regulations (27 CFR 4.39(i)(3)). The text of the regulation clarifies this point. Once this final rule becomes effective, wine bottlers using the name “Manton Valley” in a brand name, including a trademark, or in another label reference as to the origin of the wine, will have to ensure that the product is eligible to use the AVA name as an appellation of origin.

The establishment of the Manton Valley AVA will not affect any existing AVA. The establishment of the Manton Valley AVA will allow vintners to use “Manton Valley” as an appellation of origin for wines made from grapes grown within the Manton Valley AVA if the wines meet the eligibility requirements for the appellation.

TTB certifies that this regulation will not have a significant economic impact on a substantial number of small entities. The regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of an AVA name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.

It has been determined that this rule is not a significant regulatory action as defined by Executive Order 12866 of September 30, 1993. Therefore, no regulatory assessment is required.

Karen A. Thornton of the Regulations and Rulings Division drafted this final rule.

For the reasons discussed in the preamble, TTB amends title 27, chapter I, part 9, Code of Federal Regulations, as follows:

On September 10, 2012, the Coast Guard published a notice of proposed rulemaking (NPRM) entitled Special Local Regulation; Partnership in Education Dragon Boat Race, Maumee River Toledo, OH in the Federal Register (77 FR 55436). The NPRM proposed to amend 33 CFR Part 100 to add a special local regulation for the Partnership in Education Dragon Boat Race on the Maumee River, Toledo, OH. We did not request public meeting, and no public meetings were held for the NPRM. However, one public comment was received in response to the NPRM publication in the Federal Register , which we addressed in the Discussion of Proposed Rule section of a May 9, 2014 supplemental notice of proposed rulemaking (79 FR 26661) entitled Special Local Regulation; Annual Events on the Maumee River.

In that SNPRM, the Coast Guard proposed further amending 33 CFR Part 100 to add a special local regulation for the Frogtown Races which is also conducted on the Maumee River, Toledo, OH. We did not request a public meeting, and no public meetings were held for the SNPRM. Additionally, no public comments were received in response to the SNPRM publication in the Federal Register .

Although the Coast Guard provided prior notice and an opportunity to comment on these proposed Special Local Regulations, we find that good cause exists for making this final rule effective less than 30 days after publication in the Federal Register to accommodate the 2014 Partnership in Education, Dragon Boat Races, which is scheduled for July 19, 2014. Waiting 30 days after publication for this rule to take effect would be impracticable and contrary to the public interest because it would inhibit the Coast Guard's ability to enforce the Special Local Regulation for this annual event to mitigate the extra and unusual hazards associated with the annual event.

Each year, two organized racing events take place on the Maumee River. The Dragon Boat Races, in which participants paddle Hong Kong-style Dragon Boats from International Park at approximate River Mile 4.45 to just south of the mouth of Swan Creek at approximate River Mile 4.77 on the Maumee River, Toledo, OH; and the Frogtown Races, in which participants row shell boats from the Norfolk and Southern Bridge at River Mile 1.80 to the Anthony Wayne Bridge at River Mile 5.16 on the Maumee River, Toledo, OH. The Captain of the Port Detroit has determined that these boat races, which are in close proximity to watercraft and in the shipping channel pose extra and unusual hazards to public safety and property, including potential collisions, allisions, and individuals falling in the water. Thus, the Captain of the Port Detroit has determined it necessary to establish a permanent Special Local Regulation around each location of these two races to ensure the safety of persons and property at these annual events and to help minimize the associated risks.

As stated in the Regulatory History and Information section, the Coast Guard received one comment in response to the September 10, 2012 NPRM publication. The comment noted a clause in the preamble of the NPRM that “the races will stop for oncoming freighter or commercial traffic,” was not included in proposed regulatory text and recommended that the clause should be included. In the May 9, 2014 SNPRM, we concurred with the comment and included the clause in the proposed regulatory text of the rule. Although the Coast Guard's position remains unchanged on this comment, we note the event permitting process includes communication of the event between sponsors and local commercial entities, with the goal of coordinating event schedules with commercial vessel arrivals or departures. Public and sponsor concerns with vessel traffic are taken into consideration during the permitting process.

As a change from the SNPRM, this rule includes language reflecting the enforcement of the Special Local Regulation for the Partnership in Education, Dragon Boat Races from 6 a.m. to 6 p.m. on July 19, 2014.

The Captain of the Port Detroit will establish the following Special Local Regulations:

Dragon Boat Races, Maumee River, Toledo, OH: This Special Local Regulation encompasses all navigable waters of the United States on the Maumee River, Toledo, OH, bound by a line extending from a point on land just north of the Cherry Street Bridge at position 41°39′5.27″ N; 083°31′34.01″ W straight across the river along the Cherry Street bridge to position 41°39′12.83″ N; 083°31′42.58″ W and a line extending from a point of land just south of International Park at position 41°38′46.62″ N; 083°31′50.54″ W straight across the river to the shore adjacent to position 41°38′47.37″ N; 083°32′2.05″ W (NAD 83). It would be enforced annually on the third or fourth Saturday in July. The exact dates and times would be issued annually via a Notice of Enforcement. For 2014, the Captain of the Port Detroit will enforce this Special Local Regulation from 6 a.m. to 6 p.m. on July 19, 2014.

Frogtown Races, Maumee River, Toledo, OH: The Special Local Regulation would encompass all U.S. waters on the Maumee River, Toledo, OH from the Norfolk and Southern Railway Bridge at River Mile 1.80 to the Anthony Wayne Bridge at River Mile 5.16. It will be enforced annually on the third or fourth Saturday in September. The exact dates and times will be issued annually via a Notice of Enforcement.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues.

The Special Local Regulations, established by this rule, will be relatively small and be enforced for a relatively short time. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the area when permitted by the Captain of the Port.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered the impact of this rule on small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities, some of which may be small entities: The owners and operators of vessels intending to transit or anchor in the areas designated as special local regulations during the dates and times the special local regulations are being enforced.

This rule will not have a significant economic impact on a substantial number of small entities for the following reasons: The special local regulations will be enforced 1 day each is enforced annually. In addition, on-scene representatives will allow vessels to transit along the Western side of the river at a slow no wake speed. The race committees will stop the races for any oncoming commercial traffic.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If this rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT , above. The Coast Guard will not retaliate against entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

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

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

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

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

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

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

This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. It is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards of The National Technology Transfer and Advancement Act (15 U.S.C. 272 note).

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions which does not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g) of the Commandant Instruction because it involves the establishment of a Special Local Regulation. A preliminary environmental checklist supporting this determination is available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR Part 100 as follows:

The Coast Guard will enforce the Seattle Seafair Unlimited Hydroplane Race Special Local Regulation in 33 CFR 100.1301 from 8:00 a.m. on August 1, 2014 through 11:59 p.m. on August 3, 2014.

Under the provisions of 33 CFR 100.1301, the Coast Guard will restrict general navigation in the following area: All waters of Lake Washington bounded by the Interstate 90 (Mercer Island/Lacey V. Murrow) Bridge, the western shore of Lake Washington, and the east/west line drawn tangent to Bailey Peninsula and along the shoreline of Mercer Island.

The regulated area has been divided into two zones. The zones are separated by a line perpendicular from the I-90 Bridge to the northwest corner of the East log boom and a line extending from the southeast corner of the East log boom to the southeast corner of the hydroplane race course and then to the northerly tip of Ohlers Island in Andrews Bay. The western zone is designated Zone I, the eastern zone, Zone II. (Refer to NOAA Chart 18447).

The Coast Guard will maintain a patrol consisting of Coast Guard vessels, assisted by Coast Guard Auxiliary vessels, in Zone II. The Coast Guard patrol of this area is under the direction of the Coast Guard Patrol Commander (the “Patrol Commander”). The Patrol Commander is empowered to control the movement of vessels on the racecourse and in the adjoining waters during the periods this regulation is in effect. The Patrol Commander may be assisted by other federal, state and local law enforcement agencies.

Only vessels authorized by the Patrol Commander may be allowed to enter Zone I during the hours this regulation is in effect. Vessels in the vicinity of Zone I shall maneuver and anchor as directed by the Patrol Commander.

During the times in which the regulation is in effect, the following rules shall apply:

(1) Swimming, wading, or otherwise entering the water in Zone I by any person is prohibited while hydroplane boats are on the racecourse. At other times in Zone I, any person entering the water from the shoreline shall remain west of the swim line, denoted by buoys, and any person entering the water from the log boom shall remain within ten (10) feet of the log boom.

(2) Any person swimming or otherwise entering the water in Zone II shall remain within ten (10) feet of a vessel.

(3) Rafting to a log boom will be limited to groups of three vessels.

(4) Up to six (6) vessels may raft together in Zone II if none of the vessels are secured to a log boom. Only vessels authorized by the Patrol Commander, other law enforcement agencies or event sponsors shall be permitted to tow other watercraft or inflatable devices.

(5) Vessels proceeding in either Zone I or Zone II during the hours this regulation is in effect shall do so only at speeds which will create minimum wake, seven (07) miles per hour or less. This maximum speed may be reduced at the discretion of the Patrol Commander.

(6) Upon completion of the daily racing activities, all vessels leaving either Zone I or Zone II shall proceed at speeds of seven (07) miles per hour or less. The maximum speed may be reduced at the discretion of the Patrol Commander.

(7) A succession of sharp, short signals by whistle or horn from vessels patrolling the areas under the direction of the Patrol Commander shall serve as signal to stop. Vessels signaled shall stop and shall comply with the orders of the patrol vessel; failure to do so may result in expulsion from the area, citation for failure to comply, or both.

The Captain of the Port may be assisted by other federal, state and local law enforcement agencies in enforcing this regulation.

This notice is issued under authority of 33 CFR 100.1301 and 5 U.S.C. 552(a). If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notice, he or she may use a Broadcast Notice to Mariners to grant general permission to enter the regulated area.

On October 28, 2013, we published a notice of proposed rulemaking (NPRM) entitled, “Drawbridge Operation Regulation; Mantua Creek, Paulsboro, NJ” in the Federal Register (78 FR 64186). We received no comments on the proposed rule. No public meeting was requested, and none was held.

The bridge owner, NJDOT, requested a change in the operation regulation at 33 CFR 117.729(b) for the State Route 44 bridge, mile 1.7, across Mantua Creek. The majority of vessels that use this waterway are recreational boats that travel during the summer and fall months of May through October. The current operating schedule requires openings on signal from 7 a.m. to 11 p.m. between the months of March, April, and November and a 4 hour advance notice at all other times. NJDOT provided the Coast Guard with the bridge tender logs dating back to 2007 to illustrate the marine traffic patterns on Mantua Creek. Based on the information provided by the bridge tenders there have been very few requests requiring openings between March 1 through April 30 and November 1 through November 30 during the 7 a.m. to 11 p.m. time period. (See Table A)

The vertical clearance of the vertical lift bridge is 5 feet above mean high water in the closed position and 64 feet above mean high water in the open position. In order to align the operating schedule with the observed marine traffic since 2007, the open on demand requirement for March 1 through April 30 and November 1 through November 30 is being revised such that the draw shall open with a 4 hour advance notice.

The Coast Guard provided a comment period of 60 days and no comments were received therefore no changes were made.

Under this rule, if vessels require an opening during any time of the year outside the summer and fall season (May through October) or between the hours of 11 p.m. and 7 a.m., the bridge will open with a 4 hour advanced notice. The impact to vessels of the proposed change to the regulation is that vessels which require openings during March, April or November will need to provide 4 hours advanced notice.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. Fewer than 20 vessels per year based on NJDOT bridge tender logs will be impacted by this change. This regulation change should not have an adverse effect on their transit because the bridge is able to open if the mariner provides at least 4 hours of advance notice.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rule. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule amends the months of the year that the draw opens on signal when it is documented that vessel traffic is low. Additionally, vessels may still request an opening with 4 hours advanced notice during the months of March, April and November.

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

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

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

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

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the “For Further Information Contact” section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule promulgates the operating regulations or procedures for drawbridges. This rule is categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction.

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

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

On October 28, 2013, we published a notice of proposed rulemaking (NPRM) entitled Drawbridge Operation Regulation; Raccoon Creek, Bridgeport, NJ in the Federal Register (78 FR 64189). We received two comments on the proposed rule. On May 29, 2014, we published a notice to reopen the comment period in the Federal Register (79 FR 30781). No comments were made in response to the May 29, 2014 notice. No public meeting was requested, and none was held.

The bridge owner, NJDOT, requested a change in the operation regulation for the U.S. Route 130 bridge, mile 1.8, across Raccoon Creek. The majority of vessels that use this waterway are recreational boats that travel during the summer and fall months of May through October. The current operating schedule requires openings on signal from 7 a.m. to 11 p.m. between the months of March through November and a 4 hour advance notice at all other times. NJDOT provided the Coast Guard with the bridge tender logs to illustrate the marine traffic patterns on Raccoon Creek. Based on the information provided by the bridge tenders, there have been very few requests requiring openings between March 1 through April 30 and November 1 through November 30 during the 7 a.m. to 11 p.m. time period. (See Table A)

The vertical clearance of the vertical lift bridge is 5 feet above mean high water in the closed position and 64 feet above mean high water in the open position. In order to align the operating schedule with the observed marine traffic, this rule changes the open on demand requirement for March 1 through April 30 and November 1 through November 30 to require a 4 hour advance notice.

Two comments were made in response to the Notice of Proposed Rulemaking published on October 28, 2013 (78 FR 64189). These comments were posted to the Docket USCG-2013-0711. The first comment was regarding the rationale behind the proposed change. The second comment was regarding the history of marine transits on the waterway during the month of April. We addressed both of these comments in the notice that was published in the Federal Register on May 29, 2014 (79 FR 30781). The Coast Guard did not change the proposed regulation in response to either of the comments.

Under this rule, if vessels require an opening during any time of the year outside the summer and fall season (May through October) or between the hours of 11 p.m. and 7 a.m., the bridge will open with a 4 hour advanced notice. The impact to vessels of the proposed change to the regulation is that vessels which require openings during March, April or November will need to provide 4 hours advanced notice.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. The impact to vessels of this regulation is that vessels which require openings during March, April, or November will need to provide 4 hours advanced notice. Based on the average logged openings during 2007-2013 during the months of March, April and November, the bridge tender logs indicate that fewer than 20 vessels annually require openings in those months. This regulation change should not have an adverse effect on their transit because the bridge is able to open if the mariner provides at least 4 hours of advance notice.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rule. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

The Coast Guard received a comment from a marina owner on Raccoon Creek regarding the month of April. The modification to the operating schedule for the Route 130 bridge over Raccoon Creek will not significantly impact the marina because vessels may still request an opening from the bridge during the month of April with four hours notice. The regulatory text remains unchanged from the Notice of Proposed Rulemaking.

Furthermore, this rule amends the months of the year when the draw must open on signal when it is documented that vessel traffic is low. Vessels may still transit the bridge by requesting an opening with 4 hours advanced notice during the months of March, April, and November.

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

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

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule promulgates the operating regulations or procedures for drawbridges. This rule is categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction.

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

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

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

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable and contrary to the public interest. The final details for this event were not known to the Coast Guard until there was insufficient time remaining before the event to publish an NPRM. Thus, delaying the effective date of this rule to wait for a comment period to run would be both impracticable and contrary to the public interest because it would inhibit the Coast Guard's ability to protect spectators and vessels from the hazards associated with a large scale swimming event on a navigable waterway, which is discussed further below.

Under 5 U.S.C. 553(d)(3), The Coast Guard finds that good cause exists for making this temporary rule effective less than 30 days after publication in the Federal Register . For the same reasons discussed in the preceding paragraph, waiting for a 30 day notice period to run would be impracticable and contrary to the public interest.

The legal basis and authorities for this rule are found in 33 U.S.C. 1231, 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; and Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to establish and define regulatory safety zones.

Between 5:45 a.m. and 10:15 a.m. on August 10, 2014, a swimming event will be held on North Coast Harbor in Cleveland, OH. The Captain of the Port Buffalo has determined that large scale swimming event on a navigable waterway will pose a significant risk to participants and the boating public. The purpose of the safety zone is to protect spectators and vessels from the hazards associated with a large scale swimming event on a navigable waterway.

With the aforementioned hazards in mind, the Captain of the Port Buffalo has determined that this temporary safety zone is necessary to ensure the safety of spectators and vessels during the Gay Games 9 Triathlon. This zone will be effective and enforced from 5:45 a.m. until 10:15 a.m. on August 10, 2014. This zone will encompass all waters of North Coast Harbor, Cleveland, OH within the following positions: 41°30′37.21″ N and 081°41′43.88″ W, the East to 41°30′38.66″ N and 081°41′38.95″ W then Northwest to 41°30′41.63″ N and 081°41′43.59″ W then Southwest to 41°30′37.21″ N and 081°41′43.88″ W (NAD 83).

Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Buffalo or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.

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

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

We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small and enforced for relatively short time. Also, the safety zone is designed to minimize its impact on navigable waters. Furthermore, the safety zone has been designed to allow vessels to transit around it. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered the impact of this proposed rule on small entities. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in a portion of North Coast Harbor on the morning of August 10, 2014.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: this safety zone would be activated, and thus subject to enforcement, for only 4 hours early in the day. Traffic may be allowed to pass through the zone with the permission of the Captain of the Port. The Captain of the Port can be reached via VHF channel 16. Before the activation of the zone, we would issue local Broadcast Notice to Mariners.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On September 21, 2011, the Postal Service published an advance notice of proposed rulemaking (the Advance Notice) in the Federal Register to solicit public comment on a conceptual proposal to revise service standards for market-dominant products. 1 After considering comments received in response to the Advance Notice, the Postal Service decided to develop the concept into a concrete proposal, identified as Network Rationalization. The basic logic of Network Rationalization is that falling mail volumes and the resultant excess capacity in the Postal Service's mail processing network necessitate a major consolidation of the network, and this task in turn is contingent on revisions to service standards, particularly the overnight standard for First-Class Mail.

On December 5, 2011, the Postal Service submitted a request to the Postal Regulatory Commission (PRC) for an advisory opinion on the service changes associated with Network Rationalization, in accordance with 39 U.S.C. 3661(b). 2 On December 15, 2011, the Postal Service published proposed revisions to its market-dominant service standards in the Federal Register and sought public comment (the Proposed Rulemaking). 3 The comment period for the Proposed Rulemaking closed on February 13, 2012. The final rule was published on May 25, 2012. 4

Having considered public input and the results of its market research, the Postal Service decided to implement Network Rationalization in a phased manner. The service standard changes associated with the first phase of Network Rationalization became effective on July 1, 2012. 5 In a Federal Register notice dated January 24, 2014, the Postal Service announced its decision to postpone implementation of the second phase of Network Rationalization, and to identify the implementation date for the second phase at least 90 days before it takes effect. 6 This document identifies the implementation date for the second phase of Network Rationalization, and the corresponding service standard changes.

The Postal Service's market-dominant service standards are contained in 39 CFR part 121. This document revises the service standards by identifying the implementation date for the service standards associated with the second phase of Network Rationalization, and by modifying 39 CFR 121.1(b)(2) to clarify that the 2-day service standard for First-Class Mail includes intra-SCF single piece First-Class Mail. 7 The revision concerning the second phase implementation date is applied by replacing “the effective date identified by the Postal Service in a future Federal Register document” with “January 5, 2015” each place where “the effective date identified by the Postal Service in a future Federal Register document” appears in the current version of 39 CFR part 121, and in Appendix A to that part. The 2-day service standard for First-Class Mail is clarified through the addition of a reference to “intra-SCF single piece domestic First-Class Mail properly accepted before the day-zer0-CET” in paragraph 121.1(b)(2). In addition, conforming non-substantive edits were made.

Accordingly, for the reasons stated in the preamble, the Postal Service adopts the following revisions to 39 CFR part 121:

Section 6401(a) of the Affordable Care Act added a new section 1866(j)(7) to the Social Security Act (the Act) to provide the Secretary with authority to impose a temporary moratorium on the enrollment of new Medicare, Medicaid or CHIP providers and suppliers, including categories of providers and suppliers, if the Secretary determines a moratorium is necessary to prevent or combat fraud, waste, or abuse under these programs. For a more detailed explanation of these authorities, please see the July 31, 2013 notice (78 FR 46339) or February 4, 2014 extension and establishment of a temporary moratoria document (hereinafter referred to as the February 4, 2014 moratoria document) (79 FR 6475).

Based on this authority and our regulations at § 424.570, we have implemented two phases of the moratoria to date. In the notice issued on July 31, 2013 (78 FR 46339), we imposed moratoria on the enrollment of home health agencies in Miami-Dade County, Florida and Cook County, Illinois and surrounding counties and on the enrollment of ground ambulance suppliers in the Harris County, Texas area and surrounding counties. Then, in the document published on February 4, 2014 (79 FR 6475), we imposed moratoria on the enrollment of home health agencies in Broward County, Florida, Dallas County, Texas and Wayne County, Michigan and surrounding counties and on the enrollment of ground ambulance suppliers in Philadelphia, PA and surrounding counties.

In extending these enrollment moratoria, CMS considered both qualitative and quantitative factors suggesting a high risk of fraud, waste, or abuse. CMS relied on law enforcement's longstanding experience with ongoing and emerging fraud trends and activities through civil, criminal, and administrative investigations and prosecutions. CMS' determination of a high risk of fraud, waste, or abuse in these provider and supplier types within these geographic locations was then confirmed by CMS' data analysis, which relied on factors the agency identified as strong indicators of risk. (For a more detailed explanation of this determination process and of these authorities, see the July 31, 2013 notice (78 FR 46339) or February 4, 2014 moratoria document (79 FR 6475)).

In consultation with the HHS-OIG and the Department of Justice (DOJ), CMS identified two provider and supplier types in nine geographic locations that warrant a temporary enrollment moratorium. For a more detailed discussion of this consultation process, see the July 31, 2013 notice (78 FR 46339) or February 4, 2014 moratoria document (79 FR 6475).

Beneficiary access to care in Medicare, Medicaid, and CHIP is of critical importance to CMS and its state partners, and CMS carefully evaluated access for the target moratorium locations. Prior to imposing and extending these moratoria, CMS consulted with the appropriate State Medicaid Agencies and with the appropriate State Department of Emergency Medical Services to determine if the moratoria would create an access to care issue for Medicaid and CHIP beneficiaries in the targeted locations and surrounding counties. All of CMS' state partners were supportive of CMS analysis and proposals, and together with CMS, determined that these moratoria will not create access to care issues for Medicaid or CHIP beneficiaries. CMS also reviewed Medicare data for these areas and found there are no current problems with access to HHAs or ground ambulance suppliers.

In accordance with § 424.570(b), a temporary enrollment moratorium imposed by CMS will remain in effect for 6 months. (For a more detailed explanation of how CMS can lift a temporary moratorium, see the July 31, 2013 notice (78 FR 46339) or February 4, 2014 moratoria document (79 FR 6475).) If CMS deems it necessary, the moratorium may be extended in 6-month increments. CMS will evaluate whether to extend or lift the moratorium before any subsequent moratorium periods. If one or more of the moratoria announced in this document are extended or lifted, CMS will publish a document to that effect in the Federal Register .

Once a moratorium is lifted, the provider or supplier types that were unable to enroll because of the moratorium will be designated to CMS' high screening level under § 424.518(c)(3)(iii) and § 455.450(e)(2) for 6 months from the date the moratorium was lifted.

As noted earlier, we previously imposed moratoria on the enrollment of new HHAs in Broward county, Miami-Dade and Monroe and their surrounding counties in Florida, the Illinois counties of Cook, DuPage, Kane, Lake, McHenry, and Will, the Michigan counties of Macomb, Monroe, Oakland Washtenaw, and Wayne and the Texas counties of Brazoria, Chambers, Collin, Fort Bend, Galveston, Dallas, Harris, Liberty, Denton, Ellis, Kauffman, Montgomery, Rockwall, Tarrant, and Waller. Further, we previously imposed moratoria on the enrollment of new ground ambulance suppliers in the Texas Counties of Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller and the Pennsylvania counties of Bucks, Delaware, Montgomery; and Philadelphia and the New Jersey counties of Burlington, Camden, and Gloucester. These moratoria became effective upon publication in the Federal Register of a notice on July 31, 2013 (78 FR 46340) and a moratoria document on February 4, 2014 (79 FR 6475).

In accordance with § 424.570(b), CMS may deem it necessary to extend previously-imposed moratoria in 6-month increments. Under its authority at § 424.570(b), CMS is extending the temporary moratoria on the Medicare enrollment of HHAs and ground ambulance suppliers in the geographic locations discussed herein. Under regulations at § 455.470 and § 457.990, these moratoria also apply to the enrollment of HHAs and ground ambulance suppliers in Medicaid and CHIP. Under § 424.570(b), CMS is required to publish a document in the Federal Register announcing any extension of a moratorium, and this extension of moratoria document fulfills that requirement.

CMS consulted with both the HHS-OIG and DOJ regarding the extension of the moratoria on new HHAs and ground ambulance suppliers in all of the moratoria counties, and both HHS-OIG and DOJ agree that a significant potential for fraud, waste, and abuse continues to exist in these geographic areas. The circumstances warranting the imposition of the moratoria have not yet abated, and CMS has determined that the moratoria are still needed as we monitor the indicators and continue with administrative actions such as payment suspensions and revocations of provider/supplier numbers. (For more information regarding the monitored indicators, see section I.B. of the February 4, 2014 moratoria document (79 FR 6475).)

Based upon CMS' consultation with the relevant State Medicaid Agencies, CMS has concluded that extending these moratoria will not create an access to care issue for Medicaid or CHIP beneficiaries in the affected counties at this time. CMS also reviewed Medicare data for these areas and found there are no current problems with access to HHAs or ground ambulance suppliers. Nevertheless, the agency will continue to monitor these locations to ensure that no access to care issues arise in the future.

Based upon our consultation with law enforcement and consideration of the factors and activities described previously, CMS has determined that the temporary enrollment moratoria should be extended for an additional 6 months.

CMS is executing its authority under sections 1866(j)(7), 1902(kk)(4), and 2107(e)(1)(D) of the Act to extend these moratoria in the following counties for these providers and suppliers:

This document does not impose information collection and recordkeeping requirements. Consequently, it need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 35).

CMS has examined the impact of this document as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995; Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 1999) and the Congressional Review Act (5 U.S.C. 804(2)).

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). A regulatory impact analysis (RIA) must be prepared for major regulatory actions with economically significant effects ($100 million or more in any 1 year). This document will prevent the enrollment of new home health providers and ambulance suppliers in Medicare, and new home health providers and ambulance suppliers in Medicaid and CHIP. Though savings may accrue by denying enrollments, the monetary amount cannot be quantified. After the imposition of the moratoria on July 30, 2013, 231 HHAs and 7 ambulance companies in all geographic areas affected by the moratoria had their applications denied. We have found the number of applications that are denied after 60 days declines dramatically, as most providers and suppliers will not submit applications during the moratoria period. Therefore, this document does not reach the economic threshold and thus is not considered a major action.

The RFA requires agencies to analyze options for regulatory relief of small entities. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of $7.0 million to $35.5 million in any one year. Individuals and states are not included in the definition of a small entity. CMS is not preparing an analysis for the RFA because it has determined, and the Secretary certifies, that this document will not have a significant economic impact on a substantial number of small entities.

In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if an action may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, CMS defines a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area for Medicare payment regulations and has fewer than 100 beds. CMS is not preparing an analysis for section 1102(b) of the Act because it has determined, and the Secretary certifies, that this document will not have a significant impact on the operations of a substantial number of small rural hospitals.

Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any regulatory action whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2014, that threshold is approximately $141 million. This document will have no consequential effect on state, local, or tribal governments or on the private sector.

Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed regulatory action (and subsequent final action) that imposes substantial direct requirement costs on state and local governments, preempts state law, or otherwise has Federalism implications. Since this document does not impose any costs on state or local governments, the requirements of Executive Order 13132 are not applicable.

In accordance with the provisions of Executive Order 12866, the Office of Management and Budget reviewed this document.

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

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

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.

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

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

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

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

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

Accordingly, 44 CFR part 67 is amended as follows:

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

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

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

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

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

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

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

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

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

Accordingly, 44 CFR part 67 is amended as follows:

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

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

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.

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

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

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

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

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

Accordingly, 44 CFR part 67 is amended as follows:

Executive Summary

Why we need to publish a rule. Under the Act, a species may warrant protection through listing if it is endangered or threatened throughout all or a significant portion of its range. Listing a species as an endangered or threatened species can only be completed by issuing a rule.

This rule will finalize the listing of Physaria globosa (Short's bladderpod), Helianthus verticillatus (whorled sunflower), and Leavenworthia crassa (fleshy-fruit gladecress) as endangered species.

The basis for our action. Under the Act, we can determine that a species is an endangered or threatened species based on any of 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. We have determined that listing is warranted for these species, which are currently at risk throughout all of their respective ranges due to threats related to:

• For Short's bladderpod, potential future construction and ongoing maintenance of transportation rights-of-way; prolonged inundation and soil erosion due to flooding and water level manipulation; overstory shading due to forest succession and shading and competition from invasive, nonnative plant species; and small population sizes.

• For whorled sunflower, mechanical or chemical vegetation management for industrial forestry, right-of-way maintenance, or agriculture; shading and competition resulting from vegetation succession; limited distribution and small population sizes.

• For fleshy-fruit gladecress, loss of habitat due to residential and industrial development; conversion of agricultural sites for use as pasture; maintenance of road rights-of-way via mowing and herbicide treatment prior to seed production; shading due to natural forest succession; competition from invasive nonnative plants; off-road vehicles and dumping; limited distribution; and small sizes and limited genetic variation of some populations.

Peer review and public comment. We sought comments from independent specialists to ensure that our designation is based on scientifically sound data, assumptions, and analyses. We invited these peer reviewers to comment on our listing proposal. We also considered all comments and information received during the comment period.

Please refer to the proposed listing rule for Short's bladderpod, whorled sunflower, and fleshy-fruit gladecress (78 FR 47109; August 2, 2013) for a detailed description of previous Federal actions concerning this species.

We will also be finalizing critical habitat designations for the Short's bladderpod, whorled sunflower, and fleshy-fruit gladecress under the Act in the near future.

In the proposed rule published on August 2, 2013 (78 FR 47109), we requested that all interested parties submit written comments on the proposal by October 1, 2013. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. Newspaper notices inviting general public comment were published in the Cherokee County Herald, The Birmingham News, and The Decatur Daily in Alabama; the Rome News Tribune in Georgia; The Posey County News in Indiana; the Lexington Herald-Leader and The State Journal in Kentucky; and the Jackson County Sentinel, The Tennessean, The Leaf Chronicle, Carthage Courier, and Hartsville Vidette in Tennessee. We did not receive any requests for a public hearing. All substantive information provided during comment periods has either been incorporated directly into this final determination or addressed in our responses to the comments below.

In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinion from 15 knowledgeable individuals with scientific expertise that included familiarity with one or more of these species and their habitats, biological needs, and threats. We received responses from five of the peer reviewers.

We reviewed all comments received from the peer reviewers for substantive issues and new information regarding the listing of Short's bladderpod, whorled sunflower, and fleshy-fruit gladecress. The peer reviewers generally concurred with our methods and conclusions, and one of the peer reviewers provided additional information, clarifications, and suggestions to improve the final rule. Peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate.

(1) Comment: One peer reviewer informed us about preliminary results from a research project studying germination ecology of Short's bladderpod seeds, which has been initiated since the publication of the proposed rule. Preliminary results from this research indicate that seed viability is high in the population studied and that when pretreated with gibberellic acid, Short's bladderpod seeds germinate at greater proportions under conditions approximating mean diurnal temperatures that occur during late spring/early autumn and summer, versus those approximating conditions that occur during early spring/late autumn.

Our Response: We have incorporated this information in the Background section for Short's bladderpod.

(2) Comment: One peer reviewer brought to our attention a journal article (Ooi 2012) reporting results from research indicating that increasing summer temperatures could raise soil temperatures and increase loss of soil moisture in open habitats, which could accelerate loss of viable seeds from the soil because seedling mortality due to desiccation (drying out of a living organism) could increase following germination events. The reviewer suggested that this change could reduce the ability of species like Short's bladderpod to maintain soil seed banks, which provide resilience for populations to rebound from declines by recruiting new individuals when favorable conditions for germination and establishment are present.

Our Response: We agree and have incorporated this information into this rule in the Summary of the Biological Status and Threats for Short's bladderpod.

(3) Comment: One peer reviewer brought to our attention studies examining the influence of the species' mating system on genetic variation and structure in fleshy-fruit gladecress and on the potential for the species to hybridize with the closely related Leavenworthia alabamica (Koelling et al. 2011, Koelling and Mauricio 2010). The reviewer suggested that these data do not alter conclusions concerning the level of endangerment of fleshy-fruit gladecress, but that they are relevant to the analysis under Factor E.

Our Response: We concur and have incorporated this information into this rule in the Summary of the Biological Status and Threats for fleshy-fruit gladecress.

(4) Comment: One peer reviewer informed us of published data on germination phenology in fleshy-fruit gladecress (Caudle and Baskin 1968, p. 334) and a congener (an organism belonging to the same taxonomic genus as another organism), Leavenworthia stylosa (Baskin and Baskin 1972), which demonstrated the influence of ambient temperature on germination phenology in these species.

Our Response: We concur with the data and have incorporated the information into this rule in the Summary of the Biological Status and Threats for fleshy-fruit gladecress.

(5) Comment: Among other comments received, a comment from Plum Creek, a land and timber company, informed us that in April 2013 it acquired properties in Cherokee County, Alabama, and Floyd County, Georgia, where the whorled sunflower occurs. These properties were previously owned by The Campbell Group. Plum Creek acknowledged that the Coosa Valley Prairie property in Floyd County, Georgia, is protected by a conservation easement held by The Nature Conservancy, and expressed its intent to continue to manage that property under an adaptive management framework designed to benefit the natural community, including whorled sunflower. Plum Creek also expressed its intent to manage whorled sunflower where it occurs on their lands outside of the conservation easement.

Our Response: We have included this new information concerning ownership of the lands where two whorled sunflower populations are located into this rule. The Service appreciates Plum Creek's commitment to work with the conservation community to provide sound management for whorled sunflower and its habitat on the company's lands where the species occurs in Alabama and Georgia. The Service will work with Plum Creek and State conservation agencies in Alabama to develop a conservation agreement for the Alabama subpopulation located on Plum Creek lands.

The changes to this rule are limited to the addition of new information in the Background and Summary of Biological Status and Threats sections, which were brought to our attention by peer reviewers, the public, and the Tennessee Valley Authority (TVA) (see Background—Fleshy-fruit gladecress, below). The most substantive change is the addition of one known extant population of fleshy-fruit gladecress that was not reported in the proposed listing rule, which brings the total number of known extant occurrences of this species to seven. The existence of this additional occurrence, which is located in a TVA transmission line right-of-way and is potentially threatened by maintenance activities, does not change the determination reached in the proposed listing rule that fleshy-fruit gladecress should be listed as endangered.

Physaria globosa is a member of the mustard family (Brassicaceae) known from Posey County, Indiana; Clark, Franklin, and Woodford Counties, Kentucky; and Cheatham, Davidson, Dickson, Jackson, Montgomery, Smith, and Trousdale Counties, Tennessee. Short's bladderpod typically grows on steep, rocky, wooded slopes and talus (sloping mass of rock fragments below a bluff or ledge) areas. It also occurs along tops, bases, and ledges of bluffs. The species usually is found in these habitats near rivers or streams and on south- to west-facing slopes. Most populations are closely associated with calcareous outcrops (Shea 1993, p. 16). The Short's bladderpod site in Indiana, where the species is found in a narrow strip of herbaceous vegetation between a road and forested bank of a cypress slough (M. Homoya, Natural Heritage Program Botanist, Indiana Department of Natural Resources, December 2012), is unique among populations of the species.

Short's bladderpod is an upright biennial or perennial (lives for 2 years or longer) with several stems, some branched at the base, reaching heights up to 50 centimeters (cm) (20 inches (in.)), and which are leafy to the base of the inflorescence (a group or cluster of flowers arranged on a stem that is composed of a main branch or a complicated arrangement of branches). Preliminary results from research at the Missouri Botanical Garden indicate that seed viability is high in one of the Tennessee populations they studied and that seeds germinated at higher rates under greenhouse conditions approximating mean diurnal temperatures that occur during late spring/early autumn and summer, versus those approximating conditions that occur during early spring/late autumn. Further studies are under way to develop a protocol for propagating seedlings to reproductive maturity (M. Albrecht, Assistant Curator of Conservation Biology, Center for Conservation and Sustainable Development at Missouri Botanical Garden, September 30, 2013).

Helianthus verticillatus is a member of the sunflower family known from Cherokee County, Alabama; Floyd County, Georgia; and McNairy and Madison Counties, Tennessee. It is found in moist, prairie-like remnants, which in a more natural condition exist as openings in woodlands and adjacent to creeks. The Alabama and Georgia populations are located on flat to gently rolling uplands and along stream terraces in the headwaters of Mud Creek, a tributary to the Coosa River. In Tennessee, the Madison County population occurs along Turk Creek, a tributary to the South Fork Forked Deer River, and in adjacent uplands. The McNairy County population occurs along Prairie Branch, a headwater tributary to Muddy Creek in the Tuscumbia River drainage. It is a perennial arising from horizontal, tuberous-thickened roots with slender rhizomes. The stems are slender, erect, and up to 2 meters (m) (6 feet (ft)) tall. The leaves are opposite on the lower stem, verticillate (whorled) in groups of 3 to 4 at the mid-stem, and alternate or opposite in the inflorescence at the end. Individual leaves are firm in texture and have a prominent mid-vein, but lack prominent lateral veins found in many members of the genus. The flowers are arranged in a branched inflorescence typically consisting of 3 to 7 heads.

Fleshy-fruit gladecress is an annual, spring-flowering member of the mustard family (Brassicaceae) that is endemic to a 21-km (13-mi) radius area in north central Alabama (Rollins 1963, p. 63). It is a glabrous (morphological feature is smooth, glossy, having no trichomes (bristles or hair-like structures)) winter annual known from Lawrence and Morgan Counties, Alabama. It is a component of glade flora and occurs in association with limestone outcroppings. Populations of fleshy-fruit gladecress are now located in glade-like remnants exhibiting various degrees of disturbance, including pastures, roadside rights-of-way, and cultivated or plowed fields (Hilton 1997, p. 5). As with most of the cedar glade endemics, fleshy-fruit gladecress exhibits weedy tendencies, and it is not uncommon to find the species growing in altered habitats. It usually grows from 10 to 30 cm (4 to 12 in) tall. The leaves are mostly basal, forming a rosette, and entire to very deeply, pinnately (multiple leaflets attached in rows along a central stem) lobed or divided, to 8 cm (3.1 in) long. Flowers are on elongating stems, and the petals are approximately 0.8 to 1.5 cm (0.3 to 0.6 in.) long, obovate (ovate with the narrower end basal) to spatulate (having a broad, rounded end), and emarginate (notched at the tip).

The proposed listing rule reported that there were only six extant fleshy-fruit gladecress occurrences. After publication of the proposed rule, the TVA informed us of the existence of one additional occurrence that was discovered in 2008, but not included in the proposed listing rule. As a result, there are currently seven known extant occurrences of fleshy-fruit gladecress documented, three in Morgan and four in Lawrence Counties, Alabama. One of these occurs on U.S. Forest Service lands, where it is formally protected. The occurrence that TVA informed us about is located in a TVA transmission line right-of-way. A 1961 record from Lauderdale County has never been confirmed (McDaniel and Lyons 1987, p. 6).

Please refer to the proposed listing rule for Short's bladderpod, whorled sunflower, and fleshy-fruit gladecress (78 FR 47109; August 2, 2013) for a summary of species information.

Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, we may list a species 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; and (E) other natural or manmade factors affecting its continued existence. Listing may be warranted based on any of the above threat factors, singly or in combination. Each of these factors is discussed below.

The most significant threats to Short's bladderpod were described in the proposed listing rule (78 FR 47109; August 2, 2013) under Listing Factors A (the present or threatened destruction, modification, or curtailment of its habitat or range) and E (other natural or manmade factors affecting its continued existence). Based on the Factor A analysis, we concluded that the loss and degradation of habitat represents the greatest threat to Short's bladderpod. The main causes for habitat loss and degradation are potential future construction and ongoing maintenance of transportation rights-of-way; prolonged inundation and soil erosion due to flooding and water level manipulation; and overstory shading due to forest succession and shading and competition from invasive, nonnative plant species.

Road construction has caused the loss of habitat and all Short's bladderpod plants at five occurrences, and roadside maintenance or road widening could adversely affect nearly 40 percent of the extant occurrences of the species due to their position in roadside habitats. Future development of a proposed commuter rail project to improve intercity commute options between the cities of Nashville and Clarksville, Tennessee (Nashville Area Metropolitan Planning Organization 2010, p. 98), could affect 27 percent of known extant occurrences, including some locations where the species is most abundant. Prolonged inundation and soil erosion due to flooding and water level fluctuations threaten 19 percent of extant Short's bladderpod occurrences, most notably the single Indiana occurrence, where the species has been present in large numbers but recently experienced a reduction in numbers due to prolonged flooding. The remaining occurrences threatened by prolonged inundation and soil erosion are located along reaches of the Cumberland River that are impounded by Army Corps of Engineers dam projects used for flood control and navigation. Overstory shading due to natural forest succession, combined with shading and competition due to invasive, nonnative shrubs and herbaceous species presents the most widespread, imminent threat to Short's bladderpod, and has been implicated in the loss of several historic occurrences. Due to these threats, which are expected to continue into the foreseeable future, the geographic range of Short's bladderpod has been reduced to 26 extant occurrences out of 55 that have been tracked by State conservation agencies.

The Factor E analysis in the proposed listing rule demonstrated that Short's bladderpod is vulnerable to adverse effects of small population size, including potential for reduced genetic variation, low numbers of compatible mates, increased likelihood of inbreeding depression, and reduced resilience to recover from acute demographic effects of other threats to the species and its habitat. Fewer than 100 plants have ever been observed at one time at 12 (46 percent) of the 26 extant occurrences, and many of these occurrences are distantly isolated from other occurrences. Existing threats may be exacerbated by the effects of ongoing and future climate change, especially projected increases in temperature and increased frequency and severity of droughts in the Southeast and projected increases in flooding in the Midwest. As noted above, increases in soil temperatures and soil moisture evaporation in response to predicted ambient warming could accelerate rates of soil seed bank depletion by increasing the seedling mortality rate (Ooi 2012, pp. S54-S55) and diminish the resilience of Short's bladderpod populations by reducing the species' ability to maintain soil seed banks.

A peer reviewer brought to our attention a publication by Ooi (2012, pp. S54-S55) indicating that increasing summer temperatures could raise soil temperatures in open habitats, which could lead to increased evaporation of soil moisture and potentially higher rates of seedling mortality following germination events. Given the species' preference for open-canopy habitats that are often located on south- to west-facing slopes where solar irradiance is high, we agree with the commenter that accelerated loss of viable seeds in the soil due to increasing soil temperatures could reduce the resilience of Short's bladderpod populations by reducing the suitability of the species' habitat for maintaining soil seed banks. A reduced ability to maintain soil seed banks would reduce the capacity for populations to rebound from declines, which could occur during periods of adverse environmental conditions such as drought or disturbance, by recruiting new individuals when favorable conditions for germination and recruitment are restored.

Based on our review of the best available scientific and commercial information, we conclude that adverse effects associated with small and often isolated populations, as described in the Factor E analysis, both alone and in conjunction with the widespread threats described under Factor A, constitute significant threats to Short's bladderpod.

The most significant threats to whorled sunflower were described in the proposed listing rule (78 FR 47109; August 2, 2013) under Listing Factors A (the present or threatened destruction, modification, or curtailment of its habitat or range) and E (other natural or manmade factors affecting its continued existence). Based on the Factor A analysis, we concluded that the loss and degradation of habitat represents the greatest threat to whorled sunflower. Past and ongoing risk of adverse effects from mechanical or chemical vegetation management for industrial forestry, right-of-way maintenance, or agriculture is a threat to three of the four extant populations of this species. Modification of the remnant prairie habitats that the species occupies due to shading and competition resulting from vegetation succession also threatens these three populations, limiting growth and reproductive output of whorled sunflower. These threats are expected to continue in the foreseeable future. A conservation easement and suitable habitat management currently alleviates these threats that otherwise would adversely affect the Georgia population.

The Factor E analysis in the proposed listing rule demonstrated that whorled sunflower is vulnerable to localized extinction because of its extremely restricted distribution and small population sizes at most known locations. There are only four extant populations, and a fifth historical population has not been observed at the species' type locality since its collection there in 1892. Small population size could be affecting reproductive fitness of whorled sunflower by limiting availability of compatible mates or by causing higher rates of inbreeding among closely related individuals. Both of these could be contributing to reduced achene production and viability rates, which limit the species' ability to recover from acute demographic effects of habitat loss or modification. The species' dependence on remnant prairie habitats, which are isolated on the landscape, limits the potential for recolonization in the event that localized extinction events occur.

Based on our review of the best available scientific and commercial information, we conclude that adverse effects associated with extremely restricted distribution and small and isolated populations, as described in the Factor E analysis, both alone and in conjunction with the threats described under Factor A, constitute significant threats to whorled sunflower.

The most significant threats to fleshy-fruit gladecress were described in the proposed listing rule (78 FR 47109; August 2, 2013) under Listing Factors A (the present or threatened destruction, modification, or curtailment of its habitat or range) and E (other natural or manmade factors affecting its continued existence). Based on the Factor A analysis, we concluded that the loss and degradation of habitat represents the greatest threat to fleshy-fruit gladecress. The species' geographic range has been reduced from 21 occurrences to 7 extant occurrences. The threats to the species from habitat destruction and modification are occurring throughout the entire range of the species. These threats include agricultural conversion from row-crop production to pasture, incompatible agricultural practices including poorly timed herbicide application or plowing, maintenance of transportation rights-of-way including mowing and herbicide treatment prior to seed set along roadsides, off-road vehicles, dumping, residential and industrial development, and shading and competition. In addition to these threats, the occurrence located in the TVA transmission line right-of-way could face threats associated with incompatible right-of-way maintenance, similar to those occurrences located in transportation rights-of-way. Converting row-crop fields to pastures eliminates periodic disturbance from plowing that, when well timed, arrests succession and creates favorable conditions for germination and seedling establishment.

Conservation efforts of the U.S. Forest Service have removed threats associated with off-road vehicle use and encroachment of invasive species at one site; however, maintenance of transportation or electrical transmission line rights-of-way and use of off-road vehicles could adversely affect the other six extant populations. Shading due to natural forest succession and competition from nonnative invasive plants presents a significant threat to fleshy-fruit gladecress, and has been implicated in the loss of five historic occurrences. One site, reported to be widely open in 1968, is now partially shaded due to closing of the canopy and the presence of nonnative plants, including Ligustrum vulgare (common privet) and Lonicera maackii (bush honeysuckle). These species are significant threats in many glades. These threats are expected to continue into the foreseeable future.

The Factor E analysis in the proposed listing rule demonstrated that fleshy-fruit gladecress is vulnerable to localized extinction because of the small number of occurrences and the small sizes of many of the extant populations within its limited range. Small population sizes could decrease the resilience of some fleshy-fruit gladecress occurrences to recover from effects of other threats affecting the species' habitat. There are only seven remaining fleshy-fruit gladecress occurrences, and only one of these is protected. The loss of any occurrences would significantly impact the species' viability by reducing its redundancy on the landscape, which would increase its vulnerability to stochastic environmental stressors and reduce the species' resilience to recover from effects of threats discussed in the above sections. The loss of any occurrences could significantly erode the species' overall genetic variation, given the high levels of structuring and apparent low levels of gene flow among populations (Koelling et al. 2011, pp. 315-316).

In addition to the threats discussed in the Factor E analysis in the proposed listing rule, data brought to our attention by a peer reviewer indicate that genetic variation is low in self-compatible populations of fleshy-fruit gladecress (Koelling et al., pp. 315-316), which could limit their adaptive potential to respond to environmental change (Primack 1998, p. 283). Habitat disturbance or unintentional human movement resulting in contact between populations of fleshy-fruit gladecress and Leavenworthia alabamica could also present the threat of hybridization; though, at this time these species do not occur together in the wild and the potential for hybridization is reduced by incompatibility between them (Koelling and Mauricio 2010, pp. 417-419).

Based on our review of the best available scientific and commercial information, we conclude that adverse effects associated with limited distribution and small size and limited genetic variation of some populations, as described here and in the Factor E analysis in the proposed listing rule, both alone and in conjunction with the threats described under Factor A, constitute significant threats to fleshy-fruit gladecress.

Please refer to Summary of Factors Affecting the Species section of the proposed listing rule for a more detailed discussion of the factors affecting Physaria globosa (Short's bladderpod), Helianthus verticillatus (whorled sunflower), and Leavenworthia crassa (fleshy-fruit gladecress). Our assessment evaluated the biological status of these species and threats affecting their continued existence. The assessment was based upon the best available scientific and commercial data.

The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.” We find that Short's bladderpod, whorled sunflower, and fleshy-fruit gladecress are presently in danger of extinction throughout their entire ranges based on the severity and immediacy of threats currently impacting these species. The overall ranges of Short's bladderpod and fleshy-fruit gladecress have been significantly reduced, the range of whorled sunflower encompasses only four known populations, and the remaining habitat and populations of all three species are threatened by a variety of factors acting in combination to reduce their overall viability. The risk of extinction is high because the remaining populations are in many cases small, isolated, and have limited potential for recolonization. Therefore, on the basis of the best available scientific and commercial information, we are listing Short's bladderpod, whorled sunflower, and fleshy-fruit gladecress as endangered in accordance with sections 3(6) and 4(a)(1) of the Act. We find that a threatened species status is not appropriate for these three plants because of their reduced and restricted ranges, because the threats are occurring rangewide and are not localized, and because the threats are ongoing and expected to continue into the future.

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 threats to the survival of the species occur throughout their ranges and are not restricted to any particular significant portion of those ranges. Accordingly, our assessment and proposed determination applies to the species throughout their entire ranges.

Conservation measures provided to species listed as endangered or threatened under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. The Act encourages cooperation with the States and requires that recovery actions be carried out for all listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.

The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act requires the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.

Recovery planning includes the development of a recovery outline shortly after a species is listed and preparation of a draft and final recovery plan. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan identifies site-specific management actions that set a trigger for review of the five factors that control whether a species remains endangered or may be downlisted or delisted, and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outlines, draft recovery plans, and the final recovery plans will be available on our Web site ( http://www.fws.gov/endangered ), or from our Tennessee Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (e.g., restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands.

Following publication of this final listing rule, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost-share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the States of Georgia, Indiana, and Tennessee and the Commonwealth of Kentucky will be eligible for Federal funds to implement management actions that promote the protection or recovery of Short's bladderpod and/or whorled sunflower. The State of Alabama has not entered into a cooperative agreement with the Service to establish eligibility for receiving Federal funds to implement management actions that promote the protection or recovery of plant species listed as threatened or endangered under the Act. Information on our grant programs that are available to aid species recovery can be found at: http://www.fws.gov/grants.

Please let us know if you are interested in participating in recovery efforts for Short's bladderpod, whorled sunflower, or fleshy-fruit gladecress. Additionally, we invite you to submit any new information on these species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT ).

Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.

Federal agency actions within the species' habitat that may require conference or consultation or both as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the Army Corps of Engineers or U.S. Forest Service; issuance of section 10 Rivers and Harbors Act or section 404 Clean Water Act permits by the Army Corps of Engineers; herbicide registration by the Environmental Protection Agency; interstate pipeline construction or maintenance projects authorized by the Federal Energy Regulatory Commission; technical and financial assistance for projects provided by the Natural Resources Conservation Service; railway projects by the Federal Railroad Administration; and construction and maintenance of roads or highways by the Federal Highway Administration.

With respect to endangered plants, prohibitions outlined at 50 CFR 17.61 make it illegal for any person subject to the jurisdiction of the United States to import or export, transport in interstate or foreign commerce in the course of a commercial activity, sell or offer for sale in interstate or foreign commerce, or to remove and reduce to possession any such plant species from areas under Federal jurisdiction. In addition, for endangered plants, the Act prohibits malicious damage or destruction of any such species on any area under Federal jurisdiction, and the removal, cutting, digging up, or damaging or destroying of any such species on any other area in knowing violation of any State law or regulation, or in the course of any violation of a State criminal trespass law. Exceptions to these prohibitions are outlined in 50 CFR 17.62.

We may issue permits to carry out otherwise prohibited activities involving endangered plants under certain circumstances. Regulations governing permits are codified at 50 CFR 17.62. With regard to endangered plants, the Service may issue a permit authorizing any activity otherwise prohibited by 50 CFR 17.61 for scientific purposes or for enhancing the propagation or survival of endangered plants.

It is our policy, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a listing on proposed and ongoing activities within the range of listed species. Based on the best available information, the following actions are unlikely to result in a violation of section 9, if these activities are carried out in accordance with existing regulations and permit requirements:

(1) Normal agricultural and silvicultural practices, including herbicide and pesticide use, which are carried out in accordance with any existing regulations, permit and label requirements, and best management practices; and

(2) Normal residential landscape activities.

Activities that the Service believes could potentially harm the Short's bladderpod, whorled sunflower, or fleshy-fruit gladecress and result in “take,” include, but are not limited to:

(1) Unauthorized collecting, handling, possessing, selling, delivering, carrying, or transporting of the species, including import or export across State lines and international boundaries, except for properly documented antique specimens of these taxa at least 100 years old, as defined by section 10(h)(1) of the Act;

(2) Removing and reducing to possession any of the three plant species from areas under Federal jurisdiction; maliciously damaging or destroying any of the species on any such area; or removing, cutting, digging up, or damaging or destroying any of the species on any other area in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal trespass law;

(3) Introducing any unauthorized nonnative wildlife or plant species to States where Short's bladderpod, whorled sunflower, or fleshy-fruit gladecress occur that compete with or prey upon these three plant species;

(4) Releasing any unauthorized biological control agents into States where Short's bladderpod, whorled sunflower, or fleshy-fruit gladecress occur that attack any life stage of these three plant species; and

(5) Modifying the habitat of Short's bladderpod, whorled sunflower, or fleshy-fruit gladecress on Federal lands without authorization or coverage under the Act for impacts to these species.

Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Tennessee Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act, need not be prepared in connection with listing a species as an endangered or threatened species under the Endangered Species Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes. There are no known instances of these three plant species on Tribal lands.

A complete list of references cited in this rulemaking is available on the Internet at http://www.regulations.gov and upon request from the Tennessee Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this final rule are the staff members of the Tennessee and Alabama Ecological Services Field Offices.

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