This rule is issued under Marketing Agreement and Order No. 906, as amended (7 CFR part 906), regulating the handling of oranges and grapefruit grown in the Lower Rio Grande Valley in Texas, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

USDA is issuing this rule in conformance with Executive Orders 12866, 13563, and 13175.

Under the order, Texas orange and grapefruit handlers are subject to assessments, which provide funds to administer the order. Assessment rates issued under the order are intended to be applicable to all assessable Texas oranges and grapefruit for the entire fiscal period, and continue indefinitely until amended, suspended, or terminated. The Committee's fiscal period begins on August 1, and ends on July 31.

In an interim rule published in the Federal Register on August 14, 2014, and effective on August 15, 2014, (79 FR 47551, Doc. No. AMS-FV-14-0054, FV14-906-3 IR), § 906.235 was amended by decreasing the assessment rate established for Texas citrus for the 2014-2015 and subsequent fiscal periods from $0.16 to $0.11 per 7/10-bushel carton or equivalent. The decrease in the assessment rate is based on reductions in funding for its marketing program and management fees while still providing adequate funding to meet program expenses.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 170 producers of oranges and grapefruit in the production area and 13 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $7,000,000 (13 CFR 121.201).

According to Committee data and information from the National Agricultural Statistics Service, the weighted average grower price for Texas citrus during the 2012-13 season was around $12.98 per box and total shipments were near 8.5 million boxes. Using the weighted average price and shipment information, and assuming a normal distribution, the majority of growers would have annual receipts of less than $750,000. In addition, based on available information, the majority of handlers have annual receipts of less than $7,000,000 and could be considered small businesses under SBA's definition. Thus, the majority of producers and handlers of Texas citrus may be classified as small entities.

This rule continues in effect the action that decreased the assessment rate established for the Committee and collected from handlers for the 2014-15 and subsequent fiscal periods from $0.16 to $0.11 per 7/10-bushel carton or equivalent of Texas citrus. The Committee recommended 2014-15 expenditures of $809,500 and an assessment rate of $0.11 per 7/10-bushel carton or equivalent handled. The assessment rate of $0.11 is $0.05 lower than the 2013-14 rate. The quantity of assessable oranges and grapefruit for the 2014-15 fiscal period is estimated at 8.2 million 7/10-bushel cartons. Thus, the $0.11 rate should provide $902,000 in assessment income and be adequate to meet this year's expenses. This action decreases the assessment rate to reflect reduced funding for the marketing program and management fees while still providing adequate funding to meet program expenses.

This rule continues in effect the action that decreased the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, decreasing the assessment rate reduces the burden on handlers, and may reduce the burden on producers.

In addition, the Committee's meeting was widely publicized throughout the Texas citrus industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the June 5, 2014, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0189 Generic Fruit Crops. No changes in those requirements as a result of this action are anticipated. Should any changes become necessary, they would be submitted to OMB for approval.

This action imposes no additional reporting or recordkeeping requirements on either small or large Texas orange and grapefruit handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.

Comments on the interim rule were required to be received on or before October 14, 2014. No comments were received. Therefore, for reasons given in the interim rule, we are adopting the interim rule as a final rule, without change.

To view the interim rule, go to: http://www.regulations.gov/#!documentDetail;D=AMS-FV-14-0054-0001.

This action also affirms information contained in the interim rule concerning Executive Orders 12866, 12988, 13175, and 13563; the Paperwork Reduction Act (44 U.S.C. Chapter 35); and the E-Gov Act (44 U.S.C. 101).

After consideration of all relevant material presented, it is found that finalizing the interim rule, without change, as published in the Federal Register (79 FR 47551, August 14, 2014) will tend to effectuate the declared policy of the Act.

This rule is issued under Marketing Agreement No. 97 and Order No. 948, both as amended (7 CFR part 948), regulating the handling of Irish potatoes grown in Colorado, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Orders 12866, 13563, and 13175.

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

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule revises the minimum quantity exception currently prescribed in the handling regulation for potatoes handled under the order. This rule will increase the quantity of potatoes that may be handled without regard to the order's handling requirements from 1,000 to 2,000 pounds. Relaxing the minimum quantity exception is expected to benefit producers and handlers. The rule was unanimously recommended by the Committee at a meeting on May 14, 2014.

Section 948.4 of the order divides the State of Colorado into three areas of regulation for marketing order purposes. These areas include: Area No. 1, commonly known as the Western Slope; Area No. 2, commonly known as San Luis Valley; and, Area No. 3, which consists of the remaining producing areas within the State of Colorado not included in the definition of Area No. 1 or Area No. 2. Currently, the order only regulates the handling of potatoes produced in Area No. 2 and Area No. 3. Regulation for Area No. 1 has been suspended.

Section 948.50 of the order establishes committees as administrative agencies for each of the areas set forth under § 948.4. Section 948.22(a) of the order authorizes the issuance of grade, size, quality, maturity, pack, and container regulations for potatoes grown in the order's production area. Further, section 948.22(b)(2) of the order provides authority for each area committee to recommend modification of regulations to provide for minimum quantities that should be relieved of regulatory or administrative obligations.

Section 948.387 of the order's administrative rules prescribes grade, size, maturity, and inspection requirements for Colorado Area No. 3 potatoes. Paragraph (f) of that section prescribes the minimum quantity of potatoes that are exempt from regulation. Currently, each person may handle up to 1,000 pounds of potatoes without regard to the order's handling requirements.

At its meeting on May 14, 2014, the Committee unanimously recommended increasing the order's minimum quantity exception from 1,000 to 2,000 pounds. The recommendation was made at the request of producers and handlers who wanted greater flexibility in distributing smaller quantities of potatoes. In its deliberations, the Committee commented that 2,000 pounds is consistent with the current weight of a pallet of potatoes. One pallet is typically the smallest lot of potatoes distributed, since most delivery vehicles are now capable of transporting at least 2,000 pounds.

Handlers also feel that the value of one pallet of potatoes does not warrant the cost of complying with the order's regulations. Based on an estimated average f.o.b. price of $10.70, the value of one pallet of potatoes is approximately $214.00. Increasing the minimum quantity exception from 1,000 to 2,000 pounds of potatoes will allow a handler to ship one pallet of potatoes without regard to the order's handling requirements. Relaxing the minimum quantity is expected to benefit producers and handlers.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 6 handlers of Colorado Area No. 3 potatoes subject to regulation under the order and approximately 6 producers in the regulated production area. Small agricultural service firms are defined by the Small Business Administration (SBA) as those having annual receipts of less than $7,000,000, and small agricultural producers are defined as those having annual receipts of less than $750,000 (13 CFR 121.201).

During the 2013-2014 fiscal period, the most recent for which statistics are available, 663,025 hundredweight of Colorado Area No. 3 potatoes were inspected under the order and sold into the fresh market. The USDA Market News Service reported a 2013-2014 average f.o.b. price of $10.70 per hundredweight. Multiplying $10.70 by the shipment quantity of 663,025 hundredweight yields a shipping point revenue estimate of $7,094,368. The average annual fresh potato revenue for each of the 6 Colorado Area No. 3 potato handlers is therefore calculated to be approximately $1,182,395 ($7,094,368 divided by 6), which is less than the SBA threshold of $7,000,000. In view of the foregoing, the majority of Colorado Area No. 3 potato handlers may be classified as small entities.

In addition, based on information provided by the National Agricultural Statistics Service, the average producer price for the 2013 Colorado fall potato crop was $7.25 per hundredweight. Multiplying $7.25 by the shipment quantity of 663,025 hundredweight yields an annual crop revenue estimate of $4,806,931. The average annual fresh potato revenue for each of the 6 Colorado Area No. 3 potato producers is therefore calculated to be approximately $801,155 ($4,806,931 divided by 6), which is greater than the SBA threshold of $750,000. Consequently, on average, most of the Colorado Area No. 3 potato producers may not be classified as small entities.

This rule revises the quantity of potatoes that may be handled without regard to the requirements of § 948.387(a) and (b) of the order from 1,000 to 2,000 pounds. At the May 14, 2014 meeting, the Committee unanimously recommended increasing the minimum quantity exception to be consistent with the approximate weight of one pallet of potatoes. Authority for the establishment and modification of a minimum quantity exception is provided in § 948.22(b)(2) of the order. This rule amends the provisions in § 948.387(f).

This action is not expected to increase the costs associated with the order's requirements. Rather, it is anticipated that this change will have a beneficial impact. The Committee believes it will provide greater flexibility in the distribution of small quantities of potatoes. Currently, the distribution of potatoes between 1,000 and 2,000 pounds requires an inspection and certification that the product conforms to the grade, size, and maturity requirements of the order. This translates into a cost for handlers of both time and inspection fees, which is high in relation to the small value (approximately $214.00 per pallet) of these transactions. This action will allow shipments of up to 2,000 pounds of potatoes without regard to the order's handling requirements and the related costs. The benefits for this rule are expected to be equally available to all fresh potato producers and handlers, regardless of their size.

As an alternative to this action, the Committee discussed leaving the handling regulation unchanged. The Committee rejected this idea because a pallet of potatoes weighs approximately 2,000 pounds and the 1,000 pound minimum quantity exception did not accommodate this size shipment. No other alternatives were discussed.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0178 (Generic Vegetable and Specialty Crops). No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.

This rule relaxes the minimum quantity exception under the order from 1,000 to 2,000 pounds. Accordingly, this action will not impose any additional reporting or recordkeeping requirements on either small or large Colorado Area No. 3 potato handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

In addition, the Committee's meeting was widely publicized throughout the Colorado Area No. 3 potato industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the May 14, 2014, meeting was a public meeting and all entities, both large and small, were able to express their views on this issue. Finally, interested persons are invited to submit comments on this interim rule, including the regulatory and informational impacts of this action on small businesses.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/MarketingOrdersSmallBusinessGuide. Any questions about the compliance guide should be sent to Jeffrey Smutny at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

This rule invites comments on an increase to the quantity of potatoes that may be handled under the order without regard to the handling requirements. Any comments received will be considered prior to finalization of this rule.

After consideration of all relevant material presented, including the Committee's recommendation and other information, it is found that this interim rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) Any changes resulting from this rule should be effective as soon as practicable because the shipping season for Colorado potatoes began in September of 2014; (2) the Committee unanimously recommended this change at a public meeting and interested parties had an opportunity to provide input; (3) potato handlers are aware of this action and want to take advantage of this relaxation; and (4) this rule provides a 60-day comment period and any comments received will be considered prior to finalization of this rule.

For the reasons set forth above, 7 CFR part 948 is amended as follows:

This interim rule is issued under Marketing Order No. 985 (7 CFR part 985), as amended, regulating the handling of spearmint oil produced in the Far West (Washington, Idaho, Oregon, and designated parts of Nevada and Utah), hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Orders 12866, 13563, and 13175.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the provisions of the marketing order now in effect, salable quantities and allotment percentages may be established for classes of spearmint oil produced in the Far West. This rule increases the quantity of Native spearmint oil produced in the Far West that handlers may purchase from, or handle on behalf of, producers during the 2014-2015 marketing year, which began on June 1, 2014, and ends on May 31, 2015.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule revises the quantity of Native spearmint oil that handlers may purchase from, or handle on behalf of, producers during the 2014-2015 marketing year under the Far West spearmint oil marketing order. This rule increases the Native spearmint oil salable quantity from 1,090,821 pounds to 1,280,561 pounds and the allotment percentage from 46 percent to 54 percent.

Under the volume regulation provisions of the order, the Committee meets each year to adopt a marketing policy for the ensuing year. When the Committee's marketing policy considerations indicate a need for limiting the quantity of spearmint oil available to the market to establish or maintain orderly marketing conditions, the Committee submits a recommendation to the Secretary for volume regulation.

Volume regulation under the order is effectuated through the establishment of a salable quantity and allotment percentage applicable to each class of spearmint oil handled in the production area during a marketing year. The salable quantity is the total quantity of each class of oil that handlers may purchase from, or handle on behalf of, producers during a given marketing year. The allotment percentage for each class of oil is derived by dividing the salable quantity by the total industry allotment base for that same class of oil. The total industry allotment base is the aggregate of all allotment base held individually by producers. Producer allotment base is the quantity of each class of spearmint oil that the Committee has determined is representative of a producer's spearmint oil production. Each producer is allotted a pro rata share of the total salable quantity of each class of spearmint oil each marketing year. Each producer's annual allotment is determined by applying the allotment percentage to the producer's individual allotment base for each applicable class of spearmint oil.

The full Committee met on November 6, 2013, to consider its marketing policy for the ensuing year. At that meeting, the Committee determined that marketing conditions indicated a need for volume regulation of both classes of spearmint oil for the 2014-2015 marketing year. The Committee recommended salable quantities of 1,149,030 pounds and 1,090,821 pounds, and allotment percentages of 55 percent and 46 percent, respectively, for Scotch and Native spearmint oil. A proposed rule to that effect was published in the Federal Register on March 14, 2014 (79 FR 14441). Comments on the proposed rule were solicited from interested persons until March 31, 2014. No comments were received. Subsequently, a final rule establishing the salable quantities and allotment percentages for Scotch and Native spearmint oil for the 2014-2015 marketing year was published in the Federal Register on May 8, 2014 (79 FR 26359).

Pursuant to authority contained in §§ 985.50, 985.51, and 985.52 of the order, the full eight member Committee met again on September 11, 2014, to consider pertinent market information on the current supply, demand, and price of spearmint oil. After some deliberation, the Committee recommended increasing the 2014-2015 marketing year Scotch spearmint oil salable quantity from 1,149,030 pounds to 1,984,423 pounds and the allotment percentage from 55 percent to 95 percent. An interim rule to that effect was published in the Federal Register on October 31, 2014 (79 FR 64657). Comments regarding the interim rule received by December 30, 2014, will be considered prior to issuance of a final rule.

The full Committee met again on November 5, 2014, for a regularly scheduled annual meeting to evaluate the current year's volume control regulation and to adopt a marketing policy for the 2015-2016 marketing year. At the meeting, the Committee assessed the current market conditions for spearmint oil in relation to the salable quantities and allotment percentages established for the 2014-2015 marketing year. The Committee considered a number of factors, including the current and projected supply, estimated future demand, production costs, and producer prices for all classes of spearmint oil. The Committee determined that the salable quantity and allotment percentage previously established for Native spearmint oil for the 2014-2015 marketing year should be increased to take into account the recent unanticipated rise in market demand for that class of spearmint oil.

Therefore, the Committee recommended increasing the Native spearmint oil salable quantity from 1,090,821 pounds to 1,280,561 pounds and the allotment percentage from 46 percent to 54 percent. The recommendation to increase the salable quantity and allotment percentage passed with seven members voting in favor of the motion. The public member, while present, abstained from the vote.

Thus, taking into consideration the following discussion, this rule makes additional amounts of Native spearmint oil available to the market by increasing the salable quantity and allotment percentage previously established under the order for the 2014-2015 marketing year. This rule increases the Native spearmint oil salable quantity 189,740 pounds to 1,280,561 pounds, and raises the allotment percentage 8 percent, to 54 percent. Such additional oil will become available to the market by releasing Native spearmint oil held by producers in the reserve pool. As of May 31, 2014, the Committee records show that the reserve pool for Native spearmint oil contained 446,086 pounds of oil.

The increase in the salable quantity as a result of this rule represents an additional 189,740 pounds of Native spearmint oil being made available to the market. However, as some individual producers do not hold Native spearmint oil from previous year's production in the reserve pool, the Committee expects that only 148,715 pounds of additional Native spearmint oil will actually be made available to the spearmint oil market. The relatively high salable quantity resulting from this action, as compared to the actual quantity of spearmint oil that will be made available to the market, is necessary to ensure that a sufficient quantity of Native spearmint oil is available to fully supply the market. Producers that do not have additional Native spearmint oil in inventory (oil held in the reserve pool) will not be able to utilize the additional annual allotment issued to them as a result of this action and such additional annual allotment will go unused.

The 2014-2015 marketing year began on June 1, 2014, with a Native spearmint oil carry-in of 218,754 pounds (carry-in is salable Native spearmint oil from prior years that was not marketed during the 2013-2014 marketing year). This amount is significantly lower than the Committee's projected carry-in of 307,297 pounds. As such, when the carry-in is added to the initially established 2014-2015 Native spearmint oil salable quantity of 1,090,821 pounds, the result is a total available supply for the 2014-2015 marketing year of 1,309,575 pounds. This amount is 88,543 pounds less than the 1,398,118 pounds that the Committee believed would be available to the market when it initially recommended volume regulation for the 2014-2015 marketing year in November 2013.

In addition, the Committee staff reported that demand for Native spearmint oil is greater than originally anticipated. Committee records indicate that 2014-2015 marketing year sales through the end of October 2014, the most recent full month recorded, are 84,667 pounds higher than for the same period in the 2013-2014 marketing year. The Committee now estimates trade demand for Native spearmint oil for the 2014-2015 marketing year to be approximately 1,341,000 pounds, up from the 1,300,000 pounds initially estimated in the fall of 2013. If realized, trade demand of 1,341,000 pounds would be 31,425 pounds more than the quantity available under the initially established volume control levels (1,309,525 pounds available minus 1,341,000 pounds demanded = 31,425 pound supply deficit). The increased quantity of Native spearmint oil made available to the market as a result of this action would ensure that market demand is satisfied in the current year and that there would be salable inventory available to the market for the start of the 2015-2016 marketing year on June 1, 2015.

In making the recommendation to increase the salable quantity and allotment percentage of Native spearmint oil, the Committee considered all currently available information on the price, supply, and demand of spearmint oil. The Committee also considered reports and other information from handlers and producers in attendance at the meeting. Lastly, the Committee manager presented information and reports that were provided to the Committee staff by handlers and producers who were not in attendance at the November 5, 2014, meeting.

This action increases the 2014-2015 marketing year Native spearmint oil salable quantity by 189,740 pounds, to a total of 1,280,561 pounds. However, as mentioned previously, the net effect of the increase will be much less than the calculated increase due to the amount of actual oil individual producers have available to market from the current year's excess production and from reserve pool inventory. The Committee estimates that this action will actually make an additional 148,715 pounds of Native spearmint oil available to the market. That amount, combined with the 151,962 pounds of salable Native spearmint oil that the Committee estimates is currently available to the market, will make a total of 300,677 pounds that will be available to be marketed through the remainder of the marketing year. The total supply of Native spearmint oil that the Committee anticipates actually being available to the market over the course of the 2014-2015 marketing year will be increased to 1,458,318 pounds. Actual sales of Native spearmint oil for the 2013-2014 marketing year totaled 1,341,555 pounds.

The Committee estimates that this action will result in 117,318 pounds of salable Native spearmint oil being carried into the 2015-2016 marketing year. In addition, the Committee expects that 297,371 pounds of Native spearmint oil will be held in reserve pool stocks by producers after this increase. These inventory levels are low in comparison to historical levels, but are well within the range that the Committee believes to be appropriate moving forward. In addition, the Committee believes that the current Native spearmint oil market situation will stimulate production of Native spearmint oil in the coming years, further ensuring that the market will be adequately supplied in the future.

As mentioned previously, when the original 2014-2015 marketing policy statement was drafted, handlers estimated the demand for Native spearmint oil for the 2014-2015 marketing year to be 1,300,000 pounds. The Committee's initial recommendation for the establishment of the Native spearmint oil salable quantity and allotment percentage for the 2014-2015 marketing year was based on that estimate. The Committee did not anticipate the increase in demand for Native spearmint oil that the market is currently experiencing and did not make allowances for it when the marketing policy was initially adopted. Handlers now estimate that Native spearmint oil demand for the 2014-2015 marketing year to be as much as 1,375,000 pounds. However, at the meeting, the Committee conservatively revised its estimate to 1,341,000 pounds. The Committee now believes that the supply of Native spearmint oil available to the market under the initially established salable quantity and allotment percentage would be insufficient to satisfy the current level of demand for oil at reasonable price levels. The Committee further believes that the increase in the salable quantity and allotment percentage effectuated by this action is vital to ensuring an adequate supply of Native spearmint oil is available to the market moving forward.

As previously stated, it is anticipated that this action will make 148,715 pounds of the Native spearmint oil held in the reserve pool available to the market. However, to achieve that desired net effect under the current supply conditions in the industry, it is necessary for the salable quantity and allotment percentage established under the volume regulation provisions of the order to be set at artificially high levels. The Committee records show that some producers do not hold Native spearmint oil in reserve. Given the process by which volume regulation is effectuated under the order, only those producers with Native spearmint oil in the reserve pool will be able to utilize the additional annual allotment that is issued as a result of this rule. Likewise, producers that do not have Native spearmint oil reserve oil from prior years' production will not have any Native spearmint oil inventory to offer to the market, regardless of how much additional annual allotment is issued to those producers. As such, the Committee expects that approximately 22 percent of the increased salable quantity and allotment percentage for Native spearmint oil will go unused.

As an example, assume Producer A has 2,000 pounds of Native spearmint oil allotment base. In addition, assume that during the 2014-2015 marketing year Producer A produced 920 pounds of Native spearmint oil and currently holds 160 pounds of excess Native spearmint oil in reserve from production in prior years. Given that the initial 2014-2015 marketing year allotment percentage was established at 46 percent, Producer A could market all 920 pounds of the current year production (46 percent allotment percentage × 2,000 pounds of allotment base), leaving him/her with 160 pounds in the reserve pool that was initially not available to market. Without an increase in the allotment percentage, the producer would not have been able to market any of the 160 pounds of reserve oil and the oil would have continued to have been held in the reserve pool for marketing in subsequent years. For Producer A to market all 1,080 pounds of his/her current year Native spearmint oil production and reserve inventory, the allotment percentage needs to be increased by 8 percent to a total of 54 percent (54 percent × 2,000 pounds = 1,080 pounds). An increase in the allotment percentage of anything less than 8 percent would fail to release all of the Native spearmint oil that the producer holds in the reserve pool.

In contrast, assume that another producer, Producer B, likewise has 2,000 pounds of Native spearmint oil allotment base and produced 920 pounds of Native spearmint oil during the 2014-2015 marketing year. However, Producer B has no Native spearmint oil held in reserve. As in the first case, Producer B could market all of his/her current year production under the initial allotment percentage of 46 percent. However, a subsequent increase in the allotment percentage of 8 percent would have no impact on Producer B, as the producer has no reserve pool oil available to deliver to the market. As a result, the 160 pounds of additional annual allotment allocated to Producer B after an 8 percent increase in the allotment percentage would go unfilled.

The Committee acknowledges that the relatively high salable quantity, and the corresponding high allotment percentage, will create a quantity of Native spearmint oil annual allotment for which no Native spearmint oil will actually be available to market. The Committee estimates that an 8 percent increase in the salable quantity is required to make the desired 148,715 pounds of Native spearmint reserve pool oil available to the market. Accordingly, the Committee expects that 41,025 pounds of the recommended 189,740 pound increase in salable quantity will go unfilled. This quantity of underutilized salable quantity has been factored into the Committee's recommendation.

The Committee's stated intent in the use of marketing order volume control regulation is to keep adequate supplies available to meet market needs and to maintain orderly marketing conditions. With that in mind, the Committee developed its recommendation for increasing the Native spearmint oil salable quantity and allotment percentage for the 2014-2015 marketing year based on the information discussed above, as well as the summary data outlined below.

(A) Estimated 2014-2015 Native Allotment Base—2,371,350 pounds. This is the estimate on which the original 2014-2015 salable quantity and allotment percentage was based.

(B) Revised 2014-2015 Native Allotment Base—2,371,410 pounds. This is 60 pounds more than the estimated allotment base of 2,371,350 pounds. The difference is the result of annual adjustments made to the allotment base according to the provisions of the order.

(C) Original 2014-2015 Native Allotment Percentage—46 percent. This was unanimously recommended by the Committee on November 6, 2013.

(D) Original 2014-2015 Native Salable Quantity—1,090,821 pounds. This figure is 46 percent of the original estimated 2014-2015 allotment base of 2,371,350 pounds.

(E) Adjusted 2014-2015 Native Salable Quantity—1,090,849 pounds. This figure reflects the salable quantity actually available at the beginning of the 2014-2015 marketing year. This quantity is derived by applying the 46 percent allotment percentage to the revised allotment base of 2,371,410.

(F) Current Revision to the 2014-2015 Native Salable Quantity and Allotment Percentage:

(1) Increase in Native Allotment Percentage—8 percent. The Committee recommended an 8 percent increase at its November 5, 2014, meeting.

(2) 2014-2015 Native Allotment Percentage—54 percent. This figure is derived by adding the increase of 8 percent to the original 2014-2015 allotment percentage of 46 percent.

(3) Calculated Revised 2014-2015 Native Salable Quantity—1,280,561 pounds. This figure is 54 percent of the revised 2014-2015 allotment base of 2,371,410 pounds.

(4) Computed Increase in the 2014-2015 Native Salable Quantity—189,740 pounds. This figure is 8 percent of the revised 2014-2015 allotment base of 2,371,410 pounds.

(5) Expected Actual Increase in the 2014-2015 Native Spearmint Oil Available to the Market—148,715 pounds. This figure is based on the Committee's estimation of oil actually held in the reserve pool by producers that may enter the market as a result of this rule.

Scotch spearmint oil is also regulated by the order. As mentioned previously, a salable quantity and allotment percentage for Scotch spearmint oil was established in a final rule published in the Federal Register on May 8, 2014 (79 FR 26359) and subsequently increased in an interim rule published in the Federal Register on October 31, 2014 (79 FR 64657). At the November 5, 2014, meeting, the Committee considered the current production, inventory, and marketing conditions for Scotch spearmint oil. After receiving reports from the Committee staff and comments from the industry, the consensus of the Committee was that the previously increased salable quantity and allotment percentage for Scotch spearmint oil was appropriate for the current market conditions. As such, the Committee took no further action with regards to Scotch spearmint oil for the 2014-2015 marketing year.

This rule relaxes the regulation of Native spearmint oil and will allow producers to meet market demand while improving producer returns. In conjunction with the issuance of this rule, the Committee's revised marketing policy statement for the 2014-2015 marketing year has been reviewed by USDA. The Committee's marketing policy statement, a requirement whenever the Committee recommends implementing volume regulations or recommends revisions to existing volume regulations, meets the intent of § 985.50 of the order. During its discussion of revising the 2014-2015 salable quantities and allotment percentages, the Committee considered: (1) The estimated quantity of salable oil of each class held by producers and handlers; (2) the estimated demand for each class of oil; (3) the prospective production of each class of oil; (4) the total of allotment bases of each class of oil for the current marketing year and the estimated total of allotment bases of each class for the ensuing marketing year; (5) the quantity of reserve oil, by class, in storage; (6) producer prices of oil, including prices for each class of oil; and (7) general market conditions for each class of oil, including whether the estimated season average price to producers is likely to exceed parity. Conformity with USDA's “Guidelines for Fruit, Vegetable, and Specialty Crop Marketing Orders” has also been reviewed and confirmed.

The increase in the Native spearmint oil salable quantity and allotment percentage allows for anticipated market needs for that class of oil. In determining anticipated market needs, the Committee considered changes and trends in historical sales, production, and demand.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are 8 spearmint oil handlers subject to regulation under the order, and approximately 39 producers of Scotch spearmint oil and approximately 91 producers of Native spearmint oil in the regulated production area. Small agricultural service firms are defined by the Small Business Administration (SBA) as those having annual receipts of less than $7,000,000, and small agricultural producers are defined as those having annual receipts of less than $750,000 (13 CFR 121.201).

Based on the SBA's definition of small entities, the Committee estimates that only two of the eight handlers regulated by the order could be considered small entities. Most of the handlers are large corporations involved in the international trading of essential oils and the products of essential oils. In addition, the Committee estimates that 22 of the 39 Scotch spearmint oil producers and 29 of the 91 Native spearmint oil producers could be classified as small entities under the SBA definition. Thus, the majority of handlers and producers of Far West spearmint oil may not be classified as small entities.

The use of volume control regulation allows the spearmint oil industry to fully supply spearmint oil markets while avoiding the negative consequences of over-supplying these markets. Without volume control regulation, the supply and price of spearmint oil would likely fluctuate widely. Periods of oversupply could result in low producer prices and a large volume of oil stored and carried over to future crop years. Periods of undersupply could lead to excessive price spikes and could drive end users to source flavoring needs from other markets, potentially causing long-term economic damage to the domestic spearmint oil industry. The marketing order's volume control provisions have been successfully implemented in the domestic spearmint oil industry since 1980 and provide benefits for producers, handlers, manufacturers, and consumers.

This rule increases the quantity of Native spearmint oil that handlers may purchase from, or handle on behalf of, producers during the 2014-2015 marketing year, which ends on May 31, 2015. The 2014-2015 Native spearmint oil salable quantity was initially established at 1,090,821 pounds and the allotment percentage initially set at 46 percent. This rule increases the Native spearmint oil salable quantity to 1,280,561 pounds and the allotment percentage from 46 percent to 54 percent.

Based on the information and projections available at the November 5, 2014, meeting, the Committee considered a number of alternatives to this increase. The Committee not only considered leaving the salable quantity and allotment percentage unchanged, but also considered other potential levels of increase. The Committee reached its recommendation to increase the salable quantity and allotment percentage for Native spearmint oil after careful consideration of all available information and input from all interested industry participants, and believes that the levels recommended will achieve the objectives sought. Without the increase, the Committee believes the industry would not be able to satisfactorily meet market demand.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0178, Vegetable and Specialty Crop Marketing Orders. No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.

This rule will not impose any additional reporting or recordkeeping requirements on either small or large spearmint oil handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

In addition, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.

Further, the Committee's meeting was widely publicized throughout the spearmint oil industry, and all interested persons were invited to attend the meeting and participate in Committee deliberations. Like all Committee meetings, the November 5, 2014, meeting was a public meeting, and all entities, both large and small, were able to express their views on this issue. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/MarketingOrdersSmallBusinessGuide. Any questions about the compliance guide should be sent to Jeffrey Smutny at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

This rule invites comments on a change to the salable quantity and allotment percentage for Native spearmint oil for the 2014-2015 marketing year. Any comments received will be considered prior to finalization of this rule.

After consideration of all relevant material presented, including the Committee's recommendation, and other information, it is found that this interim rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) This rule increases the quantity of Native spearmint oil that may be marketed during the marketing year, which ends on May 31, 2015; (2) the current quantity of Native spearmint oil may be inadequate to meet demand for the 2014-2015 marketing year, thus making the additional oil available as soon as is practicable will be beneficial to both handlers and producers; (3) the Committee recommended these changes at a public meeting and interested parties had an opportunity to provide input; and (4) this rule provides a 60-day comment period, and any comments received will be considered prior to finalization of this rule.

For the reasons set forth in the preamble, 7 CFR part 985 is amended as follows:

Section 218(a) of the Nuclear Waste Policy Act (NWPA) of 1982, as amended, requires that “the Secretary [of the Department of Energy] shall establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at civilian nuclear power reactor sites, with the objective of establishing one or more technologies that the [Nuclear Regulatory] Commission may, by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission.” Section 133 of the NWPA states, in part, that [the Commission] shall, by rule, establish procedures for the licensing of any technology approved by the Commission under Section 219(a) [sic: 218(a)] for use at the site of any civilian nuclear power reactor.”

To implement this mandate, the Commission approved dry storage of spent nuclear fuel in NRC-approved casks under a general license by publishing a final rule in part 72 of Title 10 of the Code of Federal Regulations (10 CFR), ”Licensing Requirements for the Independent Storage of Spent Nuclear Fuel, High-Level Radioactive Waste, and Reactor-Related Greater Than Class C Waste,” which added a new subpart K within 10 CFR part 72 entitled, “General License for Storage of Spent Fuel at Power Reactor Sites” (55 FR 29181; July 18, 1990). This rule also established a new subpart L within 10 CFR part 72 entitled, “Approval of Spent Fuel Storage Casks,” which contains procedures and criteria for obtaining NRC approval of spent fuel storage cask designs. The NRC subsequently issued a final rule (68 FR 463; January 6, 2003) that approved the Standardized Advanced NUHOMS® Cask System design and added it to the list of NRC-approved cask designs in 10 CFR 72.214, “List of approved spent fuel storage casks,” as CoC No. 1029.

On December 15, 2011, Transnuclear, Inc. submitted an application to amend the NUHOMS® Storage System. Amendment No. 3 adds a new transportable dry shielded canister (DSC), the 32PTH2, to the NUHOMS® Storage System; and makes editorial corrections. The NUHOMS® 32PTH2 system is designed to accommodate up to 32 intact (or up to 16 damaged and the balance intact) pressurized water reactor (PWR), Combustion Engineering (CE), 16 × 16 class spent fuel assemblies, with or without control components. The NUHOMS® 32PTH2 system also consists of a modified version of the Standardized NUHOMS® Advanced Horizontal Storage Module (AHSM), designated the AHSM-HS (high burnup and high seismic).

Numerous sections of the Technical Specifications (TSs) were revised to add and update characteristics, specifications, and requirements related to the 32PTH2 DSC and the AHSM-HS storage module. Additional changes were made to definitions and other sections to improve completeness, consistency, and clarity. Revised sections are indicated by side bars in the TSs.

As documented in the Safety Evaluation Report (SER) (ADAMS Accession No. ML14317A616), the NRC staff performed a detailed safety evaluation of the proposed CoC amendment request. There are no significant changes to cask design requirements in the proposed CoC amendment. Considering the specific design requirements for each accident condition, the design of the cask would prevent loss of containment, shielding, and criticality control. If there is no loss of containment, shielding, or criticality control, the environmental impacts would be insignificant. This amendment does not reflect a significant change in design or fabrication of the cask. In addition, any resulting occupational exposure or offsite dose rates from the implementation of Amendment No. 3 would remain well within the limits of 10 CFR part 20, “Standards for Protection Against Radiation.” Therefore, the CoC changes will not result in any radiological or non-radiological environmental impacts that significantly differ from the environmental impacts evaluated in the environmental assessment supporting the July 18, 1990, final rule (55 FR 29181) that amended 10 CFR part 72 to provide for the storage of spent fuel under a general license in cask designs approved by the NRC. There will be no significant change in the types or significant revisions in the amounts of any effluent released, no significant increase in the individual or cumulative radiation exposure, and no significant increase in the potential for or consequences from radiological accidents from those analyzed in that environmental assessment.

This final rule revises the NUHOMS® Storage System listing in 10 CFR 72.214 by adding Amendment No. 3 to CoC No. 1029. The amendment consists of the changes previously described, as set forth in the revised CoC and TSs. The revised TSs are identified in the SER. The amended NUHOMS® Storage System design, when used under the conditions specified in the CoC, the TSs, and the NRC's regulations, will meet the requirements of 10 CFR part 72; therefore, adequate protection of public health and safety will continue to be ensured. When this final rule becomes effective, persons who hold a general license under 10 CFR 72.210, “General license issued,” may load spent nuclear fuel into NUHOMS® Storage Systems that meet the criteria of Amendment No. 3 to CoC No. 1029 under 10 CFR 72.212, “Conditions of general license issued under § 72.210.”

The NRC received 17 comments from private citizens, and 1 comment from 2 attorneys representing 20 environmental organizations and individuals. The NRC received two comments from private citizens after the public comment period ended.

The NRC has not made any changes to the Proposed rule as a result of the public comments NRC has received. The following is a summary of the comments and the NRC responses.

Comment:

Several commenters stated that the NRC should not lower safety standards by approving this new canister. No specifics were provided.

Response:

The NRC is not lowering its safety standards. The staff performed an independent safety evaluation of Amendment No. 3 to the Standardized Advanced NUHOMS® System to ensure that it meets the regulations in 10 CFR part 72. The results of the staff's independent safety evaluation are described in the SER (ADAMS Accession No. ML14317A616).

The comment is not substantive enough to aid the NRC in understanding any impact upon the NRC's safety review, the technical specifications, or the NRC's conclusions on this particular amendment. Additionally, the NRC staff concluded that there would be no significant environmental impacts as confirmed in the direct final rule, Section VII, “Finding of No Significant Environmental Impact: Availability.” This comment does not challenge that finding because, as the environmental assessment explained, this amendment to the rule will not result in any significant change in the types or significant revisions in the amounts of any effluent released, no significant increase in the individual or cumulative radiation exposure, and no significant increase in the potential for or consequences from radiological accidents. This amendment continues to ensure that the Commission's regulations regarding dose rates, found in 10 CFR part 20, are maintained.

Comment:

Two commenters demanded that the NRC should “get rid” of stored spent fuel. No specifics were provided.

Response:

The NRC staff reviewed the comments, and concluded that they are not significant and adverse as defined in NUREG/BR-0053, Revision 6, “United States Nuclear Regulatory Commission Regulations Handbook” (hereinafter “Regulations Handbook”) (ADAMS Accession No. ML052720461), as they are beyond the scope of this rulemaking. Instead, these comments raise generic concerns regarding the use of any spent fuel storage casks and are not specific to any issue or concern with the amendment to the cask certificate that is the subject of this rulemaking effort.

Comment:

One commenter stated that under no circumstances should nuclear regulations be lowered for the sake of increasing the density of stored high spent fuel and saving money.

Response:

The NRC is not lowering its nuclear regulations. The staff performed an independent safety evaluation of Amendment No. 3 to the Standardized Advanced NUHOMS® System to ensure that it meets the regulations in 10 CFR part 72. The results of the staff's independent safety evaluation are described in the SER (ADAMS Accession No. ML14317A616). The comment is not substantive enough to aid the NRC in understanding any impact upon the NRC's safety review, the technical specifications, or the NRC's conclusions on this particular amendment. Additionally, the NRC staff concluded that there would be no significant environmental impacts as confirmed in the direct final rule, Section VII, “Finding of No Significant Environmental Impact: Availability.” This comment does not challenge that finding because, as the environmental assessment explained, this amendment to the rule will not result in any significant change in the types or significant revisions in the amounts of any effluent released, no significant increase in the individual or cumulative radiation exposure, and no significant increase in the potential for or consequences from radiological accidents. This amendment continues to ensure that the Commission's regulations regarding dose rates, found in 10 CFR part 20, are maintained.

Comment:

One commenter stated the high burn up fuel is an extremely “hot” type of spent fuel, would require re-casking, which has never been attempted, and that approval should be given only after re-casking is achieved.

Response:

The NRC staff reviewed this comment and concluded it is not a significant adverse comment as defined in the Regulations Handbook, as it is beyond the scope of this rulemaking. Instead, this comment raises a generic concern regarding the safety of high burnup fuel and its storage in spent fuel storage casks, and is not specific to any issue or concern with the amendment to the cask certificate that is the subject of this rulemaking. Although the ability of the Standardized Advanced NUHOMS® storage system to store high burnup fuel has not been previously authorized (it is now being authorized in the 32PTH2 DSC), the ability of a similar TN system, the Standardized NUHOMS® system (CoC No. 1004), to store high burnup fuel for 20 years was authorized in Amendment No. 6. The final rule approving that amendment was published in the Federal Register on December 17, 2003 (68 FR 70121).

Comment:

Several commenters stated that the NRC should not approve storing 32 fuel assemblies in a space originally designed for 24 fuel assemblies, with some of the comments raising concerns about a potential increased risk associated with the increased number of fuel assemblies.

Response:

The 32PTH2 is a new design, specifically intended to store 32 fuel assemblies. It is not a modification to the 24PT1 or 24PT4 for storage of 32 spent fuel assemblies in a 24 assembly cask. Although the ability of the Standardized Advanced NUHOMS® storage system to store 32 PWR assemblies has not been previously authorized (it is now being authorized in the 32PTH2 DSC), the ability of a similar TN system, the Standardized NUHOMS® system (CoC No. 1004), to store 32 PWR assemblies in the 32PT DSC for 20 years was authorized in Amendment No. 5. The final rule approving that amendment was published in the Federal Register on January 7, 2004 (69 FR 849). A similar DSC, the 32PTH1, was also approved under CoC No. 1004, and authorized in Amendment No. 10. The final rule approving that amendment was published in the Federal Register on June 10, 2009 (74 FR 24769). In addition, the ability of another similar TN system, the NUHOMS® HD Horizontal Modular System is authorized to store 32 PWR assemblies in the 32PTH DSC for 20 years. The final rule approving the initial certificate was published in the Federal Register on December 11, 2006 (71 FR 71463). For every system authorized, whether it is for storage of 24 PWR assemblies, 32 PWR assemblies, or 37 PWR assemblies (for example), staff performs a comprehensive review to ensure that the system maintains sub-criticality, provides adequate radiation shielding and confinement, provides adequate heat removal, and can store the spent fuel safely during the approved storage term; in accordance with the requirements of 10 CFR part 72.

Comment:

One commenter noted that the definition of damaged fuel has been changed for the 32PTH2.

Response:

With the addition of the 32PTH2 DSC, a definition for a damaged fuel assembly specific to the 32PTH2 was added. The new definition is the same as the existing definition, for the 24PT1 and the 24PT4, except that it adds a requirement that the damaged fuel assembly must be able to be handled by normal means. According to the TS, all damaged fuel assemblies loaded in 24PT1 or 24PT4 DSCs are required to be encapsulated in failed fuel cans, and are limited to specific loading zones. In contrast, the damaged fuel assemblies loaded in the 32PTH2 must be able to be handled by normal means because they are not required to be encapsulated in failed fuel cans. Instead, the DSC fuel compartments that can store damaged fuel assemblies in the 32PTH2 are provided with top and bottom end caps, and the damaged fuel assemblies are limited to specific fuel compartments. Note that in both cases, fuel assemblies with damage greater than the definition are not authorized for storage.

Comment:

One commenter stated that storage ought to be above ground, so that we all remember to keep replacing the encasements.

Response:

The Advanced Standardized NUHOMS® Dry Storage System is an above ground system. Note also that all approved dry storage systems are required to be monitored, and that any system that is renewed is also subject to aging management programs which monitor and control age related degradation to the structures, systems and components important to safety.

Comment:

Two attorneys stated, on behalf of 20 environmental organizations and individuals, that in publishing this direct final rule, the NRC violated the requirements of the Atomic Energy Act and the Administrative Procedures Act for public participation in the NRC decisions affecting public safety and the environment. They also stated that the direct final rule Federal Register notice is grossly misleading, and appears designed to lull the public into a false sense of confidence.

Response:

The NRC has not violated the requirements of the Atomic Energy Act and the Administrative Procedures Act for public participation. As explained in the Regulations Handbook, the direct final rule process may be used where the agency believes a rule is noncontroversial and significant adverse comments will not be received. This process allows the agency to issue the rule without having to go through the review process twice, at the proposed and final rule stages, while at the same time offering the public the opportunity to challenge the agency's view that the rule is noncontroversial. The NRC published, on the same day as the direct final rule, a Federal Register notice for a proposed rule on the CoC amendment in the event the NRC did receive significant adverse comments on the rule. The NRC has, for many years, adhered to this procedure in all its CoC direct final rules, and as demonstrated in this instance, this process does provide the ability of the public to participate in this process.

Comment:

The same commenters also stated that contrary to the NRC assurances that the rule is limited, routine, noncontroversial, and protects the public and the environment from radiological accidents, the rule approves a significant and unprecedented change in the permissible use of 32PTH2 DSC: the transportation of high burnup fuel.

Response:

The rule does not approve the 32PTH2 DSC for transportation of high burnup fuel. The direct final rule is for approval of the 32PTH2 DSC for storage only. While TN's naming convention of including a “T” in the DSC type designator indicates its intention that the 32PTH2 could eventually be authorized for transport, it in no way indicates that the 32PTH2 has been approved for transport. In order for the 32PTH2 DSC to be approved for transportation of high burnup fuel, or any other spent fuel, TN would have to submit an application to the NRC under 10 CFR part 71, which would need to be reviewed and approved in a new and entirely separate process from the current subject approval for the storage of spent nuclear fuel. The 32PTH2 DSC has not been reviewed and approved for spent fuel transportation under 10 CFR part 71. Transnuclear, Inc., does have approved transportation certificates that authorize transportation for some of its DSCs (not including the 32PTH2) under this storage CoC (No. 1029) and others, and some of those DSCs are approved for transportation of high burnup fuel (CoCs 71-9255 and 71-9302). However, this is a completely separate review and approval process.

The SER has been revised to explicitly state that the 32PTH2 DSC has not been certified under 10 CFR part 71 for use in transportation.

Comment:

Many of the comments were related to the potential use of the new 32PTH2 DSC at the San Onofre Nuclear Generating Station (SONGS). The commenters were generally opposed to storage of spent nuclear fuel in the 32PTH2 DSC at SONGS, some because of the higher number of fuel assemblies that could be stored in this DSC; SONGS is currently using the 24PT1 and 24PT4 DSCs (already approved under CoC No. 1029), which hold 24 fuel assemblies each. Other commenters in this group prefer that the spent fuel not be stored onsite at all; they recommend instead that the spent fuel be transported off site immediately. One commenter in this group expressed concerns about accident analyses used for review and approval of spent fuel storage systems in relation to conditions at SONGS, and recommended leaving the spent fuel in spent fuel pools, rather than moving it to dry storage. A supplement to this comment also considered storing the spent fuel in the reactor containment building. Several of the commenters also expressed concerns about the wild fires in California in relation to SONGS spent fuel storage, and one commenter requested that the approval of the 32PTH2 DSC for storage be amended to specifically preclude its use at SONGS.

Response:

The NRC staff reviewed the comments in this group, and concluded that they are not significant and adverse comments as defined in the Regulations Handbook, as they are beyond the scope of this rulemaking. Instead, these comments raise a generic concern regarding potential use of the 32PTH2 DSC at a single, particular site SONGS, and do not raise any specific issue or concern with the amendment to the cask certificate that is the subject of this rulemaking. The NRC staff is aware that SONGS has expressed interest in storing spent nuclear fuel in the 32PTH2 DSC, once it is approved. The regulations for the general license in 10 CFR part 72 allow the use of any approved canisters under 10 CFR 72.214 by any general licensee, however, the cask used by the general licensee must conform to the terms, conditions, and specifications of a CoC or an amended CoC listed in § 72.214. Additionally, under 10 CFR 72.212, a general licensee is required to perform evaluations that document that the chosen cask, once loaded, will meet the requirements of the CoC and TS, and that the reactor site parameters (including analyses of earthquake intensity and tornado missiles) are enveloped by the cask design bases as described in the applicant's safety analysis report and the staff's SER. Further, the cask storage areas must be designed to adequately support the static and dynamic loads of the stored casks, considering possible earthquake effects, and the general licensee must protect the stored spent fuel against the design basis threat of radiological sabotage.

The National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this final rule, the NRC revises the NUHOMS® Storage System design listed in 10 CFR 72.214. This action does not constitute the establishment of a standard that contains generally applicable requirements.

Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the Commission on June 30, 1997, and published in the Federal Register on September 3, 1997, this final rule is classified as Compatibility Category “NRC.” Compatibility is not required for Category “NRC” regulations. The NRC program elements in this category are those that relate directly to areas of regulation reserved to the NRC by the Atomic Energy Act of 1954, as amended, or the provisions of 10 CFR. Although an Agreement State may not adopt program elements reserved to the NRC, it may wish to inform its licensees of certain requirements via a mechanism that is consistent with the particular State's administrative procedure laws, but does not confer regulatory authority on the State.

The Plain Writing Act of 2010 (Pub. L. 111-274), requires Federal agencies to write documents in a clear, concise, well-organized manner that also follows other best practices appropriate to the subject or field and the intended audience. The NRC has attempted to use plain language in promulgating this rule consistent with the Federal Plain Writing Act guidelines.

The action is to amend 10 CFR 72.214 to revise the Transnuclear, Inc. NUHOMS® Storage System listing within the “List of Approved Spent Fuel Storage Casks” to include Amendment No. 3 to CoC No. 1029. Under the National Environmental Policy Act of 1969, as amended, and the NRC's regulations in subpart A of 10 CFR part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions,” the NRC has determined that this rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required. The NRC has made a finding of no significant impact on the basis of this environmental assessment.

This final rule amends the CoC for the Transnuclear, Inc. NUHOMS® Storage System design within the list of approved spent fuel storage casks that power reactor licensees can use to store spent fuel at reactor sites under a general license. Specifically, Amendment No. 3 adds a new transportable DSC, 32PTH2, to the NUHOMS® Storage System; and makes editorial corrections.

On July 18, 1990 (55 FR 29181), the NRC issued an amendment to 10 CFR part 72 to provide for the storage of spent fuel under a general license in cask designs approved by the NRC. The potential environmental impact of using NRC-approved storage casks was initially analyzed in the environmental assessment for the 1990 final rule. The environmental assessment for this Amendment No. 3 tiers off of the environmental assessment for the July 18, 1990, final rule. Tiering on past environmental assessments is a standard process under the National Environmental Policy Act.

NUHOMS® Storage Systems are designed to mitigate the effects of design basis accidents that could occur during storage. Design basis accidents account for human-induced events and the most severe natural phenomena reported for the site and surrounding area. Postulated accidents analyzed for an Independent Spent Fuel Storage Installation, the type of facility at which a holder of a power reactor operating license would store spent fuel in casks in accordance with 10 CFR part 72, include tornado winds and tornado-generated missiles, a design basis earthquake, a design basis flood, an accidental cask drop, lightning effects, fire, explosions, and other incidents.

Considering the specific design requirements for each accident condition, the design of the cask would prevent loss of containment, shielding, and criticality control. If there is no loss of containment, shielding, or criticality control, the environmental impacts would be insignificant. This amendment does not reflect a significant change in design or fabrication of the cask. There are no significant changes to cask design requirements in the proposed CoC amendment. In addition, because there are no significant design or process changes, any resulting occupational exposure or offsite dose rates from the implementation of Amendment No. 3 would remain well within the 10 CFR part 20 limits. Therefore, the proposed CoC changes will not result in any radiological or non-radiological environmental impacts that significantly differ from the environmental impacts evaluated in the environmental assessment supporting the July 18, 1990, final rule. There will be no significant change in the types or significant revisions in the amounts of any effluent released, no significant increase in the individual or cumulative radiation exposure, and no significant increase in the potential for or consequences from radiological accidents. The staff documented its safety findings in an SER which is available in ADAMS under Accession No. ML14317A616.

The alternative to this action is to deny approval of Amendment No. 3 and end the final rule. Consequently, any 10 CFR part 72 general licensee that seeks to load spent nuclear fuel into NUHOMS® Storage Systems in accordance with the changes described in proposed Amendment No. 3 would have to request an exemption from the requirements of 10 CFR 72.212 and 72.214. Under this alternative, interested licensees would have to prepare, and the NRC would have to review, a separate exemption request, thereby increasing the administrative burden upon the NRC and the costs to each licensee. Therefore, the environmental impacts would be the same or less than the action.

Approval of Amendment No. 3 to CoC No. 1029 would result in no irreversible commitments of resources.

No agencies or persons outside the NRC were contacted in connection with the preparation of this environmental assessment.

The environmental impacts of the action have been reviewed under the requirements in 10 CFR part 51. Based on the foregoing environmental assessment, the NRC concludes that this final rule entitled, “List of Approved Spent Fuel Storage Casks: Standardized Advanced NUHOMS® Horizontal Modular Storage System, Amendment No. 3,” will not have a significant effect on quality of the human environment. Therefore, the NRC has determined that an environmental impact statement is not necessary for this final rule.

This rule does not contain any information collection requirements and, therefore, is not subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a current valid Office of Management and Budget (OMB) control number.

On July 18, 1990 (55 FR 29181), the NRC issued an amendment to 10 CFR part 72 to provide for the storage of spent nuclear fuel under a general license in cask designs approved by the NRC. Any nuclear power reactor licensee can use NRC-approved cask designs to store spent nuclear fuel if it notifies the NRC in advance, the spent fuel is stored under the conditions specified in the cask's CoC, and the conditions of the general license are met. A list of NRC-approved cask designs is contained in 10 CFR 72.214. The NRC issued a final rule (68 FR 463; January 6, 2003) that approved the Standardized Advanced NUHOMS® Cask System design and added it to the list of NRC-approved cask designs in 10 CFR 72.214 “List of approved spent fuel storage casks,” as CoC No. 1029.

On December 15, 2011 (ADAMS Accession No. ML120040478), Transnuclear, Inc. submitted an application to amend the NUHOMS® Storage System.

The alternative to this action is to withhold approval of Amendment No. 3 and to require any 10 CFR part 72 general licensee seeking to load spent nuclear fuel into the NUHOMS® Storage Systems under the changes described in Amendment No. 3 to request an exemption from the requirements of 10 CFR 72.212 and 72.214. Under this alternative, each interested 10 CFR part 72 licensee would have to prepare, and the NRC would have to review separate exemption requests, thereby increasing the administrative burden upon the NRC and the costs to each licensee.

Approval of this final rule is consistent with previous NRC actions. Further, as documented in the SER and the environmental assessment, the final rule will have no adverse effect on public health and safety or the environment. This final rule has no significant identifiable impact or benefit on other Government agencies. Based on this regulatory analysis, the NRC concludes that the requirements of the final rule are commensurate with the NRC's responsibilities for public health and safety and the common defense and security. No other available alternative is believed to be as satisfactory, and therefore, this action is recommended.

Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the NRC certifies that this rule will not, if issued, have a significant economic impact on a substantial number of small entities. This final rule affects only nuclear power plant licensees and Transnuclear, Inc. These entities do not fall within the scope of the definition of small entities set forth in the Regulatory Flexibility Act or the size standards established by the NRC (10 CFR 2.810).

The NRC has determined that the backfit rule (10 CFR 72.62) does not apply to this final rule. Therefore, a backfit analysis is not required. This final rule revises the CoC No. 1029 for the Transnuclear, Inc. NUHOMS® Storage System, as currently listed in 10 CFR 72.214, “List of Approved Spent Fuel Storage Casks.” The revision consists of Amendment No. 3 which adds a new transportable DSC, 32PTH2, to the NUHOMS® Storage System; and makes editorial corrections.

Amendment No. 3 to CoC No. 1029 for the Transnuclear, Inc. NUHOMS® Storage System was initiated by Transnuclear, Inc. and was not submitted in response to new NRC requirements, or an NRC request for amendment. Amendment No. 3 applies only to new casks fabricated and used under Amendment No. 3. These changes do not affect existing users of the NUHOMS® Storage System, and the current Amendments continue to be effective for existing users. While current CoC users may comply with the new requirements in Amendment No. 3, this would be a voluntary decision on the part of current users. For these reasons, Amendment No. 3 to CoC No. 1029 does not constitute backfitting under 10 CFR 72.62, 10 CFR 50.109(a)(1), or otherwise represent an inconsistency with the issue finality provisions applicable to combined licenses in 10 CFR part 52. Accordingly, no backfit analysis or additional documentation addressing the issue finality criteria in 10 CFR part 52 has been prepared by the staff.

In accordance with the Congressional Review Act of 1996 (5 U.S.C. 801-808), the NRC has determined that this action is not a rule as defined in the Congressional Review Act.

The documents identified in the following table are available to interested persons through one or more of the following methods, as indicated.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR part 72.

Discussion

On December 10, 2014, we issued Emergency AD 2014-25-51, which requires revising the airplane flight manual to advise the flightcrew of emergency procedures for abnormal Alpha Prot. This emergency AD was sent previously to all known U.S. owners and operators of these airplanes.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued Emergency Airworthiness Directive 2014-0266-E, dated December 9, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition on all Model A318, A319, A320, and A321 series airplanes. The MCAI states:

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

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because an abnormal Alpha Prot, if not corrected, could result in loss of control of the airplane. Therefore, we find that notice and opportunity for prior public comment are impracticable and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2014-0924 and Directorate Identifier 2014-NM-228-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

We estimate that this AD affects 953 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:

On December 16, 2014, we issued Emergency AD 2014-26-53, which requires repetitive detailed visual inspections to detect discrepancies of the wing lower skin surface and inboard MLG support rib lower flange location fasteners and, depending on findings, accomplishment of applicable corrective action(s). Corrective actions include fastener replacement or repair. This emergency AD was sent previously to all known U.S. owners and operators of these airplanes.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued Airworthiness Directive 2014-0270R1, dated December 15, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition on certain Airbus Model A319-115, A319-133, A320-214, A320-232, and A320-233 airplanes. The MCAI states:

Airbus has issued Airbus Alert Operators Transmission (AOT) A57N006-14, Revision 00, dated December 4, 2014. The service information describes procedures for inspections of the bottom skin fasteners at the MLG rib 5 footprint location, and replacement of affected fasteners. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. You can find this information at http://www.regulations.gov by searching for and locating Docket No. FAA-2014-0927.

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

EASA Airworthiness Directive 2014-0270-E, dated December 11, 2014, specifies to do repetitive detailed visual inspections of the outboard MLG support rib lower flange fasteners and nuts. However, these inspections are not required by this AD. Since the specified compliance time is four months, we are considering further rulemaking to require those inspections.

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because discrepancies of the fasteners at the external surface of the lower wing skin and inboard MLG support rib lower flange could result in an airplane not meeting its maximum loads expected in-service. This condition could result in structural failure. Therefore, we find that notice and opportunity for prior public comment are impracticable and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2014-0927 and Directorate Identifier 2014-NM-230-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

We estimate that this AD affects 80 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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

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

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

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 2011-09-11, Amendment 39-16673 (76 FR 24354, May 2, 2011). AD 2011-09-11 applied to The Boeing Company Model 777-200 and - 300 series airplanes equipped with Pratt and Whitney engines. The NPRM published in the Federal Register on August 26, 2014 (79 FR 50877).

We gave the public the opportunity to participate in developing this AD. We have considered the comments received. United Airlines and Boeing supported the NPRM (79 FR 50877, August 26, 2014).

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

• Are consistent with the intent that was proposed in the NPRM (79 FR 50877, August 26, 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 50877, August 26, 2014).

We estimate that this AD affects 54 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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

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

On December 10, 2014, we issued Emergency AD 2014-25-52, which requires revising the airplane flight manual to advise the flightcrew of emergency procedures for abnormal Alpha Prot. This emergency AD was sent previously to all known U.S. owners and operators of these airplanes.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued Emergency Airworthiness Directive 2014-0267-E, dated December 9, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition on all Airbus Model A330-200 Freighter, -200, and -300 series airplanes and Model A340-200, -300, -500, and -600 series airplanes. The MCAI states:

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

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because an abnormal Alpha Prot, if not corrected, could result in loss of control of the airplane. Therefore, we find that notice and opportunity for prior public comment are impracticable and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2014-0925 and Directorate Identifier 2014-NM-229-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

We estimate that this AD affects 91 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:

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to add an AD that would apply to certain Mitsubishi Heavy Industries, Ltd. (MHI) Models MU-2B-30, MU-2B-35, MU-2B-36, MU-2B-36A, and MU-2B-60 airplanes. The NPRM was published in the Federal Register on February 26, 2014 (79 FR 10710). The NPRM proposed to correct an unsafe condition for the specified products and was based on mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country.

The Japan Civil Aviation Bureau (JCAB), which is the aviation authority for Japan, has issued AD No. TCD-8231-2013, dated August 6, 2013 (referred to after this as “the MCAI”), to correct an unsafe condition for certain MHI Models MU-2B-30, MU-2B-35, and MU-2B-36 airplanes. You may examine the MCAI on the Internet at http://www.regulations.gov/#!documentDetail;D=FAA-2014-0108-0002.

The JCAB has informed us that as part of the MHI continuing aging aircraft program, Models MU-2B-30, MU-2B-35, and MU-2B-36 airplanes were subjected to detailed teardown inspections. During the inspections, structural cracks in the flanges of some long body airplane frames were found at frame station (STA) 4610 and STA 5605. It has been determined that the structural cracks resulted from stress corrosion.

Japan is the State of Design for (MHI Models MU-2B-30, MU-2B-35, and MU-2B-36, which the MCAI applies to, and the United States is the State of Design for MHI Models MU-2B-36A and MU-2B-60 airplanes. Since the Models MU-2B-36A and MU-2B-60 airplanes are of similar type design, the same structural cracks could exist.

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

Mike Ciholas and seven others stated that they need more time for discussions at seminars and to obtain more information from MHI and Turbine Aircraft Services.

The commenters requested the comment period be extended to allow for more time to gather and analyze data.

We do not agree with the commenters. We have considered the request and have determined sufficient evidence and data exist, specifically information recently from MHI on the inspections of 18 of the 119 airplanes in the U.S. fleet that indicate that 8 of them were cracked. Out of these eight, four have been removed from service. Based on the data presented in the NPRM and this more detailed information provided by MHI, the location of cracks, and the cause of cracking (stress corrosion), we have concluded that the inspections are necessary to address the unsafe condition.

We have not changed the final rule AD action based on this comment.

Mike Ciholas and eight others stated that the unsafe condition addressed in the proposed AD be handled as part of routine inspections. The commenters stated that there has never been any incident, accident, injury, or fatality attributed to this issue despite the millions of flight hours the MU-2B airplane has accumulated, including those hours that some airplanes have flown with a crack present. There has never been any damage to any airplane from this issue. None of the subject parts have failed to perform in service, cracked or otherwise.

Mark James of Intercontinental Jet Service Corp. and two others stated that there have been no failures in the airframes.

The commenters requested that the proposed AD be withdrawn.

We do not agree with the commenters. While there have been no failures to date, the stress corrosion cracking exhibited is in primary load structure. Upon crack initiation, the frames will have diminished load carrying capabilities, which will propagate over time, potentially leading to failure. Although previous inspection requirements specify visual inspection of all frames, no instruction was provided for accessing the difficult to reach areas where the subject cracks have been found. In addition, we are issuing this AD to address the unsafe condition and prevent such failures of this airplane.

We have not changed the final rule AD action based on this comment.

David Klain and six others stated that they wanted the FAA to hold the proposed AD in abeyance and request additional data from the manufacturer, service centers, and the owner/operator community. At the very least, all inspections completed to date should be considered and an evaluation made as to what specifically is causing these cracks, other than the simple fact these are MU-2 long body airplanes. Additional data can be collected from ongoing inspections conducted in accordance with the maintenance manual as well. Once that data is collected, an informed decision based on facts instead of speculation can be made.

The commenters requested that we delay issuing the final rule AD action.

We do not agree with the commenters. We have considered the request to delay issuing the final rule AD action and have determined that sufficient evidence and data exist, specifically information recently from MHI on the inspections of 18 of the 119 airplanes in the U.S. fleet that indicate that 8 of them were cracked. Out of these eight, four have been removed from service. Based on the data presented in the NPRM and this more detailed information provided by MHI, the location of cracks, and the cause of cracking (stress corrosion), we have concluded that the inspections are necessary to address the unsafe condition. Further delay of the final rule AD action would allow a known unsafe condition to exist without AD action to address it.

We have not changed the final rule AD action based on this comment.

David Klain and three others stated that the Mitsubishi Service Centers have indicated that the time and cost estimates detailed in the proposed AD are not accurate and do not reflect the actual higher costs and time necessary to complete the inspection based on the inspections completed to date.

The commenters requested a change to the Cost of Compliance section.

We do not agree with the commenters. The cost provided by the original equipment manufacturer (OEM) is a rough order of magnitude estimate based on available information and standardized cost evaluation methods.

We have not changed the final rule AD action based on this comment.

David Klain and three others stated that the proposed AD is based on non-representative airframes. The proposed AD was derived from a service bulletin that originated from inspections of a limited, non-representative sample of airframes that have been removed from service and represent the worst possible scenario with regards to airframe stress (freighters).

The commenters stated that since Special Airworthiness Information Bulletin (SAIB) No. CE-03-26, dated February 28, 2003 (which can be found at http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgSAIB.nsf/(LookupSAIBs)/CE-03-26?OpenDocument ), three additional airplanes with a total airframe time and operational use (non-freighter) that is more representative of the fleet have been inspected at several service centers and not a single plane exhibited the cracks in question. The commenters stated, based on these findings, there is a situation where a very small sample size may give some indication there is a correlation between total time and/or airplane utilization (freighters with heavy takeoff/landing weights and many cycles) and the cracks in question, but further empirical data is likely necessary to draw any firm conclusions.

The commenters also stated that the costly inspection goes against the FAA's mandate to encourage and promote aviation by potentially mandating a costly inspection that would result in the decommissioning of perfectly safe and flyable airplanes for no reason other than the high cost of an inspection mandated by the FAA without any engineering data to support such inspections.

We infer that the commenters believe that the final rule AD action is unnecessary and want the proposed AD withdrawn.

We do not agree with the commenters. More detailed information from MHI on the inspections of 18 of the 119 airplanes in the U.S. fleet indicate that 8 of them were cracked of which 5 were used as freighters. Out of these eight, four have been removed from service. Based on the data presented in the NPRM and this more detailed information provided by MHI, the location of cracks, and the cause of cracking (stress corrosion), we have concluded that the inspections are necessary to address the unsafe condition.

The OEM has also provided the time and cost information presented in this final rule AD action.

We have not changed the final rule AD action based on this comment.

Richard Wheldon and one other commenter stated that there is a less expensive repair available to the owners/operators of the affected airplanes.

The commenters stated that the repairs specified in the Mitsubishi Heavy Industries, Ltd. (MHI Ltd.) MU-2 Service Bulletins No. 231, dated July 2, 1997, and No. 073/53-002B, dated April 27, 1999, involve doublers and are much less intrusive and less labor intensive. The repairs in MHI Ltd. MU-2 Service Bulletins No. 242, dated July 10, 2013, and No. 104/53-003, dated July 22, 2013, involve large splices and/or frame segment replacements, which are very costly. It is not explained why the less expensive methods were not proposed. In discussions with experienced sheet metal mechanics and structures engineers, they expressed that other repair schemes are possible that adequately address any safety concerns and are much less costly.

Many of the cracks found at the lower sections of the bottom frame segments might be repairable using doublers rather than replacing the entire lower frame segments, which is the only solution allowed in the proposed AD. Obviously, the replacement of an entire lower frame segment is a huge, potentially unnecessary undertaking involving considerable assembly and disassembly. Any conventional solution short of frame segment replacement should be investigated.

The commenters also stated that an operator is not allowed to repair the side frame segments per MHI Ltd. MU-2 Service Bulletins No. 231, dated July 2, 1997, and No. 073/53-002B, dated April 27, 1999, and still be in compliance with the proposed AD. The only solution to a side frame crack allowed per MHI Ltd. MU-2 Service Bulletins No. 242, dated July 10, 2013, and No. 104/53-003, dated July 22, 2013, is the much more expensive replacing of the side frame segment.

The commenters requested compliance based on MHI Ltd. MU-2 Service Bulletins No. 231, dated July 2, 1997, and No. 073/53-002B, dated April 27, 1999, at a minimum, be permitted in the final rule AD action.

We do not agree with the commenters. MHI Ltd. MU-2 Service Bulletins No. 231, dated July 2, 1997, and No. 073/53-002B, dated April 27, 1999, require inspecting for cracks that are specifically located around rivet holes. The service bulletins specified in this AD require inspecting for cracks in a different area, specifically throughout the frame flanges.

If lower cost repair methods exist that meet the intent of the proposed AD, you may propose an alternative method of compliance or a change in the compliance time that provides an acceptable level of safety using the procedures found in 14 CFR 39.19.

We have not changed the final rule AD action based on this comment.

David Klain and one other commenter stated that the proposed AD does not accurately consider what the causal factors are that may have caused the cracks in question (airframe age, cycles, total time, utilization as freighters, etc.) due to lack of adequate representative data.

The commenters requested the FAA to further investigate the cause of the cracks.

We do not agree with the commenters. We have evaluated the data provided and have determined that the cause of cracking is stress corrosion. We have determined that is sufficient evidence and data of an unsafe condition and we should proceed with issuing the final rule AD action.

We have not changed the final rule AD action based on this comment.

Mark James of Intercontinental Jet Service Corp. stated that the inspections introduced and recommended in SAIB No. CE-03-26, dated February 28, 2003, which can be found at http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgSAIB.nsf/(LookupSAIBs)/CE-03-26?OpenDocument , should be sufficient to cover inspections required from this AD because the stresses are the same.

The commenter stated that the inspection criteria in the proposed AD require inspection of a different location of these same frames and the fact is that the frame materials and stresses are the same.

We infer that the commenter believes the inspections introduced and recommended in SAIB No. CE-03-26, dated February 28, 2003, are sufficient in addressing the unsafe condition identified in this AD wants the proposed AD withdrawn.

We do not agree with the commenter. It is stated in the proposed AD that stress corrosion cracking may be located throughout the area of the frame flanges. The inspections recommended in SAIB No. CE-03-26 are more limited and only inspect for stress corrosion cracking at screw holes in the flange.

We have not changed the final rule AD action based on this comment.

An anonymous commenter stated that the statistical analysis and evaluation performed in support of the proposed AD is flawed. The commenter also stated that given the inconsistent data from a sample size that is not representative of the fleet, there appears to be no scientific or engineering basis for issuing the final rule AD action and mandating it for the entire fleet

The commenter stated that Mark James of Intercontinental Jet Service Corp. also stated that the conclusions made by the FAA were not based on an adequate representation of the fleet and that thus far the only cracks found have been on two higher time airframes and not on the many airplanes that have less than one-third of the flight time and cycles

The commenter requested the applicability of the final rule AD action be changed to apply only to high time, high-cycle airplanes.

We do not agree with the commenters. More detailed information from MHI on the inspections of 18 of the 119 airplanes in the U.S. fleet indicate that 8 of them were cracked. Out of the 18 airplanes, 5 of them are used as freighters and all 5 of these were among the 8 found cracked. Four of the eight airplanes found cracked have been removed from service. Based on the data presented in the NPRM and this more detailed information provided by MHI, the location of cracks, and the cause of cracking (stress corrosion), we have concluded that the inspections are necessary to address the unsafe condition.

We have not changed the final rule AD action based on this comment.

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

• Are consistent with the intent that was proposed in the NPRM (79 FR 10710, February 26, 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 10710, February 26, 2014).

Mitsubishi Heavy Industries, Ltd. has issued Service Bulletin No. 242, dated July 10, 2013, and Service Bulletin No. 104/53-003, dated July 22, 2013. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. The service bulletin describes procedures to inspect and repair/replace the side and lower frame at stations 4610 and 5605. You can find this service information on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2014-0108.

We estimate that this AD will affect 119 products of U.S. registry. We also estimate that it will take about 100 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour.

Based on these figures, we estimate the cost of this AD on U.S. operators to be $1,011,500, or $8,500 per product.

In addition, we estimate that any necessary follow-on actions will take up to 428 work-hours and require parts costing up to $14,400, for a cost up to $50,780 per product. We have no way of determining the number of products that may need such repair based on the results of the inspection. The extent of damage will vary on each airplane.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2014-0108; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

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

This final rule codifies and describes the Bureau's procedures for designating inmates to, and limiting communication within, its CMUs. Currently, the Bureau operates two CMUs, separately located at the Federal Correctional Complex (FCC), Terre Haute, Indiana (established in December 2006), and the United States Penitentiary (USP), Marion, Illinois (established in March 2008). A proposed rule was published on April 6, 2010 (75 FR 17324). We received 733 comments during the 2010 comment period. We later reopened the comment period on March 10, 2014, for 15 days (79 FR 13263). We received an additional 443 comments during the 2014 comment period. Similar issues were raised by most of the commenters. We respond below to the issues raised.

Several commenters felt that there exists in CMUs an “overrepresentation of Muslim and political prisoners, showing that CMUs are not designed for legitimate purposes, but rather to discriminate and remove and isolate politically active members of society.”

The Bureau does not use religion or political affiliation as a criterion for designation to CMUs. 28 CFR 551.90 states the Bureau's non-discrimination policy: “Bureau staff shall not discriminate against inmates on the basis of race, religion, national origin, sex, disability, or political belief. This includes the making of administrative decisions and providing access to work, housing and programs.” Further, § 540.201, which describes the designation criteria, must be read in tandem with § 540.202, particularly subparagraph (b), which states that after the Bureau becomes aware of one or more of the criteria described in § 540.201, the Bureau's Assistant Director for the Correctional Programs Division must conduct a review of the evidence found and make a finding that designation to the CMU is necessary to ensure the safety, security, and orderly operation of correctional facilities or protection of the public. An inmate cannot, therefore, be designated to a CMU based upon religious or political affiliation, both because neither are part of the stated criteria, and because it is also necessary to have credible evidence of a threat to the safety, security, and good order of the institution or protection of the public to support designation to a CMU.

Instead, an important category of inmates that might be designated to a CMU is inmates whose current offense(s) of conviction, or offense conduct, included association, communication, or involvement, related to international or domestic terrorism. Past behaviors of terrorist inmates provide sufficient grounds to suggest a substantial risk that they may inspire or incite terrorist-related activity, especially if ideas for or plans to incite terrorist-related activity are communicated to groups willing to engage in or to provide equipment or logistics to facilitate terrorist-related activity. The potential ramifications of this activity outweigh the inmate's interest in unlimited communication with persons in the community.

Communication related to terrorist-related activity can occur in codes that are difficult to detect and extremely time-consuming to interpret. Inmates involved in such communication, and other persons involved or linked to terrorist-related activities, take on an exalted status with other like-minded individuals. Their communications acquire a special level of inspirational significance for those who are already predisposed to these views, causing a substantial risk that such recipients of their communications will be incited to unlawful terrorist-related activity.

The danger of coded messages from prisoners has been recognized by the courts. See Turner v. Safley, 482 U.S. 78, 93 (1987) (“In any event, prisoners could easily write in jargon or codes to prevent detection of their real messages.”); United States v. Salameh, 152 F.3d 88, 108 (2nd Cir. 1998) (“Because Ajaj was in jail and his telephone calls were monitored, Ajaj and Yousef spoke in code when discussing the bomb plot.”); United States v. Johnson, 223 F.3d 665, 673 (7th Cir. 2000) (“And we know that anyone who has access to a telephone or is permitted to receive visitors may be able to transmit a lethal message in code.”); United States v. Hammoud, 381 F.3d 316, 334 (4th Cir. 2004) (“A conversation that seems innocuous on one day may later turn out to be of great significance, particularly if the individuals are talking in code.”); United States v. Moncivais, 401 F.3d 751, 757 (6th Cir. 2005) (noting that seemingly nonsensical conversations could be in code and interpreted as indicative of drug dealing activity). Also, an Al Qaeda training manual contains the following advice regarding communications from prison: “Take advantage of visits to communicate with brothers outside prison and exchange information that may be helpful to them in their work outside prison. The importance of mastering the art of hiding messages is self-evident here.”

There have been cases of imprisoned terrorists communicating with their followers regarding future terrorist activity. For example, after El Sayyid Nosair assassinated Rabbi Kahane, he was placed in Rikers Island, where “he began to receive a steady stream of visitors, most regularly his cousin El-Gabrowny, and also Abouhalima, Salameh, and Ayyad. During these visits, as well as subsequent visits once Nosair was at Attica, Nosair suggested numerous terrorist operations, including the murders of the judge who sentenced him and of Dov Hikind, a New York City Assemblyman, and chided his visitors for doing nothing to further the jihad against the oppressors. Nosair also tape recorded messages while in custody . . .” United States v. Rahman, 189 F.3d 88, 105-06 (2d Cir. 1999). Imprisoned, Sheikh Abdel Rahman had urged his followers to wage jihad to obtain his release. Violent attacks and murders followed. United States v. Sattar, 314 F.Supp.2d 279, 288-89 (S.D.N.Y. 2004).

To minimize the risk of terrorist-related communication and other similar dangerous communication to or from inmates in Bureau custody, this regulation clarifies the Bureau's current authority to limit and monitor the communication of inmates in CMUs to immediate family members, U.S. Courts, federal judges, U.S. Attorney's Offices, Members of U.S. Congress, the Bureau, other federal law enforcement entities, and the inmate's attorney. The Bureau allows communication with these individuals to help inmates maintain family ties, and protect inmates' access to courts and other government officials. This permits inmates to raise issues related to their incarceration or their conditions of confinement, while minimizing potential internal or external threats.

The presence of Muslim inmates in CMUs does not indicate discrimination, especially given the alternative explanations for designation of inmates to the CMU in § 540.201. In Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), the plaintiffs alleged that former FBI Director Mueller and Attorney General Ashcroft engaged in “invidious discrimination” against Muslims because the FBI “arrested and detained thousands of Arab Muslim men” following the 9/11 attacks. Iqbal, 129 S.Ct. at 1951. “Taken as true, the Court found these allegations are consistent” with Plaintiffs' claim that the men were detained “because of their race, religion, or national origin. But given more likely explanations, they do not plausibly establish this purpose.” Id. In particular, the Court found that the “obvious alternative explanation” for the arrests was that they were a response to legitimate security concerns following the 9/11 attacks. Id. As the Court concluded, in the face of this explanation, “the purposeful, invidious discrimination respondent asks us to infer . . . is not a plausible conclusion.” Id. at 1951-1952.

The Bureau, acting on a case-by-case basis, may designate an inmate to a CMU for heightened monitoring for any of the reasons articulated in § 540.201. This valid legitimate penological purpose negates a claim of a Bureau-wide conspiracy to discriminate against Muslims.

Several commenters, either inmates in CMUs or friends or relatives of inmates in CMUs, stated that the inmates were placed there without prior notice, and that such placement is in violation of the Due Process Clause of the Fifth Amendment of the United States Constitution.

Written notice. As indicated in the proposed rule, upon arrival at the designated CMU, inmates receive written notice from the Warden of the facility in which the CMU exists of the inmate's placement. The written notice explains that:

(1) Designation to a CMU allows greater Bureau staff management of communication with persons in the community through complete monitoring of telephone use, written correspondence, and visiting. The volume, frequency, and methods of CMU inmate contact with persons in the community may be limited as necessary to achieve the goal of total monitoring, consistent with this subpart;

(2) General conditions of confinement in the CMU may also be limited as necessary to provide greater management of communications;

(3) Designation to the CMU is not punitive and, by itself, has no effect on the length of the inmate's incarceration. Inmates in CMUs continue to earn sentence credit in accordance with the law and Bureau policy;

(4) Designation to the CMU follows the Assistant Director's decision that such placement is necessary for the safe, secure, and orderly operation of Bureau institutions, or protection of the public. The inmate will be provided an explanation of the decision in sufficient detail, unless the Assistant Director determines that providing specific information would jeopardize the safety, security, and orderly operation of correctional facilities, and/or protection of the public;

(5) Continued designation to the CMU will be reviewed regularly by the inmate's Unit Team under circumstances providing the inmate notice and an opportunity to be heard, in accordance with the Bureau's policy on Classification and Program Review of Inmates; and

(6) The inmate may challenge the CMU designation decision, and any aspect of confinement therein, through the Bureau's administrative remedy program.

Through the written notice, inmates are informed that designation to the CMU follows the Assistant Director's decision that such placement is necessary for the safe, secure, and orderly operation of Bureau institutions, or protection of the public. The inmate is provided an explanation of the decision in sufficient detail, unless providing specific information would jeopardize the safety, security, or orderly operation of the facility, or protection of the public.

Continued placement in CMUs may not be necessary and will be reviewed regularly by the inmate's Unit Team, as described above. Conditions may change and allow inmates to be transferred out of the CMUs. For instance, an inmate's behavior and conduct may change. Another example of an altered circumstance is that the heightened security risk or threat to the safety, security and good order of the institution or protection of the public may have changed in some way. For instance, if an inmate communicates about the possibility of a disruption at a particular public event, and the event timeframe passes, the security threat may be diminished.

The requirements of due process. The due process clause protects persons against deprivations of “life, liberty or property without due process of law.” U.S. Const. Amend. V. A constitutionally-protected liberty interest can arise under the Constitution itself or be created by the State.

If a court were to conclude that inmates had a constitutionally-protected liberty interest in avoiding transfer to a CMU, the process that would have to be afforded an inmate would depend on the particular situation's demands. Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (stating that the requirements are “flexible”). Determining what procedural due process demands in a given situation requires balancing of three factors. Mathews v. Eldridge, 424 U.S. 319 (1976). They are: (1) The private interest affected; (2) the risk of erroneous deprivation of a liberty interest as a result of procedures used, and the probable value, if any, of any alternative safeguards; and (3) the government's interest. Id. at 335.

No private liberty interest is affected. An inmate's liberty interest in avoiding conditions of confinement can arise from the Constitution itself. Vitek v. Jones, 445 U.S. 480, 493-94 (1980) (finding liberty interest in avoiding psychiatric treatment against an inmate's will). However, the Constitution does not give rise to a liberty interest in avoiding a transfer to an institution that is “much more disagreeable than another.” Meachum v. Fano, 427 U.S. 215, 225 (1976); see also Wilkinson v. Austin, 545 U.S. 209, 221-22 (2005). This includes institutions with “more severe rules” as long as the inmate is still within the normal limits or range of custody authorized by the conviction. Id. “Transfers between institutions. . . are made for a variety of reasons and often involve no more than informed predictions as to what would best serve institutional security or the safety and welfare of the inmate.” Meachum, 427 U.S. at 225.

Since the Constitution does not give rise to a liberty interest when the issue is avoiding a transfer to an institution that is less favorable or more restrictive than another, inmates do not have a liberty interest that should be protected from transfer to a CMU.

In Wilkinson v. Austin, the Supreme Court held that a liberty interest arises when an inmate is transferred to a maximum security prison where, among other restrictions, “almost all human contact is prohibited, even to the point that conversation is not permitted from cell to cell.” 545 U.S. 209, 223-24 (2005); id. at 224 (noting that the inmates were placed in the facility for indefinite duration and were disqualified for parole consideration during their placement). Because the conditions imposed “an atypical and significant hardship,” the Court found a state-created liberty interest in that case. Id. at 223.

However, unlike the situation in Wilkinson, there is no state-created liberty interest based upon the facts of confinement in a CMU. Inmates are subjected to an “atypical and significant hardship” if the hardships are more egregious than the “ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). The restrictions imposed on inmates in CMUs are not atypical of the ordinary incidents of prison life. Restrictions on communication are common and are within the discretion of the prison authorities to regulate. See Overton v. Bazzetta, 539 U.S. 126, 132 (2003). Current regulations that apply to general population inmates allow the warden of a particular facility to impose heightened restrictions on inmates' communications with the public. (28 CFR 540.15; § 540.43; § 540.100.)

The conditions at a CMU are not like those at issue in Wilkinson; indeed, they are not significantly different from the ordinary incidents of prison life. Inmates in the CMU operate as a general population unit, where they participate in all educational, recreational, religious, unit management and work programming within their unit.

The communications restrictions possible in the CMU do not rise to the level that implicates violation of a liberty interest. To effectively and efficiently allow monitoring and review of the general correspondence communications of inmates in CMUs, those communications may be limited in frequency and volume as follows:

• Written correspondence may be limited to six (expanded from the proposed rule limitation to three) pieces of paper, double-sided, once per week to and from a single recipient (in addition, electronic messaging may be limited to two messages, expanded from the proposed rule limitation of one, per calendar week, to and from a single recipient at the discretion of the Warden);

• Telephone communication may be limited to three completed calls (expanded from the proposed rule limitation to one call) per calendar month for up to 15 minutes; and

• Visiting may be limited to four one-hour visits (expanded from the proposed rule limitation of one one-hour visit) each calendar month.

Unless the quantity to be processed becomes unreasonable or the inmate abuses or violates these regulations, there is no frequency or volume limitation on written correspondence with the following entities: U.S. courts, Federal judges, U.S. Attorney's Offices, Members of U.S. Congress, the Bureau of Prisons, other federal law enforcement entities, or, as stated earlier, the inmate's attorney (privileged, unmonitored communications only). Correspondence with these entities is not limited under these regulations in furtherance of inmates' access to courts and their ability to defend in litigation.

Even assuming that inmates have a liberty interest in this context, inmates have been afforded sufficient process and will continue to be afforded due process by these regulations, under the Mathews standard. Inmates are afforded post-placement due process in the form of written notice under § 540.202(c) upon arrival, which includes information on how to appeal the designation decision.

There is little risk of erroneous deprivation of a liberty interest. The second factor addresses the possibility that an inmate could be erroneously assigned to the wrong unit. Inmates placed in the CMU are given notice of their transfers under the regulations (§ 540.202(c)) and their opportunity to appeal. The notice delineates the specific reasons for their designation within this program unless the Assistant Director determines that providing the information would jeopardize the safety, security, and orderly operation of correctional facilities, and/or protection of the public. If information in the notice is inaccurate, inmates may appeal regarding the inaccuracy of the information contained in the notice, the CMU designation decision, and any other aspect of confinement therein, through the Bureau's administrative remedy program. See 28 CFR 542.10-542.19 and § 540.202(c)(6). The procedures thus offer an inmate notice and an opportunity to appeal the decision. See Wilkinson, 545 U.S. at 226 (“Our procedural due process cases have consistently observed that [notice of the factual basis leading to consideration for placement and a fair opportunity for rebuttal] are among the most important procedural mechanisms for purposes of avoiding erroneous deprivations.”) This procedure allows for the review of an inmate's claim that he has been erroneously placed in the CMU.

Further, continued designation to the CMU is regularly reviewed by the inmate's Unit Team under circumstances providing the inmate notice and an opportunity to be heard, in accordance with the Bureau's policy on Classification and Program Review of Inmates. See id. at 227 (review 30 days after assignment to facility “further reduces the risk of erroneous placement”). These procedures, therefore, afford sufficient protection from the risk of erroneous deprivation of any liberty interest.

The government's interest is significant. The final Mathews factor is the governmental interest in placing inmates in a CMU; this interest is a “dominant consideration.” Wilkinson at 227. The interest of protecting the security of the facility is a legitimate penological interest that has been consistently acknowledged by the Supreme Court. Sandin v. Conner, 515 U.S. 472, 484 (1995); Block v. Rutherford, 468 U.S. 576, 586 (1984). Particularly, with regard to the CMUs, the government's interest in protecting the security of the facility and the public is furthered by allowing the government to concentrate monitoring resources, thereby increasing the probability of detecting and deterring dangerous communications and reducing potential security issues.

By limiting the frequency and volume of the communication to and from inmates identified under this regulation, the Bureau reduces the amount of communication requiring monitoring and review. Reducing the volume of communications helps ensure the Bureau's ability to provide heightened scrutiny in reviewing communications, thereby increasing both internal security within correctional facilities, and the security of members of the public.

As we explained in the proposed rule, the Bureau has determined that in the context of inmates in CMUs, the restrictions authorized by the CMUs regulations are the most appropriate means of accomplishing the Bureau's legitimate goal and compelling interest to ensure the safety, security, and orderly operation of Bureau facilities, and protection of the public. We stated the following in the preamble to the proposed rule:

“The CMU concept allows the Bureau to monitor inmates for whom such monitoring and communication limits are necessary, whether due to a terrorist link or otherwise, such as inmates who have previously committed an infraction related to mail tampering from within an institution, or inmates who may be attempting to communicate with past or potential victims. The ability to monitor such communication is necessary to ensure the safety, security, and orderly operation of correctional facilities, and protect the public. The volume, frequency, and methods of CMU inmate contact with persons in the community may be limited as necessary to achieve the goal of total monitoring, consistent with this subpart.”

Several commenters stated that CMU restrictions on visiting and telephone calls violate the Due Process Clause and the rights of inmates in CMUs.

Substantive Due Process. In analyzing whether the communication restrictions violate substantive due process, the proper inquiry is whether the prison regulation or policy “is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987); Overton v. Bazzetta, 539 U.S. 126, 132 (2003). Several factors are relevant to the reasonableness inquiry; Turner identified four factors, the first of which has been described as the most important: There must be a “valid, rational connection” between the regulation and the objective set forth to justify it. Turner, 482 U.S. at 89; Beard v Banks, 548 U.S. 521, 532 (2006) (describing the particular importance of this factor, explaining that in a given case, the second, third, and fourth Turner factors may “add little, one way or another, to the first factor's basic logical rationale.”).

Here, analysis of this factor demonstrates that the regulation is reasonably related to legitimate interests. The regulation is designed to ensure the safety, security, and good order of Bureau institutions and protection of the public. Security of the facility has been cited as a valid primary interest in not permitting contact visitation for pretrial detainees. Sandin v. Conner, 515 U.S. 472, 484 (1995); Block v. Rutherford, 468 U.S. 576, 586 (1984). The regulation furthers this legitimate penological interest by effectively monitoring the communications of high-risk inmates. The regulation and the penological interest are, therefore, rationally related.

Procedural Due Process. The limitations on telephone use and visitation do not violate the procedural due process rights of inmates in CMUs because they do not implicate a protected liberty interest. These restrictions are ordinary incidents of prison life. Such restrictions do not rise to the level which the Supreme Court has determined is outside the normal boundaries of confinement needed to trigger a liberty interest under the Due Process Clause. See Vitek v. Jones, 445 U.S. 480, 493-94 (1980) (transfer to mental hospital); Washington v. Harper, 494 U.S. 210, 221-22 (1990) (involuntary administration of psychotropic drugs); Wilkinson v. Austin, 545 U.S. 209 at 224 (2005) (indefinite transfer to solitary confinement). Courts have recognized that similar limitations do not threaten a protected liberty interest. See Searcy v. United States, 668 F.Supp.2d 113, 122 (D.D.C. 2009) (internal quotation marks omitted) (“An inmate has no right to unlimited telephone use.'”); Perez v. Federal Bureau of Prisons, 229 Fed. Appx. 55, 58 (3d Cir. 2007) (“[L]imits on telephone usage are ordinary incidents of prison confinement,” and their restriction “do[es] not implicate a liberty interest protected by the Due Process Clause.”).

There is also no liberty interest protected by the Due Process Clause that is implicated by the rules governing the scheduling of visits or phone calls in the CMU. In fact, not only are the CMU restrictions well below the level necessary to trigger a liberty interest, but they also are within the scope of restrictions authorized by the Bureau's current regulations. 28 CFR 540.100 and 540.101(d) indicate that inmate telephone use may be limited as necessary to protect institutional security and the safety of the public. Further, 28 CFR 540.51(h)(2) indicates that restrictions on contact visiting, for example, are permitted if necessary for security reasons. Also, the restrictions imposed upon attorney visiting are within the current visiting parameters: As stated in § 540.205(b), “Regulations and policies previously established under 28 CFR part 543 are applicable.”

However, in response to public comment, the final regulations provide new limitations which would be more consistent with the Bureau's resources for monitoring communications. Again, the limitations in the regulation serve as the minimum requirement. Further access may be granted as resources allow, in the discretion of Bureau staff, on a case-by-case basis. The CMUs regulations serve to detail the specific restrictions which may be imposed in the CMU in a way that current regulations authorize but do not detail.

The regulations allow communication with news media (via telephone or writing) “only at the discretion of the warden.” Several commenters argued that this language authorized a “complete ban on communication with news media, a result that is unconstitutional under existing case law.”

First, we note that the regulations in § 540.203 do not restrict with whom a CMU inmate may correspond. The only restriction in the regulation related to correspondence is as follows: The regulations state that “[s]pecial mail, as defined in Part 540, is limited to privileged communication with the inmate's attorney.” § 540.203(b). This means that any correspondence with representatives of the news media will be subject to the level of inspection given to other general mail correspondence. There will be no unmonitored communication with news media representatives.

Second, it is true that inmates in CMUs may not have unmonitored telephone communication with news media representatives. The regulation states that “[u]nmonitored telephone communication is limited to privileged communication with the inmate's attorney. Unmonitored privileged telephone communication with the inmate's attorney is permitted as necessary in furtherance of litigation, after establishing that communication with the verified attorney by confidential correspondence or visiting, or monitored telephone use, is not adequate due to an urgent or impending deadline.” § 540.204(b).

Contrary to the commenters' assertions, prison officials are not required to permit and accommodate confidential, unmonitored communication between inmates and news media representatives. Previous case law has not afforded news media any greater right of access to inmates than that of the general public. See, e.g., Houchins v. KQED, 438 U.S. 1, 16 (1978) (“Neither the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government's control. . . . [T]he media have no special right of access to the Alameda County Jail different from or greater than that accorded the public generally.”); Saxbe v. Washington Post Co., 417 U.S. 843 (1974) (upholding regulation prohibiting face-to-face interviews with certain inmates); Pell v. Procunier, 417 U.S. 817 (1974) (regulation imposing conditions for press interviews of inmates did not unconstitutionally interfere with rights of inmates or the media) ; Johnson v. Stephan, 6 F.3d 691 (10th Cir. 1993). Rather, as made clear in these cases, news media representatives are entitled to no greater prisoner access than the general public. Inmate communications with news media representatives are governed by regulations in 28 CFR part 540, subpart E.

Some commenters stated that the proposed regulation's limitations on communication with clergy and other religious communications violate the Religious Freedom Restoration Act, 42 U.S.C. 2000bb (2006) (hereinafter “RFRA”); others suggested that restrictions on visitation violated inmates' due process rights. These and other commenters also stated that the regulations impose an “absolute ban” on communications with clergy and non-immediate family members. One commenter also stated that these regulations violate Article 36 of the Vienna Convention on Consular Relations (1969), which gave “consular officers” the “right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention . . .” The same commenter likewise stated that the regulations impose a “total ban” on communication with “most family members,” citing 28 CFR 540.44(a), which defines immediate family members as being “mother, father, step-parents, foster parents, brothers and sisters, spouse, and children.”

There is no such “absolute ban”. inmates in CMUs are not prohibited outright by these regulations from communicating with clergy, consular officials, or non-immediate family members. These regulations represent a “floor” beneath which communications cannot be further restricted. Communication restrictions are tailored to the security needs presented by each CMU inmate, on a case-by-case basis. The regulations contain no ban on written correspondence with these groups, nor any outright ban on telephone calls or visits with these groups, only stating that “monitored telephone communication may be limited to immediate family members only” (§ 540.204(a)), and that “regular visiting may be limited to immediate family members” (§ 540.205(a)) (emphasis added), not that it will, in fact, be so limited in every case.

Any such restrictions imposed on an inmate's access to clergy do not violate RFRA. RFRA “provides that government may substantially burden a person's exercise of religion only if it demonstrates that the burden is in furtherance of a compelling governmental interest, and is the least restrictive means of furthering that interest.” 42 U.S.C. 2000bb-1 (2006). The interest of protecting the security of the facility is a legitimate penological interest that has been consistently upheld by the Supreme Court. Sandin v. Conner, 515 U.S. 472, 484 (1995); Block v. Rutherford, 468 U.S. 576, 586 (1984). The Senate Report on RFRA also recognized security of the institution as an interest of the “highest order.” S. Rep. 103-111, S. Rep. No. 111, 103rd Cong., 1st Sess. 1993, 1993 U.S.C.C.A.N. 1892, 1899, 1993 WL 286695, 10 (Leg. Hist.) The Bureau has a compelling interest to ensure the safety, security, and orderly operation of Bureau facilities, and protection of the public.

Also, inmates in CMUs are provided the services of Bureau chaplains upon request, per 28 CFR 548.12, for religious care and counseling, thus providing inmates in CMUs an opportunity to engage in communications with clergy. As discussed below, inmates in CMUs are permitted to engage in religious practices and services. Any limitation on the access to clergy is, therefore, not unduly restrictive and satisfies RFRA.

In comments on the restrictions on visiting, some commenters suggested that the restrictions violated the inmates' due process rights, citing Overton v. Bazzetta, 539 U.S. 126 (2003). In that case, the Supreme Court concluded that there was no violation even though the inmates in that case were denied visiting in certain circumstances because the restrictions were related to penological interests and alternatives were available. Id. at 135-36 (noting that telephone and letter communication were available alternatives). Although telephone and visiting contact may be limited to immediate family members in these regulations, written correspondence is not limited in this way. Therefore, even if an inmate were to have such restrictions on telephone and visiting contact with the above-mentioned groups, that inmate may correspond in writing with them, within the limits of current regulations, as an alternative method of communication.

Several commenters stated that the CMU's no-contact visitation policy has significantly impacted the ability of inmates in CMUs to maintain close and personal relationships with family members, which results in emotional hardships and psychological issues for both the inmate and the visitor(s). These commenters believe that the no-contact visitation policy violates the inmates' right to free association contained in the First Amendment.

First Amendment rights. Generally, claims of violation of First Amendment rights must be analyzed in light of the policies and goals of the prison. Pell v. Procunier, 417 U.S. 817, 822 (1974) (“[C]hallenges to prison restrictions that are asserted to inhibit First Amendment interests must be analyzed in terms of the legitimate policies and goals of the corrections system, to whose custody and care the prisoner has been committed in accordance with due process of law.”). A prison regulation or policy that “impinges on an inmates' constitutional rights. . . is valid if it is reasonably related to a legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987); Overton v. Bazzetta, 539 U.S. 126, 132 (2003).

As described above, several factors are relevant to the reasonableness inquiry: First, there must be a “valid, rational connection” between the regulation and the objective set forth to justify it. Turner, 482 U.S. at 89. A second factor to consider is whether the inmate has an alternative means of exercising the restricted right. Id. at 90. A third factor to consider is the impact of accommodating the asserted right on prison staff, other inmates, and prison resources. Id. Last, courts should consider whether the restriction is an “exaggerated response” that ignores alternatives that accommodate the inmate's constitutional rights at a de minimis cost to legitimate penological interests. Id. at 90-91. The Supreme Court has recognized the particular importance of the first of these factors, explaining that in a given case, the second, third, and fourth Turner factors may “add little, one way or another, to the first factor's basic logical rationale.” Beard v. Banks, 548 U.S. 521, 532 (2006).

The purpose of the limitation on contact visits is to effectively monitor the communications of high-risk inmates in order to ensure the safety, security, and good order of Bureau institutions and protection of the public. Security of a facility has been recognized as a valid interest in not permitting contact visitation for pretrial detainees. Block v. Rutherford, 468 U.S. 576, 586 (1984) (“[T]here is no dispute that internal security of detention facilities is a legitimate governmental interest . . . That there is a valid, rational connection between a ban on contact visits and internal security of a detention facility is too obvious to warrant extended discussion.”). Deference is given to the judgment of prison authorities in devising the policies and practices that further legitimate penological interests. Id. at 589.

In Block v. Rutherford, the Supreme Court addressed a due process challenge to a ban on contact visits between pretrial detainees and their family members and friends. 468 U.S. 576, 578 (1984). Because the case arose in the context of a challenge brought by pretrial detainees, who may not be “punished prior to an adjudication of guilt in accordance with due process of law,” the Court asked whether the restriction on contact visits was punitive. Id. at 583-84 (internal quotation marks omitted). In making this determination, the Court considered whether the restriction was “reasonably related to a legitimate governmental objective,” because if so, “it does not, without more, amount to punishment.” Id. (internal quotation marks omitted).

The Court found the ban on contact visits helped to prevent the introduction of contraband and reduced the possibility of violent confrontations during visits, and, as a result, promoted the legitimate governmental objective of maintaining the internal security of the prison. Id. at 586. Once the Court decided that the restriction on contact visits did not qualify as punishment, its analysis ended, as there was no suggestion that the Constitution might independently provide a right to contact visits. Rather, the Court held “the Constitution does not require that detainees be allowed contact visits when responsible, experienced administrators have determined, in their sound discretion, that such visits will jeopardize the security of the facility.” Id. at 589.

In Overton v. Bazzetta, 539 U.S. 126 (2003), the Supreme Court rejected a claim that restrictions on visitation violated the right to association of prisoners and their families under the Due Process Clause and First Amendment. The inmates who challenged the restrictions were all subject to no-contact visitation. Id. at 130. The prisoners were required to “communicate with their visitors through a glass panel,” and had no opportunity for any physical contact. Id. The Third Circuit has explained that “nothing in Overton suggests that non-contact visitation is, by itself, constitutionally suspect; to the contrary, the Court upheld additional restrictions affecting those subject to non-contact visitation.” Henry v. Dep't of Corrections, 131 Fed. Appx. 847, 850 (3rd Cir. 2005). The Overton decision is also consistent with the Supreme Court's previous holding in Block v. Rutherford that upheld a blanket ban on contact visits for pretrial detainees. 468 U.S. 576, 578, 586 (1984).

By limiting the contact visits of inmates housed in the CMU, the Bureau seeks to balance First Amendment rights with its correctional mission and the special mission of the CMU. The Bureau has made a judgment that communications between the inmates housed in the CMUs and their visitors must be strictly monitored because the inmates meet one or more of the designation criteria listed in § 540.201. The reasoning for the restrictions is rationally related to the legitimate governmental interest in preserving security, as communications could be easily passed without strict monitoring through a no-contact visit.

Addressing the second Turner factor, we note that the alternatives to contact visitation are other forms of First Amendment expression. The Turner Court looked at whether the inmates were deprived of “all means of expression.” Turner, at 92. Inmates in the CMU, however, are granted no-contact visitation privileges for at least 4 one-hour visits each month (expanded from the proposed rule limitation of one one-hour visit). Further, inmates are permitted to maintain relationships through mediums other than visiting, such as through monitored correspondence, including carefully monitored email (which we have increased from one per calendar week in the proposed rule to two per calendar week), and telephone calls (which we have increased from one per month to three per month). These alternatives are sufficient forms of communication that meet the Turner test.

The third Turner factor directs us to examine the impact of permitting the exercise of the asserted right and analyzing its impact. Permitting contact visiting would create a security threat to the staff and the public as a whole. The inmates housed in CMUs are segregated from the rest of the general population and are housed there for a specific reason. The CMUs are general population units designed to closely monitor inmates for whom such monitoring and communication limits have been determined necessary. Such inmates include those for whom communication limits are necessary due to a terrorist link, and also for those who are engaged in activities that threaten the security of the institution or endanger the public. Contact visiting would provide inmates who are at risk for communication threats with opportunities for passing along unauthorized communications.

Finally, the fourth Turner factor requires consideration of whether alternatives have been considered. Some commenters suggested alternatives to no-contact visiting. The suggested alternatives do not adequately serve the legitimate penological purpose of ensuring the safety of the institution and the public. Some commenters suggested contact visitation in the attorney-client room so that the visit could be live monitored and recorded at a small cost to the prison. This is not an adequate alternative to the no-contact visitation. No-contact visitation is crucial to carefully monitor the transfer of information between the inmates and their visitors. The visitor and the inmate communicate through a telephone apparatus which is connected to the Bureau-wide inmate telephone system. This system, which records the communications and maintains the recordings, is used in all Bureau facilities and maintains records of all inmate telephone calls. This system is a reliable and powerful tool in the detection and prevention of criminal activities and disciplinary infractions. Monitoring via this system also permits correctional officials to immediately terminate communication taking place on the phone, whereas it is harder to immediately stop a prohibited communication during a contact visit.

Also, the inmate telephone system consists of digital recordings which accurately store the conversations. These digital recordings are also easily maintained, retrieved, and used for law enforcement purposes and the detection of disciplinary infractions. Attorney-client visits, however, are not audio-monitored and attorneys and their clients do not communicate through the use of a telephone. An alternative means to record the communications between inmates and their visitors would not be as reliable as the inmate telephone system already in place. In addition, no-contact visitation eliminates the danger of introduction of contraband, including drugs and weapons, into the institution.

The CMU restrictions satisfy the Turner test. The CMU regulation is rationally related to the governmental interest of preserving the orderly running of the institution and protection of the public by allowing the Bureau to monitor inmate communications with members of the public, while providing inmates with the means to maintain their ties to the community.

Some commenters stated that no-contact visiting constitutes “cruel and unusual punishment” in violation of the Eighth Amendment of the U.S. Constitution. U.S. Const. amend. VIII.

A punishment violates the Eighth Amendment when it is incompatible with “the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101 (1958). For instance, the Eighth Amendment is violated if there is “deliberate indifference to serious medical needs of prisoners,” Estelle v. Gamble, 429 U.S. 97, 104 (1976); when the conditions are “grossly disproportionate to the severity of the crime warranting imprisonment,” Rhodes v. Chapman, 452 U.S. 337, 347 (1981); or when inmates are deprived of basic human needs. Hutto v. Finney, 437 U.S. 678 (1978). As the Supreme Court has explained,

The conditions of confinement present in the CMUs are not grossly disproportionate to the crimes committed by the inmates assigned to it. In fact, the inmates were placed in the CMU specifically because their offense of conviction, offense conduct, disciplinary record or other verified information raised serious concerns about their communications with members of the public and close monitoring of those communications was needed in order to preserve the security of the Bureau institutions and protect the public. As we stated in the proposed rule, under the regulation, inmates may be designated to a CMU if:

• The inmate's current offense(s) of conviction, or offense conduct, included association, communication, or involvement, related to international or domestic terrorism;

• The inmate's current offense(s) of conviction, offense conduct, or activity while incarcerated, indicates a substantial likelihood to encourage, coordinate, facilitate, or otherwise act in furtherance of, illegal activity through communication with persons in the community;

• The inmate has attempted, or indicates a substantial likelihood, to contact victims of the inmate's current offense(s) of conviction;

• The inmate committed a prohibited activity related to misuse/abuse of approved communication methods while incarcerated; or

• There is any other evidence of a potential threat to the safe, secure, and orderly operation of prison facilities, or protection of the public, as a result of the inmate's communication with persons in the community.

Ultimately, the inmates are not being deprived of basic human needs by not permitting them to have physical contact with family or community members. The inmates are permitted to have visitors, although it is through no-contact visits, write letters, and make telephone calls to their family members, albeit under closer monitoring. Inmates are not completely deprived of all contact with family or community members.

The no-contact visitation policy is a reasonable communication restriction that is within the discretion of prison authorities to implement. It does not approach the level of a cruel and unusual condition of confinement proscribed by the Eighth Amendment.

Several commenters stated that conditions of confinement in the CMU were “atypical and significant,” thereby creating a liberty interest protected by the Due Process Clause.

As discussed above, even where the Due Process Clause does not itself create a liberty interest, the government may create one where a prison restriction imposes an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484. In Sandin, the Court found that the disciplinary transfer of an inmate for 30 days to solitary confinement “did not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest.” 515 U.S. at 486-87; id. at 494 (Breyer, J., dissenting) (describing conditions of confinement.) This is because the punishment “mirrored those conditions imposed upon inmates in administrative segregation and protective custody.” Id. at 486.

Based on Sandin, the D.C. Circuit has sought to define the “ordinary incidents of prison life” for purposes of creating a baseline that can be used to determine whether a particular restriction is atypical and significant. In Hatch v. District of Columbia, the D.C. Circuit rejected treating the conditions of prison life in the general population as the appropriate baseline. 184 F.3d 846, 856-58 (D.C. Cir. 1999). Instead, Hatch explains that the conditions that are imposed in administrative segregation should be used in determining what constitutes the “ordinary incidents of prison life.” Id. at 855-85.

Accordingly, the determination of what is atypical and significant should be made in comparison with the “most restrictive confinement conditions that prison officials, exercising their administrative authority to ensure institutional safety and good order, routinely impose on inmates serving similar sentences.” Id. at 856. In making this determination, the nature of the restriction and its duration should both be considered. Id. at 858.

Under Sandin and Hatch, the loss of contact visits and reduced time for visits and telephone calls do not constitute an “atypical and significant” deprivation. While the Bureau's visiting regulations only require four hours of visitation per month (28 CFR 540.43), inmates in CMUs have been allowed as much as eight hours of visits per month—above the CMU proposed rule's one-hour “floor” (which the final rule changes to conform to the current visiting regulation limit of four one-hour visits per month). And consistent with the Warden's authority to “restrict inmate visiting when necessary to ensure the security and good order of the institution,” 28 CFR 540.40, Bureau regulations expressly contemplate the possibility that inmates will lose contact visitation privileges based on security concerns. Id. § 540.51(h)(2) (noting that “[s]taff shall permit limited physical contact . . . unless there is clear and convincing evidence that such contact would jeopardize the safety or security of the institution). As described above, the Bureau has made a determination that threats to the security of its facilities and/or the public justify the imposition of no-contact visits.

Inmate telephone use “is subject to those limitations which the Warden determines are necessary to ensure the security or good order, including discipline, of the institution or to protect the public,” and requires only that an inmate who is not on discipline receive one three minute telephone call each month. Id. § 540.100(a)-(b); § 540.101(d); id. § 540.100(a) (stating that “[t]elephone privileges are a supplemental means” of communicating with persons in the community). In contrast, some inmates in CMUs have received more telephone minutes than is required under the agency's regulations. Also, the final rule expands the telephone limitations from one call per month to three calls per month.

In short, the CMU's communication restrictions do not constitute the kind of “extraordinary treatment” required to find a government-created liberty interest. Smith v. U.S., 277 F.Supp.2d at 113 (no “atypical and significant” deprivation due to prison transfer because prisoner was not subject to any extraordinary treatment, but instead transfer was an issue within the “day-to-day management of prisons.”) (quoting Franklin v. District of Columbia, 163 F.3d 625, 634-35 (D.C. Cir. 1998)).

Some commenters stated that inmates in CMUs are prohibited from certain religious activities, such as congregational prayers, designated chapel space, limited recognition of voluntary religious fasting, and religious studies.

Inmates in CMUs are permitted to pursue religious activities, including prayers, fasting, and studies, to the extent that it does not threaten the safety, security, or good order of the facility or protection of the public. Policies regarding religious practices are the same in the CMUs as for all other Bureau facilities, as outlined in 28 CFR 548.10-20 and the Bureau's policy on religious beliefs and practices.

Inmates in CMUs are permitted to hold several types of prayer in a similar manner as general population inmates. Congregate prayers are allowed in the CMU. Group prayers led by inmates are subject to constant staff supervision. Those who engage in additional prayers, such as individual prayers for Muslims (the five daily prayers) are permitted to do so in their own cells or in a previously designated area while at work or education or may pray independently at their work station. These inmates are provided an area out of the way, so as to not interfere with other operations or be disturbed themselves.

Also, policy recognizes certain fasts as part of the religious practice and others as personal choice. There is a distinction to be made between fasts which are part of religious practice and those that are personal choice. Fasts which are part of religious practice are recognized as a routine practice in the religion; whereas fasts undertaken by personal choice, or to meet personal religious goals, are sporadic or non-routine fasts that are not recognized as routine practice as part of the religion. Inmates are permitted to fast as they see fit to meet their personal religious goals.

A concern among the commenters was that inmates were not allowed to retain food in their cells from scheduled meals in order to eat the food later after their personal fasts. Bureau national policy on food service prohibits inmates, whether in CMUs or in general population, from removing food from the dining hall, except maybe one piece of whole fruit, due to health concerns and to avoid the spoiling of food items. Inmates have been informed if they choose to engage in a personal fast, then they choose to skip the scheduled meal(s) and cannot retain food in their cells from the dining hall. However, inmates in the CMU who raise this issue have been informed that they may purchase food items at the institution commissary for retention and later consumption in their cells.

Some commenters were concerned that the authority to approve CMU placement might be delegated below the level of Assistant Director.

The Bureau's Assistant Director, Correctional Programs Division, has authority to approve CMU designations. The Assistant Director's decision must be based on a review of the evidence, and a conclusion that the inmate's designation to a CMU is necessary to ensure the safety, security, and orderly operation of correctional facilities, or protection of the public. There is no provision in the regulation that allows for delegation of the Assistant Director's authority.

The following additional miscellaneous issues were raised during the 2014 comment period.

One commenter requested that we “[e]dit the language of 540.200(b) to include `Vocational Technical Training, Unicor (FPI),' after `unit management,' and before `and work programming,' in order to incorporate these programs with programs already offered to CMU inmates.” Section 540.200(b) of the proposed rule states that a CMU “is a general population housing unit where inmates ordinarily reside, eat, and participate in all educational, recreational, religious, visiting, unit management, and work programming, within the confines of the CMU.” Vocational technical training is included in this phrase, as part of “all” educational and work programming activities. Because it is already included in the general list, we will not include this specific reference.

The same commenter requested that we “[r]eplace the language of 540.203(a) with `General Correspondence. General written correspondence as defined by part 540, may be limited to three pieces of handwritten correspondence (8.5 X 11 inches or smaller), double-sided, once per calendar week to and from any party on the inmate's approved contact list and an unlimited amount of typed or computer generated correspondence mailed to or from any party on the inmate's approved contact list.' The Bureau of Prisons has the ability to scan all written correspondence.” Our proposed rule stated that general written correspondence “may be limited to three pieces of paper (not larger than 8.5 x 11 inches), double-sided writing permitted, once per calendar week, to and from a single recipient at the discretion of the Warden, except as stated in (c) below. This correspondence is subject to staff inspection for contraband and for content.” In response to comments received requesting expansion of the three-page limitation, we double the limitation in the final rule to six pieces of paper.

Subsection (c) of this regulation refers to the absence of a volume limitation on mail to and from certain listed correspondents. The commenter would substantively alter this provision to remove “at the discretion of the Warden” in favor of “any party on the inmate's approved contact list.” We do not make this change because the Warden may choose to temporarily suspend communications with someone that may be on the inmate's approved contact list for a certain period of time due to a time-sensitive threat, so it is more accurate to say that it is in the Warden's discretion. The commenter would also alter this provision to add inmate electronic correspondence. While we currently allow inmates in CMUs access to electronic correspondence in the same manner permitted for general population inmates, electronic correspondence is not specifically mentioned by regulation because it is currently included under the authority of “general mail” correspondence. We therefore do not make this edit to the regulations.

One inmate stated that “the designation criteria described in section 540.201, sections (a) and (b) permit the BOP to confine and [sic] inmate to a CMU merely on the basis of his offense of conviction. This is unwise policy because, as in my case, an inmate's offense alone provides a very limited glimpse of that individual and what level of security measures he may require.” The inmate also stated that the criteria listed in the proposed rule are unlawful “because 18 U.S.C. Sec. 3621(b) requires the BOP to consider five factors when designating a prisoner's place of confinement; these include the offense of conviction, but also, inter alia, the history and characteristics of the prisoner and the sentencing court's recommendation.” We do not designate an inmate to the CMU solely on the basis of the criteria described in § 540.201. Rather, if a factor listed in § 540.201 is found to be present, the Bureau's Assistant Director, Correctional Programs Division, is required to conduct a review of the evidence, and make a conclusion that the inmate's designation to a CMU is necessary to ensure the safety, security, and orderly operation of correctional facilities, or protection of the public. This procedure is described in § 540.202(b). The use of the criteria listed in § 540.201 does not preclude consideration of the five factors in 18 U.S.C. Sec. 3621(b), rather, it supplements or details that consideration process. The Assistant Director must consider the inmate's circumstances as a whole, not rely solely on the presence of one criteria listed in § 540.201.

The same commenter stated that “[t]he responsibility for designation of inmates for SAMs or SAMs-like restrictions should remain with the Attorney General or FBI and not with the BOP.” As we stated in the 2010 proposed rule, this regulation will be applied differently from regulations in 28 CFR part 501, which authorize the Attorney General to impose special administrative measures (SAMs). Under the CMUs regulations, the Bureau would impose communication limits based on evidence from the FBI or another federal law enforcement agency, or if Bureau information indicates a similar need to impose communication restrictions but does not constitute evidence which rises to the same degree of potential risk to national security or acts of violence or terrorism which would warrant the Attorney General's intervention through a SAM. Further, while SAMs potentially restrict communication entirely, CMUs regulations delineate a floor of limited communication beneath which the Bureau cannot restrict unless precipitated by the inmate's violation of imposed limitations, and then only as a disciplinary sanction following due process procedures in 28 CFR part 541.

Several commenters requested that we exempt inmates with ties to animal rights causes from CMU consideration. We will not favor a group of inmates based upon political affiliation or membership in a group, just as we do not discriminate based upon such factors. We will not make these edits.

One commenter stated that the CMU restrictions violate Article 3 of the Geneva Convention. This article applies “in the case of armed conflict not of an international character”, which is not applicable in the situation of inmates in CMUs, and refers to “violence to life and person, in particular, murder of all kinds, cruel treatment and torture”, which, also, is inapplicable in this situation. If the commenter's concern is that CMU restrictions are cruel treatment or torture, our analysis of the Eighth Amendment of the U.S. Constitution earlier in this document applies.

One commenter suggested that “a review panel of 9 to 13 members whose majority are U.S. citizens not affiliated with the prison or any federal, state, or county agency (including law enforcement agencies) should be put in place to approve or disapprove of the initial assignment of a prisoner to a CMU and of the continuation of a prisoner's assignment to a CMU after each 28 days spent in a CMU.” This suggestion is impracticable because the Bureau does not use, nor is it statutorily authorized to use, citizen groups for federal inmate designation. Two commenters suggested that “CMUs should be required to keep a secure log of all CMU-assignment and CMU-release decisions and the rationale for each decision regarding prisoner assignment or release from a CMU.” The Bureau currently maintains such assignment, release and rationale information securely, although not in in the “log” form that the commenter suggests. The commenters also suggest that such information about inmates in CMUs “should be made available upon request to family members of the prisoner or to attorneys working on behalf of the prisoner.” The commenters would also request that, “[e]ach month a statistical summary of the number of prisoners in CMUs or the number of prisoners moved to or released from a CMU should be made available publicly on an Internet site.” Information regarding inmates is protected by the Freedom of Information Act and Privacy Act, and is accessible through procedures authorized by those statutes under 28 CFR part 513, regarding access to records.

Finally, a large number of commenters mistakenly believed that the proposed rule would permit “experimentation” on inmates in CMUs. This is simply untrue. As stated in § 540.200(c), “[t]he purpose of CMUs is to provide an inmate housing unit environment that enables staff to more effectively monitor communication between inmates in CMUs and persons in the community.” Neither the proposed rule nor the preamble to the proposed rule mention experimentation on inmates, nor does the Bureau intend to conduct experiments on inmates in CMUs.

For the aforementioned reasons, the Bureau finalizes the regulations proposed on April 6, 2010 (75 FR 17324), with minor changes.

This regulation falls within a category of actions that the Office of Management and Budget (OMB) has determined to constitute “significant regulatory actions” under section 3(f) of Executive Order 12866 and, accordingly, it was reviewed by OMB.

The Bureau of Prisons has assessed the costs and benefits of this regulation as required by Executive Order 12866 Section 1(b)(6) and has made a reasoned determination that the benefits of this regulation justify its costs. There will be no new costs associated with this regulation. CMUs are set up in currently existing facilities, utilizing currently existing staff and resources, and no new staff and resources are required to implement these regulations. In fact, placing inmates who require communication restrictions together in a CMU decreases costs related to translation, technology use, and use of other such monitoring resources that had previously been spread throughout the Bureau in order to enable communication restrictions on inmates in general population facilities. CMUs enable the Bureau to pool such resources and concentrate them in the CMU locations. This regulation benefits public safety by minimizing the risk of dangerous communication to or from inmates in Bureau custody. This regulation clarifies the Bureau's current authority to limit and monitor the communication of inmates in CMUs, but maintains the ability of these inmates to maintain family ties and access to courts and other government officials. This permits inmates to raise issues related to their incarceration or their conditions of confinement, while minimizing potential internal or external threats.

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, under Executive Order 13132, we determine that this regulation does not have sufficient Federalism implications to warrant the preparation of a Federalism Assessment.

The Director of the Bureau of Prisons, under the Regulatory Flexibility Act (5 U.S.C. 605(b)), reviewed this regulation and by approving it certifies that it will not have a significant economic impact upon a substantial number of small entities for the following reasons: This regulation pertains to the correctional management of offenders and detainees committed to the custody of the Attorney General or the Director of the Bureau of Prisons, and its economic impact is limited to the Bureau's appropriated funds.

This regulation will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This regulation is not a major rule as defined by § 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This regulation will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

Under rulemaking authority vested in the Attorney General in 5 U.S.C. 301; 28 U.S.C. 509, 510 and delegated to the Director, Bureau of Prisons in 28 CFR 0.96, we amend 28 CFR part 540 as follows.

Viewing Documents Associated With This Rule

To view the final rule published on January 15, 2015 (80 FR 2011), or other documents in the docket for this rulemaking, go to http://www.regulations.gov, type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking.

On January 15, 2015, the Coast Guard published a final rule (80 FR 2011) to establish and modify anchorage grounds within the Port of New York. The rule becomes effective February 17, 2015. There was an error in an amendatory instruction in that rule and as reflected in 33 CFR 1.05-1(h), the Chief, Office of Regulations and Administrative Law (CG-0943), has authority to issue corrections to rules.

In attempting to revise paragraph (f)(2) of 33 CFR 110.155, we mistakenly referred to paragraph (f) in amendatory instruction 2 on page 80 FR 2013 of that rule. This rule fixes that error by correcting the amendatory instruction.

In rule FR Doc. 2015-00465, published on January 15, 2015, (80 FR 2011), make the following correction:

On page 2013, in the second column, on line 9, correct the paragraph reference “(f)” to read “(f)(2)”.

On January 16, 2014, the Coast Guard's notice of temporary deviation from regulations under the same docket number, USCG-2014-1066 was published in the Federal Register (80 FR 2302). That document resulted from the BNSF Railway Company's request for a temporary deviation, occurring from January 26, 2015 to January 31, 2015, from the normal operation of the drawbridge to perform the installation of new generators and remove the old festoon cable. Subsequent to the approval of that request, BNSF Railway Corporation requested a second temporary deviation for dates in early February to complete additional repairs to the fender system of the bridge. Coordination between all interested parties determined that all work could be accomplished during one scheduled closure occurring in early February, 2015. This new scheduling avoids two separate deviations causing a longer term impact on navigation. Therefore, through this document, the Coast Guard modifies the dates of the previously approved temporary deviation. The modification allows the drawbridge of the Morgan City (Berwick Bay) Railroad Bridge across the Atchafalaya River, mile 17.5 (Gulf Intracoastal Waterway (Morgan City-Port Allen Alternate Route) mile 0.3), to remain closed to navigation for four consecutive hours in the morning and three hours in the afternoon, with an opening from 11 a.m. to 1 p.m. to allow vessels to pass. The deviation is effective from 7 a.m. to 11 a.m. and then again from 1 p.m. through 4 p.m. daily, resulting in the bridge being closed to navigation on the following days: Wednesday, February 4, 2015, to Friday, February 6, 2015, and Monday, February 9, 2015, to Tuesday, February 10, 2015.

Notices of the deviation schedule will be published in the Eighth Coast Guard District Local Notice to Mariners and will be broadcast via the Coast Guard Broadcast Notice to Mariners System. A Broadcast Notice to Mariners will be used to update mariners of any changes to the planned schedule for this deviation.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

This is a synopsis of the Commission's Report and Order, MB Docket No. 14-156, adopted January 8, 2015, and released January 9, 2015. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street SW., Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractors, Best Copy and Printing, Inc., 445 12th Street SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or via email www.BCPIWEB.com. This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. The Commission will send a copy of the Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows:

This is a synopsis of the Commission's Report and Order, MB Docket No. 11-147, adopted March 30, 2012, and released April 2, 2012. The full text of this document is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 Twelfth Street SW., Washington, DC 20554. The complete text of this document may also be purchased from the Commission's duplicating contractors, Best Copy and Printing, Inc., 445 12th Street SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or via email www.BCPIWEB.com. This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. The Commission will send a copy of the Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see U.S.C. 801(a)(1)(A).

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows: