This interim final rule is necessary to adapt the MSPB's regulations to recent amendments to Federal law contained in section 707 of the Veterans' Access to Care through Choice, Accountability, and Transparency Act of 2014, Public Law 113-146 (the Act). The Act was signed by the President on August 7, 2014, and took effect on that same date.

The sole provision of the Act relevant to this interim final rule is section 707. Paragraph (a) of section 707 of the Act creates a new statute, 38 U.S.C. 713, which sets forth new rules for the removal or transfer of Senior Executive Service employees of the Department of Veterans Affairs (covered SES employees) for performance or misconduct and requires expedited review of such actions by the MSPB. Under 38 U.S.C. 713(a), the Secretary of the Department of Veterans Affairs may remove or transfer a covered SES employee if the Secretary determines that the covered employee's performance or misconduct warrants such action. Covered employees have a right to appeal a removal or transfer to the MSPB pursuant to 38 U.S.C. 713(d)(2)(A) and 5 U.S.C. 7701. Such an appeal must be filed with the MSPB within 7 days after the date of the removal or transfer. 38 U.S.C. 713(d)(2)(B). Review of the removal or transfer must be undertaken by an MSPB administrative judge, and a decision must be issued by the MSPB administrative judge within 21 days after the appeal is filed. 38 U.S.C. 713(e). If a decision is not issued within 21 days, the Secretary's decision is final. 38 U.S.C. 713(e)(3). An administrative judge's decision shall not be subject to further appeal. 38 U.S.C. 713(e)(2).

Paragraph (b) of section 707 of the Act requires the MSPB to develop and to put into effect expedited procedures for processing appeals filed pursuant to 38 U.S.C. 713 within 14 days of passage of the Act, specifies that 5 CFR 1201.22 is not applicable to appeals filed under 38 U.S.C. 713, and authorizes the MSPB to waive any other regulation to provide the expedited review required under 38 U.S.C. 713. Paragraph (b) also requires the MSPB to submit a report to Congress within 14 days that addresses the steps the Board is taking to conduct the expedited review required under the Act. The report must also identify any additional resources the Board determines to be necessary to complete expedited reviews.

The MSPB currently plays an important role in protecting the rights of our nation's veterans by adjudicating appeals filed under the Veterans Employment Opportunities Act and the Uniformed Services Employment and Reemployment Rights Act. In addition, the Board Members and MSPB employees, including a significant number of veterans, support any comprehensive legislation that improves conditions for our nation's veterans. Nevertheless, the MSPB has concerns regarding the constitutionality of section 707 of the Act. Specifically, the MSPB questions the constitutionality of any provision of law that prohibits presidentially-appointed, Senate-confirmed Officers of the United States Government from carrying out the mission of the agency to which they were appointed and confirmed to lead.

Ordinarily, the Administrative Procedure Act (APA) requires an agency to provide notice of proposed rulemaking and a period of public comment before the promulgation of a new regulation. 5 U.S.C. 553(b) and (c). However, section 553(b) of the APA specifically provides that the notice and comment requirements do not apply:

(A) To interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or

(B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. The APA also requires the publication of any substantive rule at least 30 days before its effective date, 5 U.S.C. 553(d), except where the rule is interpretive, where the rule grants an exception or relieves a restriction, or “as otherwise provided by the agency for good cause found and published with the rule.” Id.

A finding that notice and comment rulemaking is unnecessary must be “confined to those situations in which the administrative rule is a routine determination, insignificant in nature and impact, and inconsequential to the industry and to the public.” Mack Trucks, Inc. v. Envtl. Prot. Agency, 682 F.3d 87, 94 (D.C. Cir. 2012). The Board finds that publication of this interim final rule effective upon publication is warranted for several reasons. The procedures created in Part 1210 reflect changes that have already been enacted into law by the Act. Komjathy v. National Transp. Safety Bd., 832 F.2d 1294, 1296-97 (D.C. Cir. 1987) (notice and comment unnecessary where regulation does no more than repeat, virtually verbatim, the statutory grant of authority); Gray Panthers Advocacy Comm. v. Sullivan, 936 F.2d 1284, 1291-92 (D.C. Cir. 1991) (no reason exists to require notice and comment procedures where regulations restate or paraphrase the detailed requirements of the statute).

The Act took effect upon signature by the President. Given the extremely limited time within which the Board was required to implement procedures to accommodate the expedited review required under the Act, the Board finds that good cause exists to publish these amendments to its regulations in an interim final rule that is effective immediately. The Board finds that this expedited rulemaking is necessary to reduce potential confusion among appellants and agency representatives caused by outdated regulations and ensure that procedures are in place to facilitate the expedited case processing required under the Act. Philadelphia Citizens in Action v. Schweiker, 669 F.2d 877, 882-84 (3d Cir. 1982) (finding good cause to dispense with notice and comment where Omnibus Budget Reconciliation Act amendments enacted by Congress became effective by statute on a specific date, shortly after enactment).

Section 1201.3 is amended to add 38 U.S.C. 713 to the list of sources of MSPB appellate jurisdiction.

Section 1210.1 sets forth the MSPB's authority to issue decisions under 38 U.S.C. 713 and notes several relevant provisions of that statute.

Section 1210.2 defines several words and terms used in part 1210.

Section 1210.3 addresses the applicability of 5 CFR part 1201 to appeals filed under part 1210.

Section 1210.4 repeats the Act's provision allowing the Board to waive any MSPB regulation to provide the expedited review required by the Act.

Section 1210.5 sets forth certain items that must be included in an agency notice of removal or transfer issued pursuant to 38 U.S.C. 713.

Section 1210.6 requires parties to use the MSPB e-filing system (e-Appeal Online), observe filing procedures ordered by the administrative judge, and check frequently to see whether additional pleadings or orders have been added to the e-Appeal Online Repository.

Section 1210.7 addresses the appropriate place for filing appeals, time limits for filing an appeal and a response, and time limits for filing appeals not covered under part 1210.

Section 1210.8 repeats the Act's provision prohibiting an administrative judge from granting a stay request in an appeal covered under part 1210.

Section 1210.9 requires the appellant to include the agency's decision notice and response file with the initial appeal.

Section 1210.10 states that motions challenging the designation of a representative must be filed within 3 days of notification of the identity of the representative.

Section 1210.11 sets forth procedures for initial status conferences, including scheduling, issues likely to be addressed, and the possibility of scheduling additional conferences. This regulation also recognizes the administrative judge's discretion in addressing these matters.

Section 1210.12 requires initial disclosures, sets forth discovery procedures, and notes the administrative judge's authority to alter discovery procedures.

Section 1210.13 requires the filing of non-discovery motions within 5 days of the initial status conference and allows 2 days for filing an opposition. This regulation recognizes the administrative judge's authority to alter these deadlines.

Section 1210.14 advises the parties that administrative judges have the authority to impose sanctions for failure to meet deadlines or obey orders. The regulation also makes clear that deadlines will be strictly enforced due to the statutorily-required expedited nature of appeals under part 1210.

Section 1210.15 repeats the Act's provision requiring the agency to provide such information and assistance as are required to expedite the processing of appeals under part 1210. This regulation also requires the agency to advise the MSPB when it takes an action under 38 U.S.C. 713.

Section 1210.16 states that intervenors and amici curiae are permitted to participate in appeals under part 1210, that motions to intervene and requests to participate must be filed at the earliest possible time, and that intervenors and amici curiae must comply with the expedited procedures applicable to appeals under part 1210.

Section 1210.17 addresses an appellant's right to a hearing under 5 U.S.C. 7701, hearing procedures, and the responsibility of the MSPB to ensure the presence of a court reporter.

Section 1210.18 addresses burdens of proof, standards of review, and review of penalties.

Section 1210.19 contains procedures for the issuance of bench decisions.

Section 1210.20 states that decisions by an administrative judge under this part are effective upon issuance and may be cited as persuasive authority in other appeals under part 1210 (but may not be cited in appeals not filed under part 1210). This regulation also states that the MSPB retains jurisdiction following the issuance of a decision under part 1210 for purposes of enforcement of decisions and orders and attorney fees, witness fees, litigation expenses and damages.

Accordingly, for the reasons set forth in the preamble, the Board amends 5 CFR parts 1201 and 1210:

The FAA has determined that notice and opportunity for public comment are unnecessary because the substance of these special conditions has been subjected to the notice and comment period previously and has been derived without substantive change from those previously issued. As it is unlikely that we will receive new comments, the FAA finds that good cause exists for making these special conditions effective upon issuance.

While we did not precede this with a notice of proposed special conditions, we invite interested people to take part in this action by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive by the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.

If you want us to let you know we received your mailed comments on these special conditions, send us a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.

On July 11, 2014, the Robinson Helicopter Company applied to amend type certificate (TC) Number R00015LA to install a HeliSAS AP/SAS on the Robinson Helicopter Company model R66 helicopter. The Robinson Helicopter Company model R66 helicopter is a 14 CFR part 27 normal category, single turbine engine, conventional helicopter designed for civil operation. This helicopter model is capable of carrying up to four passengers with one pilot, and has a maximum gross weight of up to 2,700 pounds, depending on the model configuration. The major design features include a 2-blade, fully articulated main rotor, an anti-torque tail rotor system, a skid landing gear, and a visual flight rule basic avionics configuration. Robinson Helicopter Company proposes to modify this model helicopter by installing a two-axis HeliSAS AP/SAS.

Under 14 CFR 21.101, the Robinson Helicopter Company must show that the model R66 helicopter, as modified by the installed HeliSAS AP/SAS, continues to meet the applicable regulations in effect on the date of application for the change to the type certificate. The baseline of the certification basis for the unmodified Robinson Helicopter Company model R66 helicopter is listed in TC Number R00015LA. Additionally, compliance must be shown to any applicable equivalent level of safety findings, exemptions, and special conditions prescribed by the Administrator as part of the certification basis.

The Administrator has determined the applicable airworthiness regulations (that is, 14 CFR part 27), as they pertain to this amended TC, do not contain adequate or appropriate safety standards for the Robinson Helicopter Company model R66 helicopter because of a novel or unusual design feature. Therefore, special conditions are prescribed under § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Robinson Helicopter Company must show compliance of the HeliSAS AP/SAS amended TC altered model R66 helicopter with the noise certification requirements of 14 CFR part 36.

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

The HeliSAS AP/SAS incorporates novel or unusual design features for installation in a Robinson Helicopter Company model R66 helicopter, TC Number R00015LA. This HeliSAS AP/SAS performs non-critical control functions. However, the possible failure conditions for this system, and their effect on the continued safe flight and landing of the helicopter, are more severe than those envisioned by the present rules.

The effect on safety is not adequately covered under § 27.1309 for the application of new technology and new application of standard technology. Specifically, the present provisions of § 27.1309(c) do not adequately address the safety requirements for systems whose failures could result in catastrophic or hazardous/severe-major failure conditions, or for complex systems whose failures could result in major failure conditions. The current regulations are inadequate because when § 27.1309(c) were promulgated, it was not envisioned that this type of rotorcraft would use systems that are complex or whose failure could result in “catastrophic” or “hazardous/severe-major” effects on the rotorcraft. This is particularly true with the application of new technology, new application of standard technology, or other applications not envisioned by the rule that affect safety.

To comply with the provisions of the special conditions, we require that Robinson Helicopter Company provide the FAA with a systems safety assessment (SSA) for the final HeliSAS AP/SAS installation configuration that will adequately address the safety objectives established by a functional hazard assessment (FHA) and a preliminary system safety assessment (PSSA), including the fault tree analysis (FTA). This will ensure that all failure conditions and their resulting effects are adequately addressed for the installed HeliSAS AP/SAS. The SSA process, FHA, PSSA, and FTA are all parts of the overall safety assessment process discussed in FAA Advisory Circular 27-1B (Certification of Normal Category Rotorcraft) and Society of Automotive Engineers document Aerospace Recommended Practice 4761 (Guidelines and Methods for Conducting the Safety Assessment Process on Civil Airborne Systems and Equipment).

These special conditions require that the HeliSAS AP/SAS installed on Robinson Helicopter Company model R66 helicopter meet the requirements to adequately address the failure effects identified by the FHA, and subsequently verified by the SSA, within the defined design integrity requirements.

Failure Condition Categories. Failure conditions are classified, according to the severity of their effects on the rotorcraft, into one of the following categories:

1. No Effect. Failure conditions that would have no effect on safety. For example, failure conditions that would not affect the operational capability of the rotorcraft or increase crew workload; however, could result in an inconvenience to the occupants, excluding the flight crew.

2. Minor. Failure conditions which would not significantly reduce rotorcraft safety, and which would involve crew actions that are well within their capabilities. Minor failure conditions would include, for example, a slight reduction in safety margins or functional capabilities, a slight increase in crew workload such as routine flight plan changes or result in some physical discomfort to occupants.

3. Major. Failure conditions which would reduce the capability of the rotorcraft or the ability of the crew to cope with adverse operating conditions to the extent that there would be, for example, a significant reduction in safety margins or functional capabilities, a significant increase in crew workload or result in impairing crew efficiency, physical distress to occupants, including injuries, or physical discomfort to the flight crew.

4. Hazardous/Severe-Major.

a. Failure conditions which would reduce the capability of the rotorcraft or the ability of the crew to cope with adverse operating conditions to the extent that there would be:

(1) a large reduction in safety margins or functional capabilities;

(2) physical distress or excessive workload that would impair the flight crew's ability to the extent that they could not be relied on to perform their tasks accurately or completely; or

(3) possible serious or fatal injury to a passenger or a cabin crewmember, excluding the flight crew.

b. “Hazardous/severe-major” failure conditions can include events that are manageable by the crew by the use of proper procedures, which, if not implemented correctly or in a timely manner, may result in a catastrophic event.

5. Catastrophic —Failure conditions which would result in multiple fatalities to occupants, fatalities or incapacitation to the flight crew, or result in loss of the rotorcraft.

Radio Technical Commission for Aeronautics, Inc. (RTCA) Document DO-178C (Software Considerations in Airborne Systems And Equipment Certification) provides software design assurance levels most commonly used for the major, hazardous/severe-major, and catastrophic failure condition categories. The HeliSAS AP/SAS system equipment must be qualified for the expected installation environment. The test procedures prescribed in RTCA Document DO-160G (Environmental Conditions and Test Procedures for Airborne Equipment) are recognized by the FAA as acceptable methodologies for finding compliance with the environmental requirements. Equivalent environment test standards may also be acceptable. This is to show that the HeliSAS AP/SAS system performs its intended function under any foreseeable operating condition, which includes the expected environment in which the HeliSAS AP/SAS is intended to operate. Some of the main considerations for environmental concerns are installation locations and the resulting exposure to environmental conditions for the HeliSAS AP/SAS system equipment, including considerations for other equipment that may be affected environmentally by the HeliSAS AP/SAS equipment installation. The level of environmental qualification must be related to the severity of the considered failure conditions and effects on the rotorcraft.

These special conditions are applicable to the HeliSAS AP/SAS installed as an amended TC approval in Robinson Helicopter Company model R66 helicopter, TC Number R00015LA.

This action affects only certain novel or unusual design features for a HeliSAS AP/SAS amended TC installed on one model helicopter. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features.

The authority citation for these special conditions is as follows:

Reason for No Prior Notice and Comment Before Adoption

The FAA has determined that notice and opportunity for public comment are unnecessary because the substance of these special conditions has been subjected to the notice and comment period previously and has been derived without substantive change from those previously issued. As it is unlikely that we will receive new comments, the FAA finds that good cause exists for making these special conditions effective upon issuance.

While we did not precede this with a notice of proposed special conditions, we invite interested people to take part in this action by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive by the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.

If you want us to let you know we received your mailed comments on these special conditions, send us a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.

On June 18, 2013, S-TEC submitted an application to the FAA's Los Angeles Aircraft Certification Office for a supplemental type certificate (STC) to install a HeliSAS AP/SAS on the Airbus Helicopters model EC135 series (EC135P1, EC135T1, EC135P2, EC135T2, EC135P2+, and EC135T2+) helicopters. The Airbus Helicopters model EC135 series helicopters are 14 CFR part 27 normal category, twin turbine engine, conventional helicopters designed for civil operation. These helicopter models are capable of carrying up to seven passengers with one pilot, and have a maximum gross weight of up to 6,504 pounds, depending on the model configuration. The major design features include a 3-blade, fully articulated main rotor, an anti-torque tail rotor system, a skid landing gear, and a visual flight rule basic avionics configuration. S-TEC proposes to modify these model helicopters by installing a two-axis HeliSAS AP/SAS.

Under 14 CFR 21.115, S-TEC must show that the Airbus Helicopters model EC135 series helicopters, as modified by the installed HeliSAS AP/SAS, continue to meet the requirements specified in 14 CFR 21.101. The baseline of the certification basis for the unmodified Airbus Helicopters model EC135 series helicopters is listed in Type Certificate Number H88EU. Additionally, compliance must be shown to any applicable equivalent level of safety findings, exemptions, and special conditions prescribed by the Administrator as part of the certification basis.

The Administrator has determined the applicable airworthiness regulations (that is, 14 CFR part 27), as they pertain to this STC, do not contain adequate or appropriate safety standards for the Airbus Helicopters model EC135 series helicopters because of a novel or unusual design feature. Therefore, special conditions are prescribed under § 21.16.

In addition to the applicable airworthiness regulations and special conditions, S-TEC must show compliance of the HeliSAS AP/SAS STC altered Airbus Helicopters model EC135 series helicopters with the noise certification requirements of 14 CFR part 36.

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

The HeliSAS AP/SAS incorporates novel or unusual design features for installation in an Airbus Helicopters model EC135 series helicopter, Type Certificate Number H88EU. This HeliSAS AP/SAS performs non-critical control functions. However, the possible failure conditions for this system, and their effect on the continued safe flight and landing of the helicopters, are more severe than those envisioned by the present rules.

The effect on safety is not adequately covered under § 27.1309 for the application of new technology and new application of standard technology. Specifically, the present provisions of § 27.1309(c) do not adequately address the safety requirements for systems whose failures could result in catastrophic or hazardous/severe-major failure conditions, or for complex systems whose failures could result in major failure conditions. The current regulations are inadequate because when § 27.1309(c) were promulgated, it was not envisioned that this type of rotorcraft would use systems that are complex or whose failure could result in “catastrophic” or “hazardous/severe-major” effects on the rotorcraft. This is particularly true with the application of new technology, new application of standard technology, or other applications not envisioned by the rule that affect safety.

To comply with the provisions of the special conditions, we require that S-TEC provide the FAA with a systems safety assessment (SSA) for the final HeliSAS AP/SAS installation configuration that will adequately address the safety objectives established by a functional hazard assessment (FHA) and a preliminary system safety assessment (PSSA), including the fault tree analysis (FTA). This will ensure that all failure conditions and their resulting effects are adequately addressed for the installed HeliSAS AP/SAS. The SSA process, FHA, PSSA, and FTA are all parts of the overall safety assessment process discussed in FAA Advisory Circular 27-1B (Certification of Normal Category Rotorcraft) and Society of Automotive Engineers document Aerospace Recommended Practice 4761 (Guidelines and Methods for Conducting the Safety Assessment Process on Civil Airborne Systems and Equipment).

These special conditions require that the HeliSAS AP/SAS installed on an Airbus Helicopters model EC135 series helicopter meet the requirements to adequately address the failure effects identified by the FHA, and subsequently verified by the SSA, within the defined design integrity requirements.

Failure Condition Categories. Failure conditions are classified, according to the severity of their effects on the rotorcraft, into one of the following categories:

1. No Effect —Failure conditions that would have no effect on safety. For example, failure conditions that would not affect the operational capability of the rotorcraft or increase crew workload; however, could result in an inconvenience to the occupants, excluding the flight crew.

2. Minor —Failure conditions which would not significantly reduce rotorcraft safety, and which would involve crew actions that are well within their capabilities. Minor failure conditions would include, for example, a slight reduction in safety margins or functional capabilities, a slight increase in crew workload such as routine flight plan changes or result in some physical discomfort to occupants.

3. Major —Failure conditions which would reduce the capability of the rotorcraft or the ability of the crew to cope with adverse operating conditions to the extent that there would be, for example, a significant reduction in safety margins or functional capabilities, a significant increase in crew workload or result in impairing crew efficiency, physical distress to occupants, including injuries, or physical discomfort to the flight crew.

4. Hazardous/Severe-Major.

a. Failure conditions which would reduce the capability of the rotorcraft or the ability of the crew to cope with adverse operating conditions to the extent that there would be:

(1) A large reduction in safety margins or functional capabilities;

(2) physical distress or excessive workload that would impair the flight crew's ability to the extent that they could not be relied on to perform their tasks accurately or completely; or

(3) possible serious or fatal injury to a passenger or a cabin crewmember, excluding the flight crew.

b. “Hazardous/severe-major” failure conditions can include events that are manageable by the crew by the use of proper procedures, which, if not implemented correctly or in a timely manner, may result in a catastrophic event.

5. Catastrophic —Failure conditions which would result in multiple fatalities to occupants, fatalities or incapacitation to the flight crew, or result in loss of the rotorcraft.

Radio Technical Commission for Aeronautics, Inc. (RTCA) Document DO-178C (Software Considerations in Airborne Systems And Equipment Certification) provides software design assurance levels most commonly used for the major, hazardous/severe-major, and catastrophic failure condition categories. The HeliSAS AP/SAS system equipment must be qualified for the expected installation environment. The test procedures prescribed in RTCA Document DO-160G (Environmental Conditions and Test Procedures for Airborne Equipment) are recognized by the FAA as acceptable methodologies for finding compliance with the environmental requirements. Equivalent environment test standards may also be acceptable. This is to show that the HeliSAS AP/SAS system performs its intended function under any foreseeable operating condition, which includes the expected environment in which the HeliSAS AP/SAS is intended to operate. Some of the main considerations for environmental concerns are installation locations and the resulting exposure to environmental conditions for the HeliSAS AP/SAS system equipment, including considerations for other equipment that may be affected environmentally by the HeliSAS AP/SAS equipment installation. The level of environmental qualification must be related to the severity of the considered failure conditions and effects on the rotorcraft.

These special conditions are applicable to the HeliSAS AP/SAS installed as an STC approval in Airbus Helicopters model EC135P1, EC135T1, EC135P2, EC135T2, EC135P2+, and EC135T2+ helicopters, Type Certificate Number H88EU.

This action affects only certain novel or unusual design features for a HeliSAS AP/SAS STC installed on the specified model series of helicopters. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features.

The authority citation for these special conditions is 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 The Boeing Company Model 707 airplanes, Model 720 and 720B series airplanes, Model 727 airplanes, and Model 737-100, -200, and -200C series airplanes. The NPRM published in the Federal Register on April 23, 2014 (79 FR 22599). The NPRM was prompted by a report of a fire that originated near the first officer's area and caused extensive damage to the flight deck on a different airplane model. The NPRM proposed to require replacing the low-pressure oxygen hoses with non-conductive low-pressure oxygen hoses in the flight compartment. We are issuing this AD to prevent inadvertent electrical current from passing through an internal, anti-collapse spring of the low-pressure oxygen hose, which can cause the low-pressure oxygen hose to melt or burn, leading to an oxygen-fed fire and/or smoke in the flight deck.

We have changed the point-of-contact information for the various affected airplane models in paragraphs (i)(1) and (j) of this final rule.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (79 FR 22599, April 23, 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 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 22599, April 23, 2014) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (79 FR 22599, April 23, 2014).

We estimate that this AD affects 530 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc. Model CL-215-6B11 (CL-215T Variant), and CL-215-6B11 (CL-415 Variant) airplanes. The NPRM published in the Federal Register on February 27, 2014 (79 FR 11022).

Transport Canada Civil Aviation, which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2013-06, dated February 27, 2013 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition certain Bombardier, Inc. Model CL-215-6B11 (CL-215T Variant), and CL-215-6B11 (CL-415 Variant) airplanes. The MCAI states:

The actions for this AD include a general visual inspection of the left and right nacelle upper strut bushings; installation of the bolts and PLI washers, if necessary; and replacement of the bushing or repair of the bushing installation, if necessary. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov/#!documentDetail;D=FAA-2014-0120-0002.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (79 FR 11022, February 27, 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 11022, February 27, 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 11022, February 27, 2014) about these proposed changes. However, a comment was provided for another 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 action must be accomplished using a method approved by the FAA, TCCA, or Bombardier's TCCA Design Approval Organization (DAO).

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

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

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 in the Contacting the Manufacturer paragraph of 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 11022, February 27, 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 11022, February 27, 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 5 airplanes of U.S. registry.

We also estimate that it will take about 4 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $0 per product. Based on these figures, we estimate the cost of this AD on U.S. operators to be $1,700, or $340 per product.

In addition, we estimate that any necessary follow-on actions will take about 4 work-hours and require parts costing $0, for a cost of $340 per product. We have no way of determining the number of aircraft that might need these actions.

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

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

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

You may examine the AD docket on the Internet at http://www.regulations.gov/#!docketDetail;D=FAA-2014-0120; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section.

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus Model A300 and A310 series airplanes; and Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called A300-600 series airplanes). The NPRM was intended to supersede AD 2011-10-17, Amendment 39-16698 (76 FR 27875, May 13, 2011). The NPRM published in the Federal Register on November 7, 2012 (77 FR 66772). The NPRM was prompted by the revision of certain airworthiness limitation items (ALI) documents, which require more restrictive maintenance requirements and airworthiness limitations. The NPRM proposed to require revising the maintenance program to incorporate the limitations section. We are issuing this AD to prevent fatigue cracking, damage, or corrosion in principal structural elements, which could result in reduced structural integrity of the airplane.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, issued EASA Airworthiness Directive 2011-0198, dated October 19, 2011 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition all Airbus Model A300 and A310 series airplanes; and Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called A300-600 series airplanes). The MCAI states:

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov/#!documentDetail;D=FAA-2012-1158-0002.

The NPRM (77 FR 66772, November 7, 2012) proposed to supersede AD 2011-10-17, Amendment 39-16698 (76 FR 27875, May 13, 2011). However, the new actions introduced in the NPRM and required by this final rule apply only to Model A310 and A300-600 series airplanes. The actions required for Model A300 series airplanes that are required by AD 2011-10-17 are not affected by this AD. AD 2011-10-17 therefore remains in effect in its entirety for Model A300, A300-600, and A310 series airplanes. The requirements of this final rule include only the new actions, and apply only to Model A310 and A300-600 series airplanes.

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

UPS requested clarification of the compliance times for the maintenance program revision and the initial inspection. UPS noted that operators have 3 months to complete both the maintenance program revision and the initial inspections. UPS stated that the current wording indicates that the two tasks are to be accomplished concurrently, and cannot be accomplished until approved by the principal maintenance inspector. UPS added that concurrent accomplishment of the two actions is not feasible and requested that accomplishment of these two actions be consecutive rather than concurrent.

We agree to provide clarification. The commenter's statement that operators have 3 months to complete both the maintenance program revision and initial inspections is not accurate. As specified in paragraph (g) of this AD, operators have 3 months to revise the maintenance or inspection program, as applicable. However, the compliance time for the initial inspections is at the times in the applicable service information identified in paragraphs (g)(1), (g)(1)(i)(A), and (g)(2) of this AD, or within 3 months after the effective date of this AD, whichever occurs later.

For the service information identified in paragraphs (g)(1) and (g)(2) of this AD, there are also compliance times specified in paragraph 3., “Special Compliance Times,” in the “Record of Revisions” section of the service information, which provide compliance times relative to the approval date or publication date of the service information. We have determined that those compliance times should be relative to the effective date of this AD; therefore, we have added compliance time exceptions to paragraphs (g)(1)(i)(B) and (g)(2)(i) of this AD. We have determined that extending these compliance times will provide an acceptable level of safety.

UPS requested that the proposed grace period and repetitive intervals be extended to be equivalent to the requirements of AD 2011-10-17, Amendment 39-16698 (76 FR 27875, May 13, 2011). UPS commented that the proposed compliance times are overly conservative and are not supported by industry data.

We do not agree with the commenter's request to extend the grace period and repetitive intervals. Airbus revised the ALIs based upon analysis and data. Under the provisions of paragraph (j) of this final rule, however, we will consider requests for approval of an extension of the compliance time if sufficient data are submitted to substantiate that a different compliance time would provide an acceptable level of safety. We have not changed this final rule in this regard.

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

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

To address this misunderstanding and misinterpretation of the Airworthy Product paragraph, we have changed the paragraph and retitled it “Contacting the Manufacturer.” This paragraph now clarifies that for any requirement in this AD to obtain corrective actions from a manufacturer, the 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.

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

We reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the 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 66772, November 7, 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 66772, November 7, 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 170 airplanes of U.S. registry.

We estimate that it will take about 1 work-hour per product to comply with the new 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 $14,450, or $85 per product.

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

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

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

For the reasons discussed above, I certify 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-2012-1158; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section.

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2013-12-01, Amendment 39-17478 (78 FR 37703, June 24, 2013), (“AD 2013-12-01”). AD 2013-12-01 applied to the specified products. The NPRM published in the Federal Register on May 23, 2014 (79 FR 29694). The NPRM proposed to require initial and repetitive UIs of the affected LP compressor blades.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (79 FR 29694, May 23, 2014).

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

We estimate that this AD affects 56 engines installed on airplanes of U.S. registry. We also estimate that it will take about 44 hours per engine to comply with the initial inspection requirements in this AD. The average labor rate is $85 per hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $209,440.

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

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

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

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

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

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

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

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

Accordingly, under the authority delegated to me by the Administrator, the FAA amends part 39 of the Federal Aviation Regulations (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 The Boeing Company Model 737-600, -700, -700C, -800, and -900 series airplanes. The NPRM published in the Federal Register on March 3, 2014 (79 FR 11728). The NPRM was prompted by reports in which a single, undetected, erroneous radio altimeter output caused the autothrottle to enter landing flare retard mode prematurely on approach. The NPRM proposed to require removing certain autothrottle computers and installing a new or reworked autothrottle computer. We are issuing this AD to prevent a single, undetected, erroneous radio altimeter output from causing premature autothrottle landing flare retard and subsequent loss of automatic speed control, which could result in loss of control of the airplane.

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM (79 FR 11728, March 3, 2014) and the FAA's response to each comment.

Boeing and the National Transportation Safety Board (NTSB) concurred with the NPRM (79 FR 11728, March 3, 2014).

Aviation Partners Boeing stated that installation of winglets per Supplemental Type Certificate (STC) ST00830SE does not affect the accomplishment of the manufacturer's service instructions specified in the NPRM (79 FR 11728, March 3, 2014).

Kevin Lee, a private citizen, requested that we increase the cost estimate of the NPRM (79 FR 11728, March 3, 2014). The commenter stated that the cost will be significantly higher due to General Electric not providing a free-of-charge upgrade to the autothrottle computer despite this being a safety and reliability issue.

We disagree with increasing the cost estimate. The cost estimate does not include parts cost for the autothrottle computer because it is considered “Parts and Materials Supplied by the Operator” in Boeing Alert Service Bulletin 737-22A1215, dated November 22, 2013. The autothrottle computer software can be updated using a data loader on a bench with specific equipment that is unique to the GE autothrottle computer. However, since this autothrottle computer has been out of production for over ten years, it is unlikely that operators will have the capability to do the update themselves using a disc supplied by GE. Therefore, GE anticipates that the majority of operators will return their autothrottle computer to a GE service center for modification. As an alternative, operators may purchase the autothrottle computer from Boeing. Boeing Alert Service Bulletin 737-22A1215, dated November 22, 2013, does not give the cost and it is therefore not included in our estimate. Since there are multiple ways for operators to get an updated autothrottle computer, we have not included the cost of the autothrottle computer in our estimate. We also do not control warranty coverage. No change has been made to this final rule in this regard.

Kevin Lee requested that we delay issuance of the final rule, or extend the proposed 36-month compliance time specified in the NPRM (79 FR 11728, March 3, 2014). The commenter stated that Boeing has not incorporated the new GE autothrottle computer having part number (P/N) 760SUE2-5 into their Boeing 737 Illustrated Parts Catalog (IPC) or the Instructions for Continued Airworthiness documents.

We disagree with delaying issuance of this final rule. Paragraph 1.K. of Boeing Alert Service Bulletin 737-22A1215, dated November 22, 2013, identifies the Boeing 737 IPC as the only document affected by replacement of the autothrottle computer. The new autothrottle computer has been added to the IPC, therefore there is no need to delay issuance of the final rule.

We also disagree with extending the 36-month compliance time. In developing an appropriate compliance time for this action, we considered the urgency associated with the subject unsafe condition, the availability of required parts, and the practical aspect of accomplishing the required modification within a period of time that corresponds to the normal scheduled maintenance for most affected operators. According to the manufacturer, an ample number of required parts will be available to modify the U.S. fleet within the proposed compliance time. However, under the provisions of paragraph (i) of this final rule, we will consider requests for approval of an extension of the compliance time if sufficient data are submitted to substantiate that the new compliance time would provide an acceptable level of safety.

We have not changed the AD in regard to either delaying the final rule or extending the 36-month compliance time.

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

• Are consistent with the intent that was proposed in the NPRM (79 FR 11728, March 3, 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 11728, March 3, 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 497 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 777-200 series airplanes. The NPRM published in the Federal Register on July 17, 2013 (78 FR 42727). The NPRM was prompted by reports of smoke or flames in the passenger cabin of various transport category airplanes, related to the wiring for the passenger cabin IFE system, cabin lighting, and passenger seats. The NPRM proposed to require, for certain airplanes, doing an inspection of the electrical power control panel for a certain part number, and corrective action if necessary; and, for certain other airplanes, installing a new electrical power control panel, and making changes to the wiring and certain ELMS panels. We are issuing this AD to ensure that the flightcrew is able to turn off electrical power to the IFE systems and other non-essential electrical systems through one or two switches in the flight deck in the event of smoke or flames. In the event of smoke or flames in the airplane flight deck or passenger cabin, the flightcrew's inability to turn off electrical power to the IFE system and other non-essential electrical systems could result in the inability to control smoke or flames in the airplane flight deck or passenger cabin during a non-normal or emergency situation, and consequent loss of control of the airplane.

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal (78 FR 42727, July 17, 2013) and the FAA's response to each comment.

United Airlines (UA) supported the NPRM (78 FR 42727, July 17, 2013).

Japan Airlines (JAL) requested that we accept modification deviations proposed by JAL. JAL stated that there were problems with the repair kits including short electrical wire and missing wires. JAL proposed various deviations from the service bulletin instructions in order to address these problems.

We disagree with the request to accept modification deviations. The issues that JAL experienced with the Boeing kit may not be applicable to other operators; therefore, we are not changing this final rule in this regard. Operators may, however, request approval of an alternative method of compliance (AMOC) for deviations for the Boeing repair kit in accordance with paragraph (k) of this AD.

JAL requested that we allow the use of Boeing Service Bulletin 777-23-0254 to load an alternative version of cabin management system (CMS) software. JAL stated that the NPRM (78 FR 42727, July 17, 2013), would require loading the CMS software in accordance with Boeing Service Bulletin 777-23-0176, Revision 2, dated October 26, 2006, as a concurrent requirement to Boeing Service Bulletin 777-23-0254. JAL stated that it has loaded this required software, but also loaded another version of the software for a cabin configuration change using Boeing Service Bulletin 777-23-0254. JAL stated that Boeing Service Bulletin 777-23-0254 identifies Boeing Service Bulletin 777-23-0176, Revision 2, dated October 26, 2006, as a concurrent requirement; JAL therefore requested that we include Boeing Service Bulletin 777-23-0254 in the NPRM.

We disagree with the request to use Boeing Service Bulletin 777-23-0254 to load an alternative version of CMS software. Although Boeing Service Bulletin 777-23-0254 identifies Boeing Service Bulletin 777-23-0176, Revision 2, dated October 26, 2006, as a concurrent requirement, we have not evaluated the alternative software to ensure it provides an acceptable level of safety to the AD requirements. Operators may request approval of an AMOC for installation of this alternative CMS software in accordance with paragraph (k) of this AD.

Boeing and JAL requested that we revise the Costs of Compliance section and paragraph (i)(2) of the NPRM (78 FR 42727, July 17, 2013) to add Boeing Service Bulletin 777-28A0039, Revision 2, dated September 20, 2010, as an option to Boeing Service Bulletin 777-24-0077, Revision 4, dated October 17, 2012, for installation of additional ELMS software.

The commenters stated that the new ELMS software is required for compliance to another AD (AD 2011-09-15, Amendment 39-16677 (76 FR 24345, May 2, 2011)). The commenters stated that AD 2011-09-15 requires installing new panels in the main equipment center and installing new ELMS software in accordance with Boeing Service Bulletin 777-28A0037, Revision 2, dated September 20, 2010, in order to prevent potential ignition sources inside fuel tanks. The commenters also stated that AD 2011-09-15 identifies Boeing Service Bulletin 777-28A0039, Revision 2, dated September 20, 2010, as an additional source of guidance for installing ELMS software.

Boeing and JAL stated that requiring ELMS software to be installed according to Boeing Service Bulletin 777-24-0087, Revision 2, dated August 16, 2007, as proposed in the NPRM (78 FR 42727, July 17, 2013), will create a conflict with the requirements of AD 2011-09-15, Amendment 39-16677 (76 FR 24345, May 2, 2011). Boeing stated that it intends to revise Service Bulletin 777-24-0077 to Revision 5 to include Boeing Service Bulletin 777-28A0039, Revision 2, dated September 20, 2010, as concurrent service information.

We agree to add an option to use Boeing Service Bulletin 777-28A0039, Revision 2, dated September 20, 2010, for installation of additional ELMS software. We have added this reference to the Costs of Compliance section and to paragraph (i)(2) of this final rule, as requested.

For editorial purposes, we have moved the credit service bulletin references from paragraph (j)(3) of the NPRM (78 FR 42727, July 17, 2013) to new paragraphs (j)(3)(i) through (j)(3)(v) of this final rule.

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

• Αre consistent with the intent that was proposed in the NPRM (78 FR 42727, July 17, 2013) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (78 FR 42727, July 17, 2013).

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

We estimate that this AD affects 49 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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:

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2011-15-09, Amendment 39-16756 (76 FR 42033, July 18, 2011). AD 2011-15-09 applied to certain Bombardier, Inc. Model DHC-8-400, -401, and -402 airplanes. The NPRM published in the Federal Register on March 5, 2014 (79 FR 12428).

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2011-01R2, dated May 21, 2013 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc. Model DHC-8-400, -401, and -402 airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov/#!docketDetail;D=FAA-2014-0129 .

We gave the public the opportunity to participate in developing this AD. We considered the comment received. The commenter supported the NPRM (79 FR 12428, March 5, 2014).

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 12428, March 5, 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 12428, March 5, 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, 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 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.

For clarity purposes, we have revised paragraph (g)(3) of this AD by adding new paragraphs (g)(3)(i) and (g)(3)(ii) to this AD.

We reviewed the available data, including the comment 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 (79 FR 12428, March 5, 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 12428, March 5, 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 75 airplanes of U.S. registry.

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-2014-0129; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section.

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc. Model CL-600-2B16 (CL-604 Variant) airplanes. The NPRM published in the Federal Register on April 21, 2014 (79 FR 22069). The NPRM was prompted by reports of in-flight uncommanded rudder movements. The NPRM proposed to require revising the AFM to incorporate an uncommanded yaw motion procedure. We are issuing this AD to prevent in-flight uncommanded rudder movements, which could lead to structural failure and subsequent loss of the airplane.

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2013-22, dated August 12, 2013 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc. Model CL-600-2B16 (CL-604 Variant) airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov/#!documentDetail;D=FAA-2014-0250-0002.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (79 FR 22069, April 21, 2014) or on the determination of the cost to the public.

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

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

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

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

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

We also have decided not to include a generic reference to either the “delegated agent” or “design approval holder (DAH) with State of Design Authority design organization approval,” but instead we have provided the specific delegation approval granted by the State of Design Authority for the DAH 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 22069, April 21, 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 22069, April 21, 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 116 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. Required parts will cost about $0 per product. Based on these figures, we estimate the cost of this AD on U.S. operators to be $9,860, or $85 per product.

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

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

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

For the reasons discussed above, I certify 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-2014-0250 ; 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:

The regulation for this marine event may be found at 33 CFR 100.501, Table to § 100.501, section (a), line “13”.

The Coast Guard is issuing this final rule pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b) and (d)(3)), which authorizes an agency to issue a rule without prior notice and opportunity to comment, and to take effect in less than 30 days, when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” The Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because immediate action is needed to minimize potential danger to the public during the event. The potential dangers posed by air shows make this change to the special local regulation necessary to provide for the safety of participants, spectator craft, and other vessels transiting the event area. For the safety concerns noted, it is in the public interest to have this regulation in effect during the event. The Coast Guard will issue broadcast notice to mariners to advise vessel operators of navigational restrictions. On scene Coast Guard and local law enforcement vessels will also provide actual notice to mariners. For the same reasons, the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date would be contrary to the public interest, because immediate action is needed to ensure the safety of the event. However, notifications will be made to users of the affected area near Ocean City, NJ, via marine information broadcasts and a local notice to mariners.

The legal basis and authorities for this rulemaking establishing a special local regulation are found in 33 U.S.C. 1233, which authorize the Coast Guard to establish and define special local regulations. The Captain of the Port Delaware Bay is establishing a special local regulation for the waters of the Atlantic Ocean, near Ocean City, NJ, to protect event participants, spectators and transiting vessels. Entry into this area is prohibited unless specifically authorized by the Captain of the Port Delaware Bay or designated representative.

The City of Ocean City sponsors an annual Air Show usually held on the third Sunday in September over the waters of the Atlantic Ocean adjacent to Ocean City, New Jersey.

The regulation listing annual marine events within the Fifth Coast Guard District and special local regulation locations is 33 CFR 100.501. The Table to § 100.501 identifies special local regulations by COTP zone, with the COTP Delaware Bay zone listed in section “(a.)” of the Table. The Table to § 100.501, at section (a.) event Number “13”, describes the enforcement date and regulated location for this marine event.

The date listed in the Table has the marine event on the third Sunday of September. However, this temporary rule changes the marine event date to September 14, 2014, to reflect the actual date of the event.

A fleet of spectator vessels is anticipated to gather nearby to view the marine event. Due to the need for vessel control during the marine event vessel traffic will be temporarily restricted to provide for the safety of participants, spectators and transiting vessels. Under provisions of 33 CFR 100.501, during the enforcement period, vessels may not enter the regulated area unless they receive permission from the Coast Guard Patrol Commander.

The Coast Guard will temporarily suspend the regulation listed in Table to § 100.501, section (a) event Number “13”, and insert this temporary regulation at Table to § 100.501, at section (a.) as event Number “16”, in order to reflect that the safety zone will be effective and enforced from 12:00 p.m. until 3:30 p.m. on September 14, 2014. This change is needed to accommodate the sponsor's event plan. No other portion of the Table to § 100.501 or other provisions in § 100.501 shall be affected by this regulation.

The regulated area of this special local regulation includes All waters of the New Jersey Intracoastal Waterway (ICW) bounded by a line connecting the following points; latitude 39°15′57″ N, longitude 074°35′09″ W thence northeast to latitude 39°16″34″ N, longitude 074°33′54″ W thence southeast to latitude 39°16′17″ N, longitude 074°33′29″ W thence southwest to latitude 39°15′40″ N, longitude 074°34′46″ W thence northwest to point of origin, near Ocean City, NJ.

During the period of the safety zone, all persons and vessels will be prohibited from entering, transiting, mooring, or remaining within the zone, unless specifically authorized by the Captain of the Port Delaware Bay, or her designated representative. Those persons authorized to transit through the safety zone shall abide by and follow all directions provided by the Captain of the Port Delaware Bay, or her designated representative, in order to ensure they are not disrupting this marine event. U.S. Coast Guard Sector Delaware Bay will notify the public by broadcast notice to mariners at least one hour prior to the times 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 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 Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. Although this regulation will restrict access to the regulated area, the effect of this rule will not be significant because: (i) The Coast Guard will make extensive notification of the Safety Zone to the maritime public via maritime advisories so mariners can alter their plans accordingly; (ii) vessels may still be permitted to transit through the safety zone with the permission of the Captain of the Port on a case-by-case basis; and (iii) this rule will be enforced for only the duration of the air show.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to anchor or transit along a portion of the Atlantic Ocean adjacent to Ocean City, New Jersey from 12:00 p.m. to 3:30 p.m. on September 14, 2014, unless cancelled earlier by the Captain of the Port once all operations are completed.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reason: Vessel traffic will be allowed to pass through the zone with permission of the Coast Guard Captain of the Port Delaware Bay or her designated representative and zone is limited in size and duration. Sector Delaware Bay will issue maritime advisories widely available to users of the Delaware Bay and River.

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

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

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves implementation of regulations within 33 CFR Part 100, applicable to special local regulations on the navigable waterways. This zone will temporarily restrict vessel traffic from transiting the waters of the Atlantic Ocean adjacent to Ocean City, NJ, in order to protect the safety of life and property on the waters for the duration of the air show. This rule is categorically excluded from further review under paragraph 34(h) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

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

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. The Coast Guard received notice of the vessel grounding on July 30, 2014. Due to the emergent nature of this incident, the Coast Guard did not have time to issue a notice of proposed rulemaking.

Under 5 U.S.C. 553(d)(3), for the same reason mentioned above, the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Due to the late notice and inherent danger in the salvage of a grounded vessel, delaying the effective period of this safety zone would be contrary to the public interest.

The legal basis for this rule is the Coast Guard's authority to establish regulated navigation areas and other limited access areas: 33 U.S.C. 1231; 33 CFR 1.05-1, 6.04-6, 160.5; and Department of Homeland Security Delegation No. 0170.1.

A safety zone is a water area, shore area, or water and shore area, for which access is limited to authorized person, vehicles, or vessels for safety purposes. The purpose of this rulemaking is to protect mariners from the potential hazards associated with salvage operations. Approaching too close to such operations could potentially expose the mariner to hazardous conditions.

In order to protect the public from the hazards associated with the grounded vessel and subsequent salvage operations, the Coast Guard is establishing a temporary safety zone, effective August 2, 2014 to October 30, 2014. The enforcement period for this rule is from August 2, 2014 to October 30, 2014.

The safety zone is located within the Guam COTP Zone (See 33 CFR 3.70-15), and will cover all waters bounded by a circle with a 400-yard radius centered around the TAKE MARU 55, located at approximately 13 degrees 14 minutes 7 seconds North Latitude, 144 degrees 38 minutes 27 seconds East Longitude, from the surface of the water to the ocean floor.

The general regulations governing safety zones contained in 33 CFR 165.23 apply. Entry into, transit through or anchoring within this zone is prohibited unless authorized by the COTP or a designated representative thereof. Any Coast Guard commissioned, warrant, or petty officer, and any other COTP representative permitted by law, may enforce the zone. The COTP may waive any of the requirements of this rule for any person, vessel, or class of vessel upon finding that application of the safety zone is unnecessary or impractical for the purpose of maritime safety. Vessels or persons violating this rule may be subject to the penalties set forth in 33 U.S.C. 1232 and/or 50 U.S.C. 192.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. The Coast Guard expects the economic impact of this rule to be extremely minimal based on the limited geographic area affected by it.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule would affect the following entities, some of which might be small entities: The owners or operators of Cocos Island Resort restricting visitors from this portion of the zone from August 2, 2014 to October 30, 2014. This rule will be in effect until all salvage and clean up operations are completed and vessel traffic can pass safely around the safety zone. The safety zone does not encompass the entirety of Cocos Island and safe transit is still allowed to Cocos Island. Further, traffic will be allowed to pass through the zone with the permission of the Coast Guard Patrol Commander who can be reached by phone at 671-355-4821. During the effective period, we will issue maritime advisories widely available to users of Cocos Island and surrounding waters.

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 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 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.

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 this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a closed area of Cocos Island, to vessel traffic and water sports above and below the water, until further notice. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction.

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

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

The Coast Guard is issuing this 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 as publishing an NPRM is impracticable given that the final details for this event were not received by the Coast Guard until July 12, 2014, and this event is scheduled for September 6, 2014. Further, allowing this event to go forward without a safety zone in place would expose mariners and the public to unnecessary dangers associated with fireworks displays contrary to the public interest. For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register .

The legal basis for the rule is the Coast Guard's authority to establish regulated navigation areas and other limited access areas: 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

On the evening of September 6, 2014, fireworks will be launched from a barge with a fall out zone that covers part of the Delaware River. The Captain of the Port, Sector Delaware Bay, has determined that the Aquarium Wedding Fireworks Display will pose significant risks to the public. The purpose of the rule is to promote public and maritime safety during a fireworks display, and to protect mariners transiting the area from the potential hazards associated with a fireworks display, such as accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris.

To mitigate the risks associated with the Aquarium Wedding Fireworks Display, the Captain of the Port, Sector Delaware Bay will enforce a temporary safety zone in the vicinity of the launch site. The safety zone will encompass all waters of the Delaware River within a 130 Yard radius of the fireworks launch platform in approximate position 39°56′44″ N, 075°08′00″ W in Camden, NJ. The safety zone will be effective and enforced from 8:30 p.m. until 10:00 p.m. on September 6, 2014. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port, Sector Delaware Bay, or her on-scene representative. The Captain of the Port, Sector Delaware Bay, or her 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 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 Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. Although this regulation will restrict access to the regulated area, the effect of this rule will not be significant because: (i) The Coast Guard will make extensive notification of the Safety Zone to the maritime public via maritime advisories so mariners can alter their plans accordingly; (ii) vessels may still be permitted to transit through the safety zone with the permission of the Captain of the Port on a case-by-case basis; and (iii) this rule will be enforced for only the duration of the fireworks display.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to anchor or transit along a portion of Delaware River in Camden, NJ, from 8:30 p.m. until 10:00 p.m. on September 6, 2014, unless cancelled earlier by the Captain of the Port once all operations are completed.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reason: Vessel traffic will be allowed to pass through the zone with permission of the Coast Guard Captain of the Port Delaware Bay or her designated representative and the zone is limited in size and duration. Sector Delaware Bay will issue maritime advisories widely available to users of the Indian River Bay.

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

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

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves implementation of regulations within 33 CFR Part 165, applicable to safety zones on the navigable waterways. This zone will temporarily restrict vessel traffic from transiting the Indian River Bay along the shoreline of Camden, New Jersey, in order to protect the safety of life and property on the waters for the duration of the fireworks display. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

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

The Coast Guard will enforce the Safety Zone for the annual Bob O'Connor Foundation Fireworks listed in 33 CFR 165.801, Table 1, Entry No. 29; Sector Ohio Valley on August 20, 2014 from 8:30 p.m. until 9:40 p.m.

Under the provisions of 33 CFR 165.801, entry into the safety zone listed in Table 1, Entry No. 29; Sector Ohio Valley, is prohibited unless authorized by the COTP or a designated representative. Persons or vessels desiring to enter into or passage through the safety zone must request permission from the COTP Pittsburgh or a designated representative. If permission is granted, all persons and vessels shall comply with the instructions of the COTP Pittsburgh or designated representative.

This notice is issued under authority of 5 U.S.C. 552 (a); 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; Public Law 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. In addition to this notification in the Federal Register , the Coast Guard will provide the maritime community with advance notification of this enforcement period via Local Notice to Mariners and updates via Marine Information Broadcasts.

If the COTP Pittsburgh or designated representative determines that the safety zone need not be enforced for the full duration stated in this notice of enforcement, he or she may use a Broadcast Notice to Mariners to grant general permission to enter the regulated area.

Purpose of Program: Under the Rehabilitation Act of 1973, as amended (the Rehabilitation Act), the Rehabilitation Services Administration (RSA) makes grants to States and public or nonprofit agencies and organizations (including institutions of higher education) to support projects that provide training, traineeships, and TA designed to increase the numbers and improve the skills of qualified personnel (especially rehabilitation counselors) who are trained to: Provide vocational, medical, social, and psychological rehabilitation services to individuals with disabilities; assist individuals with communication and related disorders; and provide other services authorized under the Rehabilitation Act.

Applicable Program Regulations: 34 CFR part 385.

We published a notice of proposed priority for this competition in the Federal Register on June 19, 2014 (79 FR 35121). That notice contained background information and our reasons for proposing the particular priority. There are differences between the proposed priority and the final priority, and we explain those differences in the Analysis of Comments and Changes section of this notice.

Public Comment: In response to our invitation in the notice of proposed priority, 83 parties submitted comments on the proposed priority.

Generally, we do not address technical and other minor changes.

Analysis of the Comments and Changes: An analysis of the comments and of any changes in the priority since publication of the notice of proposed priority follows.

Comment: The majority of commenters expressed concern that the proposed priority for the JDVRTAC would specifically replace the ten Technical Assistance and Continuing Education (TACE) Centers that provide TA and continuing education (CE) in designated geographical areas and that the JDVRTAC would not meet all of the needs of State VR agencies.

Discussion: We recognize the commenters' concerns. However, the JDVRTAC is not meant to replace or replicate the services provided by the TACE Centers and will not be the Department's sole TA investment focused on supporting State VR agencies. It is a single, short-term vehicle for providing a range of TA activities specifically related to the issues outlined in the Presidential Memorandum issued on January 30, 2014  1 (Presidential Memorandum), which directed the Secretaries of the Departments of Labor, Commerce, and Education to take action to address job-driven training for the Nation's workers. The JDVRTAC is intended to be a topical center focused on assisting State VR agencies to incorporate job-driven techniques into agency operations.

Although we have decided not to continue the TACE program beyond September 30, 2014, that decision and the decision to support the establishment of the JDVRTAC were not linked. To capitalize on the initiative of the Presidential Memorandum and the ensuing multi-agency effort to improve employment outcomes for all Americans, including individuals with disabilities, RSA determined that an expedited effort to develop the JDVRTAC proposal was warranted. RSA continues to work to develop additional TA priorities to address other areas of TA needed by State VR agencies.

Changes: None.

Comment: Many commenters were concerned that there had not been a formal consultation process with State VR agencies and stakeholders regarding the elimination of the current TACE Center program and that RSA had not publicly outlined its long-term plan for the provision of TA to those agencies.

Some of these commenters believed that RSA should conduct a national needs assessment to solicit from State VR agencies and other stakeholders about their views on the most important TA needs. Many of these commenters stated that the current TACE Centers should be continued or, at a minimum, funded for one additional year to allow for a more orderly transition and time for public consultation about the development of a new TA system.

Discussion: Although the discussion of an overall plan for TA activity and specific solutions for meeting multiple TA needs is beyond the scope of this notice, we feel it is important to take this opportunity to provide some additional background about the Department's plans regarding the provision of TA to State VR agencies. Approximately 16 months ago, the Department decided to extend the current system of ten TACE Centers, with additional funding, through September 30, 2014. The Department plans to allow those TACE Centers that have funds remaining to continue to operate for another year using funds that have been previously obligated in order to ensure timely completion of the projects. In the coming months, we will begin the process of finalizing our long- term TA strategy and plan. At that time, we will invite stakeholder comment to ensure that our plan is structured to meet the needs of State VR agencies and VR consumers while also ensuring the most effective and efficient use of limited Federal resources.

Changes: None.

Comment: While some commenters said that the focus on employer-driven activities and the content of the JDVRTAC was important, other commenters said that the JDVRTAC priority is not needed because their State VR agency is already involved with employer engagement activities and using labor market and occupational information. Many of these commenters also suggested that the JDVRTAC would duplicate efforts conducted by the Council of State Administrators of Vocational Rehabilitation (CSAVR) through the National Employment Team (NET) and the related Talent Acquisition Portal (TAP).

However, other commenters said that the focus on job-driven, employer-related topics in the JDVRTAC is needed and that such information would be of interest to them.

Discussion: We recognize that State VR agency practices vary with respect to the use of job-driven strategies. From RSA monitoring visits, we know that some agencies have already implemented comprehensive job-driven systems, including the use of labor market and occupational information, outreach to employers, and the provision of services to employers related to employees with disabilities. We expect that these States will have less need to seek out intensive TA from the JDVRTAC, allowing the JDVRTAC to primarily focus resources on those States that have not implemented such comprehensive systems.

Changes: None.

Comment: Several commenters expressed concern that a national center staff would not be knowledgeable about regional issues and needs, such as the needs of rural areas and States with small populations.

Discussion: It is the Department's expectation that the JDVRTAC will provide intensive TA to, and develop a range of TA products appropriate for, a wide array of States and populations, including rural areas. During the course of the national needs assessment in the first year, we expect the JDVRTAC to identify any special TA needs unique to rural areas and small States, as well as those unique to other potential TA recipients. Additionally, the priority requires the JDVRTAC to conduct various activities designed to ensure contact and interaction with State VR agencies, including development of a plan for outreach and communication with State VR agencies and for establishing communities of practice. The priority also requires applicants to demonstrate that key project personnel have the qualifications and experience to provide TA to States in the job-driven topic areas identified in the priority.

Changes: None.

Comment: Several commenters were concerned that the JDVRTAC priority does not support CE and, instead, funds TA only.

Discussion: The JDVRTAC priority is focused on job-driven approaches. It does not eliminate support for CE, but does limit the topic areas on which such activities are conducted. Specifically, the proposed priority allows for training, Webinars, and presentations related to the job-driven topic areas included in the center. However, it does not support the provision of CE on other, unrelated topics. If State VR agencies believe it is necessary to support additional CE activities outside of those provided by the JDVRTAC or the TACE Centers (or any future TA investment supported by the Department), State VR agencies may use Title I VR program funds to support those activities.

Changes: None.

Comment: Several commenters were concerned that the JDVRTAC priority signaled a shift in emphasis for the VR program, from a program that is intended to meet the employment needs of individuals with disabilities to one in which the employer is the predominant customer.

Discussion: We agree that employers are not the sole customer of the VR program. However, the Department does not agree that a JDVRTAC addressing job-driven activities represents a fundamental reorganization of priorities. Employer-related activities have long been functions of State VR agencies (e.g., the employer-related activities of CSAVR in support of the NET and the TAP).

Moreover, the topic areas within the priority are focused not just on the needs of employers, but on the needs of individuals with disabilities, specifically the improvement of their employment outcomes. For example, one focus of the priority is the use of labor market and occupational information, which is designed to help individuals with disabilities make informed choices about vocational goals. Further, we expect the focus on employer engagement strategies will open up new employment options and create new opportunities for individuals with disabilities. Finally, we expect that an increase in the availability of employer-driven training options will lead to jobs with good pay and in occupations not historically available to individuals with disabilities, thereby increasing employment options for these individuals.

We also note that nothing in the priority requires State VR agencies to engage only in job-driven strategies or to develop individual vocational objectives based only on job-driven information and activities.

Changes: None.

Comment: Several commenters were concerned that only 16 agencies would receive intensive TA from the JDVRTAC over the three-year grant period.

Discussion: The JDVRTAC priority requires the JDVRTAC to conduct a minimum of 16 intensive TA activities during the three-year grant period. This number is a minimum requirement, not an upper limit, taking into account time, estimates of available resources, and the intensive nature of the interventions.

As noted above, not all State VR agencies may need intensive TA activities related to job-driven strategies. General and targeted TA, including communities of practice, would still be available to all State VR agencies.

Changes: None.

Comment: Four commenters asked about how the 16 State VR agencies mentioned in the priority will be chosen to receive intensive TA. One commenter was concerned that RSA might make these decisions, and another was concerned that there were no criteria to assist the successful applicant to make these decisions.

Discussion: We envision that the 16 State VR agencies will be self-selected based on their interest and commitment in implementing job-driven activities. Ideally, the JDVRTAC would develop knowledge, skills, and intervention strategies that State VR agencies would desire to implement, or the State VR agencies would suggest job-driven strategies that they wish to implement with the assistance of the JDVRTAC. In the event that the number of requests exceeds available resources, RSA may be involved with the prioritization of requests in its role in implementing the cooperative agreement. We would base prioritization decisions on each State VR agency's commitment to making change, and the level of change and resource utilization that best fits a State VR agency's situation, as reflected in the terms of its cooperative agreement with the JDVRTAC.

Changes: None.

Comment: One commenter asked what would happen after the three-year grant period and whether additional assistance with job-driven activities would continue to be available so that more agencies might receive assistance.

Discussion: We have not decided if or how the activities of the JDVRTAC will be continued beyond the proposed three-year funding period. Future funding of this priority is beyond the scope of this notice.

Changes: None.

Comment: Four commenters stated that the priority is too prescriptive and is a “one size fits all” approach that will not meet the needs of many State VR agencies.

Discussion: The priority is intended to support a topical center with a focus on job-driven activities. The JDVRTAC is not intended to be a comprehensive solution for all TA needs. The JDVRTAC will collect and develop multiple strategies to implement effective job-driven approaches. Additionally, we expect that all intensive TA engagements will be specifically tailored to the needs of the particular State VR agency receiving those services. As such, the actual services provided and TA topics covered in any intensive TA engagement will likely vary from State to State. This is the purpose of requiring intensive TA in addition to universal or targeted TA.

Changes: None.

Comment: One commenter suggested replacing the term “employer” with the term “business” as it is the term preferred by most in the business community.

Discussion: “Employer” and “employer associations” are the terms used in the Presidential Memorandum. Accordingly, we use the term “employer” for purposes of this competition, but the JDVRTAC may use another term in its work.

Change: None.

Comment: One commenter suggested that the requirement in paragraph (b)(4)(iii)(B) of the Application Requirements for the JDVRTAC to assess the State VR agencies' ability to effectively respond to TA is inappropriate and condescending. Rather, the commenter suggested that the JDVRTAC instead evaluate an agency's infrastructure, available resources, and commitment.

Discussion: We agree that these factors are important for the JDVRTAC to consider when identifying recipients of intensive TA, which is why we included similar language in subparagraph (b)(4)(iv)(B) of the Application Requirements. However, we do not believe these extra points of analysis are necessary when determining recipients of targeted, specialized TA, which are not usually specifically individualized for particular State VR agencies.

Change: None.

Comment: One commenter recommended that the priority require information technology (IT) platforms to be fully accessible to individuals with disabilities.

Discussion: We agree that IT platforms supported under this priority should be fully accessible to individuals with disabilities. However, the Rehabilitation Act, the Americans with Disabilities Act, and Department policies already require full accessibility of the Web sites and electronic content of Department grantees. As such, additional language in this priority will not create any additional accessibility requirements. However, we have reiterated that all TA efforts through IT platforms must meet government and industry-recognized standards for accessibility.

Changes: We have added a note following paragraph (b)(1) of the Technical Assistance and Dissemination Activities section of the priority to clarify that IT platforms must meet government and industry-recognized standards for accessibility.

Comment: Two commenters suggested that, rather than building an entirely new IT platform, a more cost-effective approach to making information accessible would be for the JDVRTAC to build upon existing platforms, or enter into a partnership with organizations with national scope that have suitable platforms.

Discussion: The Department agrees that, to the extent that compliant platforms exist or can be modified to fully meet the IT requirements of this priority, this approach may be more efficient.

Changes: We have added a note following paragraph (b)(2) of the Technical Assistance and Dissemination Activities section of this priority clarifying that a grantee can meet the requirements of paragraphs (b)(1) and (b)(2) by either developing new platforms or modifying existing platforms, so long as the IT requirements of this priority are met.

Comment: One commenter suggested that we include the following topics as part of the JDVRTAC activities: Marketing/branding for hiring individuals with disabilities; developing a common language between VR and business; and developing an inventory of promising employer engagement practices.

Discussion: We agree that these are all strategies that relate to the purpose and activities of the JDVRTAC. Nothing in the priority prohibits the JDVRTAC from providing TA in any of these topic areas.

Changes: None.

Comment: Two commenters suggested including additional areas of emphasis in the JDVRTAC priority. One commenter suggested that we add a focus on transportation, as transportation is often a significant barrier to employment. The other commenter suggested that assistive technology (AT) needs should be a major focus of the priority.

Discussion: There is no language in the priority that prohibits the JDVRTAC from providing TA on AT and transportation as part of its job-driven activities. However, because these topics are not the primary focus of the JDVRTAC, we do not believe additional emphasis on these areas is necessary.

Changes: None.

Comment: One commenter suggested that the JDVRTAC and its job-driven activities cannot address all of the factors that are necessary to improve employment outcomes. The commenter suggested that a better outcome measure for this priority would be an increase in the number of employment outcomes in competitive integrated setting resulting specifically from job-driven strategies.

Discussion: The Department agrees. Although it is important to track the impact of job-driven strategies on the total outcomes of the State VR agency, the primary intended outcome of this priority is to increase competitive, integrated employment outcomes through job-driven activities.

Changes: We added language in the purpose of the priority clarifying that one goal of the JDVRTAC is to increase employment outcomes as a result of job-driven activities.

Comment: One commenter was concerned that employment outcomes cannot be achieved in the time period of the grant. The commenter noted that the average length of time in a consumer's individualized plan of VR services is 24 months, and the duration of the project is only 36 months. Accordingly, the commenter suggested that RSA modify the JDVRTAC's stated purpose to focus not on employment outcomes, but instead on increasing the capacity to provide job-driven employment solutions as a purpose of the center.

Discussion: The commenter is correct about the average length of time a new consumer spends in the VR program, compared to the duration of the JDVRTAC. However, the comment assumes that only new consumers referred to the VR system would benefit from the TA provided by the JDVRTAC. Existing VR consumers who have completed their plans could benefit from interventions related to employer engagement that result in greater availability of jobs. However, we recognize that some outcomes for the JDVRTAC may be long-term. As such, intermediate outcomes and measures will be negotiated as part of the development of the cooperative agreement as discussed in the Performance Measures section of the notice inviting applications (published elsewhere in this issue of the Federal Register ).

Change: None.

Comment: One commenter suggested that we revise outcome (c)—Increase the number of VR-eligible individuals with disabilities in employer-driven job training programs—to also include VR-eligible individuals with disabilities in other job-training programs that are responsive to employer needs and job market trends.

Discussion: As written, the priority already allows for customized training and other types of training that are directly responsive to employer needs and hiring requirements.

Changes: None.

Comment: Several commenters suggested that we require the JDVRTAC to collaborate and coordinate with the NET and the TAP, projects developed by CSAVR, which provide a process for employer engagement and the provision of some job-driven services at the national level.

Discussion: We agree that collaboration and coordination with relevant projects developed by CSAVR, including the NET and the TAP, are essential to avoid duplication of services. We included language in paragraph (b)(1)(iii) of the Application Requirements requiring applicants to describe their plan for communicating and coordinating with various entities, including CSAVR and the NET.

Changes: None.

Comment: Several commenters suggested that we require the JDVRTAC to collaborate and coordinate the Department of Labor's Science, Technology, Engineering and Math (STEM) grantees and its National Employment Policy Research and Technical Assistance Center.

Discussion: We agree that it is important for the JDVRTAC to consult with relevant programs and TA centers sponsored by other agencies, including the Department of Labor. As such, we included in section (b)(1)(iii) of the Application Requirements a requirement for applicants to describe their plans for communicating and coordinating with such entities. While we believe that consulting with these entities is beneficial, we also believe that specifically naming each relevant program or TA center is unnecessary.

Changes: None.

Comment: A few commenters asked whether the American Indian Vocational Rehabilitation Services (AIVRS) projects are eligible to receive TA from the JDVRTAC.

Discussion: Any service provider will have access to targeted and universal TA products generated by the JDVRTAC. With regard to intensive TA services, AIVRS projects may receive such services where they are a result of collaborative arrangements between State VR agencies and AIVRS projects to include AIVRS projects in the State VR Agency business outreach plan, and where such services are included in the intensive TA agreement between the State VR agency and the JDVRTAC. However, we do not believe that they should be primary recipients of JDVRTAC services.

Changes: None.

Comment: One commenter asked whether the JDVRTAC can provide TA services to Community Rehabilitation Programs (CRPs) that are part of the State VR agency business outreach plan.

Discussion: We do not believe that CRPs should be a primary recipient of JDVRTAC services. However, as with the AIVRS projects, if CRPs are an integral part of the State VR agency business outreach plan, the JDVRTAC can provide intensive TA services to improve CRP services as part of that plan as negotiated in the intensive TA agreement between the State VR agency and the JDVRTAC. Additionally, CRPs can access and use universal and targeted TA products made publicly available by the JDVRTAC.

Changes: None.

Comment: One commenter suggested that we require the JDVRTAC to use and expand existing employer-offered “train and place” models, such as REDI-Walgreens and Project Search, and expand existing efforts to customize employer-driven, community based training opportunities for permanent employment, and skill- and resume-building paid work activity. This commenter also recommended the use of community conversations to engage employers and community partners in the discussion on how they can assist in the employment of individuals with disabilities.

Discussion: We believe these are all good suggestions. However, we believe that these activities should not be requirements but rather options to investigate during the first year of the project. Any inclusion of these suggestions should develop out of the JDVRTAC's initial exploration and need.

Changes: We have added language in paragraph (a) of the Knowledge Development Activities section of the priority to clarify that the JDVRTAC should also, in its first year, survey employer-sponsored and public-private partnership programs.

Comment: One commenter submitted a list of proposed application requirements for applicants to address in their application. Specifically, the commenter proposed that applicants must: Demonstrate an understanding of the VR program nationally, the needs of business, and demand-driven approaches; include a robust research and evaluation component; and demonstrate experience delivering training and TA, and experience with and current involvement in national and regional partnerships that would support national dissemination efforts.

Discussion: We agree that many of these factors are important for applicants to address. Although we believe that the priority already addresses many of these elements, we agree that we should emphasize the importance of understanding the needs of businesses that employ individuals with disabilities.

Changes: We have added language regarding knowledge of the needs of business in relation to the employment of individuals with disabilities in paragraph (a)(1)(i) of the Application Requirements section of the priority to expand the knowledge requirement beyond employer engagement only.

The purpose of this priority is to fund a cooperative agreement to establish a Job-Driven Vocational Rehabilitation Technical Assistance Center (JDVRTAC) to achieve, at a minimum, the following outcomes: (a) Improve the ability of State vocational rehabilitation (VR) agencies to work with employers and providers of training to ensure equal access to and greater opportunities for individuals with disabilities to engage in competitive employment or training; (b) Increase the number and quality of employment outcomes in competitive, integrated settings for VR-eligible individuals with disabilities, including broadening the range of occupations for such individuals in such settings, that result from job-driven strategies; and (c) Increase the number of VR-eligible individuals with disabilities in employer-driven job training programs.

The JDVRTAC will develop and provide training and technical assistance (TA) to State VR agency staff and related rehabilitation professionals and service providers in the following four job-driven topic areas:

(a) Use of labor market data and occupational information to provide individuals with disabilities with the best information regarding job demand, skills matching, supports, and education, training, and career options;

(b) Disability-related consultation and services to employers related to competitive employment of individuals with disabilities (including individuals with the most significant disabilities) and strategies to recruit, train and serve employees with disabilities for the purposes of hiring, job retention, or return to work;

(c) Building and maintaining relationships with employers; and

(d) Services to providers of customized training and other types of training that are directly responsive to employer needs and hiring requirements.

To meet the requirements of this priority, the JDVRTAC must, at a minimum, conduct the following activities:

(a) In the first year, collect information from the literature and from existing Federal, State, and other programs, including employer-sponsored and public-private partnership programs, regarding evidence-based and promising practices relevant to the work of the JDVRTAC and make this information publicly available in a searchable, accessible, and useful format. The JDVRTAC should review, at a minimum:

(1) The results of State VR agency monitoring conducted by RSA; and

(2) State VR agency program and performance data.

(b) In the first year, conduct a survey of relevant stakeholders and VR service providers to identify job-driven TA needs and a process by which TA solutions can be offered to State VR agencies and their partners. The JDVRTAC should survey, at a minimum:

(1) State VR agency staff; and

(2) Relevant RSA staff.

(c) Develop and refine four curriculum guides for VR staff training in:

(1) The use of labor market and occupational information for purposes of planning and job-matching with individuals with disabilities;

(2) Building programs of employer engagement, employer services, and program participation support services for institutions providing employer-driven training programs;

(3) Delivery of support services to providers of customized training and other job training directly responsive to employer needs and hiring requirements to promote and support the inclusion of individuals with disabilities in such training programs; and

(4) Delivery of support services to employers who hire individuals with disabilities from employer-driven training programs.

(a) Provide intensive TA to a minimum of 16 State VR agencies and their associated rehabilitation professionals and service providers in the four job-driven topic areas set out in this priority. The JDVRTAC must provide intensive TA to a minimum of two agencies in the first year of the project, a minimum of ten agencies in the second year of the project, and a minimum of four agencies in the third year of the project. Such TA must include:

(1) For topic area (a), how to research, understand, and use up-to-date labor market information to assist individuals with disabilities in making informed career decisions and develop vocational goals;

(2) For topic area (b)—

(i) How to research, understand, and use up-to-date labor market information to effectively communicate with and address the needs of—

(A) Employers;

(B) Job seekers with disabilities; and

(C) Employees with disabilities.

(ii) How to balance job-seeker skills and informed choice with the needs and demands of employers;

(iii) Informational resources for employers on accommodations, including assistive technology;

(iv) Effective marketing and outreach to employers, such as how best to present information about job-ready applicants to employers, including what VR counselors and placement staff need to know about a specific employer and its business; and

(v) How to use occupational information resources to ensure optimal vocational guidance and counseling that result in the best fit for applicants and workers with disabilities and employers.

(3) For topic area (c), how to build and maintain partnerships with employers, looking at new or existing research about the relationship between employer practices and employment outcomes among individuals with disabilities, and promising practices for employer engagement.

(4) For topic area (d)—

(i) How to identify and access employer-driven training programs;

(ii) How to incorporate individuals with disabilities into training programs in which individuals with disabilities have been historically underrepresented; and

(iii) How to assist VR-eligible individuals with disabilities in accessing customized training or other job training that is directly responsive to employer needs and hiring requirements, including, but not limited to, training offered by providers under the Carl D. Perkins Career and Technical Education Improvement Act, H-1B Ready to Work Partnership Grants, and Trade Adjustment Assistance Community College and Career Training Grants.

(b) Provide a range of targeted and general TA products and services on the four job-driven topic areas in this priority. Such TA should include, at a minimum, the following activities:

(1) Developing and maintaining a state-of-the-art information technology (IT) platform sufficient to support Webinars, teleconferences, video conferences, and other virtual methods of dissemination of information and TA;

(2) Developing and maintaining a state-of-the-art archiving and dissemination system that provides a central location for later use of TA products, including course curricula, audiovisual materials, Webinars, examples of emerging and best practices related to the four job-driven topic areas in this notice, and any other TA products, that is open and available to the public; and

(3) Providing a minimum of two Webinars or video conferences on each of the four job-driven topic areas in this notice to describe and disseminate information about emerging and best practices in each area.

(a) Establish a community of practice that will act as a vehicle for communication, exchange of information among State VR agencies and partners, and a forum for sharing the results of TA projects that are in progress or have been completed. Such community of practice must be focused on the use of labor market and occupational information for individual planning, employer services and communication, and support of employer-driven training services;

(b) Communicate and coordinate, on an ongoing basis, with other Department-funded projects and those supported by the Departments of Labor and Commerce; and

(c) Maintain ongoing communication with the RSA project officer.

To be funded under this priority, applicants must meet the application and administrative requirements in this priority. RSA encourages innovative approaches to meet these requirements, which are:

(a) Demonstrate, in the narrative section of the application under “Significance of the Project,” how the proposed project will—

(1) Address State VR agencies' capacity to work with employers and providers of training to ensure equal access to and greater opportunities for individuals with disabilities to engage in, competitive employment or training. To meet this requirement, the applicant must:

(i) Demonstrate knowledge of emerging and best practices in employer engagement, including alignment with the needs of business related to employment of individuals with disabilities;

(ii) Demonstrate knowledge of current RSA guidance and State and Federal initiatives designed to improve employer engagement and alignment of workforce training programs with employer needs; and

(iii) Present information about the difficulties that State VR agencies and service providers have encountered in developing effective employer engagement plans.

(2) Result in increases in both the number of VR-eligible individuals with disabilities in employer-driven job-training programs, and the number and quality of employment outcomes in competitive, integrated settings for VR-eligible individuals with disabilities, including broadening the range of occupations for such individuals in such settings.

(b) Demonstrate, in the narrative section of the application under “Quality of Project Services,” how the proposed project will—

(1) Achieve its goals, objectives, and intended outcomes. To meet this requirement, the applicant must provide—

(i) Measurable intended project outcomes;

(ii) A plan for how the proposed project will achieve its intended outcomes; and

(iii) A plan for communicating and coordinating with key staff in State VR agencies, State and local partner programs, providers of customized training programs and other training programs that are directly responsive to employer needs and hiring requirements, RSA partners such as the Council of State Administrators of Vocational Rehabilitation (CSAVR), the National Council of State Agencies for the Blind, CSAVR's National Employment Team, and other TA centers and relevant programs within the Departments of Education, Labor, and Commerce.

(2) Use a conceptual framework to develop project plans and activities, describing any underlying concepts, assumptions, expectations, beliefs, or theories, as well as the presumed relationships or linkages among these variables, and any empirical support for this framework.

(3) Be based on current research and make use of evidence-based practices. To meet this requirement, the applicant must describe—

(i) The current research on the emerging and promising practices in the four job-driven topic areas in this priority;

(ii) How the current research about adult learning principles and implementation science will inform the proposed TA; and

(iii) How the proposed project will incorporate current research and evidence-based practices in the development and delivery of its products and services.

(4) Develop products and provide services that are of high quality and sufficient intensity and duration to achieve the intended outcomes of the proposed project. To address this requirement, the applicant must describe—

(i) Its proposed activities to identify or develop the knowledge base on emerging and promising practices in the four job-driven topic areas in this priority;

(ii) Its proposed approach to universal, general TA;  2

(iii) Its proposed approach to targeted, specialized TA, 3 which must identify—

(A) The intended recipients of the products and services under this approach; and

(B) Its proposed approach to measure the readiness of State VR agencies to work with the proposed project, assessing, at a minimum, their current infrastructure, available resources, and ability to effectively respond to the TA, as appropriate.

(iv) Its proposed approach to intensive, sustained TA, 4 which must identify—

(A) The intended recipients of the products and services under this approach;

(B) Its proposed approach to measure the readiness of the State VR agencies to work with the proposed project including the State VR agencies' commitment to the initiative, fit of the initiatives, current infrastructure, available resources, and ability to respond effectively to the TA, as appropriate;

(C) Its proposed plan for assisting State VR agencies to build training systems that include professional development based on adult learning principles and coaching; and

(D) Its proposed plan for developing intensive TA agreements with State VR agencies to provide intensive, sustained TA. The plan must describe how the intensive TA agreements will outline the purposes of the TA, the intended outcomes of the TA, and the measurable objectives of the TA that will be evaluated.

(5) Develop products and implement services to maximize the project's efficiency. To address this requirement, the applicant must describe—

(i) How the proposed project will use technology to achieve the intended project outcomes; and

(ii) With whom the proposed project will collaborate and the intended outcomes of this collaboration.

(c) Demonstrate, in the narrative section of the application under “Quality of the Evaluation Plan,” how the proposed project will—

(1) Measure and track the effectiveness of the TA provided. To meet this requirement, the applicant must describe its proposed approach to—

(i) Collecting data on the effectiveness of each TA activity from State VR agencies, partners, or other sources, as appropriate; and

(ii) Analyzing data and determining the effectiveness of each TA activity, including any proposed standards or targets for determining effectiveness.

(2) Collect and analyze data on specific and measurable goals, objectives, and intended outcomes of the project, including measuring and tracking the effectiveness of the TA provided. To address this requirement, the applicant must describe—

(i) Its proposed evaluation methodologies, including instruments, data collection methods, and analyses;

(ii) Its proposed standards or targets for determining effectiveness;

(iii) How it will use the evaluation results to examine the effectiveness of its implementation and its progress toward achieving the intended outcomes; and

(iv) How the methods of evaluation will produce quantitative and qualitative data that demonstrate whether the project and individual TA activities achieved their intended outcomes.

(d) Demonstrate, in the narrative section of the application under “Adequacy of Project Resources,” how—

(1) The proposed project will encourage applications for employment from persons who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability, as appropriate;

(2) The proposed key project personnel, consultants, and subcontractors have the qualifications and experience to provide TA to State VR agencies and their partners in each of the four job-driven topic areas in this priority and to achieve the project's intended outcomes;

(3) The applicant and any key partners have adequate resources to carry out the proposed activities; and

(4) The proposed costs are reasonable in relation to the anticipated results and benefits.

(e) Demonstrate, in the narrative section of the application under “Quality of the Management Plan,” how—

(1) The proposed management plan will ensure that the project's intended outcomes will be achieved on time and within budget. To address this requirement, the applicant must describe—

(i) Clearly defined responsibilities for key project personnel, consultants, and subcontractors, as applicable; and

(ii) Timelines and milestones for accomplishing the project tasks.

(2) Key project personnel and any consultants and subcontractors will be allocated to the project and how these allocations are appropriate and adequate to achieve the project's intended outcomes, including an assurance that such personnel will have adequate availability to ensure timely communications with stakeholders and RSA;

(3) The proposed management plan will ensure that the products and services provided are of high quality; and

(4) The proposed project will benefit from a diversity of perspectives, including those of State and local personnel, TA providers, researchers, and policy makers, among others, in its development and operation.

When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the Federal Register . The effect of each type of priority follows:

Absolute priority: Under an absolute priority, we consider only applications that meet the priority (34 CFR 75.105(c)(3)).

Competitive preference priority: Under a competitive preference priority, we give competitive preference to an application by (1) awarding additional points, depending on the extent to which the application meets the priority (34 CFR 75.105(c)(2)(i)); or (2) selecting an application that meets the priority over an application of comparable merit that does not meet the priority (34 CFR 75.105(c)(2)(ii)).

Invitational priority: Under an invitational priority, we are particularly interested in applications that meet the priority. However, we do not give an application that meets the priority a preference over other applications (34 CFR 75.105(c)(1)).

This notice does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.

Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—

(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities in a material way (also referred to as an “economically significant” rule);

(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.

This final regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.

We have also reviewed this final regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—

(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;

(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and

(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.

Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”

We are issuing this final priority only on a reasoned determination that its benefits justify its costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.

We also have determined that this regulatory action does not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.

In accordance with both Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities. The benefits of the Rehabilitation Training program have been well established over the years through the successful completion of similar projects, particularly those grants that provided TA to State VR agencies. Specifically, this priority would establish a JDVRTAC that would assist State VR agencies to develop employment opportunities that would be responsive to employer-driven needs for employees who have the skills to work in today's labor market. This priority is directly responsive to the Presidential Memorandum to Federal agencies directing them to take action to address job-driven training for the Nation's workers.

Intergovernmental Review: This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.

This document provides early notification of our specific plans and actions for this program.

Accessible Format: Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) by contacting the Grants and Contracts Services Team, U.S. Department of Education, 400 Maryland Avenue SW., Room 5075, PCP, Washington, DC 20202-2550. Telephone: (202) 245-7363. If you use a TDD or a TTY, call the FRS, toll free, at 1-800-877-8339.

Electronic Access to This Document: The official version of this document is the document published in the Federal Register . Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.gpo.gov/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register , in text or Adobe Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

Effective July 1, 2013, the City and County of San Francisco (City) passed legislation requiring Commercial Dog Walkers to carry a valid annually renewed dog walking permit issued by the San Francisco Department of Animal Care & Control. Under 36 CFR 1001.5, the Trust may impose reasonable public use limits in Area B, given a determination that such action is necessary to maintain public health and safety, to protect environmental or scenic values, to protect natural or cultural resources, or to avoid conflict among visitor use activities. On November 21, 2012, in direct response to the City's commercial dog walking regulations, the Trust requested public comment on a proposed rule and use limit on Commercial Dog Walkers (77 FR 69785). The limit would have required Commercial Dog Walkers in Area B to possess a valid dog walking permit from the City. By the close of the comment period roughly one-half of the comments received expressed support of the public use limit, and roughly one-half were opposed. Opposition included the recommendation that the Trust should not adopt the proposed use limit until such time as the GGNRA published its own policies and requirements on Commercial Dog Walkers. They further requested the Trust to work with the GGNRA and “come out together with one system clearly defined.” They urged that “a single, clear rule for federal park properties that can be widely broadcast to dog walkers in the area will allow for more efficient administration, greater compliance, and reduced impacts to Trust resources.”

In a February 25, 2013 letter to the Trust, the GGNRA stated its support for the Trust's public use limit. The GGNRA disagreed, however, with the number of dogs allowed under the City permit (up to eight), and argued that a limit of six dogs is more reasonable, and is consistent with the NPS's understanding of the standard practice for the majority of local land management agencies that regulate commercial dog walking. In reaction to the City's program and the Trust's proposal, the GGNRA stated it would consider enacting an interim commercial dog walking permit system, before completing its dog management planning process and rulemaking. Given the Trust's and the GGNRA's shared management responsibilities within the Presidio, the GGNRA asked the Trust to consider adopting its interim permit system rather than that being implemented by the City.

On May 30, 2013, the Trust announced on its Web site that it supported the GGNRA's proposed intention to move forward at this time to create and implement an interim permit system to regulate commercial dog walking within the park. After having examined all public comments and considered the new information provided by the GGNRA, the Trust agreed to suspend its own decisions regarding the regulation of commercial dog walking. Before taking any action, the Trust also offered to provide the public with an additional opportunity to comment. Accordingly, the Trust will no longer consider going final with its proposed rule published in the Federal Register on November 21, 2012 (77 FR 69785) requiring Commercial Dog Walkers in Area B to possess a valid permit from the City.

On March 14, 2014, the GGNRA provided 30-day public notice ( http://www.parkplanning.nps.gov/projectHome.cfm?projectID=46523 ) of its intent to establish an interim permit requirement for Commercial Dog Walkers, with a limit of six dogs, on GGNRA lands in San Francisco and Marin Counties. The GGNRA's permit system for GGNRA lands became effective June 2, 2014, and the Trust will honor GGNRA permits in Area B. The annual permit cost consists of a $75 application fee and a $300 per person fee for a non-transferrable badge. Permit holders will be able to use any GGNRA and Trust lands where dog walking is allowed. The interim permit requirement will remain in effect until a final special regulation addressing dog walking and commercial dog walking in the GGNRA is finalized, which is expected in late 2015. The GGNRA permit requirement is being implemented through an amendment to the GGNRA Compendium. Public notification of the decision will occur through outreach to Commercial Dog Walkers, signage, and the GGNRA's Web site.

On March 19, 2014, the Trust published in the Federal Register its proposed interim rule (79 FR 15278) to limit Commercial Dog Walkers in Area B, intended to be enacted in concert with the GGNRA interim restriction. The public use limit was also announced on the Trust's Web site ( http://www.presidio.gov/about/Pages/commercial-dog-walking.aspx ) and in its e-newsletters. The notice indicated the Trust's shared concern with the GGNRA about the possible effects of the City's action on Presidio users and resources, and the Trust's intent to adopt the GGNRA's interim permit system. A unified approach will provide consistency within unmarked Trust-GGNRA boundaries within the Presidio, and fulfill the joint visitor experience and resource protection mandates of the two Federal land management agencies. Prior to implementation, the Trust will coordinate with the GGNRA on its education campaign to alert Commercial Dog Walkers and others about the public use limit. The Trust will also post signs and provide the U.S. Park Police with handouts in Area B to notify Commercial Dog Walkers of the public use limit in areas where dog walking is a particularly high-use activity.

The Trust accepted public comment on the proposed interim rule through May 5, 2014. During the comment period, the Trust received 31 individual comments on the proposal from four organizations and 24 individuals. Twelve commenters (43 percent) expressed support for the proposed interim rule, and 16 (57 percent) were opposed. Comment letters are available for review at the headquarters of the Trust, and constitute part of the administrative record for the rulemaking.

Comment: Comments were received requesting that more than six dogs be allowed. Other comments asked to require fewer than six dogs, citing concerns with a Commercial Dog Walker's ability to control up to six dogs, or more. There were concerns with impacts to commercial dog walking businesses and with impacts to adjacent parks from limiting the number of dogs to six. Comments also requested greater consistency with dog limits set by the City.

Response: The rationale as to why the limit of eight dogs as adopted by the City is inappropriate for the GGNRA is provided in the GGNRA's Categorical Exclusion and attachments. The GGNRA's limit of six dogs is based on public comment, feedback from the GGNRA Negotiated Rulemaking Committee for dog management, park staff observations, research on national and international best practices and law enforcement experience. The Trust feels that adopting the City's eight-dog limit would engender public confusion given the shared jurisdictions of the GGNRA and the Trust with an unmarked boundary within the Presidio.

Regarding impacts to commercial dog walking businesses, the proposed action does not restrict access to any sites, does not restrict the area available within a site, does not impose time of use requirements, and imposes relatively minor permitting, insurance and numerical requirements on Commercial Dog Walkers. Commercial Dog Walkers retain the flexibility to avoid the proposed restriction and permit fees by opting to use one or more of the available open space lands maintained by the San Francisco Park and Recreation Department, the Port of San Francisco, and the San Francisco Public Utilities Commission. Among these lands are 28 specifically designated off-leash park areas for dogs throughout the City, including the Mountain Lake Park Dog Play Area that is immediately adjacent to Area B (see http://sfrecpark.org/parks-open-spaces/dog-play-areas-program/ for a location map for specified areas and for information on the process for establishment of additional off-leash areas within the City's park system). Should Commercial Dog Walkers choose to use Trust lands, the permit cost will only average just over $1.00 per day, per year. It is expected that Commercial Dog Walkers could pass this expense to their clients, and thus there could be a negligible effect on their income. To walk the same number of dogs walked prior to the proposed six-dog limit, Commercial Dog Walkers may have to increase the number of trips, which could increase their transportation costs. However, the overall net change in Commercial Dog Walker trips, and thus transportation costs, is expected to be relatively minor, and will not have a significant impact.

Finally, the City's restriction on commercial dog walking will minimize the possible re-distributional effects of this interim action. Some Commercial Dog Walkers may prefer to use City lands, in that they are allowed an additional two dogs per walker under the City's permit. However, the difference is not expected to result in a significant amount of displacement from Trust lands to San Francisco-managed sites. And, while the City's Department of Animal Care and Control enforces a limit of eight dogs, their commercial dog walking informational pamphlet recommends not more than six. The City's ordinance prohibiting dogs in all sensitive habitat areas, athletic fields, tennis/basketball/volleyball courts, children's play areas, and other key areas prohibited by Park Code Section 5.02 will further minimize impacts to park users and park resources.

Comment: Concerns were expressed regarding training and certification in order to obtain the commercial dog walking permit. Some commenters noted that experienced Commercial Dog Walkers do not need required training and certification, and expressed a desire for the GGNRA to honor the City's training and certificate requirements to relieve any financial burden and promote efficiency. Other commenters noted that training and certification promotes responsibility, safety and education.

Response: Training and certification are important components of any permit program. The GGNRA has, however, sought to streamline training and certification where possible. If a commercial dog walking applicant wishes to engage in commercial dog walking activities in the Presidio, the Commercial Dog Walker must either complete one of the courses accepted by San Francisco Animal Care and Control or show proof of three consecutive years as a Commercial Dog Walker in good standing. If the Commercial Dog Walker has completed one of the courses in the past, s/he will not need to re-take it, but rather must provide documentation of completion to the GGNRA as part of their application process.

Comment: Some commenters expressed concerns regarding the permit fee, which they believed was too high and unfair, and as public land, should be reduced or removed. Some commenters noted that the required fee would create a financial burden for their businesses.

Response: The GGNRA is expressly authorized by statute to recover costs related to special park uses. Under the authority of 16 U.S.C. 3a, the GGNRA may recover from a permittee the agency's costs incurred in processing a Special Use Permit application and monitoring the permitted activity. The GGNRA informs applicants early in the process that they will be responsible for reimbursing the park for all costs incurred by the park in processing the application and monitoring the permitted activity. The annual commercial dog walking (CDW) permit fees are based on cost recovery estimates relating to the management and administration of CDW permits. For the 2014 permit, which will be valid through January 31, 2015, the $300 Company Badge fee, however, will be prorated according to the date of issue. Because the permit fee to be assessed by the GGNRA is based on the actual costs of administering the program, the fee is fair for a special use authorized in a national park setting.

Comment: Some commenters expressed concerns that there would not be enough time for commercial dog walking businesses to prepare for implementation, complete the application process and obtain a permit.

Response: Application forms were released on May 27, 2014. The GGNRA began processing permit applications on June 2, 2014. The GGNRA is issuing permits no longer than 30 days after receipt of completed qualifying applications. Applicants who have submitted completed application packages were given a “reference number” as proof they have begun the process while they waited to receive the permit and badge. A transition period was implemented until July 15, 2014, for enforcement to allow submission of permit application packages and receipt of the GGNRA permit. The Trust is also providing a transition period until October 1, 2014 to allow Commercial Dog Walkers in Area B to gather the supporting documentation and file the permit application package with the GGNRA.

Comment: Several commenters expressed concerns that the use of a Categorical Exclusion (CE) is inappropriate because the impacts of this proposed action would be significant, and therefore a thorough environmental review under the NEPA is required. Two of these commenters requested that the action be compared against a fictional baseline in which there is no commercial or private dog walking.

Response: This action is short-term in nature, limited in both duration and scope, and will only remain in effect until the final special regulation for dog walking in the GGNRA is adopted. The action simply seeks to manage and minimize the impacts of an existing use. The proposed action will only affect Commercial Dog Walkers, a subset of the dog walking that occurs on Trust lands. The proposed action does not ban commercial dog walking; it allows the use to continue, with the requirement of a permit for those with more than three dogs, and a limit of six dogs, in Area B. Because this interim action limits the number of dogs per Commercial Dog Walker, it potentially allows greater control of dogs. More effective dog management through this interim action will result in primarily beneficial effects to park visitors and public health and safety, and to wildlife, including sensitive species. Without this interim action, it is reasonably expected that Trust lands could see an increase in the amount of Commercial Dog Walkers with large groups of dogs, which in turn would affect the use and enjoyment of park lands by other visitors, including non-commercial dog walkers.

Forecasting impacts against a fictional baseline would artificially inflate impacts, as such a no commercial dog walking baseline does not reflect the well-established reality on the ground in the GGNRA. Instead, in determining level of impact, the GGNRA's environmental review, which the Trust relied on in categorically excluding the action, compared its proposal to the existing condition, in which commercial dog walking inside the GGNRA is unregulated, with no numerical caps, permitting, training, or insurance requirements, and where commercial dog walking external to the GGNRA is regulated. When comparing this interim action to the existing condition of unregulated use, this interim action is beneficial to park resources, with minimal impacts to adjacent areas as described above, and in the GGNRA's administrative record for the project.

Comment: Some commenters expressed concerns that the interim action is inconsistent with the Presidio Trust Management Plan (PTMP), noting that the PTMP is aimed at preserving the natural and historic resources of the Presidio and protecting the park experience for future users.

Response: The 2002 PTMP did not address commercial dog walking, thus this interim action is not inconsistent with the plan. The PTMP requires the Trust to consider the type and level of visitor use that can be accommodated while sustaining desired resource and visitor experience conditions, which is the intent of this proposed interim rule. The PTMP urges the Trust to work cooperatively with the NPS in areas of joint concern and interest for the overall management of the Presidio. The interim action is a joint collaboration with the NPS for commercial dog management within the Presidio.

This interim action, which reduces the number of dogs that any one Commercial Dog Walker can handle at one time, will not adversely affect, and is likely to have a beneficial effect on natural, aesthetic and cultural values of Trust lands. Accordingly, this interim action furthers the policies contained within the PTMP which direct the Trust to preserve the natural, historic, scenic, cultural and recreational resources of the Presidio and to maintain an atmosphere that is open, inviting and accessible to visitors.

Regulatory Impact: The interim rule will not have an annual effect of $100 million or more on the economy nor adversely affect productivity, competition, jobs, the environment, public health or safety, or State or local or tribal governments or communities. The interim rule will not interfere with an action taken or planned by another agency or raise new legal or policy issues. In short, little or no effect on the national economy will result from adoption of the interim rule. Because the rule is not “economically significant,” it is not subject to review by the Office of Management and Budget under Executive Order 12866 or Executive Order 13536. The interim rule is not a “major rule” under the Congressional review provisions of the Small Business Regulatory Enforcement Fairness Act, 5 U.S.C. 801 et seq.

The Trust has determined and certifies pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., that the interim rule will not have a significant economic effect on a substantial number of small entities. The economic effect of the rule is local in nature and negligible in scope, restricting only a single use (commercial dog walking) in a limited geographic area (Area B of the Presidio occupies less than four percent of the City's total acreage) for purposes of protecting public health and safety and the natural environment. There will be no loss of significant numbers of jobs, as Commercial Dog Walkers will retain the flexibility to avoid the public use limit and permit fees by opting to use one or more of the available open space lands maintained by the San Francisco Park and Recreation Department, the Port of San Francisco, and the San Francisco Public Utilities Commission (see http://sfrecpark.org/parks-open-spaces/dog-play-areas-program/ ).

The Trust has determined and certifies pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that the interim rule will not impose a cost of $100 million or more in any given year on local, State, or tribal governments or private entities.

Environmental Impact: The NEPA and the Trust's NEPA regulations (36 CFR 1010.16) encourage cooperation with other governmental agencies in the preparation of environmental analyses and documentation. Furthermore, the adoption of one Federal agency's environmental document by another Federal agency is an efficiency that the Council on Environmental Quality (CEQ) regulations provide (40 CFR 1506.4, 1500.4(k) & (n). The Trust is a cooperating agency with special expertise for the GGNRA interim commercial dog walking permit requirement (as well as the special regulation for dog walking) under the NEPA and the CEQ regulations (an agency is considered to have special expertise when it has a related “statutory responsibility, agency mission, or . . . program experience” (40 CFR 1508.26)). At the request of the GGNRA, the Trust participated in the development of the interim permit requirement from the outset. For the NEPA process, the Trust assisted the GGNRA in the preparation of a Project Description and Environmental Screening Form and assumed co-responsibility for its scope and content to ensure that the form met the standards for an adequate analysis under its NEPA regulations. The form disclosed that no measurable adverse environmental effects will result from the actions, and no extraordinary circumstances are involved that may have a significant environmental effect ( http://www.parkplanning.nps.gov/documentsList.cfm?projectID=46523 ).

The Trust's NEPA regulations contain categories of actions that do not require an environmental assessment or environmental impact statement. 36 CFR 1010.7(a)(31) provides that “minor changes in programs and regulations pertaining to visitor activities” may be categorically excluded under the NEPA. The regulatory actions by the GGNRA and the Trust regarding interim commercial dog management for Areas A and B are substantially the same. Having independently reviewed the GGNRA's Project Description and Environmental Screening Form for adequacy under its NEPA regulations and having considered the public comments, the Trust has adopted the form as the environmental document prepared for this action, has made it part of the administrative record of the rulemaking, and has categorically excluded the action from further NEPA analysis.

Other Authorities: The Trust has drafted and reviewed the interim rule in light of Executive Order 12988 and has determined that it meets the applicable standards provided in secs. 3(a) and (b) of that Order.

For the reasons set forth in the preamble, part 1002 of Title 36 of the Code of Federal Regulations is amended as set forth below:

I. Background

Throughout this document “we,” “us,” or “our” refer to EPA. On June 4, 2014 (79 FR 32200), EPA published a notice of proposed rulemaking (NPR) for the State of Missouri. The NPR proposed approval of Missouri's submittal that provides the basic elements specified in section 110(a)(2) of the CAA, or portions thereof, necessary to implement, maintain, and enforce the 2008 Pb NAAQS.

On December 20, 2011, EPA received a SIP revision from the Missouri Department of Natural Resources that addresses the infrastructure elements specified in section 110(a)(2) of the CAA, necessary to implement, maintain and enforce the 2008 Pb NAAQS. This submittal addressed the following infrastructure elements of section 110(a)(2): (A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M). Specific requirements of section 110(a)(2) of the CAA and the rationale for EPA's proposed action to approve the SIP submittal are explained in the NPR and will not be restated here. No public comments were received on the NPR.

EPA is approving Missouri's submittal which provides the basic program elements specified in section 110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M) of the CAA, or portions thereof, necessary to implement, maintain, and enforce the 2008 Pb NAAQS, as a revision to the Missouri SIP. This action is being taken under section 110 of the CAA. As discussed in each applicable section of NPR, EPA is not acting on section 110(a)(2)(I)—Nonattainment Area Plan or Plan Revisions Under Part D and on the visibility protection portion of section 110(a)(2)(J).

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

• Is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 20, 2014. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, the Environmental Protection Agency is amending 40 CFR part 52 as set forth below:

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

On February 13, 2014 PCAPCD adopted 16 negative declarations and stated that it did not have sources subject to the Control Techniques Guidelines (CTG) documents listed in Table 1. On April 14, 2014, the California Air Resources Board (CARB) submitted these negative declarations to EPA as a SIP revision.

On June 24, 2014, EPA determined that the PCAPCD negative declarations submitted on April 14, 2014, met the completeness criteria in 40 CFR Part 51 Appendix V, which must be met before formal EPA review.

There are no previous versions of PCAPCD's 2014 negative declarations in the SIP. 1

The negative declarations were submitted to meet the requirements of CAA section 182(b)(2). Ozone nonattainment areas classified at moderate and above are required to adopt VOC regulations for the published CTG categories and for major non-CTG sources of VOC or NO X . If an ozone nonattainment area does not have stationary sources covered by an EPA published CTG, then the area is required to submit a negative declaration. The negative declarations were submitted because there are no stationary sources exceeding the CTG's applicability threshold within the PCAPCD jurisdiction. EPA's technical support document (TSD) has more information about these negative declarations.

The negative declarations are submitted as SIP revisions and must be consistent with CAA requirements for Reasonably Available Control Technology (RACT) (see section 182(b)(2)) and SIP relaxation (see sections 110(l) and 193.) To do so, the submittal should provide reasonable assurance that no sources subject to the CTG requirements currently exist or are planned for the PCAPCD.

We believe these negative declarations are consistent with the relevant policy and guidance regarding RACT and SIP relaxations. The TSD has more information on our evaluation.

We note that in 2006, PCAPCD adopted a negative declaration for the Polyester Resin category, but that this category did not appear in the current submittal. The District should submit a negative declaration for the following CTGs if there are no sources in the District subject to the CTGs. EPA-450/3-83-008—Control of VOC Emissions from Manufacture of High-Density Polyethylene, Polypropylene, and Polystyrene Resins; and

EPA-450/3-83-006—Control of VOC Fugitive Emissions from Synthetic Organic Chemical Polymer and Resin Manufacturing Equipment.

As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted negative declarations as additional information to the SIP because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register , we are simultaneously proposing approval of these negative declarations. If we receive adverse comments by September 18, 2014, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on October 20, 2014.

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 20, 2014. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the Proposed Rules section of today's Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

Throughout this document “we,” “us,” or “our” refer to EPA. This section provides additional information by addressing the following:

EPA is taking direct final action to approve a revision to the SIP submitted by the State of Missouri on May 8, 2012, related to Missouri rule 10 CSR 10-5.130, “Certain Coals to be Washed.” This rule requires specified coals to be washed prior to sale in the St. Louis metropolitan area. This action amends the SIP to update an outdated reference in the rule. Specifically, the reference in 10 CSR 10-5.130(3) relating to Missouri rule 10 CSR 10-5.030, “Maximum Allowable Emission of Particulate Matter from Fuel Burning Equipment Used for Indirect Heating” was removed and replaced with a reference to 10 CSR 10-6.405, “Restriction of Particulate Matter Emissions From Fuel Burning Equipment Used For Indirect Heating.” On September 13, 2012, EPA took action to amend the Missouri SIP which rescinded area specific indirect heating rules, 10 CSR 10-2.040, 10-3.060, 10-4.040, and 10-5.030 and added a new rule, 10 CSR 10-6.405 which consolidated the area rules into a single rule. 76 FR 56555. Today's action approves the amendment which updates the reference to the current SIP approved rule.

The state submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

EPA is taking direct final action to approve this SIP revision. We are publishing this rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , we are publishing a separate document that will serve as the proposed rule to approve this SIP revision if adverse comments are received on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document.

If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. We will address all public comments in any subsequent final rule based on the proposed rule.

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

• Is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 20, 2014. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, the Environmental Protection Agency is amending 40 CFR part 52 as set forth below:

In the NPDES program, point source dischargers obtain permits that are issued by EPA regions and authorized NPDES States, Territories, and Indian tribes (collectively referred to as “permitting authorities”). These point source dischargers include publicly owned treatment works (POTWs) and various industrial and commercial facilities (collectively referred to as “NPDES applicants or permittees”). Permitting authorities issue NPDES individual permits after analyzing the information contained in the application and making a determination that the application is “complete” under 40 CFR 122.21(e). In the case of a general permit, authorization to be covered by the permit is given if the information submitted demonstrates eligibility for coverage under 40 CFR 122.28. The NPDES permit prescribes the conditions under which the facility is allowed to discharge pollutants into waters of the United States and the conditions that will ensure the facility's compliance with the CWA's technology-based and water quality-based requirements. NPDES permits typically include restrictions on the mass and/or concentration of pollutants  1 that a permittee may discharge as well as requirements that the permittee conduct routine sampling and reporting of various parameters measured in the permitted discharge. In general, NPDES applicants and permittees are required to use EPA-approved methods  2 when measuring the pollutants in their discharges.

The purpose of today's final rule is to codify that where EPA-approved methods exist, NPDES applicants must use sufficiently sensitive EPA-approved analytical methods when quantifying the presence of pollutants in a discharge, and the Director  3 must prescribe that only sufficiently sensitive EPA-approved methods be used for analyses of pollutants or pollutant parameters under the permit. The broad universe of entities  4 that would be affected by this final action includes NPDES permitting authorities and municipal and industrial applicants and permittees (Table I-1). This rule does not apply to indirect dischargers as defined in 40 CFR 122.2. The impact of this action, however, would only affect those entities that use or allow the use of any EPA-approved analytical methods (for one or more parameters) that are not “sufficiently sensitive” to detect pollutants being measured in the discharge.

If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

EPA is issuing today's final rule pursuant to the authority of sections 301, 304(h), 308, 402(a), and 501(a) of the CWA [33 U.S.C. 1311, 1314(h), 1316, 1318, 1342(a), 1343, and 1361(a)]. Section 301(a) of the CWA prohibits the discharge of any pollutant except in compliance with an NPDES permit issued under section 402 of the act. Section 402(a) of the CWA authorizes the Administrator to issue permits that require a discharger to meet all the applicable requirements under sections 301, 302, 306, 307, 308, and 403. Section 301(b) of the CWA further requires that NPDES permits include effluent limitations that implement technology-based standards and, where necessary, water quality-based effluent limitations (WQBELs) that are as stringent as necessary to meet water quality standards. With respect to the protection of water quality, NPDES permits must include limitations to control all pollutants that the NPDES permitting authority determines are or might be discharged at a level that “will cause, have the reasonable potential to cause, or contribute to an excursion above any state water quality standard,” including both narrative and numeric criteria [40 CFR 122.44(d)(1)(i)]. If the Director determines that a discharge causes, has the reasonable potential to cause, or contributes to such an excursion, the permit must contain WQBELs for the pollutant [40 CFR 122.44(d)(1)(iii)]. Section 402(a)(2) of the CWA requires EPA to prescribe permit conditions to ensure compliance with requirements, “. . . including conditions on data and information collection, reporting and such other requirements as [the Administrator] deems appropriate.” Thus, a prospective permittee might need to measure various pollutants in its effluent at two stages: First, at the permit application stage so that the Director can determine what pollutants are present in the applicant's discharge and the amount of each pollutant present and, second, to quantify the levels of each pollutant limited in the permit to determine whether the discharge is in compliance with the applicable limits and conditions.

Section 304(h) of the CWA requires the Administrator of EPA to “. . . promulgate guidelines establishing test procedures for the analysis of pollutants that shall include the factors which must be provided in any certification pursuant to [section 401of this Act] or permit application pursuant to [section 402 of this Act].” Section 501(a) of the act authorizes the Administrator to “. . . prescribe such regulations as are necessary to carry out this function under [the act].” EPA generally has codified its test procedure regulations (including analysis and sampling requirements) for CWA programs at 40 CFR part 136, although some requirements are codified in other parts (e.g., 40 CFR chapter I, subchapters N and O).

The Director is required under 40 CFR 122.21(e) to determine when an NPDES permit application is complete. Moreover, the Director shall not begin processing an application for an individual permit until the applicant has fully complied with the application requirements for that permit [40 CFR 124.3(a)(2)]. Under 40 CFR 122.21(g)(13), applicants are required to provide to the Director, upon request, such other information as the Director may reasonably require to assess the discharge. Finally, 40 CFR 122.41(j)(1) requires NPDES permits to include a standard condition specifying that “samples and measurements taken for the purpose of monitoring shall be representative of the monitored activity.”

Among other things, section 308 of the CWA authorizes EPA to require owners or operators of point sources to establish records, conduct monitoring activities, and make reports to enable the permitting authority to determine whether there is a violation of any prohibition or any requirement established under provisions including section 402 of the CWA. Under sections 308(c) and 402(b)(2)(A), a state's authorized NPDES program must have authorities to inspect, monitor, enter, and require reports to at least the same extent as required in section 308.

As summarized above, the legal requirements and authorities exist for EPA to require NPDES applicants and permittees to use sufficiently sensitive EPA-approved analytical methods when quantifying the presence of pollutants in a discharge and to require the Director to require and accept only such data.

Multiple analytical test methods exist for many pollutants regulated under the CWA. Therefore, EPA has generally approved multiple methods for CWA pollutants under 40 CFR part 136 and 40 CFR chapter I, subchapters N and O. Some of the approved analytical test methods have greater sensitivities and lower minimum levels  5 6 or method detection limits (MDLs)  7 than other approved methods for the same pollutant. This situation often occurs because of advances made in instrumentation and in the analytical protocols themselves. Many metals and toxic compounds (for example, mercury) have an array of EPA-approved methods, including some methods that have greater sensitivities and lower minimum levels than the others.

Although EPA has approved multiple analytical methods for individual pollutants, the Agency has historically expected that applicants would select from the array of available methods a specific analytical method that is sufficiently sensitive to quantify the presence of a pollutant in a given discharge. EPA has not expected that NPDES permit applicants would select a method with insufficient sensitivity, thereby masking the presence of a pollutant in their discharge, when an EPA-approved sufficiently sensitive method is available. Further, EPA anticipated that NPDES permitting authorities would specify an EPA-approved method in an NPDES permit where the Director determined that a particular analytical method was needed to provide meaningful results relative to the permit limit. EPA believes that the authority to prescribe a specific analytical method in an NPDES permit exists under the current regulations. However, some state permitting authorities expressed concern that this authority was not explicit in current regulations, thus limiting states' ability to prescribe an appropriate analytical method where needed to assess compliance with permit limits. This rule requires that, where EPA-approved methods exist, NPDES applicants must use sufficiently sensitive EPA-approved analytical methods when quantifying the presence of pollutants in a discharge and that the Director must prescribe that only sufficiently sensitive EPA-approved methods be used for analyses of pollutants or pollutant parameters under the permit.

EPA and state permitting authorities use data from the permit application to determine whether pollutants are present in an applicant's discharge and to quantify the levels of all detected pollutants. These pollutant data are then used to determine whether technology- or water quality-based effluent limits are needed in the facility's NPDES permit. It is critical, therefore, that applicants provide data that have been measured at levels that will be meaningful to the decision-making process. Among other things, data must be provided that will enable the Director to make a sound “reasonable potential” determination and, if necessary, establish appropriate water quality-based permit limits. The same holds true for monitoring and reporting relative to permit limits established for regulated parameters. The intent is for applicants and permittees to use analytical methods that are capable of detecting and measuring the pollutants at, or below, the respective water quality criteria or permit limits. 8

For example, in 2002 and 2007 EPA published two new analytical methods for mercury that were several orders of magnitude more sensitive than previously available methods. In addition, a number of states have set water quality criteria for mercury that are below the detection levels of the older methods for mercury that EPA approved prior to 2002. Unlike the previous methods, the new methods are capable of measuring whether effluent samples are above or below the current water quality criteria. In 2007 EPA addressed this issue with respect to mercury in a memorandum titled “Analytical Methods for Mercury in NPDES Permits,” from James A. Hanlon, Director of EPA's Office of Wastewater Management, to the Regional Water Division Directors. This memorandum is available at http://www.epa.gov/npdes/pubs/mercurymemo_analyticalmethods.pdf . The memorandum explains EPA's expectation that “All facilities with the potential to discharge mercury will provide with their NPDES permit applications monitoring data for mercury using Method 1631E or another sufficiently sensitive EPA-approved method. Accordingly, EPA strongly recommends that the permitting authority determine that a permit application that lacks effluent data analyzed with a sufficiently sensitive EPA-approved method such as Method 1631E, is incomplete unless and until the facility supplements the original application with data analyzed with such a method.”

Following issuance of the 2007 memorandum, EPA determined that the NPDES permit application regulations at 40 CFR 122.21 and the NPDES permit monitoring requirements at 40 CFR 122.44 should be revised to ensure that, where EPA-approved methods exist, applicants use sufficiently sensitive EPA-approved analytical methods when quantifying the presence of pollutants in a discharge and that Directors prescribe that only sufficiently sensitive EPA-approved methods be used to perform sampling and analysis for all pollutants, not just mercury. Therefore, in this rulemaking, EPA is revising the regulations to extend the requirement to use sufficiently sensitive EPA-approved analytical test methods, where they exist, to all pollutants and establish criteria for what qualifies as a “sufficiently sensitive” method.

This final rule requires that NPDES applicants must use sufficiently sensitive EPA-approved analytical methods, where they exist, when submitting information required by a permit application quantifying the presence of pollutants in a discharge. If the applicant does not provide data using a sufficiently sensitive EPA-approved analytical method, the Director may determine that the application is “incomplete” per 40 CFR 122.21(e).The Director may require that the applicant provide new screening data obtained using a sufficiently sensitive EPA-approved analytical method before making a completeness determination and moving forward with permit development. The final rule also requires that, as a condition of permit development, to assure compliance with permit limitations the permit shall include requirements to monitor according to sufficiently sensitive EPA-approved methods, where they exist. Specifically, where an EPA-approved analytical method exists that would provide quantifiable results necessary to assess compliance with a permit limit and the permit allows monitoring to be conducted using different analytical methods that, although approved, would fail to produce data necessary to assess compliance, the permit would be inconsistent with the NPDES permitting requirements of 40 CFR 122.44(i).

EPA is defining the term “sufficiently sensitive” in two sections of the NPDES regulations: At 40 CFR 122.21(e) (Completeness), as a new subsection (3), and at 40 CFR 122.44(i)(1)(iv) (Monitoring Requirements). EPA is also modifying 40 CFR 136.1 (Applicability) by adding a new paragraph (c), which is simply a cross-reference to the changes being promulgated in 40 CFR 122.21(e)(3) and 40 CFR 122.44(i)(1)(iv). The new and revised sections indicate that an EPA-approved method is sufficiently sensitive where:

A. The method minimum level is at or below the level of the applicable water quality criterion or permit limitation for the measured pollutant or pollutant parameter; or

B. In the case of permit applications, the method minimum level is above the applicable water quality criterion, but the amount of the pollutant or pollutant parameter in a facility's discharge is high enough that the method detects and quantifies the level of the pollutant or pollutant parameter in the discharge; or

C. The method has the lowest minimum level of the EPA-approved analytical methods.

The first two criteria, A and B, in the sufficiently sensitive definition address situations in which EPA has approved multiple methods for a pollutant and some of those approved methods have greater sensitivities and lower minimum levels than others. In this situation, the applicant or permitting authority may select a method based on the minimum level published in the EPA-approved method, where available, or using a derived minimum level. As noted in footnote 4, the minimum level may be explicitly listed in some EPA-approved methods. Where this is the case, the applicant may reference the published minimum level when determining whether a method selected to provide data for their permit application is sufficiently sensitive. Where EPA has included a minimum level for a pollutant in a specific method, it reflects the minimum level obtained in a multi-laboratory study of the new method in a wide variety of matrices, many of which EPA selects due to their complex nature. EPA acknowledges that complex matrices exist and provides flexibility and suggestions for ways to mitigate interferences in such instances, often within the published method for a specific pollutant. EPA's experience is that many laboratories find solutions to address difficult matrices and are able to achieve the published minimum level within the required quality assurance specifications. However, applicants have always had the option of calculating a matrix-specific method detection limit (MDL). Extreme matrices may necessitate the use of an elevated sample specific minimum level, in which case the laboratory should be able to show that a reasonable effort (e.g., published cleanup procedures) was attempted to achieve as low a minimum level as possible for those samples. The use of sample or matrix specific minimum levels rather than the published levels has always been an available option, and consistent with that flexibility, use of a matrix-specific minimum level may sometimes be necessary when determining which methods are sufficiently sensitive.

For EPA-approved methods that do not explicitly list minimum levels, the applicant can derive the minimum level from either the concentration of the lowest calibration standard in methods that dictate the concentrations of such standards, or as a multiple of the MDL or similar statistically derived detection limit concept. When the method dictates, or recommends, the concentration of the lowest calibration standard, that concentration can be converted to a minimum level by considering the weights and/or volumes of the sample and all of the intermediate preparation and analysis steps in the method. If a method provides a literature MDL for the matrix of interest, that MDL value can be used to estimate the minimum level as 10 times the standard deviation of the replicate measurements used to determine the MDL according to 40 CFR part 136, appendix B. However, MDLs are inherently method- and laboratory-specific, so whenever a permittee is contracting a laboratory for NPDES work, it is prudent to obtain that laboratory's MDL and compare it to the published MDL to ensure that both their MDL and their minimum level are appropriate for the intended application.

The third criterion, C, of the definition addresses situations in which none of the EPA-approved methods for a pollutant can achieve the minimum levels necessary to assess reasonable potential or to monitor compliance with a permit limit. In these situations, applicants or permittees must use the method with the lowest minimum level among the EPA-approved methods for the pollutant, and this method would meet the definition of sufficiently sensitive.

As explained above, the requirement to use a “sufficiently sensitive” EPA-approved method does not apply where no EPA-approved methods exist. The final rule addresses these situations, for permit applicants, where no approved analytical method exists under 40 CFR part 136 or is required under subchapter N or O, and one is not otherwise required by the Director. In such situations, an applicant may use any suitable method but shall provide a description of the method. With respect to pollutant limits in permits, where an EPA-approved analytical method does not exist, monitoring shall be conducted in accordance with a test procedure specified in the permit.

EPA recognizes that other factors beyond the minimum level or MDL can also be important in determining method performance, including a method's resolution, accuracy, and precision. Where there are no EPA-approved methods, this rule does not affect how those other factors are considered in selecting a method. Rather, the rule notes that permit applicants may consider these other factors when selecting a suitable method where no EPA-approved method exists.

For EPA-approved methods, however, these factors have already been considered during the method validation and approval process. As explained above, EPA evaluates method performance in a wide variety of wastewater matrices and approves those methods that have sensitivity, precision and accuracy that are appropriate for wastewater compliance monitoring. 40 CFR 136.6 also allows flexibility to tailor approved methods to more challenging wastewater matrices or overcome methodological problems. Based on data and information provided to EPA by analytical laboratories, EPA finds that experienced laboratories are often capable of achieving minimum levels below those published with a method while maintaining the precision and accuracy specified in the method.

EPA acknowledges that while rare, methodological problems may exist that could affect the determination of a “sufficiently sensitive” method. In such rare situations, the Director may consider additional technical factors when determining whether the method is still “sufficiently sensitive.” Specifically, where the permit applicant or permittees can demonstrate to the Director that despite a good faith effort to overcome these methodological problems due to challenging wastewater matrices, either (1) the method's minimum level is higher than originally anticipated, or (2) the method results no longer meet the methods quality assurance/quality control (“QA/QC”) specification, the Director may take these factors into account when determining whether the permit applicant has met the requirements to use a “sufficiently sensitive” method or in prescribing a “sufficiently sensitive” method in the permit. In the first situation, the matrix or sample-specific minimum level should be used to evaluate which of the EPA-approved methods is “sufficiently sensitive.” In the second situation, if the method's results are no longer consistent with the QA/QC specifications, then the method is not performing adequately and a “sufficiently sensitive” method should be selected from the remaining EPA-approved methods. In either case, the permit applicant or permittee is responsible for demonstrating that a published minimum level is unachievable or a reasonable effort was applied to bring the original sufficiently sensitive method within the QA/QC specifications in the given matrix before selecting another EPA-approved method (e.g., cleanup procedures, dilution when appropriate, etc.).

Additionally, where a technology-based requirement is specified as “zero discharge” or “no detect,” the permitting authority may take into account the sensitivity of the method used to establish the requirement when determining if a method is “sufficiently sensitive.” EPA recognizes that if a more sensitive method is approved after such a requirement has been established, its use may be inconsistent with the technological basis of the original requirement. In situations where a technology-based requirement reflects a technology that eliminates the discharge of the subject pollutant altogether, the newer sensitive method is appropriate. However, where a technology-based limit reflects a technology that may not achieve the minimum level of the newer more sensitive method, the Director may determine that the method on which the requirement was originally based is “sufficiently sensitive” to determine compliance, as understood at the time the requirement was established.

For both EPA-approved methods and non-EPA-approved methods, EPA's understanding of standard practice is that if an applicant/permittee or laboratory has questions regarding the suitability of a specific method in a given situation, or has technical questions on its use, it will consult with its permitting authority. EPA has the same expectations in connection with today's rulemaking for questions specifically about which methods are sufficiently sensitive. The permitting authority continues to have the ultimate responsibility for determining whether an NPDES application is complete (40 CFR 122.21(e)) and establishing permit conditions, including monitoring and reporting requirements (40 CFR 122.44(i)).

The amendments in this rulemaking affect only chemical-specific methods; they do not apply to the Whole Effluent Toxicity (WET) methods or their use. Note that existing EPA regulations (40 CFR 122.44(d)(1)(ii)) and policy require permit writers to take into account the sensitivity of the species to toxicity testing when evaluating whole effluent toxicity. EPA has interpreted this provision as directing the permitting authority to develop criteria and limits based upon the most sensitive test species to ensure that the most sensitive species and all less sensitive species will be protected.

On June 23, 2010, EPA proposed changes to the existing NPDES regulations (75 FR 35712) and requested comments from the public. EPA received 25 comment letters. The majority of the comments came from publicly owned treatment works and industry organizations, but EPA also received comments from laboratories, and state and federal agencies. The majority of comments covered the following categories: Implementation and technology; administration and timing; and burden. The complete list of comments and responses is available in the record of this rulemaking.

EPA received several comments that indicated the approach outlined in the proposed rule would force applicants and permittees to make decisions regarding the selection of an appropriate method without adequate information upon which to base a decision. Specifically, commenters indicated that issues related to the definition of the method minimum level would make this rule difficult to implement and that method sensitivity should not be the sole factor in deciding which method should be used in the permitting process. They indicated that there are other factors including accuracy, precision, selectivity, and whether the method has been validated that should be considered.

In response, EPA notes that applicants for NPDES permits have always needed to make decisions regarding which EPA-approved methods are the most appropriate for use when performing the screening analyses required under the various permit application regulations at 40 CFR 122.21. Similarly, NPDES permitting authorities, even before today's rulemaking, have had to consider which of the EPA-approved methods are the most appropriate for permittees to use to meet their monitoring and reporting requirements under an NPDES permit. Today's rule does not change the basic NPDES permit application or permit issuance process. Under 40 CFR 122.21, permittees seeking permit renewal or new applicants must provide the Director with adequate information to determine whether an NPDES application is complete. Once the Director makes this determination, the Director determines the applicable permit requirements, including any sampling or monitoring that must be taken that is “representative of the monitored activity.” See 40 CFR 122.41(j)(1). The effect of today's final rulemaking is to codify that where EPA-approved methods exist, only “sufficiently sensitive” EPA-approved methods may be used in connection with permit applications and to conduct monitoring and reporting under a permit.

To determine whether an EPA-approved analytical method is “sufficiently sensitive” in any particular case, NPDES applicants/permittees and permit authorities should use the best information available on what the minimum level is for the method, and EPA believes that in general a method's accurate minimum level will be readily ascertainable. Where the minimum level is explicitly listed in the EPA-approved method, applicants may reference the published minimum level when determining whether a method selected to provide data for their permit application is sufficiently sensitive. Alternatively, applicants have always had the option of providing matrix-specific method detection limits and minimum levels rather than the published minimum levels, and nothing in today's rule changes that flexibility, including with respect to selecting a sufficiently sensitive EPA-approved method. For these cases the laboratory should be able to show that a reasonable effort (e.g., published cleanup procedures) was attempted to achieve as low a minimum level as possible for those samples. For EPA-approved methods that do not explicitly list minimum levels, the minimum level can be obtained or derived by the applicant or permitting authority. Indeed, many permitting authorities have developed guidance, policies or regulations that establish minimum levels for various methods, or specify specific methods to be used by applicants and permittees. Where applicable, these policies and regulations will continue to affect method selection, although at the same time, states must ensure that such policies and regulations conform with the criteria established in today's rulemaking that, where they exist, only “sufficiently sensitive” EPA-approved methods are being used when completing an NPDES permit application and when performing sampling and analysis pursuant to monitoring requirements in an NPDES permit. If the applicant does not provide data using a sufficiently sensitive EPA-approved analytical method where one exists, the Director may determine that the application is “incomplete” per 40 CFR 122.21(e). The Director may require that the applicant provide new screening data obtained using a sufficiently sensitive EPA-approved analytical method before making a completeness determination and moving forward with permit development. Thus, to avoid having the permitting authority reject data provided in an application because the data were not collected by means of a “sufficiently sensitive” method, the NPDES applicant should work closely with the permitting authority prior to conducting the required analyses. In addition, the permitting authority must ensure the permit includes a requirement to use a sufficiently sensitive EPA-approved analytical test method, where one exists, where necessary to perform sampling and analysis, consistent with 40 CFR 122.41(j) and 122.44(i).

EPA received several comments that indicated the proposed rule would require the development of new analytical methods where no EPA-approved methods exist or where existing EPA-approved methods would not quantify the pollutant concentration at or below the level of the criterion or permit limit. Other commenters indicated that the rule would alter the existing requirements for developing Alternate Test Procedures under 40 CFR part 136. EPA has modified the proposal to address these comments, as explained below.

EPA has modified the proposed language for this final rule so that it does not change existing regulatory requirements with respect to unapproved methods. Where no EPA-approved analytical methods exist, an applicant will need to select a method from another source of available analytical methods (e.g., Standard Methods for the Examination of Water and Wastewater) to measure that pollutant or pollutant parameter. Today's final rule does not require the applicant to develop new methods. The situation in which there are no EPA-approved methods is uncommon because there are EPA-approved methods for most pollutants or pollutant parameters screened and regulated under the NPDES program. Under the existing regulations at 40 CFR 122.21(g)(7), the NPDES applicant has the flexibility to use any suitable analytical method when no EPA-approved analytical method exists for that pollutant or pollutant parameter. Additionally, under the existing regulations at 40 CFR 122.44(i)(1)(iv), the NPDES permitting authority specifies a method in the permit when there is no EPA-approved method.

Where EPA-approved methods exist, but none of the available methods will quantify the pollutant concentration at or below the level of the criterion or permit limit, today's rulemaking does not require the development of any new analytical methods. However, in this situation, the rule will now require the use of the most sensitive of the EPA-approved methods.

Finally, today's rulemaking does not alter any of the existing requirements related to the development or approval of alternative test procedures under 40 CFR 136.4 and 136.5.

EPA received several comments that indicated the approach outlined in the proposed rule would force applicants and permittees to make decisions regarding the selection of an appropriate method without adequate information upon which to base a decision. Specifically, commenters indicated that issues related to the definition of the method minimum level would make this rule difficult to implement and that method sensitivity should not be the sole factor in deciding which method should be used in the permit process. They believe there are other critical factors including accuracy, precision, selectivity, and whether the method has been validated.

In response, as noted above, EPA has clarified that the requirement to use a “sufficiently sensitive” EPA-approved method does not apply where no EPA-approved method exists. EPA agrees that other factors beyond the minimum level can also be important in determining method performance, including a method's selectivity, resolution, accuracy, and precision. EPA has added language in the rule text that clarifies where no EPA-approved methods exist, permit applicants may consider these other factors, in conjunction with sensitivity, when selecting an appropriate method.

For EPA-approved methods, however, these factors have already been considered during the method validation and approval process. As explained above, EPA evaluates method performance in a wide variety of wastewater matrices and approves those methods that have selectivity, sensitivity, precision and accuracy that are appropriate for wastewater compliance monitoring. 40 CFR 136.6 also allows flexibility to tailor approved methods to more challenging wastewater matrices. EPA notes that applicants have always had the option of providing matrix or sample-specific minimum levels rather than the published levels and nothing in today's rule changes that flexibility, including with respect to selecting a sufficiently sensitive EPA-approved method. For these cases the laboratory should be able to show that a reasonable effort (e.g., published cleanup procedures) was attempted to achieve as low a minimum level as possible for those samples.

If the most sensitive method listed in 40 CFR Part 136 is not performing adequately in a given wastewater matrix (e.g., with regard to sensitivity, accuracy, and precision), several options are available and should be pursued. Dilution is often a good option if it does not drive the sample specific minimum level above the permit requirements. Cleanup procedures included in the method can also be utilized. If those cleanups do not prove adequate for a particular matrix, the analyst should consult “Solutions to Analytical Chemistry Problems with Clean Water Act Methods,” EPA 821-R-07-002 (or more recent revisions) to determine if another cleanup procedure may be appropriate. If a solution is still not apparent, the permittee should consult EPA or the permitting authority.

Based on data and information provided to EPA by analytical laboratories, EPA finds that experienced laboratories are often capable of achieving minimum levels below those published with a method while maintaining the precision and accuracy specified in the method. However, EPA acknowledges that while rare, situations may exist where a method cannot perform adequately in a specific matrix. In such rare situations, the Director may consider additional technical factors when determining whether the method is still “sufficiently sensitive.” Specifically, where the permit applicant or permittees can demonstrate to the Director that despite a good faith effort to overcome these methodological problems due to challenging wastewater matrices, either (1) the method's minimum level is higher than originally anticipated, or (2) the method results no longer meet the methods QA/QC specification, the Director may take these factors into account when determining whether the permit applicant has met the requirements to use a “sufficiently sensitive” method or in prescribing a “sufficiently sensitive” method in the permit. In the first situation, the matrix or sample-specific minimum level should be used to evaluate which EPA-approved method is “sufficiently sensitive.” In the second situation, if the method's results are no longer consistent with the QA/QC specifications, then the method is not performing adequately and a “sufficiently sensitive” method should be selected from the remaining EPA-approved methods. In either case, the permit applicant or permittee is responsible for demonstrating that a published minimum level is unachievable or a reasonable effort was applied to bring the original sufficiently sensitive method within the QA/QC specifications in the given matrix before selecting another EPA-approved method (e.g., cleanup procedures, dilution when appropriate, etc.). To illustrate the type of situations where this provision would be appropriate, EPA provides two examples below.

EPA received comments about the situation where there are multiple EPA-approved methods for an organic pollutant and the methods employ different technologies (i.e., gas chromatography (GC) and gas chromatography/mass spectrometry (GC/MS)). These commenters raised concern that, in some instances, while the GC method may provide a lower detection limit, the GC/MS method provides a greater degree of confidence in the correct identification of the regulated parameter. As explained above, this is not an issue if the laboratory has demonstrated that it can achieve a minimum level for GC/MS that is lower than the NPDES permit limit for the regulated parameter, in which case GC/MS would be considered “sufficiently sensitive.” EPA agrees that GC/MS is more selective than GC, but several options are available to remove the interferences from difficult matrices before using a dual-column GC method (e.g., solid-phase extraction as a cleanup procedure, Florisil cleanup, alumina cleanup, sulfur removal with copper or TBA sulfite, gel permeation chromatography, etc.). Generally, a result from a dual-column GC method would only be questioned if the chromatograms from the two columns did not yield similar numerical results or if the chromatograms contained many extraneous peaks that suggest interferences are present. If the permit applicant or permittee is still concerned that the peaks may be caused by a different contaminant, and the GC method provides a false positive result, the permit applicant or permittee could use a GC/MS to confirm the presence of the contaminant. However, since the GC/MS is less sensitive, it may not be able to confirm low-level dual column GC results. The more sensitive GC/MS method options (e.g., larger sample volume, smaller final extract volume, selected ion monitoring techniques, or high resolution GC/MS) may be necessary to prove whether the dual column GC result is a false positive. The permittee should also consult with EPA and/or its permitting authority for potential solutions. In this case, if the permittee has exhausted all practical options (e.g., solid-phase extraction as a cleanup procedure, Florisil cleanup, alumina cleanup, sulfur removal with copper or TBA sulfite, gel permeation chromatography, etc.) and has documentation to demonstrate that the dual-column GC creates false positive results for that specific matrix, then the Director would appropriately approve the selection of a different EPA-approved method that would then be considered a sufficiently sensitive method (e.g., GC/MS).

As another example, EPA also received comments specific to Method 1631 for mercury. These commenters noted that use of the “clean” sampling methods associated with this method to minimize potential contamination from the sampling technique itself is not possible in many industrial settings. They noted that EPA's documentation of the sampling technique acknowledges it is not intended for treated and untreated discharges from industrial uses. EPA notes that since approval of this method and the associated clean sampling techniques, these techniques have been successfully used in some industrial settings. For example, sewage treatment plants accepting industrial wastewater have successfully eliminated permit exceedances for mercury as measured by Method 1631 by employing the clean sampling procedures. Where the permittee has documentation that clean sampling techniques cannot be adopted for the site-specific application, the Director would appropriately approve the selection of a different EPA-approved method that meets the definition of a sufficiently sensitive method (e.g., the one with the lowest minimum level of the remaining EPA-approved methods). If the ambient level of mercury contamination at the site is too high to use clean sampling methods, then using a less sensitive EPA-approved method can meet the definition of a sufficiently sensitive method.

Another commenter raised concerns specific to Method 1631. They questioned the method's suggestion to minimize laboratory contamination by soaking laboratory air filters in gold chloride solution so that mercury in incoming air will amalgamize with the filter's gold. This commenter questioned whether or not it was EPA's expectation that laboratories go to such lengths to employ such a sufficiently sensitive method where required under this rule. EPA notes the procedure described by the commenter is only a suggestion if laboratories are having problems with laboratory contamination. There are now many laboratories that perform Method 1631 without undue difficulty. In this case, where necessary to meet the definition of “sufficiently sensitive” in today's final rule, EPA would expect that the permittee use Method 1631, since the permittee should send their sample to a laboratory that can demonstrate it has control over sources of mercury within its own environment.

Finally, where a technology-based requirement is specified as “zero discharge” or “no detect,” the permitting authority may take into account the sensitivity of the method used to establish the requirement when determining if a method is “sufficiently sensitive.” EPA recognizes that if a more sensitive method is approved after such a requirement has been established, its use may be inconsistent with the technological basis of the original requirement. In situations where a technology-based requirement reflects a technology that eliminates the discharge of the subject pollutant altogether, the newer sensitive method is appropriate. However, where a technology-based limit reflects a technology that may not achieve the minimum level of the newer more sensitive method, the Director may determine that the method on which the requirement was originally based is “sufficiently sensitive” to determine compliance, as understood at the time the requirement was established.

EPA received a number of comments that identified concerns that the proposed rule uses terms, such as minimum level, that are not defined in new or existing regulations. Commenters also indicated that the proposed rule fails to address a variety of issues regarding detection and quantitation that were raised in the Report of the Federal Advisory Committee on Detection and Quantitation Approaches and Uses in Clean Water Act Programs. EPA agrees that there are a variety of related issues raised in the aforementioned report, yet notes that the members of the Federal Advisory Committee (FAC) were unable to reach consensus over several key issues in the report. While several of these issues, such as the definition of minimum level, are discussed in today's rulemaking, applicants and permitting authorities must still, on a regular and ongoing basis, choose which of the available analytical methods are most appropriate for use when screening effluent for permit applications and as part of permit conditions. This has always been the case, regardless of today's rulemaking.

EPA believes that the requirements of the rule are adequately described and can be implemented without having to address the myriad of issues considered by the FAC. For today's rulemaking, EPA is not redefining or establishing new method detection limits (MDLs) or minimum levels, developing new procedures for determining detection or quantitation, or maintaining a clearinghouse on detection and quantitation issues. EPA considers such issues to be outside the scope of today's rulemaking.

EPA received several comments that expressed concern that the rule would require the use of only the most sensitive available method, and that other factors such as geographical isolation or unique sample collection constraints might preclude the use of certain available methods. Some comments also expressed concerns regarding the availability of laboratories qualified to conduct some of the more sensitive analytical methods, particularly where the state requires applicants and permittees to use laboratories certified by the state to conduct analyses.

EPA is not requiring the use of any specific analytical technology or practice over others; only that the selected EPA-approved method is sufficiently sensitive. EPA expects that, in general, factors such as geographical isolation, or unique sampling collection constraints would not preclude the selection of a sufficiently sensitive method. The definition does not require the use of the most sensitive EPA-approved method available, so long as a less sensitive approved method still meets the criteria for being “sufficiently sensitive.” In cases where factors beyond a facility's control render the use of a particular method infeasible, such as extreme geographical isolation, the permitting authority could consider such factors in deciding which method best meets the definition of “sufficiently sensitive.” EPA expects such situations would be rare.

Issues related to sampling procedures, such as holding times, are frequently prescribed by the test procedures in 40 CFR Part 136, and may be contingent on the unique physical, chemical, and biological characteristics of the discharge. Standard practice has been and continues to be that if an applicant/permittee or laboratory has questions regarding the appropriateness of using a specific method in a given situation, or has technical questions on its use, it should consult with its permitting authority prior to conducting monitoring.

EPA received a few comments regarding the effect of the rule on recordkeeping and reporting requirements. The rule does not change existing recordkeeping and reporting requirements at 40 CFR 122.21(p), 122.41(j) and 122.48. The permitting authority, however, has discretionary authority to require its applicants or permittees to provide information under the latter two provisions. In addition, a few comments asked whether the rule alters the terms or conditions of existing permits. The rule itself does not modify the terms or conditions of existing NPDES permits. If, under the requirements of today's rulemaking, a change needs to occur in the analytical methods specified in an existing permit, that change would occur at the time of permit renewal, or it could occur through a permit modification under the procedures of 40 CFR Part 124, if the permitting authority determined that such a modification was appropriate.

EPA received a few comments regarding whether existing data, if collected using insufficiently sensitive methods, will be acceptable for submission with an application for permit renewal. NPDES application monitoring data that is collected after the effective date of the rule, or, if applicable, after an authorized state has revised its regulations to adopt the provisions of the rule, 9 must be based on the use of sufficiently sensitive test methods. However, the rule does not negate the existing requirement for applicants to submit data from previous years, even where these data may have been collected using methods that did not conform to the sufficiently sensitive criteria established in this rule. Based on all of the data submitted with the permit application, the permitting authority will determine whether it has information adequate to develop an NPDES permit. Where the permitting authority determines that data was collected using insufficiently sensitive methods, it may choose to disregard this information and accept only data collected employing sufficiently sensitive EPA-approved methods. In addition, even prior to the effective date of today's rulemaking, the permitting authority has the authority under the existing NPDES regulations to request additional data from applicants where insufficient data is provided with the application before considering an application complete.

EPA received a few comments pertaining to the rule's impact on indirect dischargers. The rule affects only direct dischargers (those applying for an individual NPDES permit) and state/EPA NPDES permitting authorities. The rule does not apply to indirect dischargers. POTWs with approved pretreatment programs may at their discretion (as authorized by their local ordinances and regulations) require their indirect dischargers to achieve specific minimum levels when performing analyses or may require the use of specific methods to enable them to better characterize contributions into their system. Where a state or EPA is the pretreatment Control Authority, the specific requirements for analytical methods can be specified in the control mechanism issued to the indirect discharger.

EPA received several comments that indicated that while the commenters supported the concept established in the proposed rule, they believed additional flexibility should be provided to account for instream dilution. Specifically, the commenters requested that the criteria defining sufficiently sensitive be revised such that the minimum level would be compared to either “the applicable water quality criterion, wasteload allocation, permit limit, or other critical regulatory value.” EPA believes that the final rule need only require comparison of a method's minimum level with the applicable water quality criterion, as proposed, and that this language is sufficiently flexible to address the commenters' concern. Under this language, the permitting authority has adequate discretion to determine whether the data provided with a permit application were collected with methods that are sufficiently sensitive to measure at the relevant regulatory value. For example, where a permitting authority has conducted a timely and relevant dilution analysis (including an evaluation of ambient pollutant concentrations) and documented this analysis in the permit record, the permitting authority could provide this information to the applicant prior to the applicant sampling for the permit application. The applicant would then only need to show that the method it has selected has a minimum level that is at least as sensitive as necessary to determine compliance with the water quality criterion, after accounting for allowable dilution. The water quality criterion as adjusted for allowable dilution would be the “applicable water quality criterion” in this case, and the method would be “sufficiently sensitive” if it measures at this level. EPA considers this approach consistent with the requirements established in today's rule. For these reasons, EPA is not revising the regulatory text to incorporate the language suggested by the commenters.

EPA received a few comments indicating that site-specific situations might increase the implementation costs of the rule beyond those costs outlined in the proposed rule. Some of these commenters provided examples of when site-specific conditions might result in increased costs. EPA recognizes that the burden estimated is a national average and that the cost for an individual facility could be higher or lower than that average. However, EPA does not believe that the information provided by the commenters is representative of the impact for a typical facility affected by this rule, nor does it alter the Agency's original burden estimates.

EPA also recognizes that in some cases, use of a more sensitive method could have the practical effect of requiring a facility to adopt additional pollution control measures, even if the permit limit remained unchanged. This is because a more sensitive method may detect the presence of a pollutant that was previously undetected. EPA emphasizes that this rule would not be responsible for any change in stringency of the permit requirements in such a case, but acknowledges that a facility may incur additional pollution control costs if a previously undetected pollutant is later detected by the use of a sufficiently sensitive method, and additional treatment is required to meet the existing permit limit. In general, when EPA develops a cost analysis for a new regulation, there is an assumption made of full compliance with existing requirements. EPA does not have data that would allow it to predict in advance where or how often this situation might occur, or what a facility would be required to do to address it. Therefore, EPA has not attempted to quantify any such costs, as they are outside the scope of this rulemaking.

As noted above, where a technology-based requirement is specified as “zero discharge” or “no detect,” the permitting authority may take into account the sensitivity of the method used to establish the requirement when determining if a method is “sufficiently sensitive.” EPA recognizes that if a more sensitive method is approved after such a requirement has been established, its use may be inconsistent with the technological basis of the original requirement. In situations where a technology-based requirement reflects a technology that eliminates the discharge of the subject pollutant altogether, the Agency included costs that reflect that technology, the newer sensitive method is appropriate, and the permittee would not incur additional costs. However, where a technology-based limit reflects a technology that may not achieve the minimum level of the newer more sensitive method, the Director may determine that the method on which the requirement was originally based is “sufficiently sensitive” to determine compliance, as understood at the time the requirement was established, and there would thus be no additional control costs incurred by the facility.

EPA received a few comments regarding compliance with requirements under the statutory and Executive Order reviews contained in the proposed rule. EPA believes that there was a misunderstanding on the part of the commenters regarding the intent of the rule that led the commenters to believe that the rule would result in a higher cost of implementation than that estimated by EPA. EPA believes that the Agency has met its responsibilities under the applicable statutory and Executive Orders.

The final rule adds a new 40 CFR 122.21(e)(3) and revises 122.44(i)(1)(iv) to require that where EPA-approved methods exist, NPDES applicants use sufficiently sensitive EPA-approved analytical methods when submitting information quantifying the presence of pollutants in a discharge and that the Director must prescribe that only sufficiently sensitive EPA-approved analytical test methods be used for analyses of pollutants or pollutant parameters under the permit. EPA is also providing a cross-reference to these changes in a new 40 CFR 136.1(c). For the purposes of this rulemaking, if monitoring requirements are included as a condition of a general permit, those requirements are subject to the provisions established in 122.44(i)(1)(iv). Only these specific parts of the regulations undergoing revision are subject to challenge under section 509(b) of the Clean Water Act.

In addition, based on public comments, EPA made certain minor modifications to the final rule from the original proposal. Specifically, EPA amended 122.21(e)(3)(i)(B) and 122.44(i)(1)(iv)(A)(1) to add the word “or” when defining the term “sufficiently sensitive,” which was unintentionally omitted in the proposed rule. In addition, EPA added “pollutant or pollutant parameter” to 122.21(e)(3)(i)(C) and 122.44(i)(1)(iv)(A) to clarify the applicability of the criteria established under the sufficiently sensitive method definition. EPA also removed the second “in accordance with” in the introductory paragraphs for 122.21(e)(3) and 122.44(i)(1)(iv) to clarify that the method selected must be approved under 40 CFR part 136 or required under 40 CFR chapter I, subchapter N or O.

EPA removed language in 122.44(i)(1)(iv)(A)(2) of the proposed rule because it was not applicable to requirements established in this section and created confusion about the implementation of the rule. In this instance, even if the permittee believes they are discharging above the permit limit and could potentially use a less sensitive method, the permitting authority is responsible for prescribing an EPA-approved method, where available, that is sensitive enough to detect at or below the permit limit in order to properly assess compliance with the permit.

EPA revised the proposed regulatory text at 122.21(e)(3)(ii) and 122.41(i)(1)(iv)(B) for instances where there are no EPA-approved methods. The proposed language included additional requirements for situations where there are no EPA-approved methods. Specifically, the proposed rule would have required that applicants and permitting authorities select a “sufficiently sensitive” non EPA-approved method and that applicants provide a description of the method, including the minimum level. The situation in which there are no EPA-approved methods is uncommon because there are EPA-approved methods for most pollutants or pollutant parameters screened and regulated under the NPDES program. In addition, the existing regulations already require that applicants select a suitable method and provide a description of the method. Based on public comments, EPA determined that this additional requirement was unnecessary and has revised the regulatory text to revert the existing language in 40 CFR 122.21 and 122.41. As a result, today's rule does not specify that non-EPA-approved methods must be sufficiently sensitive. To clarify this point, EPA also added language to the introduction of 122.21(e)(3) to specify that the requirement to use a sufficiently sensitive method applies “except as specified in 122.21(e)(3)(ii).”

EPA amended 122.21(e)(3)(ii) by adding regulatory text to clarify that in the case where there are no EPA-approved methods, applicants may consider other relevant factors when selecting an appropriate method. In addition, EPA revised the proposed regulatory text to change “or otherwise required by the Director” to “and not otherwise required by the Director” to clarify that this provision applies to a situation where no EPA-approved methods exist and the Director has not required the use of a specific non-EPA-approved method. In this situation, the permit applicant may select a suitable non-EPA-approved method and provide a description of the method.

Finally, in both places where the new definition of “sufficiently sensitive” appears, EPA added a note to clarify that, consistent with 40 CFR part 136, permittees have the option of providing matrix or sample-specific minimum levels rather than the published levels. In addition, the note clarifies that where a permittee can demonstrate that, despite a good faith effort to use a method that would otherwise meet the definition of “sufficiently sensitive,” the analytical results are not consistent with the QA/QC specifications for that method, then the Director may determine that the method is not performing adequately and a different method should be selected from the remaining EPA-approved methods consistent with 40 CFR 122.21(e)(3)(i) and 40 CFR 122.44(i)(1)(iv)(A). Where no other EPA-approved methods exist, a method should be selected consistent with 40 CFR 122.21(e)(3)(ii) and 40 CFR 122.44(i)(1)(iv)(B).

Entities that discharge to waters of the United States vary in terms of the quantity of their discharges, the potential constituents contained in their discharges, and their operation and maintenance practices. Consequently, the Director's NPDES application requirements vary depending on applicant type. For example, Form 2A for municipalities requires minimal screening for POTWs with design flows under 100,000 gallons per day; however, for POTWs with design flows above 1 million gallons per day, multiple priority pollutant scans are required. Similarly, existing industrial and commercial facilities that complete Form 2C are required to test for toxic pollutants based on the nature of their manufacturing operation. To assist permitting authorities (EPA regions, States, and Tribes), EPA developed several NPDES permit application forms. Table IV-1 provides a list of these forms and the discharger type(s) for which they are intended. Permitting authorities may use EPA's forms or comparable forms of their own.

As noted earlier, permitting authorities issue and develop effluent limitations for individual NPDES permits after analyzing the data contained in each permittee's application. The NPDES permit prescribes the conditions under which the facility is allowed to discharge to ensure the facility's compliance with the CWA's technology-based and water quality-based requirements. NPDES permits typically include restrictions on the quantity of pollutants that a permittee may discharge and require the permittee to conduct routine measurements of, and report on, a number of parameters using EPA-approved, pollutant-specific test procedures (or approved alternative test procedures).

In 2012 EPA submitted an Information Collection Request (ICR) to the Office of Management and Budget (OMB) that, in part, updated the Agency's burden estimates for applicants to complete Forms 1, 2A, 2C-2F, and 2S and for permitting authorities to review and process such forms. 10 The renewal ICR did not include updated estimates for Form 2B or for forms associated with cooling water intake structures (Item 8 in Table IV-1). Updated estimates to complete those forms were contained in separate ICRs. 11 The existing ICRs include annual burden estimates for completing NPDES permit applications and for conducting ongoing compliance monitoring for both new and existing NPDES permittees. EPA's expectation is that permit applicants and permittees will use a range of methods based on a need to appropriately quantify pollutants in their discharge. To calculate cost and burden, the ICRs use an average cost for analytical methods, which is then translated into burden hours.

To assess the impact of this final rule, EPA also assessed the cost information for 40 CFR Part 136 methods found in the National Environmental Methods Index (NEMI) at http://www.nemi.gov. The NEMI site describes the “relative cost” as the cost per procedure of a typical analytical measurement using the specified methods (i.e., the cost of analyzing a single sample). Additional considerations affect total project costs (e.g., labor and equipment/supplies for a typical sample preparation, quality assurance/quality control requirements to validate results reported, number of samples being analyzed). EPA's review of the cost ranges provided in NEMI indicated that there was generally little difference in the cost ranges across the EPA-approved analytical methods for a particular pollutant. A table with the NEMI cost ranges is included in the record. While EPA acknowledges that there are cost differentials for some facilities based on case-specific situations, on the basis of the analytical cost ranges provided in NEMI, and the assumptions used in the current ICRs (i.e., that applicants and permittees will use a range of available approved methods), the final rule is expected to result in little or no new or increased analytical burden to applicants or permittees.

The existing ICRs also account for the ongoing burden to permitting authorities to review applications and to issue NPDES permits annually. They also account for the ongoing burden associated with reviewing discharge monitoring and other reports for compliance assessment purposes. Finally, the existing ICRs account for program revisions where they are necessary because the controlling Federal statutes or regulations were modified.

As noted above, EPA also recognizes that in some cases, use of a more sensitive method could have the practical effect of requiring a facility to adopt additional pollution control measures, even if the permit limit remained unchanged. EPA does not have data that would allow it to predict in advance where or how often this situation might occur, or what a facility would be required to do to address it. EPA has not attempted to quantify the costs of any such new control measures that might be adopted, as they are outside the scope of this rulemaking.

Following issuance of this rule, authorized states have up to one year to revise, as necessary, their NPDES regulations to adopt the requirements of this rule, or two years if statutory changes are needed, as provided at 40 CFR 123.62.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action.” Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011) and any changes made in response to OMB recommendations have been documented in the docket for this action.

This action does not impose any new information collection burden. The final rulemaking requires the use of sufficiently sensitive EPA-approved analytical test methods, where they exist, when applying for an NPDES permit and when performing sampling and analysis pursuant to monitoring requirements in an NPDES permit. However, it does not change the recordkeeping or reporting requirements associated with the use of analytical methods. The Office of Management and Budget (OMB) has previously approved the information collection requirements contained in the existing regulations (which cover all potential NPDES applicants) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control numbers, as summarized in section V (Impacts) of this preamble. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

The Regulatory Flexibility Act 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.

For purposes of assessing the impacts of this final rule on small entities, “small entity” is defined as (1) a small business based on the Small Business Administration regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; or (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of this final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. EPA has determined that the incremental analytical costs that NPDES permit applicants and permittees may bear as a result of this rule are minimal and would not rise to the level of a significant economic impact on a substantial number of small entities.

This rule does not contain a Federal mandate that might result in expenditures of $100 million or more for state, local, and tribal governments, in the aggregate, or the private sector in any one year. Thus, this final rule is not subject to the requirements of sections 202 and 205 of the UMRA. EPA has further determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. Thus, this final rule is not subject to the requirements of section 203 of UMRA.

This final rule does not have federalism implications. When promulgated, it will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of governments, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This final rule does not change the relationship between the national government and the States or change their roles and responsibilities. Rather, this final rulemaking requires that sufficiently sensitive EPA-approved analytical test methods be used, where they exist, when applying for an NPDES permit and when performing sampling and analysis pursuant to monitoring requirements in an NPDES permit. EPA does not expect this final rule to have any impact on local governments.

Furthermore, the revised regulations would not alter the basic state-federal scheme established in the CWA, under which EPA authorizes states to carry out the NPDES permitting program. EPA expects the revised regulations to have little effect on the relationship between, or the distribution of power and responsibilities among, the Federal and State governments.

This final rule does not have tribal implications, as specified in Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). It will not have substantial direct effects on tribal governments, 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, as specified in Executive Order 13175. The final rule requires that sufficiently sensitive EPA-approved analytical test methods must be used, where they exist, when applying for an NPDES permit and when performing sampling and analysis pursuant to monitoring requirements in an NPDES permit. Nothing in this final rule would prevent an Indian tribe from exercising its own organic authority to deal with such matters.

The final rule is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant and the Agency does not believe that the environmental health and safety risks addressed by this action present a disproportionate risk to children.

This rulemaking is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (Pub. L. 104-113, section 12(d), 15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standard bodies. The NTTAA directs EPA to provide explanations to Congress, through OMB, when the Agency decides not to use available and applicable voluntary consensus standards. This final rulemaking does not change agency policy or requirements with respect to the use of voluntary consensus standards for the analysis of pollutants by NPDES permit applicants or permittees.

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. As explained above, the Agency does not have reason to believe that the rule addresses environmental health and safety risks that present a disproportionate risk to minority populations and low-income populations.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this 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 . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective September 18, 2014.

For the reasons set out in the preamble, title 40, chapter I, of the Code of Federal Regulations is amended as follows:

Background

The Department of the Interior (DOI) published a notice of proposed rulemaking in the Federal Register , 76 FR 52295, August 22, 2011, proposing to exempt certain records of the Debarment and Suspension Program system of records from one or more provisions of the Privacy Act because these records contain investigatory material within the provision of 5 U.S.C. 552a(k)(2) and (k)(5). The Debarment and Suspension Program system of records notice was published concurrently in the Federal Register , 76 FR 52341, August 22, 2011, and comments were invited on both the notice of proposed rulemaking and system of records notice. DOI received no comments on the notice of proposed rulemaking or system of records notice and will therefore implement the rulemaking as proposed.

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

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

The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601, et seq. ). This rule does not impose a requirement for small businesses to report or keep records on any of the requirements contained in this rule. The exemptions to the Privacy Act apply to individuals, not to entities covered under the Regulatory Flexibility Act.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

a. Does not have an annual effect on the economy of $100 million or more.

b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises.

This rule does not impose an unfunded mandate on State, local, or tribal governments in the aggregate, or on the private sector, of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. This rule makes only minor changes to 43 CFR part 2. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ) is not required.

In accordance with Executive Order 12630, the rule does not have significant takings implications. This rule makes only minor changes to 43 CFR part 2. A takings implication assessment is not required.

In accordance with Executive Order 13132, this rule does not have any federalism implications to warrant the preparation of a Federalism Assessment. The rule is not associated with, nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. A Federalism Assessment is not required.

This rule complies with the requirements of Executive Order 12988. Specifically, this rule:

a. Does not unduly burden the judicial system.

b. Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

c. Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

In accordance with Executive Order 13175, the Department of the Interior has evaluated this rule and determined that it would have no substantial effects on federally recognized Indian Tribes.

This rule does not require an information collection from 10 or more parties and a submission under the Paperwork Reduction Act is not required.

This rule does not constitute a major Federal action and would not have a significant effect on the quality of the human environment. Therefore, this rule does not require the preparation of an environmental assessment or environmental impact statement under the requirements of the National Environmental Policy Act of 1969.

This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required.

For the reasons stated in the preamble, the Department of the Interior amends 43 CFR part 2 as follows:

This is a synopsis of the consolidated Memorandum Opinion and Order in MB Docket No. 05-112 and MB Docket No. 05-151, adopted July 23, 2014, and released July 24, 2014 The full text of this decision is available for inspection and copying during normal business hours in the FCC Reference Information Center at Portals ll, CY-A257, 445 12th Street SW., Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's copy contractor, Best Copying and Printing, Inc. 445 12th Street SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or www.BCPIWEB.com. Because the Commission is denying the Petition for Reconsideration, the Commission will not send a copy of this Memorandum Opinion and Order in a report to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

The Memorandum Opinion and Order denied the Joint Parties Petition for Reconsideration because no error was committed in the Report and Order by requiring the Joint Parties Counterproposal to protect a previously filed and cut-off application. See 72 FR 37673, July 1, 2007. Although the Joint Parties Counterproposal had been filed and dismissed in an earlier proceeding, the refilling of the Counterproposal does not revive that dismissed proposal or create cut-off rights with regard to proposals in the present proceeding. Likewise, the Memorandum Opinion and Order determined that no error was committed by processing a “cut-off” application and relying on the effective but non-final dismissal of the Joint Parties Counterproposal in the earlier proceeding. Finally, the Memorandum Opinion and Order concluded that an engineering solution submitted by the Joint Parties could not be considered because it was filed late.

I. Background

The HHS published a proposed rule in the Federal Register at 78 FR 2229 on January 10, 2013, to ensure that providers of proprietary material(s) to the Government will retain all their preexisting rights to their material(s), and rights to any inventions made under a contract or subcontract (at all tiers), when a Determination of Exceptional Circumstances (DEC) has been executed.

“Material” means any proprietary material, method, product, composition, compound, or device, whether patented or unpatented.

A DEC is executed consistent with the policy and objectives of the Bayh-Dole Act, 35 U.S.C. 200, et seq., to ensure that subject inventions made under contracts and subcontracts (at all tiers) are used in a manner to promote free competition and enterprise without unduly encumbering future research and discovery; to encourage maximum participation of small business firms in federally supported research and development efforts; to promote collaboration between commercial concerns and nonprofit organizations including universities; to ensure that the Government obtains sufficient rights in federally supported inventions to meet its needs; to protect the public against nonuse or unreasonable use of inventions, and in the case of fulfilling the mission of the Department of Health and Human Services, to ultimately benefit the public health.

Under certain circumstances, in order to ensure that pharmaceutical companies, academia, and others will collaborate with HHS in identifying, testing, developing, and commercializing new drugs, therapeutics, diagnostics, prognostics and prophylactic measures affecting human health, a DEC must be executed and Contractor's and subcontractor's rights (at all tiers) in subject inventions should be limited accordingly, consistent with DEC requirements and through appropriate contract clauses.

The comment period for the proposed rule closed on March 11, 2013. The HHS received responses from four respondents with 11 comments, collectively; however, only three of those comments resulted in minor changes to the final rule. The comments are discussed below.

Comment: One respondent states that while institutions are able to manage this in terms of preserving Government rights under the Bayh-Dole Act, it does raise potential legal conflicts if the institution has obligations to another sponsor who funded the conception and then must assign ownership rights to the Third party assignee under these clauses. Therefore, the commenter strongly urged HHS to change the definition for “made” to “conception and first actual reduction to practice. . .” with respect to the rights of the Third party assignee.

Response: The final rule is acceptable as it reflects statutory language.

Comment: Two respondents stated that U.S. nonprofit educational institutions may retain a nonexclusive, royalty free license for noncommercial internal research, but not for educational purposes, which is a key mission for such institutions. Nor would this allow sharing with other nonprofit academic institutions as required under the National Institutes of Health policy. In addition, since most research at U.S. universities is sponsored, it is unclear what “internal” will permit. Therefore, we recommended that the retention of rights be clarified as “nonprofit research and educational purposes.”

Response: The Government agrees that the license may be retained by U.S. nonprofit organizations and that the language should be modified. The clause language was rewritten to include: “If the Contractor is a U.S. nonprofit organization it may retain a royalty free, nonexclusive, nontransferable license to practice the invention for all nonprofit research including for educational purposes, and to permit other U.S. nonprofit organizations to do so.”

Comment: One respondent stated that “if required to assign an invention to a Third party assignee who acquired the full benefit of the invention, the contractor can assist the Third party assignee in securing patent protection at the Third party's expense. It is important to clarify that the Third party assignee is responsible for expenses related to securing patent protection as the expenses can be costly.

Response: The Government accepted this comment and rewrote the last sentence of paragraph 352.227-11(c) as: “If the Contractor assigns a Subject Invention to the Third party assignee, then the Contractor and its employee inventors shall assist the Third party assignee in securing patent protection. All costs of securing the patent, including the cost of the Contractor's assistance, are at the Third party's expense. Any assistance provided by the Contractor and its employee inventors to the Third party assignee or other costs incurred in securing patent protection shall be solely at the Third party's expense and not billable to the contract.”

Comment: Two respondents commented that the publication delay sets a detrimental nationwide precedent that a 6-month publication delay is acceptable. The existing standard amongst most U.S. universities maximum of 90-120 days publication delay provides sufficient time to file a patent application; this is increasingly important in the First Inventor to File regime.

Response: The Government believes 6 months is reasonable as paragraph 352.227-14(d)(4) requires the contractor to provide the Contracting Officer a copy of any proposed publication or other public disclosure at least 30 days in advance of the disclosure but allows the Contracting Officer to request that publication be delayed for a reasonable time not to exceed 6 months. The Government expects that such a request, which will require affirmative action by the Contracting Officer, will be uncommon. In view of the new first to file provisions of the current patent statute it is expected that patent applications will be filed expeditiously.

Comment: One respondent stated that the clauses contain confusing uses of terminology. For example, the term “Third party assignee” to whom Class I inventions will be assigned is used in the sections for both Class I and Class 2 inventions (the latter class involves a license rather than an assignment.)

Response: The Government agrees with the respondent's language and changed the clause to read “However, the Contractor shall grant a license in the Class 2 Subject Inventions to the provider of the “material” or other party designated by the Agency as set forth in Alternate I.”

Comment: Two respondents submitted the following general comment and subsequent related specific comments: The basic premise of the Bayh-Dole Act and implementing regulations is that elimination or restriction of a contractor's right to retain title to subject inventions is intended only in the event of “exceptional circumstances.” Written case-by-case determinations and justifications are required. These must be submitted to the Secretary of Commerce (Commerce). Contractors have the right to appeal (35 U.S.C. 202; 37 CFR 401.3 and 401.4; FAR 27.3).

The notice asserts but does not demonstrate how the proposed clauses will better address the requirements of the Bayh-Dole Act and regulations. It merely recites the policy and objectives of the Bayh-Dole Act. Providing for a “class” deviation from the Bayh-Dole in the HHSAR appears inconsistent with the intent to limit the use of exceptional circumstance deviations through requiring individual case-by-case justifications. The present practice of the use of individual FAR deviations tailored to the specific DEC circumstances is more consistent with the objectives of the Bayh-Dole Act. We also note that the notice indicates that a copy has been submitted to the Chief Counsel for Advocacy of the Small Business Administration. It does not indicate whether it also has been submitted to the National Institute of Standards and Technology, which now has overall oversight responsibility for the Bayh-Dole, including responsibility for Commerce review of DECs.

Response: The Government concurs with the respondent that this clause applies to exceptional circumstance; however, the Government is proposing this clause to implement the law for specific types of DECs. The proposed clause may not be appropriate for every DEC. The clause is appropriate for this kind of DEC, i.e., those for evaluation of Third party materials. That is evident in the prescriptive part of the proposed section 327.303, which states that the clause will be used whenever a DEC involving the provision of materials has been executed in accordance with Agency policy, and procedures calls for its use, and the clause appropriately covers the circumstances.

Comment: One respondent stated that, in regard to the proposed Patent Rights—exceptional circumstances HHSAR clause (352.227-11), the clause defined 3 categories of Subject Inventions but referred to the DEC(s) for the definition. The respondent asserted that this meant the clause itself is not self-executing and that it presumes DECs will all contain the same three categories, which appears inappropriate for a HHSAR clause as DECs may vary in this regard. This illustrates the problems with implementing DECs through one general clause instead of individual deviations.

Response: The Government did not intend for the clause to be self-executing. Rather, it only applies if it is invoked by a particular DEC involving the provision of materials. This will insure that the clause is not used inappropriately.

Comment: One respondent asserted that some terms and definitions in the proposed 352.227-11 clause were problematic and specified as follows: The definition of “material” to include methods, whether patented or unpatented, is over broad. The definition of “Third party assignee” refers to any entity described in the DEC, not necessarily materials providers which according to the Supplementary Information (IV.B.) are supposed to be the focus. This should be clarified. The proposed clause contains a confusing incorporation of FAR clause 52.227-11 at b(2)(ii), which appears to be contradicted by (e)(2)'s incorporation of FAR 52.227-13.

Response: The Government made the definition of “material” intentionally broad to include anything that may be provided to the Contractor under the contract. The nature of “material” will be described in the associated DEC. Generally it is anticipated that the Third party assignee would be the provider of the “material;” however, the Government reserves the right to require assignment to other entities, including the Government, when appropriate. However, the Government concurs that there are some inconsistencies in the references and have aligned them as follows: Paragraph (c) of FAR 52.227-13, which specifies march-in procedures, was invoked twice in the clause to address greater rights determinations—first in 352.227-11 (b)(3) (not (b)(2)(ii) as stated in the comment) and also in 353.227-11(e)(2). The last sentence of 352.227-11(e)(2) was modified to improve clarity. These provisions are applicable when greater rights are granted and the contractor acquires title to a Subject Invention.

Comment: One respondent asserted that the proposed Rights in Data—Exceptional Circumstances clause (352.227-14) had a number of problems: The clause also requires approval of the Contracting Officer to assert copyright in all data other than journal articles (c)(1). Universities typically will accept only Alternate IV of the general FAR Rights in Data clause which permits universities to assert copyright generally. The proposed clause contains several Alternates but not Alternate IV. The Confidentiality requirement in (d)(6)(ii) is open-ended, with no limit on the duration of the requirement. The Rights in Data clause does not make the same distinctions among different classes of inventions as in the Patent Rights clause (52.227-11), which results in asymmetrical treatment of contractors' rights. Finally the Data Rights clause purports to cover computer software which, since potentially patentable, may conflict with the Patent Rights clause.

Response: Patent rights and copyrights are independent and the clause needs no further clarification. No time limits can be established in advance for information deemed confidential; it is handled on a case-by-case basis.

Comment: One respondent stated they wished to express their opposition to the proposed “accommodation” to the HHS mandate regarding health coverage.

Response: These comments were outside the scope of this rule.

Comment: One respondent stated that the proposed rule was “a little complicate (sic), but good job[.]”

Response: The Government appreciates this comment.

Executive Orders (E.O.s) 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). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action, and therefore, is not subject to review under section 6 of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

The HHS has prepared a Final Regulatory Flexibility Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. No public comments were submitted on the Initial Regulatory Flexibility Analysis and no comments were received from the Office of Advocacy of the Small Business Administration on this rule. The FRFA is summarized as follows:

The final rule does not duplicate, overlap, or conflict with any other Federal rules. These clauses will be used in lieu of FAR clause 52.227-14, Rights in Data—General and FAR clause 52.227-11, Patent Rights—Ownership by the Contractor.

In the past, a significant number of FAR deviations were processed each time a DEC was executed. Using the final HHSAR clauses better addresses the requirements of the Bayh-Dole Act and provides solid legal protection for the proprietary rights of providers to ensure providers will collaborate with the Government and provide access to their promising proprietary material(s) to meet HHS program goals. Therefore, it is believed that the approach outlined in the final rule is the most practical and provides benefits to the Government, the public health, and the industry to ensure HHS program goals can be achieved.

The Paperwork Reduction Act (44 U.S.C. Chapter 35) applies because this final rule contains information collection requirements under HHSAR 352.227-11, Patent Rights—Exceptional Circumstances (approved under OMB Control Number 0990-0419), and HHSAR 352.227-14, Rights in Data—Exceptional Circumstances (approved under OMB Control Number 0990-0419). In response to the notice of proposed rulemaking and the request for comment on the burden estimates, no comments were received on the burden estimates.

For the reasons stated in the preamble, HHS amends 48 CFR parts 327 and 352 as follows:

We published a final rule in the Federal Register on August 12, 2014 (79 FR 47222), that determined endangered species status under the Act (16 U.S.C. 1531 et seq.) for two butterflies: the Florida leafwing ( Anaea troglodyta floridalis ) and Bartram's scrub-hairstreak ( Strymon acis bartrami ). In the amendatory language of that rule, for the two butteflies' entries, we inadvertently added a “Family” column to the List of Endangered and Threatened Wildlife (List) at title 50, section 17.11(h), of the Code of Federal Regulations. The List does not have a “Family” column. In order to have the two butterflies' entries set forth accurately in the List, we are publishing this correction, which newly and correctly sets forth the Regulation Promulgation section of the final we published at 79 FR 47222 (August 12, 2014).

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