This action, pursuant to 5 U.S.C. 553, amends regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This rule is issued under Marketing Agreement and Order No. 927, as amended (7 CFR part 927), regulating the handling of pears grown in Oregon and Washington. Part 927 (referred to as 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 Fresh Pear Committee (Committee) locally administers the Order and is comprised of growers and handlers of pears operating within Oregon and Washington, and a public member.

The Department of Agriculture (USDA) is issuing this final rule in conformance with Executive Orders 13563 and 13175. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This final 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 a marketing 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 no later than 20 days after the date of the entry of the ruling.

This final rule modifies the handling regulation prescribed under the marketing order for pears grown in Oregon and Washington. This action decreases from 14 pounds to 13 pounds, the maximum acceptable pressure for early season Beurre D'Anjou variety pears shipped throughout the Continental United States and to Canada during the period August 15 to November 1. The maximum pressure for Anjou pear shipments to Mexico during this period remains at 14 pounds. In addition, this action removes the exemption from handling requirements for Anjou pear shipments of 8,800 pounds or less. The Committee recommended these actions at its May 26, 2020, meeting.

Section 927.51 authorizes the Committee, with the approval of USDA, to regulate the handling of pears grown within the production area of Oregon and Washington. Section 927.52 stipulates the prerequisites for recommendations made by the Committee with regards to the issuance, modification, suspension, or termination of handling regulations established under the authority of § 927.51. Section 927.316 sets forth the handling requirements for fresh Anjou pears.

At its May 26, 2020, meeting, the Committee recommended modification of the handling regulation for the 2021-2022 and subsequent fiscal periods. The Committee's recommendation was not unanimous but met the requirements of § 927.52 for recommendations to modify the Order's handling regulation. For recommendations to change the handling regulations, the Committee vote is weighted by volume. The Order provision allocates Committee members one vote for each 25,000 boxes of the average quantity of such variety or subvariety produced in their district and shipped therefrom during the immediately preceding three fiscal periods. The provision further requires that recommendations for changes to the handling regulations shall be affirmed by members representing no less than 80 percent of the volume of the variety or subvariety affected. There were 397 votes cast at the meeting. The Committee voted 343 (86 percent) in favor of the recommendation, 48 votes (12 percent) opposed, with 6 votes (2 percent) abstaining. The voters in opposition expressed concern that the modification of the handling regulation could hamper total sales of early season Anjou pears. The members abstaining represented very little, if any, Anjou production.

The Committee discussed the modification of the handling regulation specific to early season Anjou pears several times in the past. The Committee established a subcommittee to talk with industry members and researchers to weigh the benefits of different regulatory options. Research conducted using Committee funds has demonstrated that Anjou pears harvested at higher pressures tend to not ripen properly. Most North American consumers prefer a pear that will ripen and be ready to eat quickly after purchase. Lowering the maximum pressure requirement by 1 pound, from 14 pounds to 13 pounds for the Continental United States and Canada, will help ensure consumers in those areas consistently receive the product they prefer. International market and consumer research conducted for the Committee has demonstrated that the Mexican market is more receptive to a firmer pear, which led to the decision to leave the pressure at 14 pounds for early season shipments to Mexico.

In addition, removing the 8,800 minimum quantity exemption will ensure that even small shipments of early season Anjou pears conform to the maximum pressure requirements and that all product shipped during this period is of similar quality.

The Committee derived its recommendation to modify the handling regulation from lengthy discussions with industry members at multiple public meetings, from subcommittee input, and from research conducted using Committee funds.

This rule lowers the acceptable pressure, from 14 pounds to 13 pounds, of early season Anjou pear shipments destined for the Continental United States and Canada, and removes the minimum quantity exemption for all early season Anjou shipments. It is the Committee's determination that this modification will increase consumer preference for Anjou pears in the fresh fruit market by delivering a better eating experience and will provide increased returns to handlers and growers.

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 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 838 growers of pears for the fresh market in the regulated area and approximately 32 handlers of pears who are subject to regulation under the Order. Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts of less than $1,000,000, and small agricultural service firms have been defined as those whose annual receipts are less than $30,000,000 (13 CFR 121.201).

According to the most recent data from the National Agricultural Statistics Service (NASS), the national average producer price for non-Bartlett fresh pears for the 2017 marketing year (the most current year for NASS pear data) ranged from $748 to $788 per ton or $16.46 to $17.34 per 44-pound standard box. The Committee reported that for the same full year of records, total shipments of non-Bartlett pears for the fresh market from the production area were 11,875,202 boxes. Using the NASS price range from the 2017 marketing year, the total 2017 farm gate value of the fresh, non-Bartlett pear crop could therefore be estimated to be between $195,465,825 and $205,916,003. Dividing the crop value by the estimated number of growers (838) yields an estimated average receipt per producer of between $233,253 and $245,723, which is well below the SBA threshold for small producers.

USDA Market News reported a freight on board (FOB) average price (including palletizing and cooling) of $24.45 per 44-pound bag or equivalent of pears shipped in 2019. Multiplying this average FOB price by the Committee recorded total 2019 shipments of 13,811,500 44-pound bags of fresh pears results in an estimated gross value of fresh pear shipments of $337,691,175. Dividing this figure by the number of handlers (32) yields estimated average annual handler receipts of $10,552,849, which is below the SBA threshold for small agricultural service firms. Therefore, using the above data, the majority of producers and handlers of pears in the production area may be classified as small entities.

This final rule decreases from 14 pounds to 13 pounds, the maximum acceptable pressure for early season Anjou variety pears shipped throughout the Continental United States and to Canada, during the period August 15 to November 1. The maximum pressure for Anjou pear shipments to Mexico during this period remains unchanged at 14 pounds. In addition, this action removes the handling requirement exemption for early season Anjou pear shipments of 8,800 pounds or less. All other requirements in the Order's handling regulations remain unchanged. Authority for this action is contained in § 927.51.

This rule is expected to benefit the growers, handlers, and consumers of fresh pears. The Committee anticipates that this modification will lead to greater returns to handlers and growers by encouraging repeat consumption of fresh Anjou pears due to an improved eating experience.

Prior to arriving at its recommendation to modify the handling regulation, the Committee discussed various alternatives, including maintaining the current handling regulation, decreasing the acceptable pressure further, shortening the regulation period, and extending the requirement to shipments to Mexico. After several failed motions and much deliberation, the Committee determined that the recommended modification was the most beneficial option for the industry and consumers of pears.

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 OMB and assigned OMB No. 0581-0189, Fruit Crops. No changes in those requirements are necessary as a result of this action. 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 pear 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 final rule.

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.

The Committee's May 26, 2020, meeting was widely publicized throughout the pear industry. All interested persons were invited to attend the meeting and encouraged to participate in the deliberations on all issues. Like all Committee meetings, the meeting was a public meeting, and all entities, both large and small, were able to express their views on these issues.

A proposed rule concerning this action was published in the Federal Register on October 19, 2020 (85 FR 66283). Copies of the proposal were provided by the Committee to its members and handlers. The proposed rule was made available through the internet by USDA and the Office of the Federal Register. A 60-day comment period ending December 18, 2020, was provided to allow interested persons to respond to the proposal. Two comments were received. One of the comments favored this action, and the other was not supportive of this rule.

The comment that supported the rule did not address the merits of this action. The comment not in favor of the rule challenged the assumption—that these changes affecting the ripening of Anjou pears would increase sales—as being without merit. This comment also included that the removal of the minimum quantity exemption for shipments will affect small farmers. The Committee-funded research showed that fruits at lower pressures were ripening properly; and following consumer preferences, would lead to a better eating experience, increased repeat purchases, and increased sales of Anjou pears. By removing the minimum quantity exemption for shipments, all Anjou pears are subjected to the new regulation which will improve grower returns including those to small farmers.

Accordingly, no changes will be made to the rule as proposed.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: https://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions about the compliance guide should be sent to Richard Lower at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant material presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule will tend to effectuate the declared policy of the Act.

For the reasons set forth in the preamble, 7 CFR part 927 is amended as follows:

Please refer to Docket ID NRC-2020-0274 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:

• Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2020-0274.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly available documents online in the ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to pdr.resource@nrc.gov. For the convenience of the reader, instructions about obtaining materials referenced in this document are provided in the “Availability of Documents” section.

• Attention: The Public Document Room (PDR), where you may examine and order copies of public documents, is currently closed. You may submit your request to the PDR via email at pdr.resource@nrc.gov or call 1-800-397-4209 between 8:00 a.m. and 4:00 p.m. (EST), Monday through Friday, except Federal holidays.

The NRC encourages electronic comment submission through the Federal Rulemaking website ( https://www.regulations.gov ). Please include Docket ID NRC-2020-0274 in your comment submission.

The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at https://www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.

This rule is limited to the changes contained in Renewed Amendment No. 17 to Certificate of Compliance No. 1004 and does not include other aspects of the TN Americas LLC, Standardized NUHOMS® Cask System design. The NRC is using the “direct final rule procedure” to issue this amendment because it represents a limited and routine change to an existing certificate of compliance that is expected to be non-controversial. The NRC has determined that, with the requested changes, adequate protection of public health and safety continues to be reasonably assured. The amendment to the rule will become effective on June 7, 2021. However, if the NRC receives any significant adverse comments on this direct final rule by April 23, 2021, then the NRC will publish a document that withdraws this action and will subsequently address the comments received in a final rule as a response to the companion proposed rule published in the Proposed Rules section of this issue of the Federal Register . Absent significant modifications to the proposed revisions requiring republication, the NRC will not initiate a second comment period on this action.

A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:

(1) The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, a substantive response is required when:

(a) The comment causes the NRC to reevaluate (or reconsider) its position or conduct additional analysis;

(b) The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or

(c) The comment raises a relevant issue that was not previously addressed or considered by the NRC.

(2) The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.

(3) The comment causes the NRC to make a change (other than editorial) to the rule, certificate of compliance, or technical specifications.

Section 218(a) of the Nuclear Waste Policy Act of 1982, as amended, requires that “[t]he 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 Nuclear Waste Policy Act states, in part, that “[t]he 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 that added a new subpart K in part 72 of title 10 of the Code of Federal Regulations (10 CFR) 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 in 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 on December 22, 1994 (59 FR 65898) that approved the TN Americas LLC Standardized NUHOMS® System design and added it to the list of NRC-approved cask designs in § 72.214 as Certificate of Compliance No. 1004.

On June 11, 2020, TN Americas LLC submitted a request to the NRC to amend Certificate of Compliance No. 1004. TN Americas LLC supplemented its request on September 11, 2020. Renewed Amendment No. 17 revises the certificate of compliance technical specifications to (1) add Heat Load Zoning Configurations 11-13 for the 61BTH Type 2 dry shielded canister and (2) change the maximum assembly heat load from 1.2 kW to 1.7 kW. This amendment also includes minor clarification changes.

As documented in the preliminary safety evaluation report (ADAMS Accession No. ML20308A495), the NRC performed a safety evaluation of the proposed certificate of compliance amendment request. The NRC determined that this amendment does not reflect a significant change in design or fabrication of the cask. Specifically, the NRC determined that the design of the cask would continue to maintain confinement, shielding, and criticality control in the event of each evaluated accident condition. In addition, any resulting occupational exposure or offsite dose rates from the implementation of Renewed Amendment No. 17 would remain well within the limits specified by 10 CFR part 20, “Standards for Protection Against Radiation.” Thus, the NRC found there will be no significant change in the types or 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 NRC staff determined that the amended TN Americas LLC Standardized NUHOMS® Horizontal Modular Storage System cask design, when used under the conditions specified in the certificate of compliance, the technical specifications, 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 reasonably assured. When this direct final rule becomes effective, persons who hold a general license under § 72.210 may, consistent with the license conditions under § 72.212, load spent nuclear fuel into TN Americas LLC Standardized NUHOMS® Horizontal Modular Storage System casks that meet the criteria of Renewed Amendment No. 17 to Certificate of Compliance No. 1004.

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 direct final rule, the NRC revises the TN Americas LLC Standardized NUHOMS® Horizontal Modular Storage System cask design listed in § 72.214, “List of approved spent fuel storage casks.” This action does not constitute the establishment of a standard that contains generally applicable requirements.

Under the “Agreement State Program Policy Statement” approved by the Commission on October 2, 2017, and published in the Federal Register on October 18, 2017 (82 FR 48535), this rule is classified as Compatibility Category NRC—Areas of Exclusive NRC Regulatory Authority. 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 chapter I. Therefore, compatibility is not required for program elements in this category. Although an Agreement State may not adopt program elements reserved to the NRC, and the Category “NRC” does not confer regulatory authority on the State, the State may wish to inform its licensees of certain requirements by means consistent with the particular State's administrative procedure laws.

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31885).

Under the National Environmental Policy Act of 1969, as amended, and the NRC's regulations in 10 CFR part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions,” the NRC has determined that this direct final 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.

The action is to amend § 72.214 to revise the TN Americas LLC Standardized NUHOMS® Horizontal Modular Storage System listing within the “List of approved spent fuel storage casks” to include Renewed Amendment No. 17 to Certificate of Compliance No. 1004.

This direct final rule amends the certificate of compliance for the TN Americas LLC Standardized NUHOMS® System design within the list of approved spent fuel storage casks to allow power reactor licensees to store spent fuel at reactor sites in casks with the approved modifications under a general license. Specifically, Renewed Amendment No. 17 revises the certificate of compliance technical specifications to (1) add Heat Load Zoning Configurations 11-13 for the 61BTH Type 2 dry shielded canister and (2) change the maximum assembly heat load from 1.2 kW to 1.7 kW. This amendment also includes minor clarifications to the certificate of compliance.

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 analyzed in the environmental assessment for the 1990 final rule. The environmental assessment for this Renewed Amendment No. 17 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 of 1969, as amended.

TN Americas LLC Standardized NUHOMS® Horizontal Modular Storage System is 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, can 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.

The design of the cask would prevent loss of confinement, shielding, and criticality control in the event of each evaluated accident condition. If there is no loss of confinement, shielding, or criticality control, the environmental impacts resulting from an accident would be insignificant. This amendment does not reflect a significant change in design or fabrication of the cask. Because there are no significant design or process changes, any resulting occupational exposure or offsite dose rates from the implementation of Renewed Amendment No. 17 would remain well within the 10 CFR part 20 limits. Therefore, the proposed 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 exposures, and no significant increase in the potential for, or consequences from, radiological accidents. The NRC documented its safety findings in the preliminary safety evaluation report.

The alternative to this action is to deny approval of Renewed Amendment No. 17 and not issue the direct final rule. Consequently, any 10 CFR part 72 general licensee that seeks to load spent nuclear fuel into TN Americas LLC Standardized NUHOMS® Horizontal Modular Storage System in accordance with the changes described in proposed Renewed Amendment No. 17 would have to request an exemption from the requirements of §§ 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. The environmental impacts would be the same as the proposed action.

Approval of Renewed Amendment No. 17 to Certificate of Compliance No. 1004 would result in no irreversible commitment 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 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.” Based on the foregoing environmental assessment, the NRC concludes that this direct final rule entitled “List of Approved Spent Fuel Storage Casks: TN Americas LLC Standardized NUHOMS® Horizontal Modular Storage System, Certificate of Compliance No. 1004, Renewed Amendment No. 17” will not have a significant effect on the human environment. Therefore, the NRC has determined that an environmental impact statement is not necessary for this direct final rule.

This direct final rule does not contain any new or amended collections of information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). Existing collections of information were approved by the Office of Management and Budget, approval number 3150-0132.

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 currently valid Office of Management and Budget control number.

Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the NRC certifies that this direct final rule will not, if issued, have a significant economic impact on a substantial number of small entities. This direct final rule affects only nuclear power plant licensees and TN Americas LLC. 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 (§ 2.810).

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 (1) notifies the NRC in advance, (2) the spent fuel is stored under the conditions specified in the cask's certificate of compliance, and (3) the conditions of the general license are met. A list of NRC-approved cask designs is contained in § 72.214. On December 22, 1994 (59 FR 65898), the NRC issued an amendment to 10 CFR part 72 that approved the TN Americas LLC Standardized NUHOMS® Horizontal Modular Storage System design by adding it to the list of NRC-approved cask designs in § 72.214.

On June 11, 2020, and as supplemented on September 11, 2020, TN Americas LLC submitted a request to amend the TN Americas LLC Standardized NUHOMS® Horizontal Modular Storage System as described in Section IV, “Discussion of Changes,” of this document.

The alternative to this action is to withhold approval of Renewed Amendment No. 17 and to require any 10 CFR part 72 general licensee seeking to load spent nuclear fuel into the TN Americas LLC Standardized NUHOMS® Horizontal Modular Storage System under the changes described in Renewed Amendment No. 17 to request an exemption from the requirements of §§ 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, a separate exemption request, thereby increasing the administrative burden upon the NRC and the costs to each licensee.

Approval of this direct final rule is consistent with previous NRC actions. Further, as documented in the preliminary safety evaluation report and environmental assessment, this direct final rule will have no adverse effect on public health and safety or the environment. This direct 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 this direct 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; therefore, this action is recommended.

The NRC has determined that the backfit rule (§ 72.62) does not apply to this direct final rule. Therefore, a backfit analysis is not required. This direct final rule revises Certificate of Compliance No. 1004 for the TN Americas LLC Standardized NUHOMS® Horizontal Modular Storage System, as currently listed in § 72.214. The revision consists of the changes in Renewed Amendment No. 17 previously described, as set forth in the revised certificate of compliance and technical specifications.

Renewed Amendment No. 17 to Certificate of Compliance No. 1004 for the TN Americas LLC, Standardized NUHOMS® Horizontal Modular Storage System was initiated by TN Americas LLC and was not submitted in response to new NRC requirements, or an NRC request for amendment. Renewed Amendment No. 17 applies only to new casks fabricated and used under Renewed Amendment No. 17. These changes do not affect existing users of the TN Americas LLC, Standardized NUHOMS Horizontal Modular Storage System, and the current Renewed Amendment No. 16 continues to be effective for existing users. While current users of this storage system may comply with the new requirements in Renewed Amendment No. 17, this would be a voluntary decision on the part of current users.

For these reasons, Renewed Amendment No. 17 to Certificate of Compliance No. 1004 does not constitute backfitting under § 72.62 or § 50.109(a)(1), or otherwise represent an inconsistency with the issue finality provisions applicable to combined licenses in 10 CFR part 52. Accordingly, the NRC has not prepared a backfit analysis for this rulemaking.

This direct final rule 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.

The NRC may post materials related to this document, including public comments, on the Federal Rulemaking website at https://www.regulations.gov under Docket ID NRC-2020-0274. The Federal Rulemaking website allows you to receive alerts when changes or additions occur in a docket folder. To subscribe: (1) Navigate to the docket folder (NRC-2020-0274); (2) click the “Sign up for Email Alerts” link; and (3) enter your email address and select how frequently you would like to receive emails (daily, weekly, or monthly).

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; the Nuclear Waste Policy Act of 1982, as amended; and 5 U.S.C. 552 and 553; the NRC is adopting the following amendments to 10 CFR part 72:

The CARES Act made several changes to Title III of the Federal Credit Union Act (the FCU Act), 1 which governs the CLF. 2 On April 16, 2020, the Board approved an interim final rule to amend the NCUA's CLF regulation, Part 725. 3 This interim final rule made several changes to part 725, some of which effectuated or mirrored the changes made by the CARES Act. Other changes, made in the April interim final rule, were intended to make membership in the CLF more advantageous to credit unions.

The changes directly related to the CARES Act were scheduled to sunset in accordance with the same on December 31, 2020. As noted above, however, the CAA, among other things, extended the sunset date of the CLF enhancements in the CARES Act to December 31, 2021. 4 To provide clarity and transparency, the Board is issuing this interim final rule to amend its regulations to reflect this extension.

In addition, the Board notes that in response to the April interim final rule, the Board received five comments which supported the rule. The comments also requested legislative changes and/or changes outside the scope of the April interim final rule.

The following is a section-by-section analysis of the changes in this interim final rule.

In accordance with the CARES Act, the Board amended the definition of “Liquidity needs” to remove the words “primarily serving natural persons.” This change mirrored the statutory change in the CARES Act and clarified that liquidity needs are not limited to only natural person credit unions, but may also include those of corporate credit unions or a corporate credit union group. This amendment was scheduled to sunset in accordance with the CARES Act on December 31, 2020. The CAA extended this provision in the CARES Act until December 31, 2021. 5 As such, the Board is clarifying that the regulatory definition of “Liquidity needs” to make it clear when the definition under the CARES Act applies and when such definition reverts back to the pre-CARES Act version.

In accordance with the CARES Act, the Board amended the nature of the requirement for a corporate credit union or group of corporate credit unions to subscribe to the capital stock of the Facility in an amount equal to one-half of 1 percent of the paid-in and unimpaired capital and surplus of all of the corporate credit union's or corporate credit union group's natural person credit union members. This change, which mirrors the statutory change in the CARES Act, allows the Board, in its sole discretion, to determine which grouping of natural person member credit unions of the applying corporate credit union or corporate credit union group are considered covered by the Agent's membership in the Facility. In turn, this approved group is the basis for calculating the amount of Facility capital stock the corporate credit union or corporate credit union group is required to purchase. This amendment was scheduled to sunset in accordance with the CARES Act on December 31, 2020. The CAA extended this provision in the CARES Act until December 31, 2021. 6 As such, the Board is making a conforming date change to part 725 through this interim final rule.

Upon the sunset of the amendment made in the CARES Act, as extended by the CAA, any corporate credit union or corporate credit union group that became an agent member under this provision must, within one year from the sunset date, either:

1. Purchase Facility stock for all of its member credit unions; or

2. terminate its membership in the Facility.

To effectuate the intent of the CARES Act in a safe and sound manner, the Board, in the April interim final rule, made a clarifying amendment to § 725.4. 7 This amendment clarified that an agent member may borrow from the Facility for its own liquidity needs, but, to do so, such agent must first subscribe to the capital stock of the Facility in an amount equal to one-half of 1 percent of the Agent's own paid-in and unimpaired capital and surplus. 8 In addition, the Board amended § 725.17(b)(2) to clarify that an agent may apply for a Facility advance based on its own liquidity needs.

The Board notes that the foregoing amendments were scheduled to sunset in accordance with requirements of the CARES Act on December 31, 2020. The CAA extended the related provisions in the CARES Act until December 31, 2021. 9 As such, the Board is making a conforming date changes through this interim final rule.

The April interim final rule included language to clarify the ramifications of the sunset of this provision. Specifically, the April interim final rule provided that upon sunset of this provision, an agent must:

(1) Not request any additional Facility advances for its own liquidity needs; and

(2) continue to follow the terms of the Facility advance agreement entered into between the agent and the Facility.

The Board is not making any changes to the aforementioned provisions, which will still apply upon the sunset of the changes to these sections of part 725.

In addition, in the April 2020 interim final rule, the Board made cohering changes to §§ 725.17 and 725.18 to include the ability of an Agent to borrow for its own liquidity needs. 10 This rule makes technical changes to the two aforementioned sections to clarify that the references to an Agent borrowing for its own liquidity needs sunset on December 31, 2021.

In the April interim final rule, the Board amended the waiting periods for a credit union to terminate its membership in the Facility between the effective date of the interim final rule and January 1, 2022. 11 The amendments to this section of part 725 temporarily permitted a credit union, regardless of its percentage amount of stock subscription, to withdraw from membership in the Facility after notifying the NCUA Board in writing on the sooner of:

(A) Six months from the date of its written notice to the NCUA Board; or

(B) December 31, 2020.

Further, any credit union that remained a member after December 31, 2020, was permitted to withdraw from membership immediately upon notifying the Board in writing of its intent to do so. Per the April interim final rule, such immediate withdrawal period would expire on December 31, 2021. After December 31, 2021, the termination requirements in effect prior to the enactment of the CARES Act would be reinstated and apply to all members. 12

The Board is making several conforming amendments to this section to address the extension of the CLF provisions in the CARES Act by the CAA. First, any credit union that joined the CLF between April 29, 2020 and December 31, 2020 may immediately withdraw from membership upon notifying the Board in writing of its intent to do so. Through this interim final rule, the Board is extending this immediate withdrawal period to December 31, 2022.

Second, credit unions that join the CLF between January 1, 2021 and December 31, 2021, regardless of percentage amount of stock subscription, may withdraw from membership in the Facility after notifying the NCUA Board in writing on the sooner of:

(A) Six months from the date of its written notice to the NCUA Board; or

(B) December 31, 2021.

Any credit union that joins the Facility during the aforementioned period and remains a member after December 31, 2021, may immediately withdraw from membership in the Facility upon notifying the Board in writing of its intent to do so. Such immediate withdrawal period will expire on December 31, 2022. On January 1, 2023, the immediate withdrawal period will cease, and all members will be subject to the termination provisions in effect before April 29, 2020.

The Board notes that the CARES Act included two additional amendments to the FCU Act that were not reflected in the April interim final rule. Like the other changes discussed above, the CAA also extended these amendments until December 31, 2021. 13 For the benefit and information of stakeholders, the Board briefly discusses these amendments below.

First, the CARES Act temporarily increased the multiplier from “twelve times” to “sixteen times.” This means that for every $1 of capital and surplus, the Facility may borrow $16. This provision was not previously codified in part 725, and therefore the Board is not making any regulatory amendment regarding this temporary statutory change.

Second, the CARES Act provided more clarity about the purposes for which the NCUA Board can approve liquidity-need requests by removing the phrase “the Board shall not approve an application for credit the intent of which is to expand credit union portfolios.”  14 This provision was not previously codified in part 725, and therefore the Board is not making any regulatory amendment regarding this temporary statutory change.

The Board is issuing this interim final rule without prior notice and the opportunity for public comment and the delayed effective date ordinarily prescribed by the Administrative Procedure Act (APA). Pursuant to section 553(b)(B) of the APA, general notice and the opportunity for public comment are not required with respect to a rulemaking when an “agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”

The Board believes that the public interest is best served by implementing the interim final rule immediately upon publication in the Federal Register . As discussed above, the Board notes the changes in this rule cohere the NCUA's regulations with statutory extensions recently enacted in the CAA. As such changes are clarifying in nature and will reduce any disruption caused by inconsistency in the NCUA's regulations, the Board believes it is has good cause to determine that ordinary notice and public procedure are impracticable and that moving expeditiously in the form of an interim final rule is in the best of interests of the public and the federally insured credit unions that serve that public.

The APA also requires a 30-day delayed effective date, except for (1) substantive rules which grant or recognize an exemption or relieve a restriction; (2) interpretative rules and statements of policy; or (3) as otherwise provided by the agency for good cause. Because the rules relieve a restriction, the interim final rule is exempt from the APA's delayed effective date requirement. The reasons previously discussed for forgoing prior notice and comment would also separately justify this determination.

While the Board believes that there is good cause to issue the rule without advance notice and comment and with an immediate effective date, the Board is interested in the views of the public and requests comment on all aspects of the interim final rule.

For purposes of the Congressional Review Act, the OMB makes a determination as to whether a final rule constitutes a “major” rule. If a rule is deemed a “major rule” by the Office of Management and Budget (OMB), the Congressional Review Act generally provides that the rule may not take effect until at least 60 days following its publication.

The Congressional Review Act defines a “major rule” as any rule that the Administrator of the Office of Information and Regulatory Affairs of the OMB finds has resulted in or is likely to result in (A) an annual effect on the economy of $100,000,000 or more; (B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies or geographic regions, or (C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

For the same reasons set forth above, the Board is adopting this interim final rule without the delayed effective date generally prescribed under the Congressional Review Act. The delayed effective date required by the Congressional Review Act does not apply to any rule for which an agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rule issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. In light of current inconsistency between the NCUA's regulations and the Act, the Board believes that delaying the effective date of the rule would be contrary to the public interest for the same reasons discussed above.

As required by the Congressional Review Act, the Board will submit the final rule and other appropriate reports to Congress and the Government Accountability Office for review. The Board notes that OMB agreed that the April interim final rule was not major. As this interim final is similar in nature, the Board believe this rule is also not major for purposes of the Congressional Review Act.

The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq. ) requires that the Office of Management and Budget (OMB) approve all collections of information by a Federal agency from the public before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a valid OMB control number.

In accordance with the PRA, the information collection requirements included in this interim final rule extension have been submitted to OMB for approval under control number 3133-0061.

Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. The NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order to adhere to fundamental federalism principles.

This interim final rule does not have substantial effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. The NCUA has therefore determined that this rule does not constitute a policy that has federalism implications for purposes of the executive order.

The NCUA has determined that this rule will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, 1999, Public Law 105-277, 112 Stat. 2681 (1998).

The Regulatory Flexibility Act (RFA) generally requires that when an agency issues a proposed rule or a final rule pursuant to the APA or another law, the agency must prepare a regulatory flexibility analysis that meets the requirements of the RFA and publish such analysis in the Federal Register . Specifically, the RFA normally requires agencies to describe the impact of a rulemaking on small entities by providing a regulatory impact analysis. For purposes of the RFA, the Board considers credit unions with assets less than $100 million to be small entities.

Rules that are exempt from notice and comment are also exempt from the RFA requirements, including conducting a regulatory flexibility analysis, when among other things the agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest. 15 Accordingly, the NCUA is not required to conduct a regulatory flexibility analysis for the reasons stated above relating to the good cause exemption. Nevertheless, the Board welcomes comments on the effect this interim final rule may have on small entities.

For the reasons discussed in the preamble, the Board is amending 12 CFR part 725 as follows:

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 747 series airplanes and Model 767 series airplanes. The NPRM published in the Federal Register on September 9, 2020 (85 FR 55622). The NPRM was prompted by a report of an un-commanded fuel transfer between the main and center fuel tanks. The NPRM proposed to prohibit operation of an airplane with any inoperative refuel valve (fueling shut-off valve) failed in the open position.

The FAA is issuing this AD to address multiple refuel valves failed in the “open” position via Master Minimum Equipment List (MMEL) dispatch allowance, which allows un-commanded fuel transfer between fuel tanks. This condition could result in a fuel exhaustion event.

The FAA gave the public the opportunity to participate in developing this final rule. The following presents the comments received on the NPRM and the FAA's response to each comment.

United Airlines had no objection to the NPRM. Another commenter stated that the NPRM was justified.

Boeing requested that the proposed AD be identified as interim action because it is working on an updated MMEL to provide modified dispatch relief.

The FAA agrees with the commenter's request for the reason provided by the commenter. The FAA has revised the preamble in this final rule to identify this AD as interim action.

Boeing requested that throughout the proposed AD the word “secured” be changed to “failed” when referring to the fuel shutoff valves. The commenter explained that the Minimum Equipment List (MEL) does not direct operators to secure the fuel shutoff valve open; the MEL states that operators are allowed to operate (dispatch) an airplane with a valve failed (inoperative) in the open position.

The FAA agrees with the commenter's request for the reasons provided by the commenter. The FAA has accordingly revised the description of the unsafe condition and AD requirements in the SUMMARY and Background sections of this final rule, and in paragraphs (e) and (g) of this AD.

A commenter requested clarification regarding revisions to MMEL items for Model 747SP series airplanes. The commenter stated the company he is affiliated with operates two Model 747SP series airplanes and asked if the final instruction would require eliminating ATA 28-20 (2) through (6) from its MEL, or if those sections would be revised with different maintenance instructions, which would allow dispatching an airplane with only one inoperative refueling valve deactivated in the open position, or if there would be a revision to those sections with different maintenance instructions allowing dispatching an airplane with inoperative refueling valves deactivated in the closed position (for example, if the refueling valves could be manually opened on the ground for re-fueling and then closed for flight if only the valve's actuator is defective).

The FAA provides the following explanations to the commenter's questions. This AD eliminates the relief provided by the dispatch provisions of ATA 28-20 (2), (3), (4), (5), and (6) from the Boeing 747 B-747-100/200/300/SP SERIES MMEL. This AD therefore prohibits dispatch of an airplane with any of the subject refuel valves inoperative in the open position, regardless of the existence of any MMEL provisions. If the MMEL items are revised in the future, the FAA might issue global AMOCs to provide relief for operation under specified conditions. This AD does not change the MMEL dispatch provisions for refuel valves inoperative in the closed position.

The Air Line Pilots Association, International (ALPA) requested that the compliance time specified in the proposed AD be reduced from 60 days after the effective date of the AD to 15 days. The commenter stated that operators have had sufficient time from the publication date of the proposed AD (September 9, 2020) until the publication date of the final rule to address the prohibition of dispatching airplanes with more than one affected refuel valve inoperative.

The FAA disagrees with the commenter's request. After considering all of the available information, the FAA determined that the compliance time, as proposed, represents an appropriate interval of time for operators to comply with the AD, and still maintain an adequate level of safety. In developing an appropriate compliance time, the FAA considered the safety implications of operating an airplane with any inoperative refuel valve. In addition, reducing the compliance time of the proposed AD would necessitate (under the provisions of the Administrative Procedure Act) reissuing the notice, reopening the period for public comment, considering additional comments subsequently received, and eventually issuing a final rule. That procedure could add unwarranted time to the rulemaking process. In light of this, and in consideration of the amount of time that has already elapsed since issuance of the original notice, the FAA determined that further delay of this AD is not appropriate. However, if additional data are presented that would justify a shorter compliance time, the FAA may consider further rulemaking on this issue. The FAA has not revised this AD in regard to this issue.

Boeing and AMES Sarl (CAMO) requested that MMEL Item 28-21-02-01A, “Refuel Valves,” which applies to passenger airplanes, be included in paragraph (h)(4) of the proposed AD. The commenters noted that in paragraph (h)(4) of the proposed AD, only MMEL Item 28-21-01-01A, “Refuel Valves,” is specified, and that MMEL item is applicable only to Model 747-8F airplanes, which are freighter airplanes.

The FAA agrees with the commenters' requests for the reasons provided by the commenters and has revised paragraph (h)(4) of this AD accordingly.

Boeing requested that MMEL items referring to Model 767-2C series airplanes be removed from paragraph (h)(6) of the proposed AD because an FAA-approved MMEL document does not exist for this model. The commenter explained that only a Dispatch Deviation Guide (DDG) has been issued for Model 767-2C series airplanes and that the MMEL items referenced in paragraphs (h)(6)(i) and (ii) of the proposed AD are found only in the DDG and are not public documents; therefore it is not appropriate to reference these MMEL items in the proposed AD.

The FAA agrees with the commenter's request for the reasons provided by the commenter. The FAA has removed paragraph (h)(6) of this AD because there is no published MMEL for Model 767-2C series airplanes.

Boeing requested that all text referring to Model KC-46A airplanes be removed from the NPRM. The commenter explained that for type certification purposes, Model KC-46A airplanes are covered under the type certificate for Model 767-2C series airplanes.

The FAA agrees with the commenter's request for the reason provided by the commenter. As stated previously, paragraph (h)(6) of the proposed AD, which provided MMEL information for Model 767-2C airplanes, has been removed from this AD.

Boeing requested that paragraph (g) of the proposed AD be revised to clarify which fuel tanks are affected. The commenter stated that the identified unsafe condition is not evident when an airplane is operating using the existing DDG and MMEL relief for fuel tanks with refuel valves that are isolated from the main manifold that provides fuel to the wing tanks. The commenter explained that the fuel tanks that are not affected include the auxiliary tanks and the horizontal stabilizer tank on Model 747 series airplanes and the body fuel tanks on Model 767-2C series airplanes.

The FAA agrees with the commenter's request. The FAA has determined that this clarification could reduce confusion among operators regarding which fuel tanks are affected by the unsafe condition identified in this AD. The FAA has revised this final rule to clarify that this AD prohibits operation of an airplane with any inoperative refuel valve (fueling shut-off valve) of “the reserve tank (on Model 747 series airplanes), main tank, or center tank” that has failed in the open position.

United Parcel Service (UPS Airlines) requested that paragraph (g) of the proposed AD be revised to specify that dispatch of an airplane is allowed if there is only one inoperative refuel valve. The commenter agreed that if multiple refuel valves were secured in the open position there could be an un-commanded fuel transfer between fuel tanks. The commenter explained that a review of the fuel control systems on its fleet revealed that the fuel transfer would occur only if two valves were open, each in a different tank. The commenter noted that if only one valve was secured (failed) open, fuel could enter the manifold but could not migrate into a different tank. The commenter stated that it had contacted Boeing regarding dispatch of an airplane with one refuel valve secured in the open position and that Boeing stated this provides an acceptable level of safety to the proposed AD. The commenter explained that Boeing is developing substantiating analysis to support dispatch of an airplane with one refuel valve secured in the open position for many of the affected airplane models.

In addition, the commenter requested that the repair category be specified as category B (three day deferral) because the replacement of a refuel valve, which involves fuel tank access and requires specialized training and additional time to properly vent the fuel tanks, would place an undue burden on operators when another acceptable alternative is available.

The FAA does not agree with the commenter's requests. The FAA has determined that the operational limitations imposed by this AD are warranted, and adequately address the unsafe condition. Boeing has not yet finalized or provided the FAA with its substantiating analysis to support dispatch of an airplane with one refuel valve secured in the open position. Boeing has indicated that in the future it might provide updates for the applicable DDG and MMEL for each affected airplane model to provide modified dispatch relief. The FAA has not revised this AD in regard to this issue.

Boeing requested that the header for paragraph (h) in the proposed AD be changed from MMEL Items to MEL Items. The commenter also requested that paragraphs (h)(1) through (6) be revised to refer to MEL items instead of MMEL items. The commenter stated that these changes would provide clarification that MEL(s) would be updated and the wording would be consistent with that of similar ADs.

The FAA partially agrees with the commenter's requests. The FAA agrees with the commenter's statement that operators will need to update their MELs to comply with the change required by this AD. Because dispatch requirements have changed for the applicable airplane models, the FAA disagrees with removing the reference to the identified MMEL items because this AD does not mandate the actual change to the applicable MMEL. This AD identifies which FAA-approved MMEL items are affected. Operators consult the MMEL requirements when updating the operator's existing FAA-approved MEL. The FAA has revised paragraph (h) of this AD accordingly.

Boeing requested that Note 2 be added to paragraph (h) of the proposed AD stating that operators must not dispatch an airplane using MMEL Item 28-21-01 with any of the identified valves in the inoperative open condition. The commenter explained that this would prevent dispatch of an airplane with fueling shutoff valves in the inoperative open condition without requiring a reference to a specific chapter of the MMEL.

The FAA disagrees with the commenter's request. Not all affected airplanes have MMEL items in section 28-21. Further, the intent of the commenter's proposed text is adequately addressed in the provisions of paragraph (g) of this AD, which is unchanged from the proposed AD. The FAA has not changed this AD as a result of this comment.

The FAA reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this final rule with the changes described previously and minor editorial changes. The FAA has determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM for addressing the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

The FAA also determined that these changes will not increase the economic burden on any operator or increase the scope of this final rule.

This AD refers to items in Sections 28-20 and 28-21 of the MMEL;  1 those items may also be included in an operator's FAA-approved MEL. This AD prohibits operation of the airplane under conditions currently allowed by those items in the MMEL. The FAA plans to revise the MMEL to remove those items in a future revision; operators would then be required to also remove those items from their existing FAA-approved MEL.

The FAA considers this AD interim action. The manufacturer is currently developing an updated MMEL, with substantiation, that would allow limited relief for an inoperative open fuel shutoff valve and mitigate the unsafe condition. Once the updated MMEL is developed, approved, and available, the FAA might consider additional rulemaking.

The FAA estimates that this AD affects 750 airplanes of U.S. registry.

The FAA has determined that revising the operator's existing FAA-approved MEL takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators typically incorporate MEL changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, the FAA estimates the average total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).

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.

The FAA is 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) Will not affect intrastate aviation in Alaska, and

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

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

The FAA issued Emergency AD 2007-26-52 on December 20, 2007 and published it as a Final rule; request for comments on May 9, 2008, as Amendment 39-15519 (73 FR 26316). AD 2007-26-52 applied to Agusta S.p.A. (now Leonardo) Model A109C, A109E, and A109K2 helicopters with an MRB part number (P/N) 709-0103-01-all dash numbers installed. AD 2007-26-52 required, for any MRB with a serial number (S/N) with a prefix of either “EM-” or “A5-”, except a MRB with a tip cap P/N 709-0103-29-109, within 10 hours time-in-service (TIS) and thereafter at intervals not to exceed 25 hours TIS:

• A tap inspection of the upper and lower sides of each tip cap and in the tip cap to blade bond area for bonding separation;

• A visual inspection of the upper and lower side of each blade tip cap for swelling or deformation; and

• A dye-penetrant inspection of the tip cap leading edge along the welded joint line of the upper and lower tip cap skin shells for a crack.

For any MRB with a tip cap P/N 709-0103-29-109 installed, the AD required visually inspecting for a crack on the leading edge at the welded bead (joint line of shells) using a 10x or higher power magnifying glass, and if there is damage other than a crack, inspecting the area using a dye-penetrant inspection method, within the following compliance times:

• For a tip cap P/N 709-0103-29-109 with 600 or more hours TIS, inspect within the next 5 hours TIS or 30 days, whichever occurs first, and thereafter at intervals not to exceed 50 hours TIS; or

• For a tip cap P/N 709-0103-29-109 with less than 600 hours TIS, inspect before reaching 600 hours TIS, and thereafter, at intervals not to exceed 50 hours TIS.

AD 2007-26-52 also required replacing the MRB if swelling, deformation, a crack, or bonding separation that exceeds the prescribed limits is found in an MRB with an affected prefix, except an MRB with a tip cap P/N 709-0103-29-109. The MRB must be replaced with an airworthy MRB before further flight. If a crack is found in a MRB with tip cap P/N 709-0103-29-109, then AD 2007-26-52 required replacing the MRB before further flight. The actions were required to be accomplished in accordance with the manufacturer's service information.

AD 2007-26-52 was prompted by EASA AD 2007-0306-E, dated December 14, 2007 (EASA AD 2007-0306-E). EASA, which is the Technical Agent for the Member States of the European Union, notified the FAA that an unsafe condition may exist on Agusta Model A109C, A109E, and A109K2 helicopters. EASA advises that an incident occurred in which a Model A109E helicopter lost part of the tip of the MRB due to fracture of the welded bead (joint line of shells). The manufacturer advised that the investigation relating to this tip cap failure was still ongoing.

Since the FAA issued AD 2007-26-52, EASA issued AD 2020-0230, dated October 22, 2020 (EASA AD 2020-0230), which supersedes EASA AD 2007-0306-E, to correct an unsafe condition for Leonardo S.p.a. Helicopters, formerly Finmeccanica S.p.A., AgustaWestland S.p.A., Agusta S.p.A., Model A109E, A109K2, and A109C helicopters, all serial numbers. EASA advises that recent occurrences of affected parts detachment have been reported. EASA advises that the visual inspection for MRBs with tip cap P/N 709-0103-29-109 installed is no longer acceptable to detect part cracking and that this condition, if not detected and corrected, could lead to further affected parts detachments, possibly resulting in reduced control of the helicopter.

Accordingly, EASA AD 2020-0230 replaces the requirements of EASA AD 2007-0306-E for MRBs with a tip cap P/N 709-0103-29-109 installed, by changing the visual inspections of affected parts to dye-penetrant inspections and requires, depending on findings, replacement.

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA is issuing this AD after evaluating all known relevant information and determining that the unsafe condition described previously is likely to exist or develop on other helicopters of the same type designs.

The FAA previously reviewed the following Agusta Alert Bollettino Tecnicos (BT), each Revision B and each dated December 19, 2000:

• No. 109-106 which applies to Model A109C helicopters;

• No. 109EP-1 which applies to Model A109E helicopters; and

• No. 109K-22 which applies to Model A109K2 helicopters.

These BTs specify procedures for inspecting the MRB tip cap for bonding separation and a crack; a tap inspection of the tip cap for bonding separation in the blade bond; and a dye-penetrant inspection of the tip cap leading edge along the welded joint line of the upper and lower tip cap skin shells for a crack.

The FAA reviewed the following Leonardo Helicopters Alert Service Bulletins (ASBs), each Revision A and each dated October 19, 2020:

• No. 109-125 which applies to Model A109C helicopters;

• No. 109EP-085 which applies to Model A109E helicopters; and

• No. 109K-048 which applies to Model A109K2 helicopters.

These ASBs specify dye-penetrant inspecting the tip cap P/N 709-0103-29-109 for cracks on the tip cap leading edge at the welded bead (joint line of shells) and removes the magnifying glass inspection that was specified in the original ASBs.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This AD continues to require, for an MRB with a S/N that has a prefix of either “EM-” or “A5-”, except an MRB with a tip cap P/N 709-0103-29-109 installed, within 10 hours TIS after the effective date of this AD and thereafter at intervals not to exceed 25 hours TIS, tap inspecting each tip cap for bonding separation in specified areas; tap inspecting for bonding separation in the tip cap to blade bond area; visually inspecting the upper and lower sides of each blade tip cap for swelling or deformation; and dye-penetrant inspecting the tip cap leading edge along the welded joint line of the upper and lower tip cap skin shells for a crack. If there is any swelling, deformation, or crack, or bonding separation that exceeds allowable limits, removing the blade from service is required before further flight; if there is no swelling, deformation or crack, or if bonding separation does not exceed allowable limits, continuing the inspections is required.

For an MRB with a tip cap P/N 709-0103-29-109 installed, this AD now requires, for each tip cap with less than 600 hours TIS, before reaching 600 hours TIS, and thereafter, at intervals not to exceed 50 hours TIS, or for each tip cap with 600 or more hours TIS, within the next 5 hours TIS or 30 days after the effective date of this AD, whichever occurs first, and thereafter at intervals not to exceed 50 hours TIS, dye-penetrant inspecting the welded bead on the tip cap leading edge (joint line between the two metal shells) for a crack and removing the tip cap from service if there is a crack.

This AD also prohibits installing an MRB with tip cap P/N 709-0103-29-109 on any helicopter unless it has been inspected in accordance with the inspection requirements of this AD.

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq. ) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause,” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without providing notice and seeking comment prior to issuance. Further, section 553(d) of the APA authorizes agencies to make rules effective in less than thirty days, upon a finding of good cause.

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies foregoing notice and comment prior to adoption of this rule because inspections for certain MRBs must be accomplished within 5 or 10 hours TIS after the effective date of this AD, depending on the MRB, and corrective action is required before further flight. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B). In addition, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days, for the same reasons the FAA found good cause to forego notice and comment.

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0194; Project Identifier MCAI-2020-01434-R” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to https://www.regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this final rule.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Fred Guerin, Aerospace Engineer, General Aviation & Rotorcraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone (206) 231-3500; email fred.guerin@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because the FAA has determined that it has good cause to adopt this rule without prior notice and comment, RFA analysis is not required.

The FAA estimates that this AD affects 72 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this AD.

Each tap inspection will take about 3 work-hours and there are no parts costs for an estimated cost of about $255 per helicopter per inspection cycle.

Each visual inspection will take about 1 work-hour and there are no parts cost for an estimated cost of about $85 per helicopter per inspection cycle.

Each dye-penetrant inspection will take about 3 work-hours and parts will cost about $100 for an estimated cost of about $355 per helicopter per inspection cycle.

Replacing a blade, if required, will take about 2 work-hours and parts will cost about $98,435 per blade, for an estimated cost of about $98,605 per replacement.

Replacing a tip cap, if required, will take about 30 work-hours and parts will cost about $3,034 per tip cap, for an estimated cost of about $5,584 per replacement.

The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators.

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.

The FAA is 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, I certify that this AD:

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

(2) Will not affect intrastate aviation in Alaska.

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

This rule amends 14 CFR part 97 by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained on FAA form documents is unnecessary. This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.

The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, CFR part 97, (is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:

This rule amends 14 CFR part 97 by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, 8260-15B, when required by an entry on 8260-15A, and 8260-15C.

The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their graphic depiction on charts printed by publishers or aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the typed of SIAPS, Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure, and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPs as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flights safety relating directly to published aeronautical charts.

The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CRF part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:

The Coast Guard will enforce 33 CFR 100.704, Table 1 to § 100.704, Item No. 3, for the Motus Myrtle Beach Triathlon Swim regulated area from 8 a.m. to 9 a.m. on April 11, 2021. This action is being taken to provide for the safety of life on navigable waterways during this swim event. Our regulation for marine events within the Captain of the Port Charleston, § 100.704, specifies the locations of the regulated areas for the Motus Myrtle Beach Triathlon Swim which encompasses portions of the Atlantic Intracoastal Waterway in Myrtle Beach, SC. During the enforcement periods, as reflected in § 100.704, if you are the operator of a vessel in the regulated area you must comply with directions from the Patrol Commander or any Official Patrol displaying a Coast Guard ensign.

The Coast Guard will enforce the special local regulation in 33 CFR 100.704, Table 1 to § 100.704, Item No. 2, for the Charleston Race Week regulated area from 9:00 a.m. to 5:00 p.m. from April 8, 2021 to April 11, 2021. This action is being taken to provide for the safety of life on navigable waterways during this 4-day event. The regulation for marine events within the Captain of the Port Charleston, § 100.704, specifies the locations of the regulated areas for the Charleston Race Week which encompasses portions of the Charleston Harbor. During the enforcement periods, as reflected in § 100.704, if you are the operator of a vessel in the regulated area you must comply with directions from the Patrol Commander or any Official Patrol displaying a Coast Guard ensign.

The Great Lakes St. Lawrence Seaway Development Corporation (GLS) and the St. Lawrence Seaway Management Corporation (SLSMC) of Canada, under international agreement, jointly publish and presently administer the St. Lawrence Seaway Tariff of Tolls (Schedule of Fees and Charges in Canada) in their respective jurisdictions.

The Tariff sets forth the level of tolls assessed on all commodities and vessels transiting the facilities operated by the GLS and the SLSMC. The GLS is revising 33 CFR 402.12, “Schedule of tolls”, to reflect the fees and charges levied by the SLSMC in Canada beginning in the 2021 navigation season. With one exception, the changes affect the tolls for commercial vessels and are applicable only in Canada. The collection of tolls by the GLS on commercial vessels transiting the U.S. locks is waived by law (33 U.S.C. 988a(a)).

The GLS is amending 33 CFR 402.12, “Schedule of tolls”, to increase the minimum charge per vessel per lock for full or partial transit of the Seaway from $29.14 to $29.72. This charge is for vessels that are not pleasure craft or subject in Canada to the tolls under items 1 and 2 of the Tariff. This increase is due to higher operating costs at the locks.

In addition, Congress renamed the Saint Lawrence Seaway Development Corporation (SLSDC) as Great Lakes St. Lawrence Seaway Development Corporation (GLS) as part of the 2021 Consolidated Appropriations Act (Section 512 of Division AA of Pub. L. 116-260), signed into law on December 27, 2020. The joint regulations are being amended to reflect the name change.

Regulatory Notices: Privacy Act: Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit http://dms.dot.gov.

This regulation involves a foreign affairs function of the United States and therefore, Executive Order 12866 does not apply and evaluation under the Department of Transportation's Regulatory Policies and Procedures is not required.

I certify this regulation will not have a significant economic impact on a substantial number of small entities. The St. Lawrence Seaway Tariff of Tolls primarily relate to commercial users of the Seaway, the vast majority of whom are foreign vessel operators. Therefore, any resulting costs will be borne mostly by foreign vessels.

This regulation does not require an environmental impact statement under the National Environmental Policy Act (49 U.S.C. 4321, et reg.) because it is not a major federal action significantly affecting the quality of the human environment.

The Corporation has analyzed this rule under the principles and criteria in Executive Order 13132, dated August 4, 1999, and has determined that this rule does not have sufficient federalism implications to warrant a Federalism Assessment.

The Corporation has analyzed this rule under Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48) and determined that it does not impose unfunded mandates on State, local, and tribal governments and the private sector requiring a written statement of economic and regulatory alternatives.

This regulation has been analyzed under the Paperwork Reduction Act of 1995 and does not contain new or modified information collection requirements subject to the Office of Management and Budget review.

Accordingly, the Great Lakes St. Lawrence Seaway Development Corporation amends 33 CFR part 402 as follows:

Regulated entities, identified by the North American Industrial Classification System (NAICS) Code, may include, but are not limited to, the following which all fall under the category of “Industry”:

States that have received final approval from the EPA under section 9004(b) of RCRA, 42 U.S.C. 6991c(b), must maintain a UST program that is no less stringent than the Federal program. When the EPA makes revisions to the regulations that govern the UST program, states must revise their programs to comply with the updated regulations and submit these revisions to the EPA for approval. Most commonly, states must change their programs because of changes to the EPA's regulations in title 40 of the Code of Federal Regulations (CFR) part 280. States can also initiate changes on their own to their UST programs and these changes must then be approved by the EPA.

On April 16, 2019, in accordance with 40 CFR 281.51(a), South Carolina submitted a complete program revision application (State Application) seeking approval of changes to its UST Program. The program revisions requested in the State Application correspond to the EPA final rule published on July 15, 2015 (80 FR 41566), which revised the 1988 UST regulations and the 1988 state program approval (SPA) regulations (2015 Federal Revisions). As required by 40 CFR 281.20, the State Application contains the following: A transmittal letter from the Governor requesting approval; a description of the program and operating procedures; a demonstration of the State's procedures to ensure adequate enforcement; a Memorandum of Agreement outlining the roles and responsibilities of the EPA and the implementing agency; an Attorney General's Statement;  1 and copies of all relevant State statutes and regulations. The EPA has reviewed the State Application and has determined that the revisions to South Carolina's UST Program are no less stringent than the corresponding Federal requirements in subpart C of 40 CFR part 281, and that the South Carolina UST Program continues to provide adequate enforcement of compliance. Therefore, the EPA grants South Carolina final approval to operate its UST Program with the revisions described in the State Application, and as outlined below. The South Carolina Department of Health and Environmental Control (DHEC) is the lead implementing agency for the UST Program in South Carolina, except in Indian country as noted below in Section I.I.

Section 9004(b) of RCRA, 42 U.S.C. 6991c(b), as amended, allows the EPA to approve state UST programs to operate in lieu of the Federal program. With this approval, the changes described in the State Application will become part of the approved State UST Program, and therefore will be federally enforceable. South Carolina will continue to have primary enforcement authority and responsibility for its State UST Program. This action does not impose additional requirements on the regulated community because the regulations being approved by this rule are already in effect in the State of South Carolina, and are not changed by this action. This action merely approves the existing State regulations as meeting the 2015 Federal Revisions and rendering them federally enforceable.

The EPA is publishing this direct final rule without a prior proposed rule because we view this as a noncontroversial action and we anticipate no adverse comment. South Carolina addressed all comments it received during its comment period when the rules and regulations being considered in this document were proposed at the State level.

Along with this direct final rule, the EPA is simultaneously publishing a separate document in the “Proposed Rules” section of this Federal Register that serves as the proposal to approve the State's UST Program revisions, and provides an opportunity for public comment. If the EPA receives comments that oppose this approval, the EPA will withdraw this direct final rule by publishing a document in the Federal Register before it becomes effective. The EPA will make any further decision on approval of the State Application after considering all comments received during the comment period. The EPA will then address all public comments in a later final rule. You may not have another opportunity to comment. If you want to comment on this approval, you must do so at this time.

Effective September 27, 2002, the EPA granted final approval for South Carolina to administer the State UST Program in lieu of the Federal UST program (67 FR 55160, August 28, 2002). Effective June 9, 2014, the EPA incorporated by reference and codified the federally approved South Carolina UST Program (79 FR 19830, April 10, 2014). As a result of the EPA's approval, these provisions became subject to the EPA's corrective action, inspection, and enforcement authorities under RCRA sections 9003(h), 9005, and 9006, 42 U.S.C. 6991b(h), 6991d, and 6991e, and other applicable statutory and regulatory provisions.

In order to be approved, each state program revision application must meet the general requirements in 40 CFR 281.11 (General Requirements), and the specific requirements in 40 CFR part 281, subpart B (Components of a Program Application), subpart C (Criteria for No Less Stringent), and subpart D (Adequate Enforcement of Compliance).

As more fully described below, the State has made changes to its UST Program to reflect the 2015 Federal Revisions. These changes are included in South Carolina's UST Rules at S.C. Code Ann. Regs. 61-92, as amended, effective May 26, 2017. The EPA is proposing to approve the State's changes because they are no less stringent than the Federal UST program, and because the revised South Carolina UST Program will continue to provide for adequate enforcement of compliance as required by 40 CFR 281.11(b) and part 281, subparts C and D, after this approval.

DHEC continues to be the lead implementing agency for the UST Program in South Carolina. DHEC has broad statutory and regulatory authority to regulate the installation, operation, maintenance, and closure of USTs, as well as UST releases, under the State Underground Petroleum Environmental Response Bank Act (SUPERB) of 1988, S.C. Code Ann. sections 44-2-10 to 44-2-150, and the South Carolina UST Rules at S.C. Code Ann. Regs. 61-92 (2017).

As part of the State Application, South Carolina has identified the following specific authorities for compliance monitoring, required pursuant to 40 CFR 281.40: S.C. Code. Ann. section 44-2-50(C); and S.C. Code. Ann. Regs. 61-92, section 280.34.

As part of the State Application, South Carolina has identified the following specific authorities for enforcement response, required pursuant to 40 CFR 281.41: S.C. Code. Ann. section 44-2-140; and S.C. Code. Ann. Regs. 61-92, sections 280.26 and 280.301.

As part of the State Application, South Carolina has identified the following specific authorities enabling public participation in the State enforcement process, required pursuant to 40 CFR 281.42: Rule 24(a)(2) of the South Carolina Rules of Civil Procedure; and S.C. Code. Ann. Regs. 61-92, section 280.67. Further, through a Memorandum of Agreement between DHEC and the EPA, effective October 12, 2018, the State maintains procedures for receiving and ensuring proper consideration of information about violations submitted by the public, and DHEC will not oppose citizen intervention when permissive intervention is allowed by statute, rule or regulation. As required pursuant to 40 CFR 281.43, through the Memorandum of Agreement between the State and the EPA, the State agrees to furnish the EPA, upon request, any information in State files obtained or used in the administration of the State UST Program.

To qualify for final approval, revisions to a state's UST program must be no less stringent than the 2015 Federal Revisions. In the 2015 Federal Revisions, the EPA addressed UST systems deferred in the 1988 UST regulations, and added, among other things: New operation and maintenance requirements; secondary containment requirements for new and replaced tanks and piping; operator training requirements; and a requirement to ensure UST system compatibility before storing certain biofuel blends. In addition, the EPA removed past deferrals for emergency generator tanks, field constructed tanks, and airport hydrant systems. South Carolina adopted all of the required 2015 Federal Revisions at S.C. Code. Ann. Regs. 61-92 (2017).

As part of the State Application, the DHEC General Counsel has certified that the State regulations provide for adequate enforcement of compliance and meet the no less stringent criteria in 40 CFR part 281, subparts C and D. The EPA is relying on this certification, in addition to the analysis submitted by the State, in approving the State's changes.

States may enact laws that are more stringent than their Federal counterparts. See RCRA section 9008, 42 U.S.C. 6991g. When an approved state program includes requirements that are considered more stringent than those required by Federal law, the more stringent requirements become part of the federally approved program in accordance with 40 CFR 281.12(a)(3)(i). The EPA has determined that some of South Carolina's regulations are considered more stringent than the Federal program, and upon approval, they will become part of the federally approved State UST Program and therefore federally enforceable.

In addition, states may enact laws which are broader in scope than their Federal counterparts in accordance with 40 CFR 281.12(a)(3). State requirements that go beyond the scope of the Federal program are not part of the federally approved program and the EPA cannot enforce them. Although these requirements are enforceable by the State in accordance with South Carolina law, they are not Federal RCRA requirements. The EPA considers the following State requirements to be broader in scope than the Federal program and therefore not part of the federally approved State UST Program:

i. S.C. Code Ann. section 44-2-40, insofar as it provides for the creation of a SUPERB Account and SUPERB Financial Responsibility Fund (collectively, “State funds”), and establishes criteria for accessing the funds.

ii. S.C. Code Ann. section 44-2-60, insofar as it requires registration, beyond the Federal notification requirements, and the payment of registration fees for underground storage tanks.

iii. S.C. Code Ann. section 44-2-75, insofar as it provides for a means of establishing insurance pools to demonstrate financial responsibility.

iv. S.C. Code Ann. section 44-2-90, insofar as it refers to interest collected on State funds and the sunset date of the environmental impact fee.

v. S.C. Code Ann. section 44-2-110, insofar as it establishes criteria for qualified expenditure of funds from the SUPERB Account.

vi. S.C. Code Ann. section 44-2-115, insofar as it regulates eligibility for the SUPERB Account.

vii. S.C. Code Ann. section 44-2-120, insofar as it establishes requirements for site rehabilitation contractors.

viii. S.C. Code Ann. section 44-2-130, insofar as it establishes criteria for compensation from the SUPERB Account.

ix. S.C. Code Ann. section 44-2-150, insofar as it establishes provisions for the creation and operations of a SUPERB Advisory Committee.

i. S.C. Code Ann. Regs. 61-92, section 280.10(d), insofar as it requires UST systems to be permitted or registered with DHEC.

ii. S.C. Code Ann. Regs. 61-92, section 280.20, as to the text “obtain permits in accordance with section 280.23 and” in the introductory paragraph, and the text “on the Permit to Operate application form in accordance with section 280.23” in (f), insofar as they require UST systems to be permitted by DHEC.

iii. S.C. Code Ann. Regs. 61-92, sections 280.22(h) and (i), insofar as they require UST systems to be registered with DHEC.

iv. S.C. Code Ann. Regs. 61-92, section 280.23, insofar as it requires UST systems to be permitted by DHEC.

v. S.C. Code Ann. Regs. 61-92, sections 280.101(b) through (e), insofar as they establish regulations for the administration of the State funds.

vi. S.C. Code Ann. Regs. 61-92, section 280.300, insofar as it gives DHEC broad authority to grant variances that may be beyond the scope of that allowed by the Memorandum of Agreement between DHEC and EPA.

The EPA's approval of South Carolina's UST Program does not extend to Indian country as defined in 18 U.S.C. 1151, which includes the Catawba Indian Nation. The EPA will retain responsibilities under RCRA for underground storage tanks in Indian country. Therefore, this action has no effect in Indian country. See 40 CFR 281.12(a)(2).

Codification is the process of placing citations and references to a state's statutes and regulations that comprise a state's approved UST program into the CFR. The EPA codifies its approval of state programs in 40 CFR part 282 and incorporates by reference state statutes and regulations that the EPA can enforce, after the approval is final, under sections 9005 and 9006 of RCRA, and any other applicable statutory provisions. The incorporation by reference of EPA-approved state programs in the CFR should substantially enhance the public's ability to discern the status of the approved state UST programs and state requirements that can be federally enforced. This effort provides clear notice to the public of the scope of the approved program in each state.

In 2014, the EPA incorporated by reference and codified South Carolina's approved UST Program at 40 CFR 282.90 (79 FR 19830, April 10, 2014). Through this action, the EPA is amending 40 CFR 282.90 to incorporate by reference and codify South Carolina's revised UST Program.

In this rule, the EPA is finalizing regulatory text that incorporates by reference the federally approved South Carolina UST Program, including the revisions made to the UST Program based on the 2015 Federal Revisions. In accordance with the requirements of 1 CFR 51.5, the EPA is incorporating by reference South Carolina's statutes and regulations as described in the amendments to 40 CFR part 282 set forth below. These documents are available through https://www.regulations.gov. This codification reflects the State UST Program that will be in effect at the time the EPA's approval of the revisions to the South Carolina UST Program addressed in this direct final rule becomes final. If, however, the EPA receives substantive comment on the proposed rule, this codification will not take effect and the State rules that are approved after the EPA considers public comment will be codified instead. By codifying the approved South Carolina UST Program and by amending the CFR, the public will more easily be able to discern the status of the federally-approved requirements of the South Carolina UST Program.

Specifically, in 40 CFR 282.90(d)(1)(i), the EPA is incorporating by reference the EPA-approved South Carolina UST Program. Section 282.90(d)(1)(ii) identifies the State's statutes and regulations that are part of the approved State UST Program, although not incorporated by reference for enforcement purposes. Section 282.90(d)(1)(iii) identifies the State's statutory and regulatory provisions that are broader in scope or external to the State's approved UST Program and therefore not incorporated by reference. Section 282.90(d)(2) through (5) reference the Attorney General's Statement, Demonstration of Adequate Enforcement Procedures, the Program Description, and the Memorandum of Agreement, which are part of the State Application and part of the UST Program under subtitle I of RCRA.

The EPA retains the authority under sections 9003(h), 9005, and 9006 of subtitle I of RCRA, 42 U.S.C. 6991b(h), 6991d, and 6991e, and other applicable statutory and regulatory provisions, to undertake corrective action, inspections, and enforcement actions, and to issue orders in approved states. If the EPA determines it will take such actions in South Carolina, the EPA will rely on Federal sanctions, Federal inspection authorities, and other Federal procedures rather than the State analogs. Therefore, the EPA is not incorporating by reference South Carolina's procedural and enforcement authorities, although they are listed in 40 CFR 282.90(d)(1)(ii).

As discussed in section I.H. above, some provisions of the State's UST Program are not part of the federally approved State UST Program because they are broader in scope than the Federal UST program. Where an approved state program has provisions that are broader in scope than the Federal program, those provisions are not a part of the federally approved program. As a result, State provisions which are broader in scope than the Federal program are not incorporated by reference for purposes of enforcement in part 282. See 40 CFR 281.12(a)(3)(ii). In addition, provisions that are external to the State UST Program approval requirements, but included in the State Application, are also being excluded from incorporation by reference in part 282. For reference and clarity, 40 CFR 282.90(d)(1)(iii) lists the South Carolina statutory and regulatory provisions which are broader in scope than the Federal program or external to state UST program approval requirements. These provisions are, therefore, not part of the approved UST Program that the EPA is codifying. Although these provisions cannot be enforced by the EPA, the State will continue to implement and enforce such provisions under State law.

The EPA's actions merely approve and codify South Carolina's revised UST Program requirements pursuant to RCRA section 9004, and do not impose additional requirements other than those imposed by State law. For that reason, these actions:

• Are not significant regulatory actions subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Are not Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory actions because UST program approvals are exempted under Executive Order 12866;

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

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

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

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

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

• Are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

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

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

• Do not apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. The rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, the EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this document and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This final action will be effective May 24, 2021.

For the reasons set forth in the preamble, the EPA is amending 40 CFR part 282 as follows:

Why we need to publish a rule. Under the Endangered Species Act, a population of a threatened or endangered species may be designated as an experimental population prior to its reintroduction. Experimental populations can only be designated by issuing a rule.

What this document does. This rule will designate California condors (Gymnogyps californianus) reintroduced to the Pacific Northwest as a nonessential experimental population on the List of Endangered and Threatened Wildlife in title 50 of the Code of Federal Regulations at 50 CFR 17.11(h) with a rule issued under section 10(j) of the Act (hereafter referred to as a “10(j) rule”) at 50 CFR 17.84.

The basis for our action. Based on the best scientific and commercial data available (in accordance with 50 CFR 17.81), we find that releasing the California condors into the Pacific Northwest, with the regulatory provisions in this final rulemaking, will further the conservation of the species. The nonessential experimental population status is appropriate for the reintroduced population because we have determined that it is not essential to the continued existence of the species in the wild.

In making our finding that this action will further the conservation of the species, we evaluate any possible adverse effects on extant California condor populations, the likelihood that any such experimental population will become established and survive in the foreseeable future, the relative effects that establishment of an experimental population will have on the recovery of the species, and the extent to which the reintroduced population may be affected by existing or anticipated Federal or State actions or private activities within or adjacent to the experimental population area. This rule also identifies the boundaries of the experimental population, explains our rationale for why the population is not essential to the continued existence of the species in the wild, describes management restrictions, protective measures, or other special management concerns of that population, and explains a process for periodic review and evaluation of the success or failure of the release and the effect of the release on the conservation and recovery of the species. In June 2016, a Memorandum of Understanding (MOU) was finalized to assess the potential to recover California condors in the Pacific Northwest and to work to seek funding to support that effort if it proved feasible. The MOU currently has 16 signatories.

Peer review and public comment. We sought comments from three objective and independent specialists (and received two responses) to ensure that our findings are based on scientifically sound data, assumptions, and analyses. As directed by the Service's Peer Review Policy dated July 1, 1994 (59 FR 34270) and a recent memo updating the peer review policy for listing and recovery actions (August 22, 2016), we invited these peer reviewers to comment on our proposal. We also considered all comments and information received during the public comment period. All comments received during the peer review process and the public comment period have either been incorporated throughout this rule or addressed below in Summary of Comments and Recommendations.

On April 5, 2019, we published in the Federal Register a proposed rule to establish a nonessential experimental population of the California condor in the Pacific Northwest (84 FR 13587). The comment period on the proposed rule was open for 60 days, through June 4, 2019. Comments on the proposed rule are addressed below under Summary of Comments and Recommendations.

The 1982 amendments to the Endangered Species Act of 1973 (ESA or Act; 16 U.S.C. 1531 et seq. ) included the addition of section 10(j), which allows for the designation of reintroduced populations of listed species as “experimental populations.” Under section 10(j) of the Act and our regulations in title 50 of the Code of Federal Regulations (at 50 CFR 17.81), the Service may designate as an experimental population a population of endangered or threatened species that has been or will be released into suitable natural habitat outside the species' current natural range (but within its probable historic range, absent a finding by the Director of the Service in the extreme case that the primary habitat of the species has been unsuitably and irreversibly altered or destroyed).

Before authorizing the release as an experimental population (including eggs, propagules, or individuals) of an endangered or threatened species, and before authorizing any necessary transportation to conduct the release, the Service must find by regulation that such release will further the conservation of the species. 50 CFR 17.81(b). In making such a finding the Service uses the best scientific and commercial data available to consider:

(1) Any possible adverse effects on extant populations of a species as a result of removal of individuals, eggs, or propagules for introduction elsewhere (see Donor Stock Assessment and Effects on Donor Population, below);

(2) The likelihood that any such experimental population will become established and survive in the foreseeable future (see Likelihood of Population Establishment and Survival and Addressing Causes of Extirpation, below);

(3) The relative effects that establishment of an experimental population will have on the recovery of the species (see Relationship of NEP to Recovery Efforts, below); and

(4) The extent to which the introduced population may be affected by existing or anticipated Federal or State actions or private activities within or adjacent to the experimental population area (see Likelihood of Population Establishment and Survival, below; National Park Service (NPS) 2018, entire).

Further, as set forth in 50 CFR 17.81(c), all regulations designating experimental populations under section 10(j) must provide:

(1) Appropriate means to identify the experimental population, including, but not limited to, its actual or proposed location, actual or anticipated migration, number of specimens released or to be released, and other criteria appropriate to identify the experimental population(s) (see Location and Boundaries of the NEP, below);

(2) A finding, based solely on the best scientific and commercial data available, and the supporting factual basis, on whether the experimental population is, or is not, essential to the continued existence of the species in the wild (see Is the Experimental Population Essential or Nonessential?, below);

(3) Management restrictions, protective measures, or other special management concerns of that population, which may include but are not limited to, measures to isolate and/or contain the experimental population designated in the regulation from natural populations (see Management, below); and

(4) A process for periodic review and evaluation of the success or failure of the release and the effect of the release on the conservation and recovery of the species (see Monitoring and Evaluation, below).

Under 50 CFR 17.81(d), the Service must consult with appropriate State fish and wildlife agencies, local governmental entities, affected Federal agencies, and affected private landowners in developing and implementing experimental population rules. To the maximum extent practicable, 10(j) rules represent an agreement between the FWS, the affected State and Federal agencies, and persons holding any interest in land that may be affected by the establishment of an experimental population.

Under 50 CFR 17.81(f), the Secretary may designate critical habitat as defined in section 3(5)(A) of the Act for an essential experimental population. No designation of critical habitat will be made for nonessential populations. In those situations where a portion or all of an essential experimental population overlaps with a natural population of the species during certain periods of the year, no critical habitat will be designated for the area of overlap unless implemented as a revision to critical habitat of the natural population for reasons unrelated to the overlap itself.

Any population determined by the Secretary to be an experimental population will be treated as if it were listed as a threatened species for purposes of establishing protective regulations with respect to that population. The protective regulations adopted for an experimental population will contain applicable prohibitions, as appropriate, and exceptions for that population. 50 CFR 17.82.

Any experimental population designated for a listed species (1) determined not to be essential to the survival of that species and (2) not occurring within the National Park System or the National Wildlife Refuge System will be treated for purposes of section 7 (other than paragraph (a)(1) thereof) as a species proposed to be listed under the Act as a threatened species. 50 CFR 17.83(a).

Any experimental population designated for a listed species that either (1) has been determined to be essential to the survival of that species or (2) occurs within the National Park System or the National Wildlife Refuge System as now or hereafter constituted will be treated for purposes of section 7 of the Act as a threatened species. Notwithstanding the foregoing, any biological opinion prepared pursuant to section 7(b) of the Act and any agency determination made pursuant to section 7(a) of the Act will consider any experimental and nonexperimental populations to constitute a single listed species for the purposes of conducting the analyses under such sections. 50 CFR 17.83(b).

We listed the California condor as an endangered species under the Endangered Species Preservation Act of 1966 (ESPA) on March 11, 1967 (32 FR 4001, March 11, 1967). This list was later codified in part 17 of title 50 in the U.S. Code of Federal Regulations (35 FR 16048, October 13, 1970). With the passage of the Endangered Species Act of 1973 (ESA), those species previously listed in the Code of Federal Regulations were directly incorporated into the Lists of Endangered and Threatened Wildlife and Plants under the ESA, found at 50 CFR 17.11 and 17.12. In October 1996, we designated a nonessential experimental population of the California condor in portions of northern Arizona, southern Utah, and southern Nevada (61 FR 54044, October 16, 1996). Therefore, the California condor is currently listed as an endangered species wherever it is found, except in portions of northern Arizona, southern Utah, and southern Nevada, where it is considered a nonessential experimental population.

The California condor is protected by the State of California under both the State Endangered Species Act and the California Fish and Game Code as a Fully Protected species. It is also listed as a Sensitive Species under California Forest Practice Rules. In September of 2018, the State of California passed legislation that allows the California Department of Fish and Wildlife (CDFW) to consider the content of any final rules under section 10(j) of the Federal Endangered Species Act for the California condor. This legislation (AB2640) allows the Director of the CDFW to evaluate the final rule, and exempt take associated with the rule if the Director finds the Service's final rule would further the conservation of the species.

If we are compelled, through court order or other means, to change the California condor's NEP status to essential, threatened, or endangered, FWS would meet with the parties to the 2016 MOU to discuss options on how to proceed, including the option of attempting to capture and relocate all condors in the wild within the NEP. We would make a fact-specific assessment of how to proceed based on the information at that time, including whether there was general agreement from the MOU partners that the condors should remain in the wild. Changes in the legal status and/or removal of this population of California condors will be made in compliance with any applicable Federal rulemaking and other procedures.

The California condor is one of seven New World vultures in the Cathartidae family and the only extant species in the genus Gymnogyps (Amadon 1977, pp. 413-414; Johnson et al. 2016, pp. 193, 197). It is the largest of the North American vultures and the largest soaring land bird on the continent with a wingspan of approximately 9.5 feet (ft) (2.9 meters (m)) (Koford 1953, p. 3; Finkelstein et al. 2015, Introduction, Appearance). Males weigh slightly more than females (average weight of 19.4 pounds (lb) (8.8 kilograms (kg)) for males and 17.9 lb (8.1 kg) for females) and have slightly higher wing loading, but otherwise there are no obvious differences in coloration or morphology between the sexes (Finkelstein et al. 2015, Appearance). California condors exhibit age-related coloration changes (Koford 1953, p. 5; Snyder and Snyder 2000, pp. 14-19). Adults have black feathers except for prominent white underwing linings and edges of the upper secondary coverts. The head and neck of adults are mostly naked and range in color from yellowish to reddish orange on the head to gray, yellow, orange, and red on the neck (Koford 1953, pp. 4-5). The heads of juveniles up to 3 years old are grayish-black, and their wing linings are variously mottled or completely dark (Koford 1953, p. 5; Snyder and Snyder 2000, pp. 14-19). During the third year, the head develops yellow coloration, and the dark juvenile underwing linings are gradually replaced with white adult feathers (Snyder and Snyder 2000, pp. 15, 17). By the time individuals are 5 or 6 years of age, they are essentially indistinguishable from adults, but full development of the adult wing patterns may not be completed until 7 or 8 years of age (Snyder and Snyder 2000, pp. 15, 17; Finkelstein et al. 2015, Appearance).

As obligate scavengers ( i.e., relying entirely on dead animals for food), California condors have a number of physical and physiological adaptations that accommodate their highly specialized diet, including: (1) Large size, which is important for maintaining low-energy soaring flight, and enduring long periods without food; (2) excellent eyesight, which helps condors efficiently find food; (3) hooked bills and long necks, which allow condors to access muscle tissue deep within a carcass and to rip pieces of meat from a carcass; and (4) resistance to bacterial toxins, which is necessary for species that rely on carcasses (Snyder and Snyder 2005, pp. 7-31).

During the Pleistocene Epoch, the California condor was broadly distributed in North America from southern British Columbia to Baja California, and eastward throughout the southern United States and northern Mexico to Florida (Koford 1953, p. 7; Brodkorb 1964, pp. 253-254; Messing 1986, pp. 284-285; Steadman and Miller 1987, p. 423; Snyder and Snyder 2005, p. 6; D'Elia and Haig 2013, p. 17). The extent of its distribution along the east coast of North America during the late Pleistocene also extended to the boreal forests of upstate New York (Steadman and Miller 1987, pp. 416-423). The disappearance of the California condor from its prehistoric range in North America east of the Rocky Mountains occurred about 10,000-11,000 years ago coinciding with the late-Pleistocene extinction of the North American megafauna (Emslie 1987, pp. 768-770; Steadman and Miller 1987, pp. 422-425). Analysis of stable isotopes in bone collagen suggests that the California condor's persistence along the Pacific coast at the end of the Pleistocene was at least partially due to the availability of marine-derived carrion (Chamberlain et al. 2005, p. 16710; Fox-Dobbs et al. 2006, p. 688).

Historical observations of California condors indicate that they were widespread and locally abundant from southern British Columbia, Canada, to Baja California, Mexico, during Euro-American colonization (Koford 1953, pp. 8-19; Wilbur 1978, pp. 13, 72-85; Snyder and Snyder 2005, pp. 4-5; D'Elia and Haig 2013, pp. 38-59). At that time they were apparently restricted to the area west of the Rocky Mountains, with most observations occurring from the Cascade Mountains and Sierra Nevada to the coast (Snyder and Snyder 2000, p. 12; D'Elia and Haig 2013, pp. 38-59). California condor population declines and range contractions were concurrent with Euro-American settlement of the West, with condors disappearing from the Pacific Northwest in the early 1900s (D'Elia and Haig 2013, pp. 58-59), and from Baja California by the end of the 1930s (Wilbur and Kiff 1980, entire). By the middle of the 20th century, the species was reduced to about 150 individuals limited to the mountains of southern California (Snyder and Snyder 2000, pp. 81-82), and at the time we formally classified them as an endangered species in 1967, the population had further declined to an estimated 60 condors (Snyder and Snyder 2000, pp. 82-83). Most probable causes of their historical decline include: (1) Secondary poisoning from predator removal campaigns, (2) direct persecution, and (3) lead poisoning from spent ammunition that fragmented in animals condors later fed upon (D'Elia and Haig 2013, pp. 77-122).

Due to concerns over the few remaining California condors and the population's continued downward trend, beginning in 1983, we took all condor eggs from the wild to the San Diego Wild Animal Park and Los Angeles Zoo for artificial incubation to form a captive flock (Snyder and Hamber 1985, p. 378; Snyder and Snyder 2000, pp. 278-293). By taking all wild eggs and inducing multiple clutches and annual nesting, the productivity of the population was increased several-fold, allowing the captive population to grow rapidly (Snyder and Hamber 1985, p. 378). However, with the sudden loss of several wild California condors in 1984 and 1985, it became necessary for us to capture the remaining wild individuals to ensure the genetic viability of the species and enhance the chances of the captive-breeding program's success (Snyder and Snyder 2000, pp. 298-304). By 1987, the California condor existed only in captivity, having suffered a severe population bottleneck and loss of genetic diversity (Ralls and Ballou 2004, p. 225; D'Elia et al. 2016, pp. 707-708). Thus, the conservation of the species was dependent upon captive breeding and releases back into the wild.

We first released captive-reared California condors in 1992 in southern California, but because of behavioral problems exhibited by these individuals we returned them all to captivity in early 1995 (Snyder and Snyder 2000, pp. 344-345). We reinitiated releases of captive-reared and formerly wild California condors in southern California in 1995, and additional release sites were established in northern Arizona in 1996, central California near Big Sur in 1997, Sierra de San Pedro Mártir in Baja California, Mexico, in 2002, Pinnacles National Park (formerly Pinnacles National Monument) in 2003, and in the mountains near San Simeon, California, in 2015. Currently, these release sites comprise four general release areas (central California, southern California, Baja California, and Arizona/Utah) in three condor populations (a population in central and southern California—where individuals from each release area occasionally intermingle—and independent populations in northern Arizona/southern Utah and Baja California). The California condor is currently absent from the northern portion of its historical range and remains reliant on the release of captive-bred individuals for population growth (USFWS 2013, p. 14).

As of December 2019, there were 337 California condors in the wild, divided among the four release areas: Central and southern California (200 condors); northern Arizona and southern Utah (98 condors); and the Sierra de San Pedro Mártir release site in Baja California (39 condors) (USFWS 2019a, p. 1). There were also 181 California condors in captivity (USFWS 2019a, p. 1) distributed among release sites, zoos, and four captive-breeding facilities in the United States. Breeding facilities include the Peregrine Fund's World Center for Birds of Prey, the Oregon Zoo's Jonsson Center for Wildlife Conservation, the Los Angeles Zoo, and the San Diego Zoo's Safari Park.

Despite population growth, the total number of wild California condors is still relatively small and the species requires intensive management for survival, including: (1) Monitoring a large proportion of condors in the wild to track resource use, identify behavioral problems, and detect mortalities; (2) biannual trapping for health screening, to test blood samples for lead, inoculate for West Nile virus, and to attach or replace wing tags and transmitters; (3) taking injured or poisoned condors back into captivity temporarily to administer treatment; and (4) nest observations and interventions to maximize productivity in the wild (Walters et al. 2010, pp. 972, 976, 982-984; USFWS 2017, pp. 5-19).

Along with our conservation partners, we have reintroduced California condors to a variety of habitats, including coastal mountains, old-growth forests, desert cliffs, and temperate montane shrublands and grasslands. Within these habitats they can have enormous home ranges (Meretsky and Snyder 1992, p. 321; Hunt et al. 2007, pp. 84-87; Romo et al. 2012, pp. 43-47; Rivers et al. 2014a, pp. 496-498) and often use different portions of their range for nesting and foraging (Meretsky and Snyder 1992, p. 329; Snyder and Snyder 2000, pp. 140-147; D'Elia et al. 2015, p. 96). Estimates of home range size varied among release sites (95 percent confidence intervals for southern California: 173,295-282,760 acres (ac) (70,130-114,429 hectares (ha)); Pinnacles National Park: 86,825-174,266 ac (35,137-70,523 ha); and Big Sur: 42,613-90,495 ac (17,245-36,622 ha)), probably as a result of geography, food availability (Rivers et al. 2014a, pp. 496-497, 500), years since the release program started, and flock size (Bakker et al. 2017, p. 100).

Nesting habitat is generally characterized by steep, rugged terrain (Wilbur 1978, p. 7; Snyder and Snyder 2000, p. 18; D'Elia et al. 2015, pp. 94-95). Within these areas, nests have been documented in various types of rock formations including crevices, overhung ledges, potholes, and in cavities or broken tops of giant sequoia ( Sequoia giganteus ) (Snyder et al. 1986, pp. 235-236) or coast redwood ( Sequoia sempervirens ) trees (Burnett et al. 2013, pp. 478-479). Breeding adults segregate themselves into nesting territories, rarely crossing into the nesting territories of other California condors (Finkelstein et al. 2015, Behavior). California condors will generally use the same nesting territory in successive years as long as pairs remain intact, but will often switch nesting sites within that territory, regardless of whether they fail or succeed in their nesting efforts (Snyder et al. 1986, p. 236).

California condors roost communally along rocky outcrops, steep canyons, and in tall trees or snags near foraging grounds, water sources, and nests (Koford 1953, pp. 35-36; Snyder and Snyder 2000, p. 167). California condors select roosts that offer winds or thermals favorable for soaring flight (Poessel et al. 2018, pp. 48-50), good peripheral visibility, where there is a long unobstructed space for taking off downhill and for approaching the roost in flight, and areas where there is some protection from high winds (Koford 1953, pp. 35-36). There may be trade- offs for condors between these factors and selecting roosts that provide protection from predators (Poessel et al. 2018, pp. 48-50). While at a roost, condors devote considerable time to preening, sunning, and other maintenance activities (Snyder and Snyder 2000, p. 24).

California condors are obligate scavengers and obligate soaring birds, making them reliant on the availability of sufficient food resources and upward air movement (Ruxton and Houston 2004, p. 434, Poessel et al. 2018, pp. 36-37). Foraging habitats generally have high landscape productivity, moderate to steep slopes, sparse vegetation, and updrafts necessary to keep California condors aloft (Rivers et al. 2014b, pp. 7-9; D'Elia et al. 2015, p. 96). In coastal areas condors show strong selection for beaches, likely because of the relative abundance of marine mammal carcasses (Rivers et al. 2014b, p. 8). A feature of carrion is that dead animals are highly dispersed and ephemeral (Ruxton and Houston 2004, p. 433). This exclusive food resource has resulted in evolutionary pressure for condors to be large, obligate soaring birds that forage socially (Ruxton and Houston 2004, p. 433). Social foraging means the population is particularly susceptible to contaminated food resources, as a contaminated carcass can poison a large number of individuals in a single feeding (Green et al. 2004, pp. 796-800; Green et al. 2008, pp. 6-9; Finkelstein et al. 2012, p. 11453; D'Elia and Haig 2013, p. 87).

As birds with a large wingspan that use soaring and gliding flight, California condors can move long distances while expending minimal energy (see Pennycuick 1969, pp. 542-545; Ruxton and Houston 2004, p. 435; Horvitz et al. 2014, pp. 676-678). Examples of exceptional flight distances include: California condor movements between the central and southern California flocks—a distance of approximately 150 miles (mi) (241 kilometers (km)) ( e.g., USFWS 2017, pp. 20-21); a condor released at Pinnacles National Park flying to the southern Sierra Nevada and back—a one-way distance of approximately 249 mi (400 km) (USFWS, unpublished data); a condor released in the Sierra de San Pedro Mártir in Baja California, Mexico, traveling north to San Diego County, a distance of approximately 140 mi (225 km) (Romo et al. 2012, p. 44); and observations of condors released in northern Arizona traveling to southern Wyoming, Colorado, and New Mexico, at distances of approximately 340 mi (547 km), 400 mi (643 km), and 325 mi (523 km), respectively. In addition, GPS telemetry data are now revealing that California condors in southern California are beginning to regularly travel 93-124 mi (150-200 km) away from core use areas (USFWS unpublished data). As the populations continue to grow, the number of long-distance flights is likely to increase.

To date, nests have been concentrated in a relatively limited area around release sites when compared to exceptional flight distances. The farthest nest documented from release sites in each release area is approximately 47 mi (76 km) in central California, 57 mi (92 km) in southern California, 62 mi (100 km) in Arizona/Utah, and 15 mi (24 km) in Baja California. We expect that as flock size grows the population will continue to expand and nest sites will eventually be located farther from release sites.

Seasonal shifts in movements to foraging grounds occur with changes in food availability, and perhaps as a result of social factors ( e.g., traditional movements) (Meretsky and Snyder 1992, p. 328; Snyder and Snyder 2000, pp. 145-147; Hunt et al. 2007, pp. 85-87). There are also seasonal changes in home range, with larger home ranges in late summer and fall compared to late fall and early winter (Rivers et al. 2014a, pp. 497, 499).

Breeding California condors form pairs in late fall or early winter and visit various potential nest sites within their nesting territory in January and February (Finkelstein et al. 2015, Breeding). Once pairs are formed they tend to stay together year-round for multiple years until one member of the pair dies (Snyder and Snyder 2000, p. 19). However, the death of one member of a pair can trigger a chain reaction with multiple pairs switching mates. This situation can occur because each California condor that loses its mate represents a potentially more desirable mate to individuals of lower rank in the social hierarchy of the flock. Breeding California condors lay a single egg between late January and early April (Finkelstein et al. 2015, Breeding). The egg is incubated by both parents and hatches after approximately 53-60 days (Snyder and Snyder 2000, p. 19). California condor pairs that lose their egg early in the breeding season (February through mid-April) will generally lay a replacement egg (Snyder and Hamber 1985, p. 377). When a replacement egg is lost, it has occasionally been followed by a third egg (Finkelstein et al. 2015, Breeding).

Both parents share responsibilities for feeding the nestling (Snyder and Snyder 2000, p. 19). Feeding, via regurgitation, usually occurs daily for the first 2 months, then gradually diminishes in frequency (Snyder and Snyder 2000, p. 197). As early as 6 weeks after hatching, California condor chicks leave the nest cavity but remain in the vicinity of the nest where they are fed by their parents (Snyder and Snyder 2000, p. 201). The chick takes its first flight at about 5.5 to 6 months of age but does not become fully independent of its parents until the following year (Snyder and Snyder 2000, pp. 201-202). Parents occasionally continue to feed a fledgling even after it has begun to make longer flights to foraging grounds (Koford 1953, p. 103; Snyder and Snyder 2000, pp. 202-203).

Because of the long period of parental care, it was formerly assumed that successful California condor pairs normally nested every other year (Koford 1953, pp. 22-23). However, this pattern can vary, depending mostly on the time of year that the nestling fledges. If a nestling fledges relatively early (in late summer or early fall), its parents can nest again in the following year, but late fledging may inhibit nesting in the following year (Snyder and Hamber 1985, pp. 377-378; Snyder and Snyder 2000, p. 19).

Once independent, juvenile California condors often associate with one another on the foraging grounds and join adults and other juveniles at communal roosts (Finkelstein et al. 2015, Breeding). In a study of the remnant wild population in southern California (1982-1987), Meretsky and Snyder (1992, pp. 324-325; 329-330) found that California condors in their first 2 years after fledging were generally limited to natal nest areas and adjacent foraging areas. Older juveniles would forage more widely, but it was not until age 4 or 5 that condors visited virtually all foraging and nesting areas within a given population. However, more recent data from the reintroduced populations show that fledglings under 1 year of age can be fully integrated into the flock, foraging hundreds of miles from natal or release areas and by 2 years of age some individuals have demonstrated the ability to cover the flock's entire range (USFWS, unpublished data). This difference between the remnant wild population in the 1980s and the current population is likely a product of the larger size of the current population, and the larger number of older California condors that are available to serve as mentors to recently fledged condors.

California condors are long-lived birds. In captivity, they can live more than 50 years. Average age of first breeding is 8 years and 6 months for females and 9 years and 10 months for males (Mace 2017, pp. 240, 243). The oldest known breeding female was 38 years old (Mace 2017, p. 239).

Slow maturation and low reproductive rates in California condors mean that low mortality rates are necessary for populations to be stable or to grow (Mertz 1971, p. 448; Verner 1978, pp. 19-21; Meretsky et al. 2000, pp. 960-961). Demographic models indicate that annual adult mortality rates certainly must average <10 percent annually to achieve stable or increasing populations (Verner 1978, pp. 19-21; Meretsky et al. 2000, p. 961), and likely need to be <5 percent (Meretsky et al. 2000, p. 961; Cade 2007, p. 2129; Woods et al. 2007, p. 65; Walters et al. 2010, p. 974). Estimates of mortality rates in the first decade of the release program in California and Arizona—when individuals treated for lead poisoning were considered mortalities—were between 17-35 percent, greatly exceeding the mortality rates needed for a self-sustaining stable population (Meretsky et al. 2000, p. 963). Currently, populations in the wild are only viable as a result of augmentation through ongoing captive-breeding and release efforts, in concert with intensive monitoring and management to reduce mortality (Green et al. 2008; Finkelstein et al. 2012, p. 11452; USFWS 2013, pp. 27-30).

The primary threat to the viability of the California condor is lead poisoning from spent ammunition left in gut-piles or carcasses of animals that condors feed upon (Meretsky et al. 2000, p. 963; Church et al. 2006, p. 6148; Cade 2007, entire; Woods et al. 2007, pp. 73-75; Green et al. 2008, p. 9; Walters et al. 2010, pp. 993-994; Finkelstein et al. 2012, pp. 11452-11453; Rideout et al. 2012, pp. 108-109; Kelly et al. 2015, pp. 395-398; Bakker et al. 2017, pp. 101-103). Without intensive management of the impacts from this threat, which includes periodic trapping for health exams, monitoring blood lead levels, and treatment if necessary, the wild populations would trend toward extinction (Woods et al. 2007, p. 65; Green et al. 2008, pp. 8-9; Walters et al. 2010, pp. 993-994; Finkelstein et al. 2012, pp. 11452-11453). In the absence of this threat, California condor populations would likely grow and become self-sustaining, without the need for intensive management (Woods et al. 2007, p. 65; Green et al. 2008, p. 9; Finkelstein et al. 2012, pp. 11452-11453).

Several laws and voluntary programs to reduce the threat from lead ammunition have been enacted. The State of California instituted a restriction on the use of lead ammunition for hunting within the range of the California condor in southern and central California in July 2008 (Ridley-Tree Condor Preservation Act 2008, entire). The geographic and regulatory scope of this restriction was expanded with Assembly Bill 711 (AB711) that was signed into law in October 2013. AB711 amended section 3004.5 of the California Fish and Game Code, relating to hunting. The law, which restricts the use of lead ammunition for taking wildlife, has been phased in; the final phase, which went into effect in July 2019, enacted a State-wide ban of lead ammunition for all take of wildlife. Nevada also has a regulation mandating the use of nontoxic shot on all Nevada Wildlife Management Areas (NAC 503.183). In addition to these laws and regulations, voluntary lead-reduction programs are in place in California, Oregon, Nevada, Arizona, and Utah. While these voluntary programs vary by State, actions under these programs have included: (1) Surveys to understand attitudes toward lead reduction; (2) outreach to hunters at sportsman shows, hunter education classes, and in the field; (3) coordination with hunter constituency groups; and (4) targeted vouchers for free non-lead ammunition (Sieg et al. 2009, pp. 344-345; Chase and Rabe 2015, pp. 2-3; AGFD 2017, web page, UDWR 2017, web page, ODFW 2017, web page; Huntingwithnonlead.org 2017, web page; nonleadpartnership.org , web page).

Other threats to California condors include: Rangeland conversion, wind energy development, collision with and electrocution from powerlines, predation, disease, inadequacy of existing regulatory mechanisms, shooting, microtrash ingestion, pesticides, and habituation to humans. A full description of these threats, and efforts to abate them, are provided in our most recent status review for the California condor (USFWS 2013, entire).

We published a California condor recovery plan in 1974 (USFWS 1975, entire), and revised the plan in 1980 (USFWS 1980, entire), 1984 (USFWS 1984, entire), and 1996 (USFWS 1996, entire). To date, recovery efforts have focused on reintroduction and recovery in the southern portion of the species' historical range (see Captive Breeding and Reintroduction Efforts, above). Recovery criteria for removing the California condor from the endangered species list were not provided in the 1996 revision to the recovery plan, as its primary focus was keeping the species from going extinct. At the time the 1996 revised recovery plan was written, there were only 17 California condors in the wild (USFWS 1996, p. 9) and we could not anticipate at that time all actions that would be necessary for full recovery. We recently clarified why it remains impracticable to incorporate delisting criteria for the California condor in the recovery plan (USFWS 2019b). The overall strategy for recovery outlined in the 1996 recovery plan was to focus on: (1) Increasing reproduction in captivity to provide condors for release, (2) the release of condors to the wild, (3) minimizing condor mortality rates, (4) maintaining habitat for condor recovery, and (5) implementing condor information and education programs (USFWS 1996, p. 21). While the recovery plan did not have delisting criteria, it included as criteria for reclassifying (or downlisting) to a threatened species an objective of establishing at least two, preferably more, self-sustaining disjunct wild populations in order to reduce the risks to the overall population and to facilitate genetic and demographic management (USFWS 1996, p. 24).

The 1996 revised recovery plan does not provide specific recovery targets or actions for the Pacific Northwest, but our 1980 recovery plan recommended surveys of Oregon, Washington, and California to identify potential habitat for future releases into unoccupied portions of the historical range (USFWS 1980, p. 50). Recent habitat modeling has revealed large areas of potentially suitable nesting, roosting, and feeding habitats in the Pacific Northwest (D'Elia et al. 2015, pp. 95-96). Although criteria for full recovery were not provided in our latest recovery plan revision (USFWS 1996, entire), increasing the global population of the California condor and expanding its geographic distribution among the ecosystems it once occupied are, on first principles, consistent with efforts to recover the species.

An existing population model based on published demographic rates (Bakker et al. 2017, entire) was used to simulate statewide California condor population growth in California over the next 30 years (2018-2048), assessing scenarios with and without the allocation of some of the available captive-bred individuals to a new geographically disjunct flock (Bakker and Finkelstein 2018, entire). Preliminary model simulations suggest that allocating captive-bred individuals to a new, geographically disjunct flock, which is expected to have lower survival and reproduction compared to the existing flocks, may reduce the population growth of condors in California. Model simulations reinforce the importance of increasing captive chick production and releases to the wild. The number of chicks produced in the captive program and released to the wild has been variable over time, but continues to drive population growth in the wild due to the high chick and juvenile survivorship attainable in a captive setting and to ongoing mortality in the free-flying population combined with the long generational gap between chick stage and breeding age (approximately 6-8 years) in California condors (Finkelstein et al. 2012, entire; Bakker et al. 2017, entire; Bakker and Finkelstein 2018, entire).

The California Condor Recovery Program is currently proposing to increase the number of captive-produced condors for release into the wild, and would continue to allocate the number of chicks to each release site necessary to maintain positive population growth at each site, to the extent practicable. Continuing to grow the wild population of California condors while reestablishing them in an unoccupied portion of their historical range is consistent with our overall strategy to recover the species.

In summary, an NEP in the Pacific Northwest would establish an additional population in the United States, beyond the minimum of two populations envisioned for downlisting to a threatened species. This population would contribute to the conservation of the species by: Further reducing the risk that any one catastrophic event would affect a large proportion of the species (increasing the population redundancy); increasing the global population of the species (increasing resiliency); and expanding the geographic distribution of the species among ecosystems (increasing representation by expanding the ecological settings in which the species occurs).

When we establish experimental populations under section 10(j) of the Act, we must determine whether such a population is essential to the continued existence of the species in the wild. Although the experimental population will contribute to the recovery of the California condor, it is not essential to the continued existence of the species in the wild. California condors are currently distributed among three disjunct and intensively managed populations in California, Arizona and Utah, and Baja California, Mexico. Management at these sites includes: Monitoring individuals with VHF or GPS/GSM transmitters; biannual trapping for health screenings; vaccination for West Nile virus; aversive conditioning to power poles prior to release; chelation therapy to treat California condors with elevated blood-lead levels; and nest observations, entries, and interventions to maximize productivity in the wild (Walters et al. 2010, pp. 972, 976, 982-984; Romo et al. 2012, pp. 28-56; Southwest Condor Review Team 2017, pp. 4-21; USFWS 2017, pp. 5-19). In addition, there are ongoing releases of captive California condors into each of the wild populations. Releases are carefully coordinated among sites to ensure a healthy age structure, sex ratio, and distribution of founder genomes (Ralls and Ballou 2004, pp. 221-225). As a result of the continued release of condors and the coordination among release programs, the populations of wild California condors continue to grow (USFWS 2018, p. 6).

In addition to the three wild populations, there is also a sizable captive population at four breeding facilities, which are distributed in California, Oregon, and Idaho (see Biological Information, above). The breeding facilities are secure facilities, not open to the public, where California condors are kept under 24-hour surveillance by condor keepers or video cameras. The captive population is given extensive care and deaths and injuries are rare, with a captive annual survival rate after the first month of life of 0.989 percent (95 percent confidence interval: 0.984-0.992) (Bakker et al. 2017, p. 97). In addition, the geographic separation of the four breeding facilities protects the captive population from the threat of extinction due to a single catastrophic event.

The captive population was formed with only 13 apparent genetic founders that comprised three genetic clans (Geyer et al. 1993, p. 573; Ralls and Ballou 2004, p. 219; Pryor and Ralls 2016, p. 3). Genetic management, which includes control of all captive matings, has been implemented to minimize the loss of remaining genetic diversity and ensure this remaining genetic diversity is well distributed among the captive-breeding facilities and reintroduction sites (Ralls et al. 2000, p. 152; Ralls and Ballou 2004, p. 226; Pryor and Ralls 2016, p. 2). California condors released within the experimental population would come from a mixture of the founder clans represented in the captive population and would not represent a unique genetic lineage of California condors. Therefore, loss of this population would not represent a substantive change in the genetic diversity or genetic viability of the worldwide population of California condors.

This reintroduction project will further the recovery of the California condor by attempting to establish another wild population in an unoccupied portion of the species' historical range. However, for the reasons stated above, California condors released into the Pacific Northwest are not essential to the survival of the species in the wild. Therefore, as required by 50 CFR 17.81(c)(2), we find that the experimental population is not essential to the continued existence of the species in the wild, and we designate the experimental population in the Pacific Northwest as a nonessential experimental population (NEP).

Section 10(j) of the Act requires that an experimental population be geographically separate from wild populations of the same species. Considering a number of factors (as described in detail, below), we drew the NEP area to include a portion of northern California, northwestern Nevada, and all of Oregon. The western boundary of the NEP is the Submerged Lands Act boundary line along the Pacific coast. The southern boundary of the NEP is formed by an east-west line from California's Submerged Lands Act boundary to Hare Creek; Hare Creek from the Pacific Ocean to its junction with California State Route 1; north to the junction of State Route 1 and State Route 20; east along California State Route 20 to where it meets Interstate 80; and Interstate 80 from its intersection with California State Route 20 to U.S. Route 95 in Nevada. The eastern boundary of the NEP is U.S. Route 95 in Nevada to the State boundary of Oregon and then east and north along Oregon's southern and eastern boundaries, respectively. The northern boundary of the NEP is the northern State boundary of Oregon. All highway boundaries are inclusive of the entire highway right of way. See map below and in the Environmental Assessment (NPS et al. 2018, Figure 2, p. 5).

The last California condor specimen collected within the NEP area was in 1892 along Yager Creek in Humboldt County, California (Smith 1916, p. 205; D'Elia and Haig 2013, pp. 39-46). Although there were a few reported California condor sightings up to 1925 in the area we are proposing to designate an NEP, since then there have been no credible sightings of condors in the wild in this area, or anywhere north of San Francisco (D'Elia and Haig 2013, pp. 58-59). Given that almost all released California condors are actively tracked with electronic transmitters, we are confident that there are no wild condors in the NEP.

The location of the primary reintroduction site is the Bald Hills of Redwood National Park, an area proximal to suitable nesting and feeding habitat. Ten potential release sites were identified by the Yurok Tribe, and the primary release site was selected following careful consideration of site suitability, logistics, threats and hazards, cultural resources, and suitability of adjacent lands (Yurok Tribe 2020, entire). The release site will be situated in grassland habitat above a redwood forest with sufficient topography to allow young California condors to more easily achieve flight. Redwood forests in the vicinity of the release site, as well as proximal mountain ranges (Oregon Coast Range, Klamath-Siskiyou Mountains, and the Northern Coast Range in California) are expected to provide ample roosting and nesting habitat. Inland valleys and mountaintop prairies, in conjunction with a proximal coastline, are expected to provide a mixture of sufficient terrestrial and marine feeding areas and food resources. Landscape-scale models indicate that the amount and characteristics of habitat in the region compare favorably to other portions of the historical range (D'Elia et al. 2015, pp. 95-96).

In defining the experimental population boundary, we attempted to encompass the area where the population is likely to become established in the foreseeable future. The term “foreseeable future” appears in the Act in the statutory definition of “threatened species.” The Act does not define the term “foreseeable future.” However, our implementing regulations at 50 CFR 424.11(d) set forth a framework for evaluating the foreseeable future on a case-by-case basis. The term foreseeable future extends only so far into the future as we can reasonably determine that both the future threats and the species' responses to those threats are likely. In other words, the foreseeable future is the period of time in which we can make reliable predictions. While we use the term “foreseeable future” here in a different context (to establish boundaries for identification of the experimental population), we apply a similar conceptual framework. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider the timeframes applicable to the relevant effects of release and management of the species and to the species' likely responses in view of its life-history characteristics. Data that are typically relevant to assessing the species' biological response include species-specific factors such as lifespan, reproductive rates or productivity, certain behaviors, and other demographic factors. For the purposes of this rule, we define the foreseeable future as approximately 20 years, the time horizon within which we can reasonably forecast California condor population expansion given the number of years of data we have on condor movements from release sites in southern and central California (25 years in southern California and 23 years central California). We expect that the contribution of the experimental population toward recovery of the California condor will be evident during this time span, although we recognize that establishing a self-sustaining population of condors in the region may take longer given the species' extremely low reproductive rates. We established the experimental population boundary large enough to account for expansion over time as the introduced population begins to breed in the wild, and to assist in identifying any individuals belonging to the NEP. When possible, we used recognizable features on the landscape, legal land descriptions, or administrative boundaries to demark this experimental population boundary. We included the entire State of Oregon to ensure that any California condors originating from the releases at Redwood National Park and flying north into Oregon are recognized as members of the NEP and are covered by the NEP regulations.

Information we considered in drawing our NEP boundary included California condor movement data from existing release sites, and the location of the closest existing condor population, as well as input from State wildlife agencies. Movement data indicate that, after 20 years of releasing California condors, most individuals remain within approximately 124 mi (200 km) of their release site—although exceptional flight distances occasionally occur and the existing populations continue to expand as flock size increases. The closest California condor release site to the Bald Hills release site is at Pinnacles National Park, approximately 350 mi (563 km) to the south. The proposed release site is approximately 124 mi (200 km) from the nearest edge of the experimental population boundary, and the southern edge of the experimental population boundary is approximately 112 mi (180 km) from the northern extent of the closest endangered population of California condors. Thus, the southern boundary of the NEP approximates a mid-point between the nearest population in central California and the proposed release site at Redwood National Park. The farthest documented nesting pair of California condors from any release site since the inception of the captive-breeding program was approximately 62 mi (100 km), while most nests are within 47 mi (75 km) of their release site of origin. Given our definition of foreseeable future and the information from existing release sites, we anticipate that California condors initially released at Redwood National Park—with the exception of occasional exceptional flights—would remain within the experimental population boundary over the first 20 years of reintroductions. If a reintroduction of California condors in northern California is successful, it is possible that some individuals from the NEP may eventually move outside of the NEP area. It is also possible that California condors from the other California release sites may enter this NEP. We expect that these movements, if they occur, would be infrequent in the foreseeable future given the size of the NEP, the NEP's distance from existing populations, and observed California condor movements at other release areas over the last two decades. Further, we find that the interaction of individuals among the NEP and existing endangered populations and the merging of these populations are even more unlikely to occur in the foreseeable future given the distance between the populations and the small number of California condors likely to occupy the NEP. Even if California condors occasionally moved into or out of the NEP, the presence of one or a few individual dispersing condors would not constitute a “population” and any individuals dispersing into or out of the experimental population area would be treated as if they were part of the population at the location where they are found ( See Wyoming Farm Bureau Federation v. Babbitt, 199 F.3d 1224, 1234-6, FN 5 (10th Cir. 2000) (finding the Secretary reasonably exercised his management authority under section 10(j) in defining the experimental wolf population by location)). Based on definitions of “population” used in other experimental population rules ( e.g., 59 FR 60252, November 22, 1994 (gray wolves), 71 FR 42298, July 26, 2006 (Northern aplomado falcons)), we consider a population to require a minimum of two successfully reproducing California condor pairs over multiple breeding cycles. Using this definition of a population, the best available information suggests that the population of California condors formed from releases in Redwood National Park is likely to be wholly separate from other populations of California condors for the foreseeable future.

The best available scientific data indicate that the reintroduction of California condors into suitable habitat in Redwood National Park is biologically feasible and would promote the conservation of the species. Along with our numerous recovery partners, we have over 25 years of experience breeding and releasing California condors into the wild at several release areas across various ecosystems. Release techniques are well established, as are protocols for managing released California condors. Based on our collective knowledge gained from these efforts, we anticipate California condors will become successfully established for the following reasons:

(1) Landscape-scale modeling indicates the NEP may have some of the most extensive nesting, roosting, and feeding habitats remaining within the historical range in California, Oregon, and Washington (D'Elia et al. 2015, pp. 95-97). California condors are habitat generalists and have been successfully reintroduced to a variety of ecosystems, including the mountain foothills of southern California, coastal forests of central California, high desert and canyon lands in northeastern Arizona and mountainous areas in Baja California, Mexico. This species is flexible in its diet, eating carrion of many different species of wildlife and livestock. Therefore, we do not anticipate climate change effects on habitat will negatively impact our ability to reestablish a population of this species in the Pacific Northwest.

(2) A site-specific habitat evaluation, which considered site suitability, logistics, threats and hazards, cultural resources, and suitability of adjacent lands, found the release site to have suitability ratings similar to existing release sites (Yurok Tribe 2020, entire).

(3) The causes for California condor extirpation from the region are either no longer active or are being addressed through a mixture of regulatory and proactive voluntary conservation measures (see Addressing Causes of Extirpation, below).

(4) The extent of effects of existing and proposed actions and activities within the NEP on the reintroduced population have been evaluated in an environmental assessment and are compatible with conservation of the California condor (NPS et al. 2018, entire).

(5) The reintroduced population will receive ongoing demographic support from a managed captive population and an active field monitoring and management program (Similar population support has allowed population growth and establishment at all of the other California condor release sites).

(6) The reintroduced population will be integrated with the California Condor Recovery Program to ensure that California condors released in Redwood National Park have an appropriate sex ratio and age-structure and include representatives of the founder genomes.

(7) There is broad institutional and partner support for a California condor reintroduction in Redwood National Park and Yurok ancestral territory.

On June 14, 2016, a Memorandum of Understanding between 16 parties was finalized. The purpose of the MOU was to formalize an agreement to assess the potential to recover California condors in the Pacific Northwest and to work to seek funding to support that effort if it proved feasible. Signatories to the MOU included the U.S. Fish and Wildlife Service, National Park Service (NPS), Bureau of Land Management, Yurok Tribe, California Department of Fish and Wildlife (CDFW), California Department of Parks and Recreation (CDPR), Oregon Department of Fish and Wildlife (ODFW), Oregon Zoo, Sequoia Park Zoo, Ventana Wildlife Society, Oakland Zoo, Pacific Gas and Electric Company, Pacific Power Company, Green Diamond Resource Company, and Hells Canyon Preservation Council. In 2018, the U.S. Forest Service also signed this MOU.

Based on all of these considerations, we anticipate that reintroduced California condors are likely to become established and persist within the NEP.

Investigating the causes for decline and extirpation of California condors is necessary to understand whether the threats have been sufficiently curtailed such that reintroduction efforts are likely to be successful. Evaluation of various hypotheses for the extirpation of California condors in the Pacific Northwest revealed that secondary poisoning related to predator control and extermination campaigns, direct persecution, and possibly lead poisoning from spent ammunition were the primary causes (D'Elia and Haig 2013, pp. 119-122). Two of these primary drivers of regional extirpation—predator poisoning and direct persecution—are no longer the primary threats to the California condor. According to the most comprehensive assessment of California condor deaths from 1992 through 2009, of the 76 deaths where a definitive cause was determined, there were no confirmed cases of secondary poisoning related to predator control (although there was one possible case involving glycol toxicosis) and only five cases of condors directly persecuted by gunshot or arrow (Rideout et al. 2012, pp. 108, 110).

Based on multiple lines of evidence, the primary threat to the recovery of the California condor is lead poisoning from spent ammunition (see Biological Information, above). Regulations banning lead ammunition for taking wildlife in California are in effect (see Biological Information, above). In addition, voluntary efforts to reduce lead exposure in wildlife are ongoing in Oregon and Nevada (see Biological Information, above). Finally, the reintroduction program will carefully monitor the population and conduct regular health checks to evaluate whether reintroduced California condors are being exposed to lead, the rate of exposure, and how this situation compares to other portions of the species' range. When necessary, California condors with elevated lead levels will be treated for lead poisoning. While the threat from lead ammunition is still present in the experimental population area, it is being addressed through a mixture of regulatory and proactive voluntary measures (see Biological Information, above); therefore, we will not request further regulation of lead ammunition for this experimental population. Sources of mortality will be carefully monitored, and if high mortality rates are preventing the establishment of a self-sustaining population, we will work with our conservation partners to implement additional voluntary measures to address threats, as we have at other California condor release sites. If a formal evaluation indicates the project is experiencing a 40 percent or greater mortality rate over multiple years or released California condors are not finding food on their own, serious consideration will be given to terminating the project.

Release procedures at Redwood National Park are described in the environmental assessment (NPS et al. 2018, pp. 23-28) and would be similar to those at existing release sites. Procedures include: (1) The use of an onsite release pen where California condors are kept for a short period of time prior to release; (2) tracking of all released condors via telemetry (VHF and GPS/GSM); and (3) supplying condors with proffered food at the release site to allow for repeated trappings to monitor health and replace transmitters.

In general, a new cohort of captive-reared California condors will be released annually. The size of each release group will depend on the number of California condors in captivity available for release, but annual releases will likely involve up to six condors. California condors hatched in captivity will be raised by their parents or a condor look-alike hand puppet until they are approximately 6 months to 1 year old. They will then be placed with other California condors in a single large pen so they will form social bonds and undergo aversion training to power poles. The young California condors will be transported to the release site at Redwood National Park when they are approximately 1.5 to 2 years old. At the release site they will be placed in a flight pen and will remain there for an acclimation period of approximately 3 months.

Biologists will remain near the release pen, observing the young California condors' behavior and guarding against predators or other disturbance. After the initial adjustment period, California condors will be released from the flight pen. Any release candidate showing signs of physical or behavioral problems will not be released. A small area of NPS land will be closed to recreational activity to protect the California condors in or around the release facility. Carcasses will be provided at the release site, as supplemental food for newly released California condors, and as necessary, to attract condors for periodic trapping to check their health and swap-out transmitters.

All California condors released to the wild will be marked to allow identification of individuals. Current methods for doing this include placing electronic transmitters ( e.g., Argos, GSM (Global System for Mobile communication), and VHF transmitters) and wing markers on the wings of each California condor. The movements and behavior of each California condor will be monitored remotely using electronic transmitters and ground observations. Aerial tracking will be used to find lost individuals, and telemetry flights will be coordinated with the appropriate land management agencies. Our methods for identifying and monitoring individuals will be adaptive and may change as technology improves.

We will endeavor to maintain an even sex-ratio across a range of age-classes in the released population. Adult California condors unfit for release may be transported to the release site and kept in the pen as mentors for the acclimating cohort. Adjustments will be made in release cohort structure annually based on availability from captive-breeding facilities, genetics, sex-ratio, and age.

The donor population for the reintroduction of California condors to Redwood National Park is the captive population of California condors. Although the captive population is located at four breeding facilities, these facilities cooperate to manage the entire wild population and captive population as a single entity, exchanging California condors and condor eggs among the facilities as necessary for population and genetic management (Ralls and Ballou 2004, p. 216).

As of December 2019, there were 181 California condors in captivity, and the size of the captive population has been relatively stable over the last 5 years, with end-of-year counts ranging from 167 to 181 during this time period (USFWS 2020, p. 5). With the assistance of the captive-breeding program, the total population of California condors increased from 370 condors in 2010 to 518 condors in 2019 (USFWS 2020, p. 5).

The donor population is carefully managed to ensure its long-term viability. Annual reviews of breeding, captive pairings, genetic health, and demographic factors are undertaken to ensure that captive-releases will not be detrimental to the stability of the captive flock. In addition, the captive-breeding program has capacity to pair additional captive California condors to increase reproductive output as they become available for breeding and to replace senescent condors. This could be done through multiple clutching, the use of non-breeding adults to serve as foster parents, and/or puppet rearing. Given the careful management of the donor population, the ability to increase its productivity, and the relatively small number of California condors that will be released at Redwood National Park annually, impacts to the donor population are expected to be negligible.

The Service, NPS, and the Yurok Tribe will plan and manage the reintroduction of California condors at Redwood National Park. In addition, these agencies will carefully collaborate on releases, monitoring, condor care and behavior management, nest observations and interventions, coordination with landowners and land managers, public awareness, and other tasks necessary to ensure successful reintroduction of the species (Yurok Tribal, 2020, entire). A few specific management considerations related to the experimental population are addressed below.

(a) Incidental Take: Experimental population special rules contain specific prohibitions and exceptions regarding the taking of individual animals. These special rules are compatible with most routine human activities in the expected reestablishment area. Section 3(19) of the Act defines “take” as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” “Incidental take” is further defined as take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. By adopting the 10(j) rule, most incidental take of California condors within the experimental population area is allowed, provided that the take is unintentional and not due to negligent conduct. However, habitat alteration ( e.g., removing trees, erecting structures, altering the nest structure or perches near the nest) or significant visual or noise disturbance ( e.g., tree felling, chainsaws, helicopter overflights, concrete cutters, fireworks, explosives) within 656 ft (200 m) of an occupied nest are prohibited. Excluded from this prohibition are emergency fuels treatment activities by Federal, State, and local agencies and Tribes to reduce the risk of catastrophic wildfire and emergency response services. Activities such as ranching and use of existing roads and trails within the 656-ft (200 m) buffer area around an occupied nest would not be considered a significant visual or noise disturbance. For the purposes of this rule, an occupied California condor nest is defined as a nest that is: (1) Attended by a breeding pair of condors, (2) occupied by a condor egg, or (3) occupied or attended by a <1-year-old condor.

The 656-ft (200 m) buffer is meant to serve to minimize visual and auditory impacts associated with human activities near nest sites. We chose a 656-ft (200 m) buffer after considering buffer distances used for other raptors, which varied widely from 162 to 5,249 ft (50-1,600 m) (Richardson and Miller 1997, pp. 635-636; Romin and Muck 2002; USFWS 2007, p. 13), as well as past recommendations on buffer distances for California condor nests, which ranged from 0.5 to 1.5 mi (0.8-2.4 km) (Carrier 1973, pp. 71-73). This variation is likely the result of differences in environmental setting, species-specific responses, status of the species at the time of the recommended buffer, the nature of the disturbance, and the purpose of the buffer. It is important to note that historical California condor buffer distances of 0.5 to 1.5 mi (0.8-2.4 km) were based on anecdotal observations of a small number of condor nests in a declining population, and were necessarily conservative given the context of a nearly extinct species. The nest buffer for this rule is smaller than those earlier recommendations because of new information suggesting that nesting California condors may be more tolerant of disturbance than previously believed (see below). We also accounted for the fact that we are establishing this population as a nonessential experimental population. Therefore, our buffer distance around nests may be less conservative than our recommended buffer distances from nests where California condors are listed as endangered.

While species-specific responses to disturbance have not been formally studied for the California condor, observations in the 1950s and 1960s found that once a condor nest is started, it will not be abandoned unless the egg or chick is lost or the parents killed (Sibley 1969, p. 8). In addition, recent observations have documented successful nests within 0.5 mi (0.8 km) from active oil and gas operations and within 656 ft (200 m) of busy highways, hiking trails, and forestry practices such as operating chainsaws and chippers (A. Welch, NPS, pers. comm. 2015). One nest in a giant sequoia tree was successful despite being “right on the edge” of a clearcut operation (which ceased only 3 weeks prior to egg laying) and only about 656 ft (200 m) from, and in direct view of, an intermittently used dirt road (Snyder et al. 1986, p. 238).

Although the best available information suggests that California condors may not be as susceptible to disturbance as we thought in the 1960s-1980s, flushing of condors from nests has been documented due to disturbance and this activity has the potential to result in the egg breaking if the adult that is flushed is incubating the egg (Sibley 1969, p. 8). It is also possible that prolonged or repeated disturbances may cause nest failure (Sibley 1969, p. 15). To minimize the chances of nest or egg destruction and to preserve the structural integrity of habitat around nests while minimizing impacts to stakeholders, we are prohibiting habitat alteration or significant visual or noise disturbance within 656 ft (200 m) of occupied nests, with the exceptions noted above.

Existing and proposed activities and land uses surrounding the park that could potentially result in incidental take include wind power, utility transmission lines, mining, commercial timber production, ranching operations, and recreational activities (NPS et al. 2018). As noted above in our evaluation of the likelihood of population establishment and survival, we determined that the extent of effects of these activities within the NEP is compatible with conservation of the California condor. We expect few restrictions on these activities because most incidental take, including take associated with lead ingestion, is not prohibited. Some activities, such as those associated with habitat alteration or significant visual or noise disturbance within 656 ft (200 m) of an occupied nest, would be prohibited, as described above. However, because (1) the number of individuals initially released would be small, (2) California condors nest only on cliffs and in large tree cavities, (3) California condors tend to nest in less accessible and remote areas, and (4) the nests would be dispersed rather than concentrated in a particular area, we expect impacts to existing and proposed activities to be minimal (NPS et al. 2018). For the reasons stated above, it is unlikely that a condor would nest within areas with ongoing timber harvest operations, as only about 0.5 percent of harvestable timber on private lands within the study area are likely to contain suitable nesting trees. (NPS 2018). Once the condor chick has fledged, activities could resume, so any prohibitions on activities would be temporary in nature.

(b) Interagency Consultation: For purposes of section 7 of the Act, section 10(j) of the Act and our regulations (50 CFR 17.83) provide that nonessential experimental populations are treated as species proposed for listing under the Act except on National Park System and National Wildlife Refuge System lands, where they are treated as threatened species for the purposes of section 7 of the Act.

(c) Special Handling: USFWS, NPS, CDPR, CDFW, ODFW, Nevada Department of Wildlife (NDOW), and Yurok Tribe Natural Resource Division employees, and authorized agents acting on their behalf, may handle California condors for scientific purposes; to relocate or haze California condors to avoid conflict with human activities; for recovery purposes; to aid sick or injured California condors; and to salvage dead California condors. However, non-Service or other non-authorized personnel will need to acquire permits from the Service and the appropriate State or Tribal agency for these activities. Protocols for management and monitoring have been developed based on decades of experience from releasing condors in other areas (Yurok Tribe 2020, entire). Management and monitoring practices covered by these protocols include holding and releasing condors, monitoring, condor care and behavior management, nest observations and interventions, and other tasks necessary to ensure successful reintroduction of the species (Yurok Tribe 2020, entire). These protocols are designed to be adaptive and will be updated periodically as new information is acquired. Management and monitoring activities (see Yurok Tribe 2020) by any employee or agent of the Service, National Park Service, Yurok Tribe Natural Resource Division, CDPR, CDFW, NDOW, or ODFW who is designated and trained for such purposes, when acting in the course of official duties, will be exempt from take prohibitions.

(d) Public Awareness and Cooperation: During January 2017, in cooperation with the Yurok Tribe and Redwood National Park, we conducted five NEPA scoping meetings on the proposed action of reintroducing California condors to the Pacific Northwest, with the possibility of designating the reintroduced population as an NEP. We notified a comprehensive list of stakeholders of the meetings including affected Federal and State agencies, Native American Tribes, local governments, landowners, nonprofit organizations, and other interested parties. The comments we received were included in the formulation of alternatives considered in the NEPA process, and were considered in formulating proposed experimental population regulations for California condors within the NEP. We opened a 60-day comment period on our proposed regulations and EA, with another round of notifications to our comprehensive list of stakeholders. We also held public meetings in Portland, OR, Medford, OR, Klamath, CA, and Arcata, CA during the public comment period.

In cooperation with conservation partners, we will monitor movements, habitat use, and survival of all released California condors (NPS et al. 2018, pp. 23-28). Monitoring individual movements will allow field staff to identify potential problem-behaviors and to capture, relocate, or haze individual California condors for their safety. It will also allow us to detect any California condors that move outside of the experimental population area. Trapping will occur at the release site to allow for hands-on physical exams of individuals, replacement of faulty or aging transmitters, marking growing feathers, sampling feathers marked previously for lead history construction, and drawing blood for immediate testing of circulating blood lead levels and laboratory analysis for other contaminants of interest including, but not limited to, organophosphates and anticoagulant rodenticides. We will also attempt to determine the cause-of-death for all condor mortalities so we can look for emergent patterns and evaluate whether additional management interventions are necessary.

Annual reports that summarize monitoring and management activities will be collaboratively developed by the Yurok Tribe, NPS, and USFWS. We will evaluate the reintroduction program to determine whether to continue or terminate reintroductions every 5 years as part of our 5-year status review for the species.

In the proposed rule published on April 5, 2019 (84 FR 13587), we requested that all interested parties submit written comments on the proposal by June 4, 2019. In addition, in accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270) and updated guidance issued on August 22, 2016 (USFWS 2016, entire), we solicited peer review of our proposed rule from three knowledgeable individuals with scientific expertise in California condor ecology and management. We received responses from two of the peer reviewers. We also contacted appropriate Federal and State agencies, Tribes, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. In addition, on May 7-9, 2019, we held public meetings on the proposal in Portland, OR; Medford, OR; Arcata, CA; and, Klamath, CA.

We reviewed all comments received from the public, States, Tribes, and peer reviewers for substantive issues and new information regarding the establishment of an experimental population of California condors in the Pacific Northwest. Substantive comments are addressed in the following summary and have been incorporated into the final rule as appropriate. Any substantive changes incorporated into the final rule are summarized in the Summary of Changes from the Proposed Rule section, below.

In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinion from three knowledgeable individuals with scientific expertise in the species' biology, habitat, and raptor reintroductions in general. We received responses from two of the peer reviewers.

Both peer reviewers expressed support for the reintroduction with an associated 10(j) rule and agreed the action is likely to contribute to the conservation of the species. We incorporated specific updated information, comments, and suggestions from peer reviewers into the final rule as described in our responses, below.

Comment: One peer reviewer pointed out that, in our proposed rule, we stated that predator-poisoning was no longer a primary threat to condors. The reviewer notes that another form of poisoning, from anticoagulant rodenticides, remains a serious concern for wildlife in northern California and may pose a greater threat than in central and southern California condor populations.

Response: Predator-poisoning campaigns targeting large predators, like gray wolves and grizzly bears, are fundamentally different from the use of anticoagulant rodenticides that are primarily targeting small rodents. Nevertheless, we acknowledge that condors released in northern California may be exposed to rodenticides. We do not yet know the rate of exposure or whether this exposure will have a significant effect on condor demographic rates. It is currently unclear whether exposure rates will be higher, lower, or the same as observed in other parts of the condor's range, or whether their exposure rates will be comparable to exposure rates in other surrogate avian scavengers. As stated in the final rule, we will be conducting regular physical exams of condors and will attempt to determine cause-of-death for all condors that die and whose bodies are available for necropsy. If exposure to anticoagulant rodenticides is a significant factor affecting population growth, we will adapt our management accordingly.

Comment: One peer reviewer noted that, in our proposed rule, we mention the lead ammunition ban in California and the efforts being taken in Oregon to get hunters to voluntarily switch to non-lead alternatives. They asked whether Nevada, part of which is included in the NEP boundary, would be undertaking any outreach for voluntary effort to curb lead ammunition use.

Response: NDOW has implemented some voluntary measures to encourage hunters to switch to non-lead ammunition. In 2015, NDOW collaborated with the North American Non-lead Partnership to train hunter education instructors about non-lead ammunition. Non-lead ammunition outreach is now included in all hunter education training in Nevada. In addition, Nevada also has a regulation mandating the use of nontoxic shot on all Nevada Wildlife Management Areas (NAC 503.183).

Comment: One peer reviewer noted that the nest buffer of 200 m is somewhat less conservative that what has previously been recommended, but, given the evidence presented and the fact that this is being designated as an NEP, they thought that the buffer size was a reasonable starting point. This reviewer suggested providing a mechanism for expanding the buffer, under certain circumstances. The other peer reviewer stated that the 200 m buffer around nests seemed risky. They suggested starting with a larger buffer, with the option of making it smaller in certain circumstances.

Response: The 656 ft (200 m) buffer distance around occupied nests is intended to provide some protection to condor eggs and nestlings. We recognize that, in certain situations, noise or habitat disturbance outside of this buffer may cause harassment, or even harm, to an individual condor. We expect these instances to be extremely rare given the small number of anticipated breeding condors in the foreseeable future and the vastness of the landscape they will occupy. For the reasons articulated in this final rule (see Management, above), we find that a 656 ft. (200 m) buffer distance provides a reasonable balance between protection of condors and limiting the impact of this reintroduction effort on landowners.

Comment: One peer reviewer asked about the timing of our program review and how that relates to the timing of the Service's 5-year status review of the species. As the last California condor 5-year review was completed in 2013, they were concerned that our review periods would not be aligned.

Response: We will informally review the status of the reintroduction program on an annual basis. We intend to release key information from this informal annual review ( e.g., population size, number of releases, number of deaths) to the public. Our formal status review of the reintroduction program, where we will assess whether we should continue or discontinue the reintroduction program in the Pacific Northwest, will likely occur within the first 5 years of the program. The review cycles will be aligned from that point forward. Based on our experiences releasing California condors in other areas, we caution that evaluating whether or not the program is successful—and therefore, whether it should continue—will take at least two decades ( i.e., several 5-year review cycles).

Comment: One peer reviewer suggested that we should provide mechanisms for cancelling the program if a sufficient number of condors are killed or lost for reasons that cannot be alleviated due to the experimental NEP status.

Response: As stated in the proposed rule, and in this final rule, if a formal evaluation indicates the project is experiencing a 40 percent or greater mortality rate over multiple years or released California condors are not finding food on their own, we would evaluate options, including discontinuing releases, capturing and removing condors from the NEP area, and whether to remove the NEP designation and regulations. If we proposed removal of the regulations, we would provide an opportunity for public review and comment.

Comment: One peer reviewer expressed concern over whether establishing a new population would impact the viability of existing populations. They also asked us to describe how the captive facilities will increase production and questioned whether funding and support would be available to accomplish that work.

Response: In our proposed rule, and in this final rule, we provide information on a preliminary demographic analysis that shows existing populations are likely to continue to grow even when breeding facilities are producing California condor chicks at less than existing capacity. The condor program has a long history of cooperation among partner institutions, and we have broad support among these institutions for establishment of a new release site in the Pacific Northwest. Likewise, the condor program is funded by a wide variety of partners and sources which are expected to continue to be able to support the existing breeding facilities capacity. Decisions on allocation of condor chicks are made in collaboration with these partner institutions and geneticists. Given the available information on condor demography and the strength and longevity of our partnerships, we are confident that captive-breeding facilities will continue to produce sufficient numbers of California condors to ensure the viability of existing populations and the success of a new reintroduction program in the Pacific Northwest.

Comment: One peer reviewer stated success of the reintroduction program was not defined. They requested that we included an explicit definition of success or remove the term from the final rule.

Response: The ultimate goal of any conservation reintroduction is to establish a self-sustaining wild population. We will evaluate, every 5 years, whether the program is progressing toward achieving that goal. Based on our experience, estimates of mortality rates in the first decade of the release programs at existing sites in California and Arizona were between 17-35 percent. Since we expect it will take many years to achieve our ultimate goal of a self-sustaining wild population, we will consider success to be the continued progress toward achieving that goal. As stated in the final rule, if we observe a 40 percent or greater mortality rate over multiple years, or released California condors are not finding food on their own, serious consideration will be given to terminating the project.

Comment: One peer reviewer asked whether there might be threats unique to northern California or Oregon, that are not threats in the current range of the California condor.

Response: We are not aware of any threats to the California condor that are unique to the Pacific Northwest. We will closely monitor the health of released condors and address any novel threats, should they emerge.

Comment: One peer reviewer stated that he thought the scientific and biological components of the proposed rule were excellent and clearly described. He also provided several technical corrections and edits related to condor biology and management.

Response: We thank the reviewer for his comments and, as appropriate, have incorporated corrections.

Comment: Condors should be removed from the field if designation of a nonessential population changes recreational activities that were legal at the time of the designation, specifically hunting and recreational shooting. Other activities that should be protected in this manner include ranching, timber harvest activities, mining, environmental remediation and restoration, power operations, transportation for both inter- and intra-state commerce, currently in-place endangered species recovery plans, and housing development in cities. Commenters suggested that removing condors from the field should also be included if a sufficient number of individuals are lost during the program.

Response: This rule exempts almost all incidental take of California condors. Significant noise or visual disturbance or habitat alteration within 656 ft (200 m) of occupied nests are prohibited. Excluded from this prohibition are emergency fuels treatment activities by Federal, State, and local agencies and Tribes to reduce the risk of catastrophic wildfire and emergency response services. Activities such as ranching and use of existing roads and trails within the 656 ft (200 m) buffer area around an occupied nest would not be considered a significant visual or noise disturbance. Thus, this rule provides substantial assurances that there will be minimal (if any) impacts to the activities the commenter mentions. As stated in the proposed rule, and in this final rule, if a formal evaluation indicates the project is experiencing a 40 percent or greater mortality rate over multiple years or released California condors are not finding food on their own, serious consideration will be given to terminating the project.

Comment: Commenters asked for clarification on how the 10(j) rule would address condors that leave the NEP area. One commenter suggested that the rule should require condors that leave the designated NEP boundary to be recaptured and returned, which would address the requirement that this population be geographically disjunct from other populations and result in better survival of birds that leave the NEP area.

Response: California condors that fly outside of the NEP area will be evaluated on a case-by-case basis. We do not require the relocation of condors that leave the NEP area. We will consider recapture if a condor moves outside of the NEP and is observed—by an individual trained in condor biology and behavior—exhibiting signs of illness, obvious distress, or exhibits behavior indicating it is at increased risk of harm. While this population is likely to be wholly separate from other condor populations for the foreseeable future, we do not intend to actively preclude the eventual connectivity of condor populations.

Comment: Commenters stated that the 10(j) designation should eliminate the proposed exemptions for electric utilities and wind farms because these companies could use other resources/structures ( e.g., geofencing) to meet the 10(j) requirements. Commenters also stated that the voluntary actions undertaken by the utility owners may not be adequate to protect the NEP.

Response: The primary reason to designate a population as experimental is to engender support for reintroducing an endangered species by more surgically applying the necessary protections of the ESA. Based on known mortalities in other portions of the condor's range, deaths from electric utilities and wind turbines are not the primary threats to condor demographic rates. We will work with electric utilities and wind farm developers and operators to minimize and avoid impacts to condors. As noted in the proposed rule, PG&E has developed and is implementing a plan to minimize take of condors throughout the range of the species. The Service is working with wind energy companies in other parts of the species' range to minimize risk of condor collision with turbines.

Comment: Commenters stated that the 10(j) rule should increase the level and enforcement of penalties.

Response: Section 11 of the ESA addresses civil and criminal fines and penalties associated with violations of the provisions of the ESA and permits issued under the ESA. Any enforcement actions under the ESA will be subject to the maximum fines and penalties outlined in this statute, as those amounts have been adjusted pursuant to Federal law. The current penalty amounts are in 50 CFR 11.33, as adjusted this year (85 FR 10310, February 24, 2020). Enforcement actions and any ensuing penalties for violations of the ESA are based on the facts of each case.

Comment: The California condor should not be established as an NEP without assurances that hunting and recreational shooting would continue. Commenters indicated that a “special rule” should be in place to ensure that hunting and/or recreational shooting are not affected.

Response: Incidental take of California condors associated with legal and non-negligent hunting and recreational shooting is not prohibited within the NEP, provided such take is unintentional and non-negligent. Habitat alteration and significant visual and noise disturbance within 656 ft (200 m) of an occupied nest is prohibited. Excluded from this prohibition are emergency fuels treatment activities by Federal, State, and local agencies and Tribes to reduce the risk of catastrophic wildfire and emergency response services.

Comment: The 10(j) rule as written is too permissive and should be revised to start with full protection and note where protections do not apply.

Response: ESA section 10(j) rules are intended to promote recovery of threatened and endangered species, while reducing the impact of reintroductions on stakeholders. For the reasons articulated in the preamble (see Management, above), we find that the special regulations will provide the appropriate balance of species protection and reduced impact to stakeholders.

Comment: Commenters expressed concern that reducing protections for the California condor would establish a new baseline for policymaking in the future.

Response: We evaluate the need for an experimental population designation and associated 10(j) rules on a case-by-case basis. After carefully reviewing the best available information and coordinating with our State and Tribal partners, Federal land managers, local landowners, and other conservation partners, we have determined that a California condor reintroduction in this area would not have the necessary support without an experimental population designation. This is not the first nonessential experimental population of the California condor and, therefore, is not precedent-setting. Furthermore, nothing in this rule establishes a new baseline for future policy decisions on achieving condor recovery as this rule applies only to this population.

Comment: Several commenters were concerned about potential impacts on land use and socioeconomics in Nevada. One commenter suggested that take of condors should not be deemed negligent where there have been infrequent or inconsistent occurrences of the species in a given project area or where a given instance of take is the first occurrence.

Response: Although the northwestern corner of Nevada is included in the NEP boundary, the best available information on habitat suitability and landscape connectivity suggests that this area is unlikely to become occupied by condors in the foreseeable future. We included northwestern Nevada within the NEP to provide assurances to Nevada that in the unlikely event California condors travel to this area, they would be treated as nonessential experimental animals under the Act. While we do not expect condors to occupy northwestern Nevada within the foreseeable future, we are exempting incidental take from otherwise lawful activities within the NEP, including this area, as long as such take is unintentional and non-negligent. We decline to exempt negligent take, even if the species is infrequently observed in an area. California condors are easily identified and should not be mistaken for any animal that can be legally harvested, killed, captured, wounded, or harassed. Habitat alteration or significant visual or noise disturbance within 656 ft (200 m) of an occupied nest are prohibited. Excluded from this prohibition are emergency fuels treatment activities by Federal, State, and local agencies and Tribes to reduce the risk of catastrophic wildfire and emergency response services. These exemptions and regulations are expected to minimize impacts on land use and socioeconomics in the remote event condors occupy northwestern Nevada.

Comment: One commenter requested clarification on the proposed timeline of the stipulations in the rule, specifically asking about the 20-year timeframe noted in the rule.

Response: This rule will remain in place unless it is rescinded through formal rulemaking. The 20-year timeframe in this rule refers to the time horizon over which we can reasonably forecast California condor population expansion to define the boundary of the experimental population. It also provides a time horizon over which we analyzed the likelihood the population will become established and survive in the NEP. We chose 20 years based on the number of years of data we have on condor movements from release sites in southern and central California. We expect that the contribution of the experimental population toward recovery of the California condor will be evident during this time span, although we recognize that establishing a self-sustaining population of condors in the region may take longer given the species' extremely low reproductive rate.

Comment: One commenter asked for further clarification on how a decision would be made to remove condors from the field in the event that the FWS was compelled by a court order to change the protection status of the population, asking if it would be based on votes of participating parties or would MOU signatories have any type of veto power.

Response: While FWS would ultimately be responsible for determining how to proceed and ensuring any changes in the legal status and/or removal of this population of California condors are made in compliance with any applicable Federal rulemaking and other procedures, we would carefully consider input from partners. The MOU signatories include a range of agencies, conservation partners, and stakeholders with interests that represent a wide variety of interests associated with land management activities. FWS would meet with all of the 17 partners to the MOU to discuss the options on how to proceed, including the option of attempting to capture and relocate all the condors in the wild. We would discuss the consequences of each option with the MOU partners and would make a fact-specific assessment of how to proceed based on the information at that time, including whether there was general agreement from the MOU partners that the condors should remain in the wild. FWS does not intend to hold a formal vote, and none of the MOU signatories would hold veto power.

Comment: Commenters requested that additional activities exempt from take prohibitions be specifically stated in the rule, including existing authorized uses of private and public lands; administrative and emergency functions carried out by local, State, or Federal government; and normal agricultural practices.

Response: We have clarified that the activities provided by the commenters are also exempt from incidental take prohibitions, provided the take is unintentional and the activities are lawful. Please see the Management section above for these changes.

Comment: Commenters requested that our 10(j) rule include more specific language stating that the construction, operation, and maintenance of wind energy and electric transmission facilities would not constitute take. To address this concern, they suggested paragraph (i)(2) be amended to remove the term “non-negligent” and to specifically add electric transmission and distribution and wind generation facilities.

Response: Construction, operation, and maintenance of wind energy and electric transmission facilities may result in take of California condors. However, by issuing this rule, we are exempting such incidental take (provided it is lawful and non-negligent) from the prohibitions of the ESA. We decline to remove the term “non-negligent” as we do not intend to exempt negligent take from the prohibitions of the ESA.

Comment: One commenter asked that the phrase “unavoidably and unintentionally” used in the 10(j) rule be further clarified. The following clarification was proposed: “[t]ake that occurs unavoidably and unintentionally is that which occurs despite reasonable care and is not done on purpose.”

Response: The commenter's interpretation of “unavoidably and unintentionally” is consistent with how we intend its use in this rule. We have updated the final rule to include this clarification.

Comment: Commenters noted concern with how take is defined in the 10(j) rule and felt that how it is defined would open various parties to charges of non-permitted incidental take. They noted that logging companies, NPS, and others could be exposed to liability under the current definition because the rule is not clear on the complex interactions of terrain as part of the current regulatory overlay of different species and habitat conservation plans.

Response: By adopting the 10(j) rule, most incidental take of California condors within the experimental population area is allowed, provided that the activity is otherwise lawful and the take is unintentional and not due to negligent conduct. Habitat alterations and significant visual or noise disturbance within 656 ft (200 m) of an occupied nest are prohibited. Excluded from this prohibition are emergency fuels treatment activities by Federal, State, and local agencies and Tribes to reduce the risk of catastrophic wildfire and emergency response services. Activities such as ranching and use of existing roads and trails within the 656 ft (200 m) buffer area around an occupied nest would not be considered a significant visual or noise disturbance.

Comment: Some commenters suggested that the proposed 10(j) boundary is too large and that it should be reduced to the Klamath Siskiyou bioregion. They noted that because of the time it would take birds to leave the currently proposed region, they should have the full protection of the ESA once they leave.

Response: Experimental population boundaries are generally drawn to encompass the likely movements of the reintroduced population within the foreseeable future. However, they do not need to tightly circumscribe that area, and boundaries may be drawn larger to provide assurances to concerned stakeholders that individuals from a reintroduced experimental population will not be treated as a fully ESA-listed species. Given long-distance movements observed at other release sites, it is unlikely that condors reintroduced to Redwood National Park will limit their movements to the Klamath-Siskiyou bioregion in the foreseeable future.

Comment: Commenters requested that the application of the 10(j) stipulation in the Sheldon National Wildlife Refuge be clarified.

Response: Although the northwestern corner of Nevada (where Sheldon National Wildlife Refuge is located) is included in the NEP boundary, the best available information on habitat suitability and landscape connectivity suggests that this area is unlikely to become occupied by condors in the foreseeable future. We included northwestern Nevada within the NEP to provide assurances to Nevada that in the unlikely event California condors travel to this area, they would be treated as nonessential experimental animals under the Act. The 10(j) rule would apply on National Wildlife Refuges, including Sheldon National Wildlife Refuge. However, experimental populations in National Wildlife Refuges and National Parks are treated as a threatened species for the purposes of section 7 of the ESA (but not under section 9 of the ESA) and consultation requirements of section 7(a)(2) of the ESA would apply.

Comment: Commenters suggested the exception for fuels management be limited to emergency fire response or fuel treatment. They noted that there is no need to risk disturbance to active condor nests in a non-emergency situation.

Response: We agree and have updated the rule accordingly.

Comment: Commenters asked if the existing program has the funding and capacity in terms of number of available birds to add a release site at the park.

Response: The Condor Recovery Program is based on a broad long-term partnership between FWS and many other partners. Funding for this program does not rely entirely on FWS funds, as many partners have other sources of funding to help run the program. In fact, a majority of the funding for the program comes from outside partners. In 2017, FWS started to work with our partners to increase the capacity at the existing breeding facilities in order to provide more captive-reared birds for release to the wild. Based on these efforts, we expect to have additional birds available for release at Redwood National Park, without impacting our releases at the other release sites.

Comment: Commenters stated that the condor recovery program could be mismanaged and suggested that condors may have a better chance of surviving if released at an existing site, rather than a new site.

Response: Along with our partners, we have over a quarter century of experience in raising condors in captivity and releasing them into the wild. Individuals managing the proposed release site have experience at existing release sites and will be assisted by the recovery program as needed. We intend to monitor and manage the population consistent with monitoring and management efforts at existing release sites. While we acknowledge that survival rates may increase with the length of time a release site has been active (Bakker et al. 2017), we also must weigh this information against the opportunity to reintroduce condors to this portion of its historic range, which would have long-term benefits to the overall conservation goals of this species. We have determined that establishing a new population—the first in the northern half of the species' historical range—is worth the possibility of slightly lower survival rates in the early years of the new reintroduction site.

Comment: Commenters noted that landowners should be advised when monitored birds have fledged so that they can comply with the proposed standards for buffers around occupied nest sites.

Response: As part of the condor reintroduction program, monitoring will occur through various methods, as described in the Monitoring and Evaluation section of this rule. Field crews will, to the best of their ability, notify adjacent landowners when occupied nest sites are identified. NPS, FWS, and the Yurok Tribe have coordinated with many surrounding landowners and land managers throughout the planning process and remain committed to working with our partners and neighbors during project implementation.

Comment: Commenters asked during which year of the program we would review reintroduction efforts.

Response: We will informally review the status of the reintroduction program on an annual basis. We intend to release key information from this informal annual review ( e.g., population size, number of releases, number of deaths) to the public. Our formal status review of the reintroduction program, where we will assess whether we should continue or discontinue the reintroduction program in the Pacific Northwest, will likely occur within the first 5 years of the program. The review cycles will be aligned from that point forward. Based on our experiences releasing California condors in other areas, we caution that evaluating whether or not the program is successful—and, therefore, whether it should continue—could take at least two decades ( i.e., several 5-year review cycles).

Comment: Commenters suggested that the proposed rule include language that allows buffers to expand if needed.

Response: The 656-ft (200-m) buffer distance around occupied nests is intended to provide some protection to condor eggs and nestlings. We recognize that, in certain situations, noise or habitat disturbance outside of this buffer may cause harassment, or even harm, to an individual condor. We expect these instances to be extremely rare, given the small number of anticipated breeding condors in the foreseeable future and the vastness of the landscape they will occupy. For the reasons articulated in this final rule (see Management, above), we find that a 656-ft (200-m) buffer distance provides a reasonable balance between protection of condors and limiting the impact of this reintroduction effort on landowners.

Comment: Commenters suggested further research regarding preventing condor mortality from power lines.

Response: Over the last 28 years, there have been 18 incidents of condor electrocutions. FWS has worked with two major utility companies in California to minimize risk of future incidents. PG&E has recently completed a California Condor Conservation Strategy to reduce risk of electrocution and collisions of condors throughout its service area in California. In addition, PG&E has been working with partners in the condor recovery program to train chicks bred in captivity to avoid landing on power poles once they are released. These efforts continue to reduce the risk of electrocutions in the wild population.

Comment: Commenters stated that the statistics of condor survival in the wild are skewed because some carcasses are returned from the field in such a way that it makes it difficult to determine the cause of mortality.

Response: It is not possible to determine the cause of death for every condor that dies in the wild, as some carcasses are not located, and some have decayed to the point that the cause of death is indeterminable. The information the FWS provides to the public acknowledges that the data is limited to birds that we have been able to retrieve and determine the cause of death. However, given the large sample of condors for which cause of death has been determined (n = 185), it is likely that our data on mortality sources are representative of the mortality sources in the population.

Comment: Commenters questioned statements that describe the historical range of the California condor and note the causes of California condor decline. They note that the condor's preferred nesting habitats were not in areas that settlers would have normally used and, if direct persecution occurred, it was most likely related to condors feeding on livestock. They also noted that when game is shot, the carcass is usually retrieved, making lead poisoning from ammunition unlikely.

Response: The probable causes for condor declines being related to direct persecution, indirect poisoning, and lead poisoning are well documented (D'Elia and Haig 2013). Condors can travel great distances from their nesting areas to feed and were documented on numerous occasions by early explorers and settlers. Condors are obligate scavengers and are not livestock predators; however, it is true that some settlers killed condors under the mistaken belief that condors might harm their livestock. In addition, there is ample historical evidence of numerous condors being shot for no purpose at all. While hunters usually retrieve game, misplaced shots may wound animals, and these individuals may carry lead fragments in their tissues until they die and the lead becomes available to scavengers. Further, many hunters field-dress game, leaving nonedible gut piles that can contain lead fragments. Finally, varmint hunters, typically targeting nongame animals such as ground squirrels and coyotes, shoot animals and leave carcasses in the field.

Comment: Commenters made suggestions for adding tribal governments to the list of entities able to take condors during the course of recovery activities, modifying the fuels management exception to just emergency response activities, and clarifying that the Yurok Tribe Natural Resource Division is the responsible agency.

Response: We thank the commenters for the suggestions and have updated the rule accordingly.

Comment: Commenters questioned if non-lead outreach efforts and efforts for the voluntary switch to non-lead ammunition would occur in Nevada.

Response: NDOW has implemented some voluntary measures to encourage hunters to switch to non-lead ammunition. In 2015, NDOW collaborated with the North American Non-lead Partnership to train hunter education instructors about non-lead ammunition. Non-lead ammunition outreach is now included in all hunter education training in Nevada. In addition, Nevada also has a regulation mandating the use of nontoxic shot on all Nevada Wildlife Management Areas (NAC 503.183).

Comment: Commenters stated that past studies show that the lead ammunition ban would not be effective in reducing the rates of lead in California condors because there are other sources of lead in the environment. They requested that the NEP include a special rule protecting all aspects of hunting, including use of all types of ammunition.

Response: There is consensus, based on decades of scientific research, that lead ammunition is the primary source of lead toxicosis in California condors. While other sources of lead ( e.g., lead paint) exist in the environment, instances of these sources poisoning California condors are extremely rare compared to poisoning from lead ammunition. This rule does not restrict lawful hunting and does not mandate the use any specific type of ammunition.

Comment: Commenters stated that condors can be exposed to many contaminants. Contaminants of concern included mercury, anticoagulant rodenticides, DDT, and heavy metals from mining activities. Commenters stated there should be further study of the threats of emerging chemicals on condors and suggested that current statistics may underestimate the mortality resulting from these sources because the cause of death for many birds is undetermined. They also suggested that exposure to these chemicals may be considered “take” under the proposed rule.

Response: While we cannot determine the cause of death for every individual condor, our mortality data indicate that, of the known causes of death, contaminants (not including lead), make up a very small proportion of deaths (USFWS 2020, p. 3). Nevertheless, we intend to monitor the health of released condors and assess contaminant loads in condors during health screenings and when we retrieve deceased condors in the field. We welcome additional research into exposure rates and impacts of contaminants on condor demography. In this rule, we are exempting incidental take associated with lawful activities that is non-negligent and unintentional. Habitat alteration and significant visual and noise disturbance within 656 ft (200 m) of an occupied nest are prohibited. Use of pesticides in compliance with EPA labels would not be prohibited within the NEP, whereas, use of pesticides out of compliance with EPA labels that results in take would be a violation of the ESA.

Comment: Comments expressed specific concerns about the use of rodenticides in illegal marijuana growing sites. They requested that the 10(j) designation include a plan for rapid response if contamination related to mortalities occur.

Response: As at existing release sites, field crews will closely monitor released condors and perform regular heath checks. If we detect toxicants are making condors sick or causing mortality, we will attempt to address the source(s) of contamination as rapidly as possible.

Comment: Commenters expressed concern regarding the establishment of a new wind project near Cape Mendocino and the potential impact that project could have on the reintroduced population of condors.

Response: To date, after more than 20 years of releasing California condors in areas with extensive wind energy development, we have not observed a single condor mortality from collisions with wind turbines. In addition, the amount of wind energy development (existing and proposed) is far less than the existing wind energy development in occupied condor habitat in southern and central California. Nevertheless, we recognize that poorly sited wind energy infrastructure can pose a threat to condors. Project proponents for wind projects in northern California have publicly expressed a willingness to work with the condor program and implement technology that can shut down turbines if a monitored condor flies close to a facility. We will seek to cooperate with energy producers for all existing and proposed energy projects in the region.

In the final rule we have:

• Clarified that fuels treatments that are considered an emergency are exempt from the prohibited actions within 656 ft (200 m) of occupied nests.

• Added Tribal and local governments to the list of entities that are exempt from the prohibitions within 656 ft (200 m) of occupied nests when conducting emergency fuels treatments to reduce the risk of catastrophic wildfire.

• Added an exemption to the prohibitions within 656 ft (200 m) of occupied nests for responses to wildfire or other emergencies.

• Clarified that activities such as ranching and use of existing roads and trails would not be considered a significant visual or noise disturbance occurring within 656 ft (200 m) of an occupied nest.

• Clarified that we use the phrase “unavoidably and unintentionally” to mean take that is not done on purpose and that occurs despite exerting reasonable care to avoid take.

• Provided, in response to comments, additional examples of otherwise lawful activities that are exempt from incidental take prohibitions.

• Provided, in response to comments, additional examples of specific activities that would be prohibited around occupied nests.

• Changed, at the request of the Yurok Tribe, the entity that may take condors to aid in their recovery from the Yurok Wildlife Department to the Yurok Tribe Natural Resource Division.

Based on the best scientific and commercial data available (in accordance with 50 CFR 17.81), we find that releasing the California condors into Redwood National Park with the regulatory provisions in this final rulemaking will further the conservation of the species. The nonessential experimental population status is appropriate for the reintroduced population because we have determined that it is not essential to the continued existence of the species in the wild.

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

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

Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 60 et seq. ), whenever a Federal agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare, and make available for public comment, a regulatory flexibility analysis that describes the effect of the rule on small entities ( i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities. We certify that this rule would not have a significant economic effect on a substantial number of small entities. The following discussion explains our rationale.

The areas that would be affected under this rule include the release site at Redwood National Park and areas where individual California condors are likely to disperse. Because of the regulatory flexibility for Federal agency actions provided by the NEP designation and the exemption for incidental take in the rule (with a minor exception around occupied nests), we do not expect this rule to have significant effects on any activities within Federal, State, or private lands within the NEP. In regard to section 7(a)(2) of the Act, the population would be treated as proposed for listing, and Federal action agencies are not required to consult on their activities, except on National Wildlife Refuges and National Park System lands, where the NEP is treated as a threatened species for the purposes of section 7 of the Act.

Section 7(a)(4) of the Act requires Federal agencies to confer (rather than consult) with the Service on actions that are likely to jeopardize the continued existence of a species proposed for listing. However, because the NEP is, by definition, not essential to the survival of the species, conferring will likely never be required for the California condor population within the NEP area. Further, the results of a conference are advisory in nature and do not restrict agencies from carrying out, funding, or authorizing activities. Section 7(a)(1) of the Act requires Federal agencies to use their authorities to carry out programs to further the conservation of listed species, which would apply on any lands within the NEP areas. On National Wildlife Refuges and National Park System lands within the NEP, the California condor would be treated as a threatened species for the purposes of section 7 of the Act. As a result, and in accordance with our regulations, some modifications to proposed Federal actions within National Wildlife Refuges and National Park System lands may occur to benefit the California condor, but we do not expect projects to be substantially modified because these lands are already administered in a manner that is compatible with California condor conservation.

This rule broadly authorizes incidental take of the California condor within the NEP area. The regulations implementing the Act define “incidental take” as take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity, such as agricultural activities and other rural development, camping, hiking, hunting, vehicle use of roads and highways, and other activities in the NEP areas that are in accordance with Federal, Tribal, State, and local laws and regulations. Intentional take for purposes other than authorized data collection or recovery purposes would not be authorized. Intentional take for research or recovery purposes would require a section 10(a)(1)(A) recovery permit under the Act.

The principal activities on private property near the proposed release site are recreation, timber production, agriculture, and activities associated with private residences. The presence of the California condor will not significantly affect the use of lands for these purposes because—with a minor exception around occupied condor nests—there will be no new or additional economic or regulatory restrictions imposed upon States, non-Federal entities, or private landowners due to the presence of the California condor (NPS, 2018). Therefore, this rulemaking is not expected to have any significant adverse impacts to activities on private lands within the NEP area.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ):

(1) This rule would not “significantly or uniquely” affect small governments. We have determined and certify pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that, if adopted, this rulemaking would not impose a cost of $100 million or more in any given year on local or State governments or private entities. A Small Government Agency Plan is not required. Small governments would not be affected because the NEP designation would not place additional requirements on any city, county, or other local municipalities.

(2) This rule would not produce a Federal mandate of $100 million or greater in any year ( i.e., it is not a “significant regulatory action” under the Unfunded Mandates Reform Act). This NEP designation for the California condor would not impose any additional management or protection requirements on the States or other entities.

In accordance with Executive Order 12630, the rule does not have significant takings implications. When reintroduced populations of federally listed species are designated as nonessential experimental populations, the Act's regulatory requirements regarding the reintroduced population are significantly reduced. This rule would allow for the taking of reintroduced California condors when such take is incidental to an otherwise legal activity, with a minor exception that incidental take resulting from habitat alteration and significant visual or noise disturbance within 656 ft (200 m) of occupied condor nests is prohibited.

A takings implication assessment is not required because this rule: (1) Would not effectively compel a property owner to suffer a physical invasion of property, and (2) would not deny all economically beneficial or productive use of the land or aquatic resources. This rule would substantially advance a legitimate government interest (conservation and recovery of a listed species) and would not present a barrier to all reasonable and expected beneficial uses of private property.

In accordance with Executive Order 13132, we have considered whether this rule has significant Federalism effects and have determined that a Federalism assessment is not required. This rule would not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. In keeping with Department of the Interior policy, we requested information from and coordinated development of this rule with the affected resource agencies in California, Nevada, and Oregon. Achieving the recovery goals for this species will contribute to its eventual delisting and return to State management. No intrusion on State policy or administration is expected, roles or responsibilities of Federal or State governments would not change, and fiscal capacity would not be substantially directly affected. The rule operates to maintain the existing relationship between the State and the Federal Government and is being undertaken in coordination with the States of California, Nevada, and Oregon. We have cooperated with CDFW, the NDOW, and ODFW in the preparation of this final rule. Therefore, this rule does not have significant Federalism effects or implications to warrant the preparation of a Federalism assessment pursuant to the provisions of Executive Order 13132.

In accordance with Executive Order 12988 (February 7, 1996, 61 FR 4729), the Office of the Solicitor has determined that this rule would not unduly burden the judicial system and would meet the requirements of sections (3)(a) and (3)(b)(2) of the Order.

This rule does not contain any new collection of information that requires approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). OMB has previously approved the information collection requirements associated with permitting and reporting requirements associated with native endangered and threatened species, and experimental populations, and assigned the following OMB Control Numbers:

• 1018-0094, “Federal Fish and Wildlife Permit Applications and Reports—Native Endangered and Threatened Species; 50 CFR 10, 13, and 17” (expires 03/31/2021), and

• 1018-0095, “Endangered and Threatened Wildlife, Experimental Populations, 50 CFR 17.84” (expires 9/30/2023).

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

In compliance with all provisions of the National Environmental Policy Act of 1969 (NEPA), we have analyzed the impact of this final rule. In cooperation with the NPS and the Yurok Tribe, we have prepared an environmental assessment on this action and have made it available for public inspection (see ADDRESSES ).

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 229511), Executive Order 13175, and the Department of the Interior Manual Chapter 512 DM 2, we have coordinated closely with the Tribal governments near the release site throughout the development of this rule. In collaboration with the NPS, we extended an invitation for government-to-government consultation to all federally recognized Tribes in the NEP area, have formally met with tribes that have requested government-to-government consultation, and have fully considered information and comments received through the consultation process. We have also considered all comments received from Tribes and tribal members during the public comment period.

Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule is not expected to significantly affect energy supplies, distribution, and use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.

A complete list of all references cited in this final rule is available online at http://www.regulations.gov in Docket No. FWS-R1-ES-2018-0033 or upon request from the Pacific Region Office (see FOR FURTHER INFORMATION CONTACT ).

The primary author of this final rule is Jesse D'Elia of the Pacific Regional Office (see FOR FURTHER INFORMATION CONTACT ).

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