On January 27, 2012, FSIS published a proposed rule, “Modernization of Poultry Slaughter Inspection” (77 FR 4408). In that document, the Agency proposed a new inspection system for young chicken and turkey slaughter establishments that would replace all of the existing inspection systems except for traditional inspection. Key elements of the proposed new inspection system include: (1) Requiring that establishment personnel sort carcasses and remove unacceptable carcasses and parts before the birds are presented to the FSIS carcass inspector; (2) reducing the number of on-line carcass inspectors to one; (3) permitting faster line speeds than are permitted under the existing inspection systems; and (4) replacing the existing Finished Product Standards (FPS) with a requirement that establishments that operate under the new inspection system maintain records to document that the products resulting from their slaughter operations meet the definition of ready-to-cook poultry. In addition to the proposed new inspection system, FSIS also proposed changes that would require, among other things, that all establishments that slaughter poultry other than ratites develop, implement, and maintain written procedures to prevent contamination of carcasses and parts by enteric pathogens and fecal material, and that they incorporate these procedures into their HACCP plan or sanitation standard operating procedures (SOP) or other prerequisite programs.

During the comment period for the proposal, FSIS officials met with representatives from a coalition of consumer advocacy organizations and two trade associations representing the poultry industry. The consumer advocacy coalition and one of the trade associations had requested that FSIS clarify certain aspects of the proposed rule to inform their comments on the proposal. Because the issues addressed in these meetings may be relevant to the development of comments from other stakeholders, a brief summary of these issues and the Agency's response are described below. The other trade association requested that FSIS provide additional information on how the Agency intends to implement the proposed new poultry inspection system. The groups submitted written questions to the Agency to consider before each meeting. The issues raised on implementation are summarized in a separate section of this document that outlines and requests comments on how the Agency plans to implement the final rule.

In addition to the questions outlined below, certain members of consumer advocacy organizations requested that FSIS hold a public technical meeting on the proposed rule. FSIS is clarifying certain aspects of the proposed rule in thisFederal Registernotice and will assess public understanding of the proposed rule in connection with its review and evaluation of the comments submitted. The Agency will provide any needed clarification if a final rule is adopted.

Following is a summary of the issues raised and FSIS's response.

Comment:Why does FSIS believe that it is preferable for plant employees to sort carcasses?

FSIS response:Under the existing inspection systems, on-line inspectors conduct activities that do not have a direct impact on public health. If the proposal is finalized, and the establishment conducts sorting activities, the only birds presented to the carcass inspector (CI) would be those that are likely to pass inspection. Therefore, the CI will be able to focus on food safety-related activities, such as verifying that carcasses affected by septicemia or toxemia or contaminated with visible fecal material do not enter the chiller. For these reasons, the Agency is proposing to remove certain on-line inspection activities that are not directly related to public health.

Comment:Is there any guarantee that FSIS inspectors would be performing more food safety-related activities under the proposed new inspection system?

FSIS response:Yes, generally inspectors would be performing more food safety-related activities. There are three important aspects of the proposed rule that would allow FSIS inspectors to conduct more food safety-related activities. First, because the on-line CI would not be responsible for sorting carcasses for quality-related defects, the amount of time that the CI spends focusing on food safety-related activities would increase. Second, under the proposed new inspection system, the offline verification inspector (VI) would primarily conduct food safety-related activities, such as verifying compliance with HACCP and sanitation SOP requirements and collecting product samples. Third, because FSIS considers contamination by enteric pathogens and fecal contamination to be hazards that are reasonably likely to occur, FSIS is proposing to require that all establishments that slaughter poultry have written programs to address sanitary dressing procedures, and that, at a minimum, these procedures include microbiological testing at pre-chill and post-chill to monitor process control. In addition to conducting verification checks on carcasses, FSIS off-line inspectors would be reviewing the establishment's records and test results to verify that the establishment maintains process control.

Comment:What type of training would FSIS require for establishment employees assigned to sort carcasses?

FSIS response:The proposed rule does not prescribe training for establishment employees. However, as noted in the preamble to the proposed rule, FSIS expects to convert the current instructions that it provides to Agency inspectors into guidance for industry to use to train plant sorters (77 FR 4419).

Comment:What would establishment employees be required to do as part of their sorting activities?

FSIS response:Should the rule become final, establishment sorters would be required to identify carcasses with septicemia/toxemia and other condemnable conditions and to remove them from the line before they reach the CI. Establishment employees would also need to conduct trimming and re-processing before the birds reach the CI.

Comment:Will establishment employees need to look inside the bird as part of their sorting responsibilities?

FSIS response:Septicemic/toxemic birds exhibit signs on the outside of the carcass, so there is no need to look at the viscera. The regulations that prescribe conditions for condemnation in 9 CFR 381.81-381.93 would still apply. Establishment personnel would need to conduct sorting activities to address these condemnable conditions before the birds reach the CI. The conditions described in these regulations can be readily identified by examining the outside of the carcass.

Lesions on the viscera do not require condemnation of the entire carcass except for lesions associated with visceral leukosis. The proposed rule provides for a 300-bird inspection of young chickens with the viscera (77 CFR 4421-4422). If the inspector finds signs or symptoms associated with visceral leukosis, then the entire flock would be inspected for the disease. All growers vaccinate birds for visceral leukosis. Therefore, it is seen only on rare occasions if the vaccine fails.

Comment:How does the proposed rule address other consumer protection (OCP) issues, such as digestive tract contents found on products, that may affect internal parts of the carcass?

FSIS response:There is a difference between fecal material and ingesta as digestive tract contents. We have no evidence to show that ingesta carries the same microbes as fecal contamination. Under the proposal, FSIS would enforce OCP processing defects that are associated with digestive tract contents, other than fecal contamination, in enforcing the ready-to-cook (RTC) poultry standard.

Comment:Where would the establishment's critical control point (CCP) for visible fecal contamination be located?

FSIS response:FSIS does not prescribe where establishments must locate CCPs. The CI would be located before the chiller. Visible fecal contamination would need to be removed before the carcass is presented to the CI. The VI would be conducting verification checks for fecal contamination off-line. If the VI detects fecal contamination offline, the plant has exceeded the zero tolerance for visible fecal contamination.

The present inspection system is similar to the proposed system in that there are inspectors located upstream, and zero tolerance is enforced at a point at final wash, before the carcass enters the chiller. However, under the proposed new system the CI is more likely to observe visible fecal contamination because the carcasses would be free from animal diseases and trim and processing defects.

Comment:Under the proposed rule, can FSIS take regulatory action throughout the entire dressing process?

FSIS Response:The proposed rule would require that establishments develop, implement, and maintain procedures to address contamination by enteric pathogens and fecal material throughout the entire slaughter and dressing process. Through inspection activities, FSIS would ensure that the establishment's procedures are effective, and the Agency would take appropriate regulatory action when necessary.

Comment:Would there be an approval process for the establishment's procedures to prevent contamination with enteric pathogens and fecal material?

FSIS response:There would be no pre-approval of an establishment's procedures. However, establishments would need to ensure that their procedures for preventing contamination are effective. To verify that an establishment's procedures are effective, FSIS would consider: (1) The microbiological data that the establishment would be required to collect pre-chill and post-chill to demonstrate process control; (2) presence of visible fecal contamination; and (3) FSIS sampling results forSalmonellaandCampylobacter.

Comment:What was the basis for the baseline sampling numbers presented in the preamble to the proposed rule (74 FR 4442)?

FSIS response:The estimates for sampling come from the economic analysis and reflect what we estimate to be the amount of sampling that plants would conduct if the proposed rule is adopted by the Agency. We are not proposing to prescribe how often establishments must test. Establishments would need to determine the frequency and type of sampling that would be sufficient todemonstrate that they are maintaining process control.

Comment:Why is FSIS not mandating a frequency for testing?

FSIS response:As stated in the preamble to the proposed rule, FSIS is proposing to require that an establishment's sampling frequency be adequate to monitor the effectiveness of its process control for enteric pathogens (77 FR 4428). The frequency with which establishments would need to conduct such testing would depend on a number of factors, including their production volume, the source of their flocks, their slaughter and dressing process, and the consistency of their microbial test results over time. Because the testing frequency would be an integral part of an establishment's HACCP system verification procedures, establishments would need to collect and maintain data to demonstrate that their testing frequency is adequate to verify the effectiveness of their process control procedures.

Comment:Why did the Agency propose two points for microbiological testing instead of three?

FSIS response:As noted in the preamble to the proposed rule, FSIS had considered requiring testing at three points in the process, i.e., re-hang, pre-chill and post-chill (77 FR 4428). The proposed rule provides for testing at pre-chill and post-chill because the Agency tentatively concluded that verification testing conducted at these two points would provide the evidence establishments need to verify that their process control measures are effective in preventing carcasses from becoming contaminated with pathogens. In the preamble to the proposed rule, the Agency explained that it considered requiring a third verification test at the re-hang position to monitor the incoming load of pathogens but tentatively decided that it was not necessary to impose the additional costs that would be associated with testing at this point (77 FR 4428). FSIS also considered requiring only one verification test at any position along the production line to provide maximum flexibility but concluded this approach may not be sufficient to monitor the effectiveness of an establishment's procedures to prevent contamination throughout the slaughter and dressing operation. The Agency requests comments on these alternatives.

Comment:Can CI inspectors stop or slow the line?

FSIS response:If the CI observes a condemnable condition, either food safety or generalized OCP condition requiring condemnation of the entire carcass, the CI would be authorized to stop the line to prevent such carcasses from entering the chiller. The CI would communicate the findings to the VI and inspector-in-charge (IIC). The IIC would consider available data to reset the line speed. Line speed would be determined by IIC's assessment of the frequency of carcass defects identified by the CI and the VI and the plant's control of its processes.

Comment:Would offline inspectors be available to visually inspect carcasses under the proposed new system.

FSIS response:The off-line VI would be checking carcasses to verify that they do not contain food safety-related contamination or defects.

Comment:How many HACCP verification activities would occur under the new system versus the old system?

FSIS Response:HACCP and sanitation verification activities would be a higher fraction of inspection activities under the proposed new inspection system as the Agency reduces its focus on quality and other OCP defects.

Comment:What is the relationship between the ready-to-cook (RTC) poultry standard in the proposed rule and the existing Finished Product Standards (FPS)?

FSIS response:Poultry products that comply with the FPS meet the definition of RTC poultry under the existing regulations; i.e., they are suitable for cooking without the need for further processing. The FPS have been in place for many years and were used to inform the OCP standards in the HIMP pilot. These OCP standards reflect OCP performance in establishments before HIMP. Establishments operating under HIMP maintained OCP defect levels that average about half the corresponding OCP performance standards. Therefore, FSIS has determined that it is not necessary to require that establishments operating under the proposed new inspection system meet prescriptive OCP performance standards in order to produce RTC poultry. Under the proposed rule, establishments operating under the proposed new inspection system would have the flexibility to implement the process controls that they have determined would best allow them to produce RTC poultry.

Comment:What happens to the carcasses and parts that are rejected by the plant?

FSIS response:All regulations that apply to condemned carcasses/parts would still apply under the new inspection system, e.g., denaturing and diverting away from human food. The off-line VI would verify that the plant is properly disposing of inedible and condemned carcasses and parts.

Comment:For OCP defects under HIMP, there is a moving window in which there is non-compliance if the plant exceeds OCP standards. What about under the proposed rule?

FSIS response:The Agency is moving away from using the moving window to meet OCP performance standards. Under the proposed rule, establishments would determine how they would document that they are producing RTC poultry. The Agency is not prescribing where or how establishments would address OCP defects.

Comment:If establishments under the proposed new inspection system are permitted to increase the line speed, would the CI continue to detect problems?

FSIS response:Analysis of HIMP data shows that CIs are able to detect fecal contamination and septicemia/toxemia at line speeds of up to 175 birds per minute (bpm) for young chickens.

Comment:Did the Agency consider the effects of faster line speeds on worker safety?

FSIS response:FSIS did consider potential effects on safety. The Agency is prepared to address worker safety within the bounds of its regulatory authority and will coordinate with the Occupational Safety and Health Administration (OSHA) as the regulatory process moves forward. The National Institute for Occupational Safety and Health (NIOSH) study described in the proposed rule is a start to determine what the current baseline performance indicators for worker safety in plants are before an increase in line speeds. We will use the NIOSH assessment tool and consider ways that we can supplement the NIOSH study. We are interested in comments on the effects of line speed and worker safety.

Comment:Why did the Agency propose to reduce the length of the CI inspection station so that there is no room for a helper?

FSIS response:Helpers are necessary under the existing inspection systems because the inspectors are sorting, and the birds have more defects. The proposed rule does not preclude an establishment from assigning a helper, but because the birds presented to the CI would have fewer defects, there is no need for a helper. Therefore, under the proposed rule, the requirement for the helper stand at the inspection CI inspection station would be removed.

Comment:TheSalmonellaresults in the HIMP report compare HIMP plants with comparison plants. How many of the HIMP plants, and how many of the comparison plants, had receivedwaivers for on-line reprocessing (OLR) in each year since the HIMP pilot began? Is it possible that OLR was responsible for lowerSalmonellapositive rates?

FSIS response:Before November 2011, FSIS did not track the date of implementation of approved waivers for OLR systems. In November 2011, all establishments with existing waivers were required to participate in theSalmonellaInitiative Project (SIP) or forfeit their waivers. FSIS is able to track the dates that OLR waivers were implemented under SIP. Based on information obtained under SIP, as of March 2011, 15 of the 20 HIMP plants had waivers for OLR (75%), and 61 of the 64 comparison plants had waivers for OLR (95.3%).

Comment:Can FSIS clarify how visible fecal contamination would be handled under the new poultry inspection system?

FSIS response:An important aspect of the proposed rule is the provision that requires that all poultry establishments develop procedures to prevent fecal contamination and contamination by enteric pathogens throughout the entire process and not just cleaning up the birds at the end of the process. These written procedures would need to be incorporated into the HACCP system. Therefore, FSIS would not just be checking at the end of the line to verify that the establishment's procedures for preventing contamination are effective. FSIS would be conducting verification activities throughout the entire process to assess whether the process is in control, including proper implementation and effective corrective actions. Findings of fecal contamination throughout the process would indicate a lack of process control. The proposed rule also requires that all poultry slaughter establishments have procedures to prevent carcasses with visible fecal contamination from entering the chiller, and that they incorporate these procedures into their HACCP system. FSIS would consider these procedures to be ineffective if a contaminated carcass entered the chiller.

Comment:How were the line speeds referenced in the proposed rule determined? Do you have any additional data on how maximum line speeds for turkey plants were determined?

FSIS response:The line speeds were based on our experience under HIMP. We are interested in comments and data on the proposed line speeds.

Comment:What are the expectations for validation under the proposed rule, particularly for the proposed changes to the time and temperature chilling requirements?

FSIS response:The validation requirement under the proposed rule would be the same as what is required under the existing regulations (9 CFR 417.4(a)). There would not be any special validation requirement under the new poultry slaughter rule.

Comment:Should establishments continue to apply for SIP waivers if they are interested in pursuing new technologies in their slaughter operations, or should they wait until FSIS issues a final rule on the new poultry inspection system?

FSIS response:Establishments should continue to request waivers of regulations that impact slaughter operations, such as OLR and alternative chilling procedures, if they are interested in operating under such waivers. Existing SIP waivers would continue until FSIS implements the final rule. If a waiver is not addressed in any final rule resulting from this proposal, then it would remain in effect until another final rule is published.

Comment:What is pre-chill? When would the pre-chill testing occur? Is post-chill testing supposed to be conducted after the final intervention?

FSIS response:Pre-chill occurs just before the chilling operation, at the end of the evisceration process. The pre-chill testing is intended to monitor the effectiveness of all process controls up to the point of the chilling operation. Therefore, pre-chill testing should be conducted before the chiller, at the end of the evisceration process. Post-chill testing would be at the same point in the process as it is now for FSISSalmonellaandCampylobacterverification testing, that is, after all interventions.

Comment:What would the parameters for faster or slower line speeds be?

FSIS response:The on-line inspector would be authorized to stop the line to prevent adulterated carcasses from entering the chiller. The IIC would be authorized to slow the line. This is the same as in current HIMP and non-HIMP establishments. The on-line CI and off-line VI would communicate and inform the IIC if they observe excessive food safety or non-food safety- related defects, and the IIC would assess the need to reduce the line speed or take other appropriate measures.

Comment:If the final rule becomes effective, would plants be able to start running at the faster line speeds right away or would there be a gradual increase in line speeds?

FSIS response:To operate at faster line speeds, plants would need to comply with all of the requirements in any final rule that results from this rulemaking. The establishment's maximum line speed would depend on the ability of the establishment to maintain process control, and whether conditions are affecting the ability of the CI to properly inspect.

In the preamble to the proposed rule, FSIS invited interested persons to submit comments on how the Agency should implement the new poultry inspection system if it finalizes the proposed rule. The Agency specifically requested comment on whether it should phase-in the implementation of the final rule to provide additional time for small and very small establishments to adjust their operations to comply with the new requirements (77 FR 4408). The Agency also requested comments on how it can make the phased implementation most effective. In this document, FSIS is providing additional information on how it intends to implement the new poultry inspection system to solicit more focused comments on this issue.

The Agency has tentatively decided that if it finalizes the proposed rule, it would then provide a time period in which all young chicken and turkey slaughter establishments would have an opportunity to contact the Agency to indicate whether they are interested in operating under the proposed new inspection system. Those establishments that choose to operate under the new inspection system would then inform the Agency concerning when they wish to begin implementing the new inspection system in their facilities. The Agency is considering giving establishments six months to decide whether they would operate under the new inspection system and up to 3 years to switch to the new system. FSIS requests comments on this proposed implementation approach and the proposed time periods.

Comment:How would the district offices direct their resources to implement the final rule?

FSIS response:The FSIS implementation plan would be coordinated from headquarters through the districts to ensure resource availability and fair and equitableimplementation across all interested establishments.

Comment:Does the Agency anticipate making additional resources available to implement a final rule, even if only on a temporary basis?

FSIS response:As discussed in the preamble to the proposed rule, there would be two consumer safety inspector (CSI) positions for every slaughter evisceration line assigned to establishments that choose to adopt the new poultry slaughter inspection system, one CI and one VI (77 FR 4421-4422). This represents a reduction in the number of inspectors because under the existing system, inspectors conduct sorting activities. At this time, the Agency does not anticipate that additional resources would be needed to implement the new poultry inspection system but would make additional resources available, such as guidance for industry and training to FSIS inspectors, as needed to ensure smooth implementation of the final rule.

Comment:In the preamble to the proposed rule, the Agency estimated that 219 poultry slaughter establishments would choose to operate under the proposed new inspection system. How does the Agency intend to implement the proposed new system in all 219 establishments in a smooth and fair manner?

FSIS Response:The Agency is interested in comments on the implementation phase-in and would use comments to inform implementation planning, including strategies for recruitment, staffing, training, and other actions needed to ensure FSIS readiness to implement the proposed rule in an efficient and fair manner. The Agency intends to begin implementing the proposed NPIS when it finalizes the rule. However, implementation would not take place at all eligible plants at the same time. It would be phased in over time to ensure proper FSIS inspection force readiness to successfully implement the new system.

Comment:How does the Agency intend to train inspectors in the new inspection system and familiarize them with the new requirements?

FSIS response:Inspectors assigned to work in poultry slaughter establishments converting to the proposed new inspection system would receive training on the new system before the establishments they are assigned to convert to the new system. The Agency is considering various approaches to ensure effectiveness and uniformity in its workforce training.

Comment:Is the Agency planning to provide any type of standardized programs to assist in training the establishment sorters in disease recognition and disposition for trimmable defects or is this responsibility being left up to the establishments?

FSIS response:As noted in the preamble to the proposed rule, FSIS plans to convert the current instructions that it provides to Agency inspectors into guidance for industry to use to train plant sorters.

Comment:Does the Agency anticipate developing a framework by which establishments or inspectors can receive quick and consistent clarification on requirements or feedback on inspectional decisions from headquarters?

FSIS response:The Agency would continue to provide technical support to its workforce and industry through its standard channels. For example, FSIS would continue to encourage referring questions to its Policy Development Division through askFSIS athttp://askfsis.custhelp.comor by telephone at 1-800-233-3935. The Agency would develop appropriate instructions to inspectors as well as appropriate compliance guides.

FSIS's direct legal authority with respect to regulating working conditions extends only to inspection personnel. The Department of Labor's OSHA is the lead Federal agency responsible for establishment worker safety issues. However, FSIS recognizes the importance of establishment worker safety and is interested in additional information about the potential intersection of increased line speeds and worker safety.

As noted in the preamble to the proposed rule, FSIS has asked NIOSH to evaluate the effects of increased line speed by collecting data from one to five non-HIMP plants that requested waivers from line speed restrictions under theSalmonellaInitiative Project (SIP) (77 FR 4422). NIOSH expressed its willingness to evaluate the effects of increased production volume on employee health, with a focus on musculoskeletal disorders and acute traumatic injuries. NIOSH will prepare a report based on its findings of short-, intermediate-, and long-term effects from the process modifications. We expect that the NIOSH report will also make recommendations to the Agency as appropriate. FSIS, in collaboration with OSHA, will consider the available data on employee effects collected from NIOSH activities when implementing the final rule resulting from the proposal.

To facilitate further evaluation of this issue, FSIS requests specific comments on the effects of increased line speeds and production volume on worker safety. The Agency is particularly interested in comments on the availability of records or studies that contain data that NIOSH may be able to use to assist the Agency in analyzing the effects of increased line speed on the safety and health of employees throughout the establishment, including effects prior to and following the evisceration line. The Agency is interested in the availability of records and studies that include documentation on employees' work, injuries, and illnesses, as well as plant production, both before and after establishments made changes to their operations to increase production volume. Such records and studies include, but are not limited to:

• Human resources and payroll data for all employees on hours worked per year, department, job title, hire date, separation date, and position responsibilities;

• OSHA logs, workers' compensation claims, first reports of injury or illness, dispensary logs and records, and other injury or illness narratives for all employees; and

• Daily production hours;

• Results of ergonomic or industrial engineering studies, such as time-and-motion analyses that document the actual pace of work or physical stresses on workers; and

• Any self-assessments of worker safety conducted by establishments.

Comments on this issue should describe the type of data available, whether the data are available in an electronic or paper format, where the records are maintained, (e.g., at the establishment or at corporate headquarters), and any other information that can be used to assess the utility of the data. The comments should provide information, including contact information, on how FSIS or NIOSH can gain access to the data or studies.

In addition, FSIS will continue its collaboration with NIOSH and OSHA, developing guidance materials on measures that establishments could adopt and implement to promote and better ensure worker safety. To facilitate the development of such guidance, FSIS requests comments on best practices and other measures that establishments can take to protect workers throughout the plant, including possible protective factors such as increasing the size of the workforce, rotating assignments, increased automation, or improved tools and techniques.

FSIS will announce the availability of thisFederal Registernotice on-line through the FSIS Web page located athttp://www.fsis.usda.gov/regulations_&_policies/Proposed_Rules/index.asp.

FSIS also will make copies of thisFederal Registerpublication available through theFSIS Constituent Update,which is used to provide information regarding FSIS policies, procedures, regulations,Federal Registernotices, FSIS public meetings, and other types of information that could affect or would be of interest to our constituents and stakeholders. TheUpdateis communicated via Listserv, a free email subscription service consisting of industry, trade, and farm groups, consumer interest groups, allied health professionals, scientific professionals, and other individuals who have requested to be included. TheUpdatealso is available on the FSIS Web page. Through Listserv and the Web page, FSIS is able to provide information to a much broader, more diverse audience.

In addition, FSIS offers an email subscription service which provides automatic and customized access to selected food safety news and information. This service is available athttp://www.fsis.usda.gov/news_&_events/email_subscription/.Options range from recalls to export information to regulations, directives and notices. Customers can add or delete subscriptions themselves, and have the option to password protect their accounts.

In the Notice section of today'sFederal Register, the Bureau published a revised Privacy Act system of records notice, Inmate Central Records System (JUSTICE/BOP-005). This system assists the Attorney General and the Bureau of Prisons in meeting statutory responsibilities for the safekeeping, care and custody of incarcerated persons. It serves as the primary record system on these individuals and includes information critical to the continued safety and security of federal prisons and the public.

In this rulemaking, the Bureau proposes to exempt this Privacy Act system of records from certain provisions of the Privacy Act pursuant to 5 U.S.C. 552a(j) and (k). Although this system of records was previously exempt from certain provisions of the Privacy Act pursuant to 5 U.S.C. 552a(j)(2), the Bureau is seeking additional exemptions pursuant to 5 U.S.C. 552a(j)(2), adding exemptions pursuant to 5 U.S.C. 552a(k), and consolidating the exemptions together in one location of the Code of Federal Register. Therefore, the proposed rule seeks to delete all references of the Inmate Central Records System (JUSTICE/BOP-005) from paragraphs (a)and (b) of 28 CFR 16.97 and replace paragraphs (j) and (k) of 28 CFR 16.97 with new exemption language as set forth in the following text.

This proposed rule relates to individuals, as opposed to small business entities. Pursuant to the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601-612, therefore, the proposed rule will not have a significant economic impact on a substantial number of small entities.

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996, 5 U.S.C. 601 et seq., requires the Bureau to comply with small entity requests for information and advice about compliance with statutes and regulations within Bureau jurisdiction. Any small entity that has a question regarding this document may contact the person listed inFOR FURTHER INFORMATION CONTACT. Persons can obtain further information regarding SBREFA on the Small Business Administration's Web page athttp://archive.sba.gov/advo/laws/sbrefa.html.

The Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), requires that the BOP consider the impact of paperwork and other information collection burdens imposed on the public. There is no current or new information collection requirement associated with this proposed rule. The records that are contributed to the Inmate Central Records system would be created in any event by law enforcement entities and their sharing of this information electronically will not increase the paperwork burden on the public.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, 109 Stat. 48, requires Federal agencies to assess the effects of certain regulatory actions on State, local, and tribal governments, and the private sector. UMRA requires a written statement of economic and regulatory alternatives for proposed and final rules that contain Federal mandates. A “Federal mandate” is a new or additional enforceable duty, imposed on any State, local, or tribal government, or the private sector. If any Federal mandate causes those entities to spend, in aggregate, $100 million or more in any one year the UMRA analysis is required. This proposed rule would not impose Federal mandates on any State, local, or tribal government or the private sector.

Pursuant to the authority vested in the Attorney General by 5 U.S.C. 552a and delegated to me by Attorney General Order 2940-2008, it is proposed to amend 28 CFR Part 16 as follows:

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change tohttp://www.regulations.govand will include any personal information you have provided.

If you submit a comment, please include the docket number for this rulemaking (USCG-2012-0072), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (viahttp://www.regulations.gov) or by fax, mail or hand delivery, but please use only one of these means. If you submit a comment submitted online viawww.regulations.gov,it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go tohttp://www.regulations.gov,click on the “submit a comment” box, which will then become highlighted in blue. In the “Document Type” drop down menu select “Proposed Rule” and insert “USCG-2012-0072” in the “Keyword” box. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go tohttp://www.regulations.gov,click on the “read comments” box, which will then become highlighted in blue. In the “Keyword” box insert “USCG-2012-0072” and click “Search.” Click the “Open Docket Folder” in the “Actions” column. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

Anyone can search the electronic form of 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 a Privacy Act notice regarding our public dockets in the January 17, 2008 issue of theFederal Register(73 FR 3316).

We do not now plan to hold a public meeting, but you may submit a request for one using one of the four methods specified underADDRESSES. Please explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in theFederal Register.

The organization Endurance Sports Productions is sponsoring a triathlon: A bike, swim and run event. The swim portion of the event will take place in Lake Erie. The participants will begin by jumping off the ferry boat JET EXPRESS II at the designated position, then swim to the dedicated position on shore. This swim portion will take place on September 9, 2012 at approximately 8 a.m. and will last about an hour. The Captain of the Port Detroit has determined that the swim portion of the event will pose certain public hazards. Such hazards include obstructions to the waterway that may cause marine casualties and vessels colliding with swimmers that may cause death or serious bodily harm.

With aforementioned hazards in mind, the Captain of the Port Detroit believes that a temporary safety zone is necessary to ensure the safety of participants and vessels during the practice, the half triathlon, and the triathlon events. This proposed temporary safety zone would be effective and enforced from 8 a.m. until 10 a.m. on September 9, 2012. The safety zone would encompass all waters of Lake Erie within a direct line from 41-33′-49″ N, 082-47-8″ W to 41-33′-25″ N, 82-48′-8″ W and 15 yards on either side of direct line. All geographic coordinates are North American Datum of 1983 (NAD 83).

All persons and vessels would have to comply with the instructions of the Coast Guard Captain of the Port or the designated on scene patrol personnel. Entry into, transiting, or anchoring within the safety zone would be prohibited unless authorized by the Captain of the Port Detroit or his designated on scene representative. The Captain of the Port or his designated on scene representative may be contacted via VHF Channel 16.

We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this proposed rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this proposed rule will be relatively small and enforced for a relatively short time. Also, the safety zone is designed to minimize its impact on navigable waters. Furthermore, the safety zone has been designed to allow vessels to transit around it. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.

This proposed rule would affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in the above portion of the Sandusky Bay of Lake Erie near Lakeside, OH between 8 a.m. and 10 a.m. on September 9, 2012.

This proposed safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This proposed rule will be in effect for only approximately two hours. Also, in the event that this temporary safety zone affects shipping, commercial vessels may request permission from the Captain of the Port Detroit to transit through the safety zone. Additionally, the Coast Guard will give advanced notice to the public via a local Broadcast Notice to Mariners that the regulation is in effect. Moreover, the COTP will suspend enforcement of the safety zone if the event for which the zone is established ends earlier than the expected time.

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If this proposed rule would affect your small business, organization, or governmental jurisdiction and you havequestions concerning its provisions or options for compliance, please contact ENS Benjamin Nessia, Response Department, Marine Safety Unit Toledo, Coast Guard; telephone (419) 418-6040, emailBenjamin.B.Nessia@uscg.mil.The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

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

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

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

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

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

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

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

We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

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

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

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

For further information, please see the information provided in the direct final action, with the same title, that is located in the “Rules and Regulations” section of thisFederal Register. publication.

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

Table 1 identifies the rule addressed by this proposal with the date that it was adopted by the local air agency and submitted by the California Air Resources Board (CARB).

On March 13, 2012, EPA determined that the submittal for SJVUAPCD Rule 4352 met the completeness criteria in 40 CFR Part 51 Appendix V, which must be met before formal EPA review.

We finalized a limited approval and limited disapproval of an earlier version of Rule 4352 on October 1, 2010 (75 FR 60623). That action incorporated Rule 4352 into the California SIP, including those provisions identified as deficient.

NOXemissions help produce ground-level ozone, smog and particulate matter, which harm human health and the environment. Section 110(a) of the CAA requires States to submit regulations that control NOXemissions. Rule 4352 limits NOXand carbon monoxide (CO) emissions from solid fuel fired boilers, steam generators and process heaters. EPA's technical support document (TSD) has more information about this rule.

Generally, SIP rules must be enforceable (see section 110(a) of the Act), must require Reasonably Available Control Technology (RACT) for each category of sources covered by a Control Techniques Guidelines (CTG) document and each major source of NOXor VOC emissions in ozone nonattainment areas classified as moderate or above (see CAA sections 182(b)(2) and 182(f)), and must not relax existing requirements (see CAA sections 110(l) and 193). Section 172(c)(1) of the Act also requires implementation of all reasonably available control measures (RACM) as expeditiously as practicable in nonattainment areas.

Because the San Joaquin Valley (SJV) area is designated nonattainment for the 1997 and 2006 fine particulate matter (PM2.5) National Ambient Air Quality Standards (NAAQS) and for the 1-hour and 8-hour ozone NAAQS (see 40 CFR 81.305), the RACM requirement in CAA section 172(c)(1) applies to this area.1 In addition, because SJV is classified as “extreme” nonattainment for the 1-hour and 8-hour ozone NAAQS (see 40 CFR 81.305), the specific RACT requirement in CAA sections 182(b)(2) and (f) applies to all major sources of NOXor VOC in the SJV area. We are evaluating Rule 4352 for compliance with the NOXRACT requirement in CAA section 182 because the rule applies to major NOXemission sources.

Guidance and policy documents that we use to evaluate enforceability and RACT requirements consistently include the following:

1. “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 57 FR 13498 (April 16, 1992) (the General Preamble) and 57 FR 18070 (April 28, 1992) (Appendices).

2. “State Implementation Plans; Nitrogen Oxides Supplement to the General Preamble; Clean Air Act Amendments of 1990 Implementation of Title I; Proposed Rule,” 57 FR 55620, November 25, 1992 (the NOXSupplement).

2. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (the Bluebook).

3. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).

4. “Determination of Reasonably Available Control Technology and Best Available Retrofit Control Technology for Industrial, Institutional, and Commercial Boilers, Steam Generators, and Process Heaters,” CARB, July 18, 1991.

5. “Alternative Control Techniques Document—NOXEmissions from Industrial/Commercial/Institutional (ICI) Boilers,” US EPA 453/R-94-022, March 1994.

6. “Alternative Control Techniques Document— NOXEmissions from Utility Boilers,” US EPA 452/R-93-008, March 1994.

We believe this rule is consistent with the relevant policy and guidance regarding enforceability, RACT, and SIP relaxations. The TSD has more information on our evaluation.

On January 10, 2012, EPA partially approved and partially disapproved the RACT SIP submitted by California on June 18, 2009 for the SJV extreme ozone nonattainment area (2009 RACT SIP), based in part on our conclusion that the State had not fully satisfied CAA section 182 RACT requirements for solid fuel fired boiler operations. See 77 FR 1417, 1425 (January 10, 2012). Final approval of Rule 4352 would satisfy California's obligation to implement RACT under CAA section 182 for this source category for the 1-hour ozone and 1997 8-hour ozone NAAQS and thereby terminate both the sanctions clocks and the Federal Implementation Plan (FIP) clock associated with this rule.

The TSD describes additional rule revisions that we recommend for the next time the local agency modifies the rule.

Because EPA believes the submitted rule fulfills all applicable requirements and corrects all deficiencies identified in our October 1, 2010 action, we are proposing to fully approve it under section 110(k)(3) of the Act. We will accept comments from the public on this proposal for the next 30 days.

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

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

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

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

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

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

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

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

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

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

The purpose of this NPRM is to update and clarify existing requirements by incorporating changes into the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) based on PHMSA's own initiatives. The proposed amendments were identified through an extensive review of the HMR and previously-issued letters of interpretation to the regulated hazardous materials transportation community. In addition, this NPRM proposes to incorporate a widely-held special permit with a longstanding history of safety into the HMR and respond to a petition for rulemaking. To this end, PHMSA is proposing to revise, clarify, and relax certain regulatory requirements.

Specifically, PHMSA is proposing to:

• Permit designated agents for non-residents to submit designation requests by electronic mail in addition to traditional mail.

• Add the Sulphur Institute's (TSI) “Molten Sulphur Rail Tank Car Guidance” document to the list of informational materials not requiring incorporation by reference in § 171.7 (Responds to petition for rulemaking P-1581).

• Revise the § 172.101 Hazardous Materials Table (HMT) to correct an error in the transportation requirements for entries listed under the proper shipping name, “Hydrazine Dicarbonic Acid Diazide.”

• Revise the § 172.101 HMT to remove the entry for “Zinc ethyl, see Diethylzinc” which was superseded by proper shipping names adopted in a previous rulemaking.

• Revise special provision 138 in § 172.102 to clarify the lead solubility calculation utilized for classification of material as a Marine Pollutant.

• Remove references to special provisions B72 and B74 in § 172.102. These special provisions were removed in a previous rulemaking; however, twelve entries in the § 172.101 HMT still contain references to these special provisions.

• Revise the shipping paper requirements in § 172.203(e) to permit the phrase “Residue last contained” to be placed before or after the basic shipping description sequence, or for rail shipments, directly preceding the proper shipping name in the basic shipping description sequence.

• Update the training recordkeeping requirements in § 172.704 to specify that a hazardous materials (hazmat) employer must make hazmat employee training records available upon request, at a reasonable time and location, to an authorized official of the Department of Transportation or the Department of Homeland Security.

• Clarify that the material of trade exception in § 173.6 may be used when transporting Division 2.1 and 2.2 gases in Dewar flasks.

• Clarify the lab pack provisions in § 173.12 pertaining to temperature-controlled materials contained in a lab pack.

• Clarify the exceptions for external emergency self-closing valves on cargo tank motor vehicles (CTMVs) in § 173.33(g) to specify that external emergency self-closing valves on MC 338 cargo tanks containing cryogenic liquids may remain open during transportation.

• Correct an inadvertent deletion of the § 173.62 packaging requirements for explosives.

• Incorporate special permit DOT SP-13556 into § 173.134, to authorize the transportation by motor vehicle of certain regulated medical wastes, designated as sharps, in non-DOT specification containers fitted into wheeled racks.

• Revise the requirements for cargo air transport of alcoholic beverages § 173.150 to harmonize with the International Civil Aviation Organization's (ICAO) Technical Instructions (TI).

• Clarify the exceptions in § 173.159a for non-spillable batteries secured to skids or pallets.

• Revise § 178.2(c) to clarify the applicability of the notification requirements for packages containing residues.

• Clarify the inspection record requirements in § 180.416 for discharge systems of cargo tanks transporting liquefied compressed gases.

• Clarify the requirements for the Flame Penetration Resistance test required for chemical oxygen generators and certain compressed gases in Appendix E to Part 178.

This section provides the requirements for designated agents for non-residents. In specific instances, such as the approval of fireworks manufactured by a foreign entity, the HMR require non-residents of the United States who perform hazmat operations within the United States to designate a permanent resident of the United States to act as an agent and receive documents on behalf of the non-resident. As specified in the HMR, non-residents of the United States must prepare a designation notification and file it with PHMSA in accordance with § 105.40.

Currently, the HMR only permits designated agent notification documents to be mailed to the Approvals and Permits Division, Pipeline and Hazardous Materials Safety Administration, Attn: PHH-30, U.S. Department of Transportation, East Building, 1200 New Jersey Avenue SE., Washington, DC 20590-0001, as specified in § 105.40(d). Revising this requirement to allow an agent designation to be transmitted by electronic mail would provide greater regulatory flexibility and align the submission of these documents with the procedures currently in place for the submission of other documents required by PHMSA.

In this NPRM, PHMSA is proposing to amend § 105.40(d) to permit agent designations to be submitted by electronic mail to the special permits or approvals office, as appropriate. The option to submit a completed agent designation to the Approvals and Permits Division by mail would remain unchanged.

The National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272) directs agencies to use voluntary consensus standards in lieu of government-unique standards except where inconsistent with law or otherwise impractical. Section 171.7 lists all standards incorporated by reference into the HMR and informational materials not requiring incorporation by reference. The informational materials not requiring incorporation by reference are noted throughout the HMR and provide best practices and additional safety measures that while not mandatory, may enhance safety and compliance.

The Sulphur Institute (TSI) represents the sulphur industry in the United States on a variety of issues including the safe transportation of sulphur in commerce. TSI submitted petition P-1581 requesting that PHMSA incorporate by reference TSI's “Molten Sulphur Tank Rail Car Guidance Document.” TSI also requested that we amend § 173.24(b)(4) to add the sentence “Dried residue of molten sulfur on tank cars shall meet the `Molten Sulphur Rail Car Guidance Document' incorporated by reference in § 171.7.” TSI recognizes that molten sulphur rail tank cars with formed, solid sulphur obscuring tank car markings, labels, and stencils can present a safety risk. Furthermore, markings and labels with diminished visibility due to molten sulphur residue present an obstacle to not only those responsible for the safe handling of these rail tank cars, but also to first responders who rely on rapid and accurate identification of a material through hazard communication markings in the event of an accident or incident. Further, the presence of an excessive amount of formed, solid sulphur on molten sulphur tank car safety appliances may also lead to decreased effectiveness of safety equipment. To address these issues, TSI has created a document entitled “Molten Sulphur Rail Tank Car Guidance” which provides best practices for the safe transport of molten sulphur in rail tank cars.

In this rulemaking, PHMSA proposes to adopt “Molten Sulphur Rail Tank Car Guidance” in the list of informational materials not requiring incorporation by reference in § 171.7(b). The inclusion of this document as reference material in the HMR should provide rail shippers of molten sulfur with a greater situational awareness of safe transport conditions for this particular commodity and reduce rail incidents for this hazardous material. In addition, PHMSA proposes to revise the entries for “Sulfur, Molten” specified in the § 172.101 HMT to reference special provision “R1” and add special provision “R1” to the R codes specified in § 172.102(c)(6). This new special provision will recommend the use of the Molten Sulphur Rail Tank Car Guidance document when transporting “Sulfur, Molten” residues by rail; however, it will not make its use mandatory. By referencing this document, we believe a greater level of safety may be achieved during the transportation of rail tanks cars which have held or currently hold molten sulfur.

This section contains the HMT and explanatory text for each of the columns in the table. In this NPRM, PHMSA is proposing a number of revisions to the § 172.101 HMT, and the special provisions specified in § 172.102 to clarify the regulations and correct inadvertent errors. Proposed changes to the § 172.101 HMT will appear as an, “add,” “remove,” or “revise,” and include the following:

• Hydrazine dicarbonic acid diazide

• Zinc ethyl,seeDiethylzinc

• Hydrazine dicarbonic acid diazide

• UN3469Paint related material, flammable, corrosive(including paint thinning or reducing compound)

• UN2484tert-Butyl isocyanate

• NA2927Ethyl phosphonothioic dichloride, anhydrous

• NA2845Ethyl phosphonous dichloride, anhydrous pyrophoric liquid

• NA2927Ethyl phosphorodichloridate

• NA2845Methyl phosphonous dichloride, pyrophoric liquid

• UN1831Sulfuric acid, fuming with 30 percent or more free sulfur trioxide

• NA2448Sulfur, molten

• UN2448Sulfur, molten

• UN3492Toxic by inhalation liquid, corrosive, flammable, n.o.s.with an inhalation toxicity lower than or equal to 200 ml/m3 and saturated vapor concentration greater than or equal to 500 LC50

• UN3493Toxic by inhalation liquid, corrosive, flammable, n.o.s.with an inhalation toxicity lower than or equal to 1000 ml/m3and saturated vapor concentration greater than or equal to 10 LC50

• UN3488Toxic by inhalation liquid, flammable, corrosive, n.o.s.with an inhalation toxicity lower than or equal to 200 ml/m3and saturated vapor concentration greater than or equal to 500 LC50

• UN3489Toxic by inhalation liquid, flammable, corrosive, n.o.s.with an inhalation toxicity lower than or equal to 1000 ml/m3and saturated vapor concentration greater than or equal to 10 LC50

• UN3490 Toxic by inhalation liquid, water-reactive, flammable, n.o.s.with an inhalation toxicity lower than or equal to 200 ml/m3and saturated vapor concentration greater than or equal to 500 LC50

• UN3491 Toxic by inhalation liquid, water-reactive, flammable, n.o.s.with an inhalation toxicity lower than or equal to 1000 ml/m3and saturated vapor concentration greater than or equal to 10 LC50

On January 28, 2008, PHMSA published a final rule under Docket Number PHMSA-2005-21812 (HM-218D) [73 FR 4699] entitled “Hazardous Materials; Miscellaneous Amendments.” In this final rule, one of the two duplicate entries in the § 172.101 HMT for “Hydrazine, aqueous solution,with more than 37% hydrazine, by mass”was intended to be eliminated. Although one entry in the § 172.101 HMT for “Hydrazine, aqueous solution,with more than 37% hydrazine, by mass”was deleted, during the table revisions of this final rule, Columns 5 through 10 for theentries for “Hydrazine, aqueous solution,with more than 37% Hydrazine, by mass”Packing Groups II and III were inadvertently relocated below the entry “Hydrazine dicarbonic acid diazide.” “Hydrazine dicarbonic acid diazide” should not have any entries in Columns 5 through 10 as it is forbidden for transport in the HMR. The appearance of these entries in the § 172.101 HMT is confusing and could potentially lead to the mistaken belief that “Hydrazine dicarbonic acid diazide” is not a forbidden material, but, rather authorized for transport as a Packing Group II or III material. Therefore, in this NPRM, we are proposing to remove the Packing Group II and III entries for the proper shipping name, “Hydrazine dicarbonic acid diazide” in the § 172.101 HMT.

On January 14, 2009, PHMSA published a final rule under Docket Numbers PHMSA-2007-0065 (HM-224D) and PHMSA-2008-0005 (HM-215J) [74 FR 220] entitled “Hazardous Materials: Revision to Requirements for the Transportation ofBatteries and Battery-Powered Devices; and Harmonization with the United Nations Recommendations, International Maritime Dangerous Goods Code, and International Civil Aviation Organization's Technical Instructions.” Among other revisions, PHMSA removed various specific entries for organometallic compounds and substances in the§ 172.101 HMT because these entries were superseded by more appropriate generic entries. As part of these revisions, the entry for “UN1366 Diethylzinc” was removed from the § 172.101 HMT. However, the entry for “Zinc ethyl, see Diethylzinc” was inadvertently overlooked.

In this NPRM, we are proposing to remove the proper shipping name, “Zinc ethyl, see Diethylzinc” since “UN1366 Diethylzinc” is no longer listed in the § 172.101 HMT. Individuals offering “Zinc ethyl” should choose one of the more appropriate generic entries for organometallic compounds and substances added to the § 172.101 HMT under the January 14, 2009 final rule.

On January 13, 2009, PHMSA, in coordination with the Federal Railroad Administration (FRA), published a final rule under Docket Number FRA-2006-25169 [74 FR 1770], entitled “Hazardous Materials: Improving the Safety of Railroad Tank Car Transportation of Hazardous Materials.” Among other revisions, this final rule revised the HMR to improve the crashworthiness protection of railroad tank cars designed to transport poisonous inhalation hazard (PIH) materials. As part of this final rule, the§ 172.101 HMT and special provisions specified in § 172.102 were amended to consolidate and update the special provisions applicable to the rail tank car transportation of PIH materials. The revisions to the § 172.101 HMT were for ease of reference only and did not substantively change the requirements applicable to the transportation of PIH materials by railroad tank cars. Specifically, special provisions B71, B72, and B74 were removed from the § 172.101 HMT and § 172.102, while § 172.244(a) was revised to incorporate the language from these eliminated special provisions. However, twelve additional references to special provisions B72, and B74 for selected entries in the§ 172.101 HMT were not removed at the time of publication of this final rule. Therefore, in this NPRM, PHMSA proposes to make the following amendments to the Column (7) special provisions of the § 172.101 HMT:

Special provision B72 is removed from Column (7) for the following entries:

UN2484tert-Butyl isocyanate;

UN3492Toxic by inhalation liquid, corrosive, flammable, n.o.s.with an inhalation toxicity lower than or equal to 200 ml/m3and saturated vapor concentration greater than or equal to 500 LC50;

UN3488Toxic by inhalation liquid, flammable, corrosive, n.o.s.with an inhalation toxicity lower than or equal to 200 ml/m3and saturated vapor concentration greater than or equal to 500 LC50;and

UN3490Toxic by inhalation liquid, water-reactive, flammable, n.o.s.with an inhalation toxicity lower than or equal to 200 ml/m3and saturated vapor concentration greater than or equal to 500 LC50.

Special provision B74 is removed from Column (7) for the following entries:

NA2927Ethyl phosphonothioic dichloride, anhydrous;

NA2845Ethyl phosphonous dichloride, anhydrouspyrophoric liquid;

NA2927Ethyl phosphorodichloridate;

NA2845Methyl phosphonous dichloride,pyrophoric liquid;

UN1831Sulfuric acid, fumingwith 30 percent or more free sulfur trioxide;

UN3493Toxic by inhalation liquid, corrosive, flammable, n.o.s.with an inhalation toxicity lower than or equal to 1000 ml/m3and saturated vapor concentration greater than or equal to 10 LC50;

UN3489Toxic by inhalation liquid, flammable, corrosive, n.o.s.with an inhalation toxicity lower than or equal to 1000 ml/m3and saturated vapor concentration greater than or equal to 10 LC50;and

UN3491Toxic by inhalation liquid, water-reactive, flammable, n.o.s.with an inhalation toxicity lower than or equal to 1000 ml/m3and saturated vapor concentration greater than or equal to 10 LC50.

In addition, as discussed above, PHMSA proposes to revise the entries for “Sulfur, Molten” specified in the § 172.101 HMT to reference special provision “R1.”

This section contains the special provisions listed in column (7) of the § 172.101 HMT. These special provisions contain packaging provisions, prohibitions, exceptions from requirements for particular quantities or forms of materials, and requirements or prohibitions applicable to specific modes of transportation. In this NPRM, PHMSA is proposing revisions to the special provisions specified in § 172.102 to clarify the regulations and correct inadvertent errors.

As discussed above, PHMSA proposes to add special provision “R1” to the R codes specified in § 172.102(c)(6). This new special provision will reference the “Molten Sulphur Rail Tank Car Guidance” document as a resource for best practices for the cleaning of tank cars containing “Sulfur, Molten.” By referencing this document, we believe a greater level of safety can be achieved when transporting rail tanks cars which have held or currently hold molten sulfur.

In this rulemaking, we propose to revise special provision 138 to harmonize the HMR with the International Maritime Dangerous Goods (IMDG) code and to clarify that the solubility calculation provided in special provision 138 should be applied when determining when to utilize the lead compounds, soluble n.o.s. entry in the List of Marine Pollutants found in § 172.101, Appendix B.

The defining criteria for the solubility of a lead compound is specified in special provision 138 in § 172.102(c)(1). Special provision 138 specifies that a lead compound is soluble when it exhibits a solubility greater than 5 percent after being mixed with a 0.07 M (molar concentration) of hydrochloric acid and is stirred for one hour. If the material exhibits a solubility of 5 percent or less after the test is completed, it is considered insoluble and not subject to the HMR. The IMDG Code identifies “Lead compounds, soluble, n.o.s.,” in Columns 4 and 6 ofthe Dangerous Goods List (DGL; Chapter 3.2) as a marine pollutant, and simultaneously refers to the definition for the solubility of lead compounds under Chapter 3.3.1, special provision 199.

On March 5, 1999, the Research and Special Programs Administration (RSPA), the predecessor agency to PHMSA, published a final rule under Docket Number RSPA-98-4185 (HM-215C) [64 FR 10741], entitled “Harmonization with the United Nations Recommendations, International Maritime Dangerous Goods Code, and International Civil Aviation Organization's Technical Instructions.” In HM-215C, when PHMSA incorporated the IMDG code's definition for “Lead compounds, soluble, n.o.s.,” in special provision 138 into the HMR, our intent was to mirror special provision 199 of the IMDG code and to permit the definition provided in this special provision to apply to both the “lead compounds, soluble n.o.s.” entry in the § 172.101 HMT and the entry in the List of marine pollutants in § 172.101, Appendix B. However, as adopted in the HMR, special provision 138 is unclear with regard to whether this criteria applies to marine pollutants.

On December 29, 2006, PHMSA published a final rule under Docket Number PHMSA-2006-25476 (HM-215I) [71 FR 78596], entitled “Harmonization with the United Nations Recommendations, International Maritime Dangerous Goods Code, and International Civil Aviation Organization's Technical Instructions.” The HM-215I final rule revised the HMR to maintain alignment with international standards by incorporating various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements. These revisions also harmonized the HMR with certain changes to the IMDG Code, the ICAO Technical Instructions, and the United Nations (UN) Recommendations. As part of the revisions in that final rule, new entries, “UN3469, Paint related material, flammable, corrosive(including paint thinning or reducing compound),”PG II, and PG III were added to the § 172.101 HMT. However, these entries were never published in subsequent versions of the HMR. Therefore, in this NPRM, we are proposing to add the entries for “Paint related material, flammable, corrosive(including paint thinning or reducing compound)”UN3469, PG II, and PG III.

Section 172.202 specifies the requirements that a shipping description of a hazardous material must be indicated on a shipping paper. On December 29, 2006, PHMSA published a final rule under PHMSA-06-25476 (HM-215I) [71 FR 78595] that permitted the continued use for domestic shipments of either one of two shipping description sequences in effect in the HMR on December 31, 2006, until January 1, 2013. Specifically, the HMR authorizes the basic description of a hazardous material to consist of either the identification number first, followed by the proper shipping name, hazard class, and packing group, or as an alternative description sequence, the proper shipping name, hazard class, ID number and packing group. In addition, the basic description described above and specified in paragraphs § 172.202(a)(1)-(4) must be shown in the sequences described with no additional information interspersed. After January 1, 2013, only the basic shipping description sequence consisting of the identification number first, followed by the proper shipping name, hazard class, and packing group (in that order) is authorized.

However, § 172.203 provides allowances for a shipping paper to contain information in addition to the basic shipping description specified in § 172.202. Specifically, § 172.203(e)(1) permits that the shipping paper for a packaging containing the residue of a hazardous material may include the words “RESIDUE: LAST CONTAINED * * *” in association with the basic description of the hazardous material last contained in the packaging. Further, the shipping papers for tank cars containing the residue of a hazardous material must include the phrase, “RESIDUE: LAST CONTAINED * * *” before the basic description. While the HMR provides such a general provision, various international standards provide more specific guidance on the location of this phrase. Currently the ICAO TI, IMDG Code, and UN Model Regulations require this phrase, if used, to be placed either before or after the basic shipping description.

In this NPRM, PHMSA proposes to revise § 172.203(e)(1) to permit the shipping paper for a packaging containing the residue of a hazardous material to include the words “RESIDUE: LAST CONTAINED * * *” before or after the basic shipping description of the hazardous material last contained in the packaging. PHMSA also proposes to remove the language “in association with” and replace it with the language “before or after” to align with various international standards. This proposed revision harmonizes the HMR with the ICAO TI, IMDG Code and UN Model Regulations.

For rail shipments of tank cars, § 172.203(e)(2) requires that the description on the shipping paper for a tank car containing the residue of a hazardous material must include the phrase, “RESIDUE: LAST CONTAINED * * *” before the basic description. Prior to the publication of the HM-215I final rule, the proper shipping name was the first piece of information required in the basic shipping description, and therefore, the phrase, “RESIDUE: LAST CONTAINED * * *” preceded the proper shipping name.

Effective January 1, 2013, rail shipments coming from Canada to the United States will be unable to comply with both the current requirements in the HMR for rail tank cars and the Transportation of Dangerous Goods (TDG) requirements. As stated above, after January 1, 2013, the proper shipping name will no longer be permitted to be the first piece of shipping information in the basic shipping description. Subsequently, the phrase, “RESIDUE: LAST CONTAINED * * *” will no longer immediately precede the proper shipping name. Furthermore the phrase, “RESIDUE: LAST CONTAINED * * *” may not be inserted into the basic description, as § 172.202(b) specifies the basic shipping description may not contain any additional information interspersed in the sequence described in § 172.202(a). Canada's TDG regulations currently permit a residue of hazardous material to be described as “Residue—Last Contained” or “Résidu—dernier contenu,” followed by the shipping name of the dangerous goods last contained in the means of containment.

Therefore, in this NPRM, PHMSA proposes to revise § 172.203(e)(2) to require the description on the shipping paper for a tank car containing the residue of a hazardous material to include the phrase, “RESIDUE: LAST CONTAINED * * *” before or after the basic shipping description, or immediately preceding the proper shipping name. This change maintains the HMR's harmonization with the ICAO TI, IMDG Code and UN Model Regulations while permitting shipments transported to, from or within the United States to remain in compliance with the Canadian TDG shipping paper requirements. This revision will foster commerce between rail systems in the United States and Canada.

The requirements for hazardous materials training are specified in § 172.704. This section includes a description of the applicability for hazardous materials training, the necessary components of a training program, and the recurrent training and recordkeeping requirements.

Currently, 49 CFR Part 172, Subpart I describes the requirements for security plans. Specifically, §§ 172.802(d) and 172.820(i)(1) require that a copy of the security plan must be maintained and that security plan documentation be made available upon request, at a reasonable time and location, to an authorized official of the Department of Transportation (DOT) or the Department of Homeland Security (DHS).

Similar to the security plan requirements, the training requirements include a recordkeeping component. Specifically, as specified in § 172.704(d), a record of current training, inclusive of the preceding three years, must be created and retained by each hazmat employer for as long as that employee is employed by that employer as a hazmat employee and for 90 days thereafter. However, unlike the security plan documentation, the HMR currently do not stipulate that the training records must be made available upon request to authorized officials of the DOT or DHS.

The Federal hazardous materials transportation law (Federal hazmat law, 49 U.S.C. 5101et seq.) authorizes the Secretary of Transportation to prescribe regulations for the safe transportation of hazardous material in intrastate, interstate, and foreign commerce. The Secretary has delegated this authority to PHMSA. Authority to enforce the HMR has been delegated to the Federal Aviation Administration “with particular emphasis on the transportation or shipment of hazardous materials by air;” the Federal Railroad Administration “with particular emphasis on the transportation or shipment of hazardous materials by railroad;” PHMSA “with particular emphasis on the shipment of hazardous materials and the manufacture, fabrication, marking, maintenance, reconditioning, repair or test of multi-modal containers that are represented, marked, certified, or sold for use in the transportation of hazardous materials;” and the Federal Motor Carrier Safety Administration “with particular emphasis on the transportation or shipment of hazardous materials by highway” (CFR part 1, subpart C). In addition, as provided in the Homeland Security Act and as defined in a Memorandum of Agreement between the DHS and the DOT, the United States Coast Guard retained the ability to enforce the HMR with particular emphasis on the transportation or shipment of hazardous materials by vessel. Thus, enforcement of the HMR, including the training regulations, is shared among the DOT operating administrations, United States Coast Guard and DHS, with each placing particular emphasis on their respective authorities.

Federal hazmat law, 49 U.S.C. 5121(b)(2), states that a person subject to this law shall make the records, property, reports, and information available for inspection when the Secretary undertakes an investigation or makes a request. The completion of training in accordance with Subpart H of Part 172 is essential for hazmat employees handling hazardous materials and ensures proper compliance with the HMR resulting in a greater level of safety. The recordkeeping requirements specified in § 172.704(d) allow for hazmat employers and PHMSA personnel to verify that only individuals knowledgeable in the applicable regulations are handling hazardous materials.

In an effort to foster greater compliance with the training requirements specified in Subpart H of Part 172, in this rulemaking we are proposing to revise § 172.704(d) to require that an employer must make hazmat employee training records required by Subpart H of Part 172 available upon request, at a reasonable time and location, to an authorized official of DOT or DHS.

Section 173.6 specifies the exceptions for shipments of materials of trade. A material of trade, is defined in § 171.8 as “a hazardous material, other than a hazardous waste, that is carried on a motor vehicle for the purpose of protecting the health and safety of the motor vehicle operator or passengers; for the purpose of supporting the operation or maintenance of a motor vehicle (including its auxiliary equipment); or by a private motor carrier (including vehicles operated by a rail carrier) in direct support of a principal business that is other than transportation by motor vehicle.” Section 173.6 authorizes only specific hazard classes and quantities to utilize the materials of trade exception. A hazardous material that meets the definition of a material of trade and is transported by motor vehicle in conformance with § 173.6 is not subject to any other requirements of the HMR except for those explicitly set forth or referenced in § 173.6.

PHMSA recently received a request for a formal letter of interpretation pertaining to the application of the materials of trade exception (Reference No.: 10-0101). The letter expressed confusion and concern regarding whether the exception would apply to Division 2.1 and Division 2.2 compressed gas transported in Dewar flasks. Dewar flasks are not considered cylinders but are often used to transport Division 2.2 cryogenic liquids. Currently, § 173.6(a)(2) states that a Division 2.1 or 2.2 material in a cylinder with a gross weight not over 100 kg (220 pounds), may be transported as a material of trade provided it meets the definition of a material of trade specified in § 171.8 and all other requirements of § 173.6. As noted in PHMSA's response to this letter, Dewar flasks are permitted to utilize the exception specified in § 173.6 provided they meet all the requirements of that section. PHMSA did not intend to limit the materials of trade exception solely to Division 2.1 or 2.2 materials packaged in cylinders.

PHMSA acknowledges that this requirement needs additional clarification, and believes that increased clarity will help to ensure the proper intended application of the materials of trade exception. Therefore, in this NPRM, we are proposing to modify § 173.6(a)(2) to clarify that Dewar flasks may be transported as materials of trade provided these materials meet all the requirements specified in § 173.6.

Section 173.12 specifies the exceptions for shipment of waste materials including the requirements for waste packages known as “lab packs.” A lab pack, although not specifically defined in § 171.8, is considered a large outer packaging containing small inner packagings that are filled with various compatible laboratory hazardous wastes. In accordance with § 173.12, a lab pack is a combination packaging consisting of a glass inner packaging, not exceeding 4 L (1 gallon) rated capacity, or a metal or plastic inner packaging, not exceeding 20 L (5.3 gallons) rated capacity. Inner packagings containing liquid must be surrounded by a chemically-compatible absorbent material in sufficient quantity to absorb the total liquid contents. These inner packagings are then further packed in specification outer packaging and the completed package must not exceed a gross weight of 205 kilograms. The requirements and regulatory reliefprovided for the transportation of waste hazardous materials under the lab pack exception are specified in § 173.12(b) of the HMR.

The requirements for lab packs were adopted in a final rule published under Docket Number HM-181 entitled, “Performance Oriented Packaging Standards; Changes to Classification, Hazard Communication, Packaging and Handling Requirements Based on UN Standards and Agency Initiative” and published on December 21, 1990 [55 FR 52402]. These requirements were adopted to align the HMR with regulations on lab packs issued by the Environmental Protection Agency.

The lab packing section was recently amended in a final rule published on May 14, 2010, in theFederal Registerunder Docket Number PHMSA-2009-0289 (HM-233A) [74 FR 53413] entitled, “Hazardous Materials: Incorporation of Special Permits into Regulations.” As part of these amendments, certain widely-used and longstanding special permits that had an established safety record were incorporated into the HMR. Special Permit DOT SP-13192 was among these special permits, and it authorized the transport of additional hazardous materials not previously authorized for transport under § 173.12. Specifically, the incorporation of this special permit authorized the transport of waste Division 4.2, Packing Group (PG) I material and Division 5.2 (organic peroxide) material in lab packs.

PHMSA recently received a request for a formal letter of interpretation pertaining to the recent changes of the lab pack exception (Reference No.: 10-0233). The writer expressed confusion and concern regarding whether the amendments of the HM-233A final rule authorized the transportation, as lab packs, of Division 4.1 and Division 5.2 materials that were also required to be temperature-controlled. PHMSA explained that § 173.12(b) permits certain waste materials to be placed in non-specification packagings which conform to the requirements of that section. Furthermore, hazardous materials placed in lab packs are also subject to additional safety control measures designed to mitigate the risks presented by these materials, such as quantity limitations, additional packaging, and segregation requirements. However, these control measures do not eliminate the requirement that lab packs containing materials required to be temperature-controlled must also comply with temperature-control requirements specified in§ 173.21(f)(1).

PHMSA acknowledges that this requirement needs additional clarification, and believes that increased clarity will help to ensure that individuals transporting lab packs containing temperature-controlled materials are aware that such packagings are not excepted from other safety measures. Therefore, in this NPRM, we are proposing to modify § 173.12 to clarify that temperature-controlled materials may be transported in lab packs provided these materials also meet the requirements in § 173.21(f)(1).

Section 173.33 provides the requirements for hazardous materials transported in Cargo Tank Motor Vehicles (CTMVs). This section includes general requirements for CTMVs, as well as more specific requirements for loading, maximum lading pressure, relief systems, and closing valves.

Section 173.33(g) requires each liquid filling and liquid discharge line in a specification MC 338 cargo tank must be provided with a remotely-controlled internal self-closing stop valve except when the MC 338 cargo tank is used to transport argon, carbon dioxide, helium, krypton, neon, nitrogen, and xenon.

The discharge control device requirements for a MC 338 cargo tank are found in § 178.338-11(b) and state that each liquid filling and liquid discharge line must be provided with a shut-off valve located as close to the tank as practicable and, unless the valve is manually operable at the valve, the line must also have a manual shut-off valve.

PHMSA received a request for a formal letter of interpretation regarding the current requirements for MC 338 cargo tanks (Reference No.: 06-0243). According to the request, most vacuum insulated MC 338 cargo tanks operate at temperatures below the reliable operating temperature of available internal self-closing stop valves, and currently no manufacturer builds an internal self-closing stop valve that will operate reliably at temperatures that may reach minus 452 °F. The requestor asked if a MC 338 cargo tank is required to have a remotely-controlled internal self-closing stop valve as specified in § 173.33(g), provided an external stop valve is present in accordance with § 178.338-11(b).

PHMSA does not intend to require a remotely-controlled internal self-closing stop valve if the MC 338 cargo tank already utilizes an external self-closing stop valve to meet the requirements in § 178.338-11(b). Therefore, in this rulemaking, we are proposing to revise the provisions in § 173.33(g) to clarify this exception.

Section 173.62 specifies packaging requirements for explosives. Specifically, § 173.62 provides a table that specifies the packaging instructions, and corresponding authorized inner, intermediate and outer packagings based on the assigned identification number of the explosive.

In a final rule published on September 13, 2011, under Docket Number PHMSA-2011-0134 (HM-244D) [76 FR 56304], entitled “Minor Editorial Corrections and Clarifications,” PHMSA revised § 173.63(c)(5) packaging instruction 130 to authorize the use of aluminum boxes (4B) and natural wood, sift-proof walls boxes (4C2). However, the following language was inadvertently removed from the first column of the packing instruction:

PHMSA did not intend to remove this portion of the packaging instruction and unnecessarily limit the transport of large explosive articles. Therefore, in this NPRM, PHMSA is proposing to revise § 173.63(c)(5) packing instruction 130 to reinstate the language inadvertently removed from the first column of packing instruction 130.

Section 173.134 provides definitions and exceptions for infectious substances. Paragraph (c)(2) of this section requires a Regulated Medical Waste (RMW) that contains Category B cultures and stocks to be transported on a vehicle “used exclusively” to transport RMW. A Category B substance is defined as “an infectious substance that is not in a form generally capable of causing permanent disability or life-threatening or fatal disease in otherwise healthy humans or animals when exposure to it occurs.”

As amended on July 20, 2011, in a final rule published under Docket Number PHMSA-2009-0151 (HM-218F) [76 FR 43510], entitled “Miscellaneous Amendments,” PHMSA revised § 173.134(c)(2) to incorporate the clarifications from a March 19, 2007 letter of interpretation (Ref. No. 07- 0057). Specifically, PHMSA specified that the following materials may betransported on a vehicle used exclusively to transport RMW: (1) Plant and animal waste regulated by the Animal and Plant Health Inspection Service (APHIS); (2) waste pharmaceutical materials; (3) laboratory and recyclable wastes; (4) infectious substances that have been treated to eliminate or neutralize pathogens; (5) forensic materials being transported for final destruction; (6) rejected or recalled health care products; and (7) documents intended for destruction in accordance with Health Insurance Portability and Accountability Act of 1996 (HIPAA) requirements.

In response to the proposals in the HM-218F Notice of Proposed Rulemaking, Stericycle commented that the rationale underlying PHMSA's decision to authorize the transportation of multiple waste streams from medical facilities should also apply to other regulated activities, specifically to those covered under special permit DOT SP-13556, which authorizes the transportation of sharps in specialized containers. At the time of the July 20, 2011 final rule, PHMSA determined that incorporating special permit DOT SP- 13556 into the HMR was beyond the scope of that rulemaking, but this issue would be addressed in a future NPRM. We are addressing the issue in this rulemaking. Therefore, in this NPRM, PHMSA is proposing to revise § 173.134(c)(2) to incorporate special permit DOT SP-13556 relating to the transport of regulated medical waste into the HMR.

Specifically, PHMSA is proposing to add the phrase “sharps containers containing sharps” to § 173.134(c)(2) to permit certain materials to be transported on a vehicle used exclusively to transport RMW. PHMSA is also proposing to include certain operational controls for shipments of sharps containers that are detailed in special permit DOT SP-13556.

Section 173.150 provides exceptions from the HMR for certain Class 3 flammable liquid material. Specifically, § 173.150(d) provides exceptions for alcoholic beverages for all modes of transport. An alcoholic beverage (as defined in 27 CFR §§ 4.10 and 5.11) that meets one of three conditions specified in § 173.150(d) is not subject to the requirements of the HMR for a Class 3 flammable liquid material.

Currently, the ICAO Technical Instructions (TI) provide exceptions for alcoholic beverages transported via aircraft in Chapter 3; 3.1.1, Table 3-2, special provision A9 and Chapter 8; 8.1.2 paragraph (l). Specifically, Chapter 3; 3.1.1 states that alcoholic beverages containing not more than 70 percent alcohol by volume, when packaged in receptacles of 5 liters or less are not subject to the ICAO TI when carried by cargo aircraft. In addition, as specified in Chapter 8; 1.1.2 paragraph (l) of the ICAO TI, alcohol beverages with less than 24 percent alcohol by volume or alcohol beverages in retail packaging and alcoholic beverages containing more than 24 percent but not more than 70 percent alcohol by volume in receptacles not exceeding 5 liters are permitted to be carried by passengers or crew in carry-on or checked luggage and are not otherwise subject to the ICAO TI.

Generally, the HMR is harmonized with the ICAO TI with regard to the exceptions provided for alcoholic beverages shipped by passenger carrying and cargo aircraft. However, for cargo aircraft, the HMR does not align with the ICAO TI. For example, as specified in § 173.150(d), the HMR excepts alcoholic beverages in an inner packaging of 5 L (1.3 gallons) or less from regulation regardless of the alcohol percent on cargo aircraft. In contrast, the ICAO TI limits this exception to alcoholic beverages not exceeding 70 percent alcohol by volume. This lack of harmonization can lead to frustration of shipments of these types of materials in international air transport.

Therefore, in this NPRM, we propose to revise the exceptions in § 173.150(d) to harmonize the alcoholic beverages exception via aircraft with the requirements in the ICAO TI and to restructure the exceptions in § 173.150(d) to provide clarity on the requirements for the transport of alcoholic beverages by each mode of transport including passenger carrying and cargo aircraft. Specifically, PHMSA proposes to revise § 173.150(d) by separating the requirements for alcoholic beverages into two subparagraphs: one paragraph pertaining to the transport of alcoholic beverages via motor vehicle, rail, and vessel; and one paragraph pertaining to the transport of alcoholic beverages via air transport. We believe that separating the requirements for alcoholic beverages by mode promotes clarity and allows for the current requirements to remain in effect for motor vehicle, rail and vessel transport while fully harmonizing the air requirements in the HMR with the ICAO TI.

PHMSA proposes to harmonize with the ICAO technical instructions by stipulating that for transport via cargo aircraft, in addition to the current 5 liter limitation in the HMR, the alcohol beverage must not exceed 70 percent alcohol by volume. In addition, we propose to move the requirements for the transport of alcoholic beverages by passenger carrying aircraft by passengers and crew into a standalone sub-subparagraph to improve clarity.

A cost may be incurred by the alcoholic beverage industry for certain high alcohol content (70 percent and up) beverages shipped by cargo aircraft which are currently excepted from the requirements of the HMR. However, PHMSA anticipates this cost to the alcoholic beverage industry will be minimized by three factors. First, due to the non-perishable nature of alcoholic beverages, the vast majority of alcoholic beverages are transported by ground transport or, if required to be exported, by vessel transport. Second, the majority of alcohols and distilled spirits manufactured and transported have a percentage of alcoholic content of, at, or below 40 percent (80 proof). Thus the proposed change would affect only a small segment of high alcohol content liquors. Lastly, in the rare instances these beverages are shipped by air, many air carriers already require compliance with ICAO TI, thus the impact of this harmonization should be minimal. The derived benefit from this revision would be realized from increased harmonization with the ICAO TI and greater hazard communication and packaging standards on high content alcoholic beverages which pose a risk in transport. A summary of the proposed revisions to the requirements for alcoholic beverages can be seen in the table below.

Section 173.159 specifies requirements for the transportation of wet batteries, including non-spillable batteries. Further exceptions for non-spillable batteries are specified in § 173.159a. If certain transport conditions specified in §§ 173.159 and 173.159a are met, such as specific packaging and securement requirements, non-spillable batteries are excepted from the HMR.

In a final rule published on January 14, 2009, under Docket Nos. PHMSA-2007-0065 (HM-224D) and PHMSA-2008-0005 (HM-215J) [74 FR 2200], entitled “Hazardous Materials: Revision to Requirements for the Transportation of Batteries and Battery-Powered Devices; and Harmonization With the United Nations Recommendations, International Maritime Dangerous Goods Code, and International Civil Aviation Organization's Technical Instructions,” PHMSA amended § 173.159(f) to describe the conditions under which a battery is considered “non-spillable,” and relocated the exceptions pertaining to non-spillable batteries from §§ 173.159(d) and 173.159(f), to a new § 173.159a.

However, when these exceptions were relocated, PHMSA inadvertently required that excepted non-spillable batteries must be securely packaged in strong outer packagings. This modification, in essence, prohibited excepted batteries from being palletized or placed on a skid. Therefore, in this NPRM, PHMSA is proposing to revise § 173.159a(c)(1) to except from the packaging requirements of § 173.159, non-spillable batteries that are secured to skids or pallets and capable of withstanding the shocks normally incident to transportation, provided the batteries meet the requirements of § 173.159(a) and are loaded or braced so as to prevent damage and short circuits in transit. Further, any other material loaded in the same vehicle must be blocked, braced, or otherwise secured to prevent contact with or damage to the batteries.

Section 177.834 provides the general requirements for the loading and unloading of vehicles intended to transport hazardous materials via ground transportation. Paragraph (j) of this section requires CTMVs to be transported with all valves and other closures in liquid discharge systems to be closed and free of leaks unless transported in accordance with the requirements for empty packages specified in § 173.29(b)(2).

The provision specified in § 177.834(j) was added on May 30, 1996, in a final rule published under Docket Number HM-222B [61 FR 27166] to consolidate the closure requirements for cargo tanks transporting Class 3 (flammable liquid) materials, Class 8 (corrosive) materials, and Division 6.1 (poisonous) materials. This rule inadvertently overlooked the impact the closure requirement would have on MC 338 cargo tanks that transport cryogenic liquids. These tanks have external self-closing valves that are normally transported in an open position and are designed to close with a tremendous amount of force to ensure proper closure. Subsequently, these valves require a large amount of force and effort to open. As a result, the potential for physical injury to employee personnel is increased and the ability of the valve system to operate is potentially compromised as a result of repeated cycling (opening, closing, and testing).

Therefore, in this NPRM, we propose to revise § 177.834(j) to permit external emergency self-closing valves on MC 338 cargo tanks containing residues of cryogenic liquids to remain either open or closed during transit.

Section 178.2 specifies the responsibilities of the manufacturer or other person certifying compliance with the specification packaging requirements of Part 178. As part of these requirements, the manufacturer or other person certifying compliance with the requirements of Part 178 must provide both notification to each person to whom a packaging is transferred of all requirements in Part 178 not met at the time of transfer, and closure requirements for the packaging. These closure requirements include information specifying the type(s) and dimensions of the closures, including gaskets and any other components needed to ensure that the packaging is capable of successfully passing the applicable performance tests. This information must include any procedures to be followed, including closure instructions for inner packagings and receptacles, to effectively assemble and close the packaging for the purpose of preventing leakage in transportation. Closure instructions must provide for a consistent and repeatable means of closure that is sufficient to ensure the packaging is closed in the same manner as it was tested.

A package, as defined in § 171.8, “means a packaging plus its contents.” Ensuring that a package is closed in a manner which precludes the release of a hazardous material is essential to safe transportation, regardless of whether the package is completely filled or contains only residue. In accordance with § 173.29, an empty packaging containing only the residue of a hazardous material must be offered for transportation and transported in the same manner as when it previously contained a greater quantity of that hazardous material. This includes properly closing the packaging for transportation and providing closure notification requirements to each person whom a packaging is transferred in accordance with § 178.2(c).

In April 2006, PHMSA received a request (Reference No.: 06-0123) seeking clarification of the closure notification requirements specified in § 178.2(c) for packages containing residues. In response, we indicated that packages containing residues must meet the notification requirements of § 178.2(c) and that we would clarify this issue in a future rulemaking.

In this rulemaking, PHMSA is addressing this issue by proposing to revise§ 178.2(c) to clarify that the notification requirements apply to packagings containing a residue of a hazardous materials unless these packagings of hazardous materials meet the exceptions provided in § 173.29(b). This clarification will ensure packages containing residues are properly closed and increase compliance with the intent of this regulation. This increased compliance should also result in fewer packages being improperly closed, and thereby reduce the potential for leaks in transportation.

Certain CTMVs require as part of their specification both a CTMV manufacturer's data report and a certificate stating that the completed cargo tank motor vehicle conforms in all respects to the appropriate specification and the American Society of Mechanical Engineers (ASME) Code. Section 178.2(c) currently excepts CTMVs which require a manufacturer's data report and certificate from the notification requirements. Specifically, § 178.2(c) states that CTMV's in compliance with §§ 178.337-18 and 178.345-10 are excepted from the notification requirements specified in § 178.2(c). The current reference to § 178.345-10 in paragraph § 178.2 (c) refers to pressure relief, not the CTMV manufacturer's data report and certificates for DOT 406, 407 and 412 (CTMVs), and is in error. The correct citation should read § 178.345-15, which refers to the manufacturer's data report and certification of DOT 406, 407 and 412 CTMVs. In addition, it was brought to PHMSA's attention that a reference to a MC 338 cargo tank manufacturer's data report certificate in § 178.338-19 is missing in § 178.2(c).

We agree and believe that a reference to a MC 338 cargo tank manufacturer's data report certificate would be appropriate in § 178.2(c). Therefore, in this rulemaking, we propose to correct these errors and omissions by replacing the reference to § 178.345-10 with § 178.345-15 and adding a reference to § 178.338-19.

Appendix E to Part 178 describes the Flame Penetration Resistance Test referenced throughout the HMR with regard to the outer packaging for chemical oxygen generators and cylinders containing compressed oxygen. This appendix specifies requirements for the Flame Penetration Resistance Test and includes criteria for acceptance of a passing test result, a summary of the test method and procedure, details on the preparation of test specimens, and construction and calibration specifications for the test equipment.

On January 31, 2007, PHMSA published a final rule under docket number RSPA-04-17664 (HM-224B) [72 FR 4442] entitled “Transportation of Compressed Oxygen, Other Oxidizing Gases and Chemical Oxygen Generators on Aircraft,” which included amendments that changed packaging and marking requirements for air shipments of compressed oxygen cylinders and chemical oxygen generators. As of October 1, 2009, certain compressed gases shipped by air, and chemical oxygen generators must be placed in a rigid outer packaging demonstrated to withstand both flame penetration and thermal resistance testing requirements.

Appendix E specifies the procedures to follow to conduct the Flame Penetration Resistance Test. The test procedure is described in sections (g)(2) of this Appendix and references a “Figure 1,” but HMR, Figure 1 is omitted. In sections (d)(3) and (f)(2) of this Appendix, the design and calibration of the calorimeter is described and refers to a “Figure 2,” but Figure 2 is also omitted. Therefore, in this NPRM, PHMSA is proposing to add Figures 1 and 2 that were referenced but inadvertently omitted from Appendix E.

Section 180.416 details the requirements for a discharge system inspection and maintenance program for cargo tanks transporting liquefied compressed gases. Specifically, § 180.416 applies to operators using specification MC 330, MC 331, and non-specification cargo tanks authorized under § 173.315(k) for transportation of liquefied compressed gases other than carbon dioxide. As part of the discharge system inspection specified in this section, the operator must visually inspect each delivery hose assembly at least once each calendar month in which the delivery hose assembly is in service and keep a record of each inspection. In accordance with § 180.416(d), that record must include the inspection date, the name of the person performing the inspection, the hose assembly identification number, the company name, the date the hose was assembled and tested, and an indication that the delivery hose assembly and piping system passed or failed the tests and inspections.

There has been some confusion among the regulated community pertaining to the requirement to include “the company name” in the record as specified in § 180.416(d). Specifically, there was concern over whether “thecompany name” refers to the name of the operator or the name of the manufacturer of the hose.

In this NPRM, PHMSA proposes to revise § 180.416(d) to clarify that the reference to the “company name” on the inspection record is the name of the hose manufacturer. We believe this proposed revision will clarify the requirement for discharge system inspection records, resulting in more accurate records for specification MC 330, MC 331, and non-specification cargo tanks authorized under § 173.315(k) transporting of liquefied compressed gases other than carbon dioxide.

This NPRM is published under authority of Federal hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 5101 et seq.). Section 5103(b) of Federal hazmat law authorizes the Secretary of Transportation to prescribe regulations for the safe transportation, including security, of hazardous materials in intrastate, interstate, and foreign commerce. If adopted as proposed, this NPRM would make miscellaneous amendments to the HMR. In addition, if adopted as proposed, this NPRM would correct errors in the hazardous materials table and corresponding special provisions, clarify the requirements for lab packing temperature controlled materials and clarify various cargo tank provisions and revise the training requirements to require that a hazmat employer must make hazmat employee training records available upon request to an authorized officials. These amendments clarify regulatory requirements and, where appropriate, decrease the regulatory burden without compromising the safe transportation of hazardous materials in commerce.

This proposed rule is not considered a significant regulatory action under section 3(f) and was not reviewed by the Office of Management and Budget (OMB). The proposed rule is not considered a significant rule under the Regulatory Policies and Procedures order issued by the Department of Transportation [44 FR 11034].

In this notice of proposed rulemaking, we propose to amend miscellaneous provisions in the HMR to clarify the provisions and to relax overly burdensome requirements. PHMSA anticipates the proposals contained in this rule will have economic benefits to the regulated community. This NPRM is designed to increase the clarity of the HMR, thereby increasing voluntary compliance while reducing compliance costs.

Executive Order 13563 is supplemental to and reaffirms the principles, structures, and definitions governing regulatory review that were established in Executive Order 12866 Regulatory Planning and Review of September 30, 1993. In addition, Executive Order 13563 specifically requires agencies to: (1) Involve the public in the regulatory process; (2) promote simplification and harmonization through interagency coordination; (3) identify and consider regulatory approaches that reduce burden and maintain flexibility; (4) ensure the objectivity of any scientific or technological information used to support regulatory action; and (5) consider how to best promote retrospective analysis to modify, streamline, expand, or repeal existing rules that are outmoded, ineffective, insufficient, or excessively burdensome.

In this NPRM, PHMSA has involved the public in the regulatory process in a variety of ways. Specifically, in this rulemaking PHMSA is addressing issues and errors that were identified and tagged for future rulemaking consideration in letters of interpretation issued to the regulated community and through other correspondence with PHMSA stakeholders. In addition, PHMSA has responded to the TSI's request to incorporate a guidance document designed to assist the sulphur industry in ensuring the safe transport of molten sulphur (P-1581). PHMSA is asking for public comments based on the proposals in this NPRM. Upon receipt of public comment, PHMSA will address all substantive comments in the next rulemaking action under this docket number.

The amendments in the NPRM promote simplification and harmonization through interagency coordination. Specifically, in this NPRM, PHMSA is simplifying the lab packing requirements, the hazardous materials table and special provisions and the requirements for cargo tank transportation. These revisions are expected to produce a safety benefit derived from the increased clarity and reduced ambiguity in the special provisions to the § 172.101 HMT, and the lab packaging and cargo tank requirements of the HMR. There are minimal additional costs. The clarity will result in net benefits.

This NPRM also promotes harmonization with international standards, such as the IMDG Code, Canada's TDG requirements and the ICAO TI with regard to the handling of “Lead compounds, soluble n.o.s.” via vessel, rail shipments of residue between the United States and Canada and alcoholic beverages via aircraft.

These revisions to the § 172.101 HMT will eliminate errors in the § 172.101 HMT, reduce ambiguity, harmonize the HMR with international regulations, and improve clarity. Many of these revisions were brought to PHMSA's attention through letters of interpretation requested from the regulated community. Although these revisions are minor, they are expected to produce a safety benefit derived from the increased clarity and accuracy of the text in the § 172.101 HMT.

This NPRM proposes approaches that reduce the regulatory burden on the regulated community, allows for flexibility in achieving compliance and maintains an appropriate level of safety. This NPRM permits flexibility in achieving compliance when transporting cargo tanks while maintaining an appropriate level of safety. This NPRM also incorporates a special permit DOT SP-13556 that has a strong record of safety. Incorporating this permit into the HMR will provide wider access to the benefits of the provisions granted in this special permit, therefore, fostering greater regulatory flexibility without compromising transportation safety.

A majority of the amendments in this rulemaking are simple clarifications and do not require significant scientific or technological information. However, when necessary in this NPRM, PHMSA used scientific or technological information to support its regulatory action. Specifically, such data was considered when structuring alternatives on how to best deal with issues regarding the safe transport of cargo tanks and the transport of alcoholic beverages with greater than 70 percent alcohol by volume via cargo aircraft. This information was used in the evaluation of alternative proposals and ultimately this information determined how best to promote retrospective analysis to modify and streamline existing requirements that are outmoded, ineffective, insufficient, or excessively burdensome.

This proposed rule was analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This proposed rule would preempt state, local andIndian tribe requirements but does not propose any regulation that has substantial direct effects on the states, the relationship between the national government and the states, or the distribution of power and responsibilities among the various levels of government. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

The Federal hazardous material transportation law, 49 U.S.C. 5125(b)(1), contains an express preemption provision (49 U.S.C. 5125(b)) preempting state, local, and Indian tribe requirements on certain covered subjects. Covered subjects are:

(i) The designation, description, and classification of hazardous materials;

(ii) The packing, repacking, handling, labeling, marking, and placarding of hazardous materials;

(iii) The preparation, execution, and use of shipping documents related to hazardous materials and requirements related to the number, content, and placement of those documents;

(iv) The written notification, recording, and reporting of the unintentional release in transportation of hazardous materials; or

(v) The design, manufacture, fabrication, marking, maintenance, reconditioning, repair, or testing of a packaging or container which is represented, marked, certified, or sold as qualified for use in the transport of hazardous materials.

This proposed rule concerns the classification, packaging, and handling of hazardous materials, among other covered subjects. If adopted, this rule would preempt any state, local, or Indian tribe requirements concerning these subjects unless the non-Federal requirements are “substantively the same”(see 49 CFR 107.202(d) as the Federal requirements.)

Federal hazardous materials transportation law provides at 49 U.S.C. 5125(b)(2) that if PHMSA issues a regulation concerning any of the covered subjects, PHMSA must determine and publish in theFederal Registerthe effective date of Federal preemption. That effective date may not be earlier than the 90th day following the date of issuance of the final rule and not later than two years after the date of issuance. PHMSA proposes the effective date of federal preemption be 90 days from publication of a final rule in this matter in theFederal Register.

This proposed rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this proposed rule does not have tribal implications and does not impose substantial direct compliance costs on Indian tribal governments, the funding and consultation requirements of Executive Order 13175 do not apply, and a tribal summary impact statement is not required.

The Regulatory Flexibility Act (5 U.S.C. 601et seq.) requires an agency to review regulations to assess their impact on small entities unless the agency determines the rule is not expected to have a significant impact on a substantial number of small entities. This proposed rule would amend miscellaneous provisions in the HMR to clarify provisions based on our PHMSA's initiatives and correspondence with the regulated community. While maintaining safety, it would relax certain requirements that are overly burdensome. The proposed changes are generally intended to provide relief to shippers, carriers, and packaging manufacturers, including small entities.

Consideration of alternative proposals for small businesses.The Regulatory Flexibility Act directs agencies to establish exceptions and differing compliance standards for small businesses, where it is possible to do so and still meet the objectives of applicable regulatory statutes. In the case of hazardous materials transportation, it is not possible to establish exceptions or differing standards and still accomplish our safety objectives.

The impact of this proposed rule is not expected to be significant. The proposed changes are generally intended to provide relief to shippers, carriers, and packaging manufactures and testers, including small entities. This relief will provide marginal positive economic benefits to shippers, carriers, and packaging manufactures and testers, including small entities however; these benefits are not at a level that can be considered economically significant. Therefore, this proposed rule will not have a significant economic impact on a substantial number of small entities.

This proposed rule has been developed in accordance with Executive Order 13272 (“Proper Consideration of Small Entities in Agency Rulemaking”) and DOT's procedures and policies to promote compliance with the Regulatory Flexibility Act to ensure that potential impacts of draft rules on small entities are properly considered.

This proposed rule does not impose any new information collection requirements and in three instances marginally decreases the information collection burden on the reregulated community. Specifically the following information collections affected by this rulemaking are:

• Office of Management and Budget (OMB) Control Number 2137-0051; Rulemaking and Special Permit Petitions: A slight reduction in information collection burden is anticipated due to the incorporation of a DOT SP-13556 into § 173.134. This permit will allow individuals more flexibility when transporting sharps and decrease the need for special permits applications when transporting sharps as regulated medical wastes.

• OMB Control Number 2137-0034; Hazardous Materials Shipping Papers and Emergency Response Information: A negligible reduction in information collection burden due to relaxation of the shipping paper description requirements for residues specified in § 172.203. Specifically, this will allow individuals more flexibility on the shipping paper descriptions when shipping waste internationally, and will correct a regulatory inconsistency between the HMR and Canadian Hazardous materials regulations, fostering international transport of residues.

• OMB Control Number 2137-0557; Approvals for Hazardous Materials: A slight reduction in information collection burden is anticipated due to relaxation of approval submittal requirements specified in § 105.40. Specifically, this relaxation will permit individuals wishing to apply with PHMSA to be an approved designated agent to submit their applications either by standard mail or electronic mail. Currently, the HMR only permits submission through standard mail. This change will result in a decrease in duplicate hard copies submitted to PHMSA as well as a decrease in the processing time for such applications.

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

This proposed rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $141,300,000 or more to either state, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of the rule.

The National Environmental Policy Act, 42 U.S.C. 4321-4375, requires federal agencies to analyze proposed actions to determine whether the action will have a significant impact on the human environment. The Council on Environmental Quality (CEQ) regulations require federal agencies to conduct an environmental review considering: (1) The need for the proposed action; (2) alternatives to the proposed action; (3) probable environmental impacts of the proposed action and alternatives; and (4) the agencies and persons consulted during the consideration process. PHMSA proposes to make miscellaneous amendments to the HMR based on PHMSA's own initiatives including a review of the HMR, previous letters of interpretation and special permits we issued. The proposed amendments are intended to update, clarify, or provide relief from certain existing regulatory requirements to promote safer transportation practices; eliminate unnecessary regulatory requirements; facilitate international commerce; and make these requirements easier to understand.

Description of Action:

Transportation of hazardous materials in commerce is subject to requirements in the HMR, issued under authority of Federal hazardous materials transportation law, codified at 49 U.S.C. 5001 et seq. To facilitate the safe and efficient transportation of hazardous materials in international commerce, the HMR provide that both domestic and international shipments of hazardous materials may be offered for transportation and transported under provisions of the international regulations.

Proposed Amendments to the HMR:

In this NPRM, PHMSA is proposing to:

• Permit designated agents for non-residents to submit designation requests by electronic mail in addition to traditional mail.

• Add the TSI “Molten Sulphur Rail Tank Car Guidance” document to the list of informational materials not requiring incorporation by reference in § 171.7.

• Revise the § 172.101 HMT to correct an error in the transportation requirements for entries listed under the proper shipping name, “Hydrazine Dicarbonic Acid Diazide.”

• Revise the § 172.101 HMT to remove the entry for “Zinc ethyl, see Diethylzinc” which was superseded by proper shipping names adopted in a previous rulemaking.

• Revise special provision 138 in § 172.102 to clarify the lead solubility calculation utilized for classification of material as a Marine Pollutant.

• Remove references to special provisions B72 and B74 in § 172.102. These special provisions were removed in a previous rulemaking, however, twelve entries in the § 172.101 HMT still contain references to these special provisions.

• Revise the shipping paper requirements in § 172.203(e) to permit the phrase “Residue last contained” to be placed before or after the basic shipping description sequence, or for rail shipment, directly preceding the proper shipping name in the basic shipping description sequence.

• Update the training recordkeeping requirements in § 172.704 to specify that a hazardous materials (hazmat) employer must make hazmat employee training records available upon request, at a reasonable time and location, to an authorized official of the Department of Transportation or the Department of Homeland Security.

• Clarify that the material of trade exception in § 173.6 may be used when transporting Division 2.1 and 2.2 gases in Dewar flasks.

• Clarify the lab pack provisions in § 173.12 pertaining to temperature-controlled materials contained in a lab pack.

• Clarify the exceptions for external emergency self-closing valves on CTMVs in § 173.33(g) to specify that external emergency self-closing valves on MC 338 cargo tanks containing cryogenic liquids may remain open during transportation.

• Correct an inadvertent deletion of the § 173.62 packaging requirements for explosives.

• Incorporate DOT SP-13556 into § 173.134, to authorize the transportation by motor vehicle of certain regulated medical wastes, designated as sharps, in non-DOT specification containers fitted into wheeled racks.

• Revise the requirements for cargo air transport of alcoholic beverages § 173.150 to harmonize with the ICAO TI.

• Clarify the exceptions in § 173.159a for non-spillable batteries secured to skids or pallets.

• Revise § 178.2(c) to clarify the applicability of the notification requirements for packages containing residues.

• Clarify the inspection record requirements in § 180.416 for discharge systems of cargo tanks transporting liquefied compressed gases.

• Clarify the requirements for the Flame Penetration Resistance test required for chemical oxygen generators and certain compressed gases in Appendix E to Part 178.

Alternatives Considered:

Alternative (1):Do nothing.

Our goal is to update, clarify and provide relief from certain existing regulatory requirements to promote safer transportation practices, eliminate unnecessary regulatory requirements, and facilitate international commerce. We rejected the do-nothing alternative.

Alternative (2):Go forward with the proposed amendments to the HMR in this NPRM.

This is the selected alternative.

Hazardous materials are substances that may pose a threat to public safety or the environment during transportation because of their physical, chemical, or nuclear properties. The hazardous materials regulatory system is a risk management system that is prevention oriented and focused on identifying a safety hazard and reducing the probability and quantity of a hazardous material release. Hazardous materials are categorized by hazard analysis and experience into hazard classes and packing groups. The regulations require each shipper to classify a material in accordance with these hazard classes and packing groups. The process of classifying a hazardous material is itself a form of hazard analysis. Further, the regulations require the shipper to communicate a material's hazards through use of the hazard class, packing group, and proper shipping name on the shipping paper and the use of labels on packages and placards on transport vehicles. Thus, the shipping paper, labels, and placards communicate the most significant findings of the shipper's hazard analysis. A hazardous material is assigned to one of three packing groups based upon its degree of hazard, from a high hazard, Packing Group I to a lowhazard, Packing Group III material. The quality, damage resistance, and performance standards of the packaging in each packing group are appropriate for the hazards of the material transported.

Under the HMR, hazardous materials are transported by aircraft, vessel, rail, and highway. The potential for environmental damage or contamination exists when packages of hazardous materials are involved in accidents or en route incidents resulting from cargo shifts, valve failures, package failures, loading, unloading, collisions, handling problems, or deliberate sabotage. The release of hazardous materials can cause the loss of ecological resources (e.g. wildlife habitats) and the contamination of air, aquatic environments, and soil. Contamination of soil can lead to the contamination of ground water. Compliance with the HMR substantially reduces the possibility of accidental release of hazardous materials.

PHMSA proposes to make miscellaneous amendments to the HMR based on comments from the regulated community and PHMSA's own rulemaking initiatives. The proposed amendments are intended to update, clarify, or provide relief from certain existing regulatory requirements to promote safer transportation practices; eliminate unnecessary regulatory requirements; facilitate international commerce; and make these requirements easier to understand. These proposed clarifications of regulatory requirements, if adopted, will foster a greater level of compliance with the HMR and thus, diminished levels of hazardous materials transportation incidents affecting the health and safety of the environment. Therefore, the net environmental impact of this proposal will be positive.

Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in theFederal Registerpublished on April 11, 2000 (65 FR 19477), or you may visithttp://www.regulations.gov/search/footer/privacyanduse.jsp.

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards are not considered unnecessary obstacles to the foreign commerce of the United States, so long as the standards have a legitimate domestic objective, such as the protection of safety, and do not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. PHMSA notes the purpose is to ensure the safety of the American public, and has assessed the effects of this rule to ensure that it does not exclude imports that meet this objective. As a result, this proposed rule is not considered as creating an unnecessary obstacle to foreign commerce.

In consideration of the foregoing, we propose to amend 49 CFR chapter I as follows:

Background

Section 4(b)(3)(A) of the Act (16 U.S.C. 1531et seq.) requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. We are to base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of this finding promptly in theFederal Register.

Our standard for substantial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial scientific and commercial information was presented, we are required to promptly conduct a species status review, which we subsequently summarize in our 12-month finding.

On February 12, 2010, we received a petition from the WildEarth Guardians, dated February 12, 2010, requesting that theAliciella formosa(Aztec gilia) be listed as endangered or threatened and that critical habitat be designated under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, as required at 50 CFR 424.14(a). In a July 19, 2010, letter to WildEarth Guardians, we acknowledged receipt of the petition, and reviewed the information presented in the petition and determined that issuing an emergency regulation temporarily listing the species under section 4(b)(7) of the Act was not warranted. This finding addresses the petition.

For the purposes of this document, we will refer toAliciella formosaby its common name, Aztec gilia.

In September 1985, we published our candidate notice of review (CNOR) classifying Aztec gilia (identified asGilia formosa) as a Category 2 species (50 FR 39526, September 27, 1985). Category 2 status included those taxa for which information in the Service's possession indicated that a proposed listing rule was possibly appropriate, but for which sufficient data on biological vulnerability and threats were not available to support a proposed rule. In the February 1990 CNOR, we retained a Category 2 designation for Aztec gilia (again identified asGilia formosa) (55 FR 6184; February 21, 1990); in the September 1993 CNOR, we announced that the status of Aztec gilia (again identified asGilia formosa) was “declining,” but was still considered a Category 2 species (58 FR 51144, September 30, 1993).

In the 1996 CNOR, we announced a revised list of animal and plant taxa that were regarded as candidates for possible addition to the Lists of Endangered and Threatened Wildlife and Plants (61 FR 7596, February 28, 1996). The revised candidate list included only former Category 1 species. All former Category 2 species were dropped from the list in order to reduce confusion about the conservation status of these species, and to clarify that the Service no longer regarded these species as candidates for listing. Because Aztec gilia was a Category 2 species, it was removed from the candidate list in 1996, and was no longer recognized as a candidate species.

The Aztec gilia (originallyGilia formosa) type specimen was collected prior to 1907, near Aztec, New Mexico (San Juan County), and was subsequently described by E. L. Greene in 1907 (Greene 1907, p. 119; Martin and Hutchins 1980, p. 1584; Kartesz 1994, p. 468). Additional collections are at the U.S. National Herbarium and the Missouri Botanical Gardens (Knight and Cully 1986, p. 5). In 1998,G. formosawas reclassified toAliciella formosa(family Polemoniaceae) (Porter 1998, p. 33).

Aztec gilia is a monocarpic herbaceous perennial (a plant that lives for more than 2 years, flowers, sets seed, and then dies) (Porter 1998, p. 33). The plant is up to 30 centimeters (cm) (12 inches (in)) tall. Older plants are woody at the base, are glandular (sticky), and have numerous branched stems with long, sharp-pointed, smooth-edged leaves that are about 25 millimeters (mm) (1.0 in) tall. Flowers are up to 22 mm (0.87 in) long, pinkish-purple, and trumpet-shaped. Aztec gilia blooms from late April through May and is distinguished from several closely related species by its perennial nature, woody base of older plants, entire leaves, and pinkish-purple flowers (New Mexico Native Plants Protection Advisory Committee (NMNPPAC) 1984, p. 218; Knight and Cully 1986, p. 7; Porter 1998, p. 33).

Aztec gilia is only known to occur in San Juan County, near the towns of Aztec and Bloomfield, New Mexico (Knight and Cully 1986, p. 8). This species appears to be found only insandy clay soils of the Animas Formation, specifically the Nacimiento Formation, mostly on slopes, benches, and summits of gently rolling hills between 1,740 to 1,890 meters (m) (5,800 to 6,200 feet (ft)) (Knight and Cully 1986, p. 17; Porter 1998, p. 33). The Nacimiento Formation (the southern extension of the Animas Formation of the San Juan Basin) is made up of black and gray shales, with occasional channel sandstone beds (Fassett 1974, p. 229).

Aztec gilia is commonly associated withErigeron bistiensis(Bisti fleabane) andSclerocactus cloveraessp.brackii(Brack's cactus) (Sivinski 1997, pp. 10-12; New Mexico Rare Plant Technical Council (NMRPTC) 2005, p. 2). General habitat associates found in areas inhabited by this species includeJuniperus osteosperma(Utah juniper),Pinus edulis(Pinyon pine),Purshia tridentata(antelope bitterbrush),Cercocarpus montanus(mountain mahogany),Amelanchier utahensis(Utah serviceberry),Ephedraspp. (Mormon tea),Yucca angustissima(narrowleaf yucca), andAtriplex confertifolia(shadscale saltbush) (Sivinski 1997, pp. 10-12).

The petition provided no specific information on Aztec gilia populations. However, the Service's files reflect that Aztec gilia is known from more than 75 populations, ranging in size from a few dozen to thousands of plants (Knight and Cully 1986, p. 18; The Nature Conservancy 1990, p. A-3; DeBruin 1995, p. 6; Ecosphere Environmental Services (Ecosphere) 1995, p. 15; 1997, p. 3; Sivinski 1997, pp. 10-12; Marronet al.2008, p. 26). Surveys estimated about 15,000 plants occur on Bureau of Land Management (BLM) lands, but several surveys only counted the number of populations, indicating that the total number of plants on BLM lands may be higher than 15,000. There are 5 populations of approximately 1,400 total plants on lands owned by the State of New Mexico and 14 populations (unknown number of plants) on private lands (Knight and Cully 1986, p. 20; Sivinski 1997, pp. 10-12). Finally, several Aztec gilia populations are known to occur on Navajo Nation lands in Kutz Canyon (mixed land ownership with BLM), but the number of plants is unknown (Navajo Nation 2008, p. 3; Navajo Natural Heritage Program 2008, p. 89). The petitioner provides no information indicating that any of these populations are declining or have been extirpated. In fact, Knight and Cully (1986, p. 16) reported no populations have ever been extirpated. We do not have any additional information on abundance or long-term monitoring data from populations throughout the range of the species.

In addition to the known populations described above, there appears to be a large amount of potentially suitable habitat unoccupied by the species (Knight and Cully 1986, pp. 16, 23; Sivinski 1997, p. 35). In 1990, the BLM contracted with the Nature Conservancy to conduct survey work within the Farmington Resource Area for several federally listed and sensitive species, including the Aztec gilia. This survey concluded that approximately 5,700 hectares (ha) (14,000 acres (ac)) of public land support thousands of individual plants (The Nature Conservancy 1990, P. A-3). An additional 51,000 ha (125,000 ac) of BLM lands were described as unoccupied potential habitat (The Nature Conservancy 1990, p. A-3). We have no information on the amount of Aztec gilia habitat outside of BLM lands.

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations at 50 CFR 424 set forth the procedures for adding species to, or removing a species from, the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act:

(A) The present or threatened destruction, modification, or curtailment of its habitat or range;

(B) Overutilization for commercial, recreational, scientific, or educational purposes;

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

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

In considering what factors might constitute threats, we must look beyond the mere exposure of the species to the factor to determine whether the species responds to the factor in a way that causes actual impacts to the species. If there is exposure to a factor, but no response, or only a positive response, that factor is not a threat. If there is exposure and the species responds negatively, the factor may be a threat and we then attempt to determine how significant a threat it is. If the threat is significant, it may drive or contribute to the risk of extinction of the species such that the species may warrant listing as endangered or threatened as those terms are defined by the Act. This does not necessarily require empirical proof of a threat. The combination of exposure and some corroborating evidence of how the species is likely impacted could suffice. The mere identification of factors that could impact a species negatively may not be sufficient to compel a finding that listing may be warranted. The information must contain evidence sufficient to suggest that these factors may be operative threats that act on the species to the point that the species may meet the definition of endangered or threatened under the Act.

In making this 90-day finding, we evaluated whether information on threats to the Aztec gilia, as presented in the petition and other information readily available in our files, is substantial, thereby indicating that the petitioned action may be warranted. Our evaluation of this information is presented below.

The petition states that Aztec gilia and its habitat are threatened by the following: Oil and gas development; surface mining; road construction and use; off-road vehicle (ORV) use; electric transmission line installation; livestock grazing; human population growth; and BLM land uses. Each of these topics is discussed below.

The petitioner claims that extensive oil and gas development has occurred within the range of Aztec gilia in the San Juan Basin (WildEarth Guardians 2010, pp. 9-12, citing Engleret al.2001; BLM 2003; GO-TECH 2010a-e). The petitioner states that oil and gas extraction causes destruction and degradation of Aztec gilia habitat, and also kills plants. Moreover, the petitioner contends that associated roads, well pads, pipelines, waste pits, power lines, railroad tracks, and other infrastructure used in oil and gas operations cause significant habitat disturbance (WildEarth Guardians 2010, p. 10, citing Welleret al.2002). The petitioner claims that, as of 2010, 18,000 active oil and gas wells were located within the San Juan Basin. The petitioner also claims that there are an additional 9,942 wells authorized over the next 20 years within areas known to be occupied by Aztec gilia (WildEarth Guardians 2010, pp. 9-10, citing BLM 2003). To support these additional wells, the petitioner indicates that 5,794 kilometers (km) (3,600 miles (mi)) of new gas pipeline will have a disturbance footprint of at least 4,709 ha (11,636 ac) (WildEarth Guardians 2010, p. 9, citing Engleret al.2001).

In reference to the petitioner's claims, the factual description of oil and gas development presented appears plausible. However, the petitioner provided no specific data to support that oil and gas development might impact Aztec gilia populations. Information in our files indicates that some of the oil and gas wells likely overlap with Aztec gilia habitat, but the petition did not contain, nor do we have, any information on the extent or degree of occupied habitat that has been impacted or may be impacted. The petition states that, as of 2010, there are 18,000 active oil and gas wells located in the San Juan Basin. However, the petition does not address how much Aztec gilia habitat or how many populations may have been affected by these oil and gas wells. Habitat for Aztec gilia does not encompass the entirety of the San Juan Basin.

Despite the claim that destruction and degradation of Aztec gilia habitat has occurred from oil and gas activities, the petitioner does not provide citations or other substantial information to support their assertions regarding the present or threatened destruction, modification, or curtailment of habitat or range from oil and gas activities. On the contrary, the petitioner cites that this plant tolerates and recovers from some habitat disturbance (NatureServe 2009). Similarly, Sivinski (1997, p. 11) found a re-establishing occurrence of about 100 plants on a gas well pad and several other healthy populations near well pads and roads. Our files also contain BLM reports that summarize 4 years of monitoring (1991-1995) indicating a significant overall increase in the abundance of Aztec gilia, including those plots associated with oil and gas extraction activities (BLM 1996, pp. 6-8; DeBruin 1995, entire). The BLM concluded that oil and gas, among other activities, did not cause the extirpation of plants, but populations associated with oil and gas activities contained younger individuals (seedlings and juveniles) (DeBruin 1995, p. 8; BLM 1996, pp. 6-8). This information illustrates that the species may be tolerant of disturbance. Based on this review, we find that the information provided in the petition, as well as other information readily available in our files, does not present substantial scientific or commercial information indicating that oil and gas development constitutes a threat to the destruction, modification, or curtailment of Aztec gilia's habitat or range.

The petitioner claims that surface mining has occurred within the range of Aztec gilia in the San Juan Basin (WildEarth Guardians 2010, pp. 2 and 18). The petitioner states that surface mining causes destruction and degradation of Aztec gilia habitat, and causes direct plant mortality. The BLM's 2003 Resource Management Plan (RMP) indicates that surface mining, specifically coal leases, will continue to be managed as specified in their 1988 RMP, with new coal leases considered on a case-by-case basis (BLM 2003, p. 8). The extent of surface mining leases that overlap with occupied Aztec gilia habitat was not provided by the petitioner nor do we have any readily available information on the extent or degree of occupied habitat that has been or may be impacted by surface mining activities.

In reference to the petitioner's claims, the factual description of surface mining presented appears plausible. The petitioner cites the BLM's 2003 RMP in the discussion of multiple use activities, which includes surface mining, on BLM land; however, the petitioner provided no specific data to support how surface mining might impact Aztec gilia populations. Despite the claim that surface mining could detrimentally affect Aztec gilia habitat, the petitioner does not provide citations or other substantial information to support their assertions regarding the present or threatened destruction, modification, or curtailment of habitat or range from surface mining. Therefore, we find that the information provided in the petition, as well as other information readily available in our files, does not present substantial scientific or commercial information indicating that surface mining constitutes a threat to the destruction, modification, or curtailment of Aztec gilia's habitat or range.

The petitioner states that road construction and use can detrimentally impact imperiled plants, including Aztec gilia, through soil compaction, soil erosion, spread of noxious weeds, heavy metals, and dust pollution, which can alter water flows, destabilize slopes, and offer increased access by ORVs (WildEarth Guardians 2010, p. 14, citing Forman and Alexander 1998; Trombulak and Frissell 2000; Glebard and Belknap 2003). The petitioner asserts that road density is high in the Aztec gilia's range and is increasing due to oil and gas activities (WildEarth Guardians 2010, p. 15, citing BLM 2008b). The petition does not define or quantify the parameters used to describe road density as “high”. The petitioner claims that one of the objectives in the 2003 BLM RMP is to improve existing roads, and that the maintenance activities associated with road improvement would increase disturbance to adjacent areas (WildEarth Guardians 2010, p. 14). The petitioner also asserts that the human populations in the towns of Farmington, Bloomfield, and Aztec, New Mexico, increased approximately 9 to 13 percent between the years 2000 and 2008, which may suggest that more roads will be constructed (WildEarth Guardians 2010, p. 14). The petitioner provides one example of a proposed road construction project within the City of Aztec, where 16 Aztec gilia plants might potentially be destroyed incidentally (WildEarth Guardians 2010, p. 14, citing Marronet al.2008), but no further information was provided by the petitioner or found in our files.

In reference to the petitioner's claims concerning impacts from road construction and use, the factual description presented appears plausible. However, we reviewed citations provided by the petitioner and assertions regarding road construction and use, and find that the petitioner's statements concerning detrimental impacts from road construction and use to be unsubstantiated. The petition fails to describe how and to what extent roads may be affecting the species. There is no information with regards to whether the proposed City of Aztec road was built or if any plants were impacted. Nonetheless, the majority of habitat is on Federal land, and the potential loss of plants on City of Aztec lands is likely not significant to the overall population. On BLM lands, surveys are required prior to project implementation (see discussion under Factor D, below). Under the BLM's Special Status Species policy, if Aztec gilia individuals are discovered on BLM lands, the agency requires that the project proponent minimize or avoid impacts. Therefore, we find that the information provided in the petition, as well as other information readily available in our files, does not present substantial scientific or commercial information indicating that road use and construction constitutes a threat to thedestruction, modification, or curtailment of Aztec gilia's habitat or range.

The petitioner asserts that ORV use is detrimental to native vegetation and imperiled plants (Stokowski and Lapointe 2000; WildEarth Guardians 2010, p. 17 citing BLM 2006) and that the amount of ORV use on the Farmington Field Office BLM lands is increasing (BLM 2003). The petitioner claims that ORVs can access BLM lands that are occupied by Aztec gilia, or contain potentially suitable habitat, and that ORVs could run over and kill plants (WildEarth Guardians 2010, pp. 17, 19). Further, the petitioner believes that ORV use is not limited to designated trails within a large, unquantified area of potentially suitable Aztec gilia habitat (WildEarth Guardians 2010, p. 17). The petitioner suggests that the number of juvenile Aztec gilia is reduced in these areas with high ORV use (WildEarth Guardians 2010, p. 19, citing NatureServe 2009).

In reference to the petitioner's claim concerning impacts from ORVs, the factual description of impacts from ORV use presented appears plausible. Information in the petition discusses that ORV use can impact native vegetation and imperiled plants, in general (Stokowsi and Lapointe 2000, p. 3; BLM 2006, p. 58).

No information was presented indicating that ORV use is detrimental to Aztec gilia. ORV users can likely access areas with Aztec gilia populations and potentially suitable habitat (BLM 2003, pp. 3, 7; BLM 2006, pp. 42, 66). We also reviewed NatureServe (2009, p. 2) but could not substantiate the petitioner's claim that higher ORV use resulted in reduced juvenile Aztec gilia plants. In fact, DeBruin (1995, p. 7) found that plots disturbed by ORV use had the greatest increase in new recruits of Aztec gilia. Nevertheless, we acknowledge that ORVs partially damaged one monitoring plot of Aztec gilia, but note that the majority of the damage is likely due to a combination of drought and pipeline construction (Floyd-Hanna 1993, p. 8). We believe that this level of impact may not be significant to the species, because it did not result in the extirpation of Aztec gilia at this location. Moreover, Sivinski (1997, p. 11) reported healthy populations of Aztec gilia adjacent to an area heavily impacted by ORV traffic and in an area with a single gas well pad, road, and a motorcycle trail through the middle of the species' habitat. Based on this review, we find that the information provided in the petition, as well as other information readily available in our files, does not present substantial scientific or commercial information indicating that ORV use constitutes a threat to the destruction, modification, or curtailment of Aztec gilia's habitat or range.

The petitioner claims that in 2008, the city of Farmington, New Mexico, and their electric company, Kinder Morgan, proposed to construct a 14-mile electric transmission line that had known occurrences of Aztec gilia within the project area (WildEarth Guardians 2010, p. 17, citing City of Farmington 2008). The transmission line right-of-way is mostly on Federal land administered by the BLM with a few sections on State and private land (City of Farmington 2008).

In reference to the petitioner's claim concerning impacts from an electric transmission line installation by the City of Farmington, New Mexico, the factual information presented appears plausible. No information was presented that indicates there were direct impacts on plants, nor is there any documentation of direct or indirect impacts to Aztec gilia from this project in our files. We reviewed information provided by the petitioner and found that 10 Aztec gilia plants were located within the preliminary right-of-way for the project; however, the final design avoided all plants (City of Farmington 2008, p. 32). Under the BLM's 2003 RMP, if Aztec gilia individuals are discovered on BLM lands, the agency requires that the project proponent minimize or avoid impacts (see discussion under Factor D, below) (City of Farmington 2008, Exhibit A, p. 5). Also, readily available information in our files indicates that other transmission line projects have similarly avoided damaging or destroying Aztec gilia plants. In 1987, Aztec gilia plants were also avoided along a proposed transmission line associated with the Navajo Dam project (City of Farmington 1987, p. 1). Additionally, Farmington Electric Utility Services, in coordination with the BLM, also avoided 21 populations with approximately 550 plants near the Potter Canyon compressor station electric utility powerline (Ecosphere 1997, p. 1). For these reasons, we find that the information provided in the petition, as well as other information readily available in our files, does not present substantial scientific or commercial information indicating that electric transmission line construction constitutes a threat to the destruction, modification, or curtailment of Aztec gilia's habitat or range.

The petitioner claims that domestic livestock grazing occurs within Aztec gilia's habitat on private, Navajo Nation, New Mexico State, and BLM lands (WildEarth Guardians 2010, p. 17). The petitioner asserts that the BLM disregarded livestock grazing as a potential threat in an environmental assessment for two grazing allotments within areas that potentially contain suitable habitat for Aztec gilia, because neither plant surveys nor mitigation measures were mentioned in that assessment (WildEarth Guardians 2010, p. 17, citing BLM 2009; WildEarth Guardians 2010a, b). The petitioner believes that livestock grazing spreads noxious weeds and invasive plants that could alter the habitat for Aztec gilia (WildEarth Guardians 2010, p. 17, citing Fleischner 1994; Belsky and Gelbard 2000; DiTomaso 2000; Parkeret al.2006). The petitioner further claims that grazing compacts soil, increases erosion, and results in soil degradation. Moreover, the petitioner asserts that livestock trample and eat Aztec gilia.

In reference to the petitioner's claim concerning impacts from domestic livestock grazing, the factual information presented appears plausible. The petitioner states that domestic livestock grazing occurs on private, BLM, New Mexico State, and Navajo Nation lands. The petitioner states that grazing can destroy and degrade Aztec gilia habitat by promoting the spread of noxious weeds and invasive plants that could outcompete the Aztec gilia and by trampling the soil, leading to compaction and erosion of Aztec gilia habitat (WildEarth Guardians 2010, p. 17). In addition, Aztec gilia plants may be trampled and eaten by livestock.

However, the citations listed for this statement do not involve New Mexico private or State land, or BLM or Navajo Nation land, further, they are not citations specific to Aztec gilia (WildEarth Guardians 2010, p. 17, citing Fleischner 1994; Belsky and Gelbard 2000; DiTomaso 2000; Parkeret al. 2006). Likewise, we have no substantial readily available information in our files regarding grazing as a possible threat to Aztec gilia, or whether grazing co-occurs with the species on New Mexico State or private lands. Additionally, DeBruin (1995, p. 7) monitored Aztec gilia over 4 years and found the species responded positively (i.e.,increased in number) when disturbed by livestock. Finally, we have no readily available information in our files regarding the threat to Aztec gilia and its habitat from noxious weeds and invasive species that may be spread by livestock grazing. The BLM's 2003 RMP outlines that the goals of the Livestock Management program include promoting native plant health, and soil stability, and providing the basic requirements of rangeland ecological sites. Based on this review, we find that the information provided in the petition, as well as other information readily available in our files, does not present substantial scientific or commercial information indicating that the livestock grazing, and the possible spread of noxious weeds and invasive species constitutes a threat to the destruction, modification, or curtailment of Aztec gilia's habitat or range.

The petitioner asserts that human population growth of Aztec, Bloomfield, and Farmington, New Mexico, will increase commercial and residential construction, farming, and recreational impacts and will result in a threat to Aztec gilia and its habitat (WildEarth Guardians 2010, p. 18).

The petitioner provided no specific information, nor do we have any readily available information in our files, to substantiate the extent of human population growth and its potential impact on Aztec gilia. Furthermore, the petitioner provided no specific information, nor do we have any readily available information in our files, to substantiate if human population growth would result in any increase in commercial and residential construction, farming, or recreational impacts and their potential impact on Aztec gilia. Therefore, we find that the information provided in the petition, as well as other information readily available in our files, does not present substantial scientific or commercial information indicating that human population growth constitutes a threat to the destruction, modification, or curtailment of Aztec gilia's habitat or range.

The petitioner asserts that a variety of activities occur on BLM land that could detrimentally affect Aztec gilia habitat including mining, motorized and non-motorized vehicle use on roads and trails, hiking, horseback riding, camping, and infrastructure developments such as picnic ground and camping areas (WildEarth Guardians 2010, p. 18).

In reference to the petitioner's claim concerning impacts from other BLM land uses, the factual information presented appears plausible. The petitioner cites the BLM's 2003 RMP in the discussion of multiple use activities on BLM land; however, the petitioner provided no specific data to support how these other land uses might impact Aztec gilia populations. Despite the claim that these other land uses could detrimentally affect Aztec gilia habitat, the petitioner does not provide citations or other substantial information to support their assertions regarding the present or threatened destruction, modification, or curtailment of habitat or range from other BLM land uses. Therefore, we find that the information provided in the petition, as well as other information readily available in our files, does not present substantial scientific or commercial information indicating that other BLM land uses constitute a threat to the destruction, modification, or curtailment of Aztec gilia's habitat or range.

In summary, on the basis of a review of the information provided by the petitioner and readily available in our files, we determined that the petition does not present substantial information to indicate that listing Aztec gilia may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range by any threats, including oil and gas development, surface mining, road construction and use, off-road vehicles, electric transmission line construction, livestock grazing, human population growth, or other BLM land uses.

The petitioner cites that plants and seeds of Aztec gilia have been collected in the past by permit for mitigation efforts. However, the petioner does characterize the collection of Aztec gilia plants and seeds for mitigation purposes as overutilization (WildEarth Guardians 2010, p. 19).

Readily available information in our files confirms that plants and seeds have been collected under a BLM permit (Floyd-Hanna 1994, entire; Ecosphere 1996, entire; BLM 1996, p. 5; Reeves 1996, entire; Murray 2006, p. 1). We do not know how many seeds were collected on BLM lands, thus we have no evidence of possible overutilization impacts to the species resulting from these activities. In addition, based on Service experience, the amount of seeds and plants collected for mitigation purposes is usually collected in a sustainable fashion so as not to impact the extant populations. In summary, on the basis of a review of the information provided by the petitioner and readily available in our files, we determined that the petition does not present substantial information to indicate that listing Aztec gilia may be warranted due to overutilization for commercial, recreational, scientific, or educational purposes. Therefore, we have determined that the petition does not present substantial information to indicate that listing may be warranted under this factor.

The petitioner provides no information pertaining to Factor C.

Information in our files indicates that moth larvae (family Gelechiidae) may at times bore into the lower, woody caudex of Aztec gilia, contributing to mortality (Porter and Floyd 1992, p. 246; Floyd-Hanna 1993, p. 8). However, we have no information indicating that any populations have been significantly affected by moth larvae. We have no information of any other disease or predation potentially affecting the species. In summary, on the basis of a review of the information provided by the petitioner and readily available in our files, we determined that the petition does not present substantial information to indicate that listing Aztec gilia may be warranted due to disease or predation. Therefore, we have determined that the petition does not present substantial information toindicate that listing may be warranted under this factor.

The petitioner asserts that Aztec gilia is not adequately protected by Federal or State laws or policies to prevent its endangerment or extinction. The petition reports that Aztec gilia is listed as endangered by the State of New Mexico; however, the petitioner claims that this designation provides little regulatory protection for the habitat of the species (WildEarth Guardians 2010, p. 18, citing New Mexico Energy, Minerals, and Natural Resources Department 1995). The petitioner states that the Navajo Nation lists the species as endangered (WildEarth Guardians 2010, p. 18, citing Navajo Nation 2008). This information is incorrect. The Navajo Nation has this species listed as G4, which is defined as any species or subspecies for which the Navajo Nation Department of Fish and Wildlife (NNDFWL) does not currently have sufficient information to support listing the species as G2 or G3 (endangered), but is actively seeking information to determine if this species warrants further protection on the Navajo Nation. The petition also states that NatureServe classifies this species as G2, globally imperiled; N2, nationally imperiled; S1 critically imperiled in the Navajo Nation; and S1, imperiled in the State of New Mexico (WildEarth Guardians 2010, p. 18, citing NatureServe 2009). The G2 status is defined as imperiled because it is a very narrow endemic dependent on soil type and has a high risk for extinction. The N2 status defined as imperiled due to a restricted range and very few populations; with a high risk for extirpation. The S1 status is critically imperiled because of extreme rarity or because of some factor(s), such as very steep declines, making it especially vulnerable to extirpation. The petition reports that the plant was previously a Category 2 species, indicating that the Service believed that listing the species may be appropriate; now Aztec gilia is considered a species of concern by the Service (WildEarth Guardians 2010, p. 18). The petitioner cites that Aztec gilia is also a BLM sensitive species and special management species; however, the petitioner further claims that these designations provide no protection or mitigation for impacts (WildEarth Guardians 2010, pp. 18-19, citing BLM 2009).

Finally, the petitioner states that inadequate regulatory protection exists for an area managed by the BLM and known to be occupied by Aztec gilia. That area, designated as the Aztec Gilia Area of Environmental Concern (ACEC) is approximately 2,833 ha (7,000 ac) in size; however, the BLM rescinded the designation in 2003 (WildEarth Guardians 2010, pp. 9-10). The petitioner claims that oil and gas development, of up to 153 well sites, could occur within the former ACEC. Moreover, an additional 395 well sites could potentially be developed within Kutz Canyon on the Navajo Nation, another area where Aztec gilia occurs (WildEarth Guardians 2010, pp. 9-10, citing BLM 2003).

In reference to the petitioner's claim concerning the inadequacy of existing regulatory mechanisms, the information is not factually correct, particularly related to the statements regarding the Navajo Nation's status of the species, as explained above. The information in the petition and currently available in our files does not indicate that Aztec gilia is threatened by the inadequacy of existing regulatory mechanisms. This petition identifies risk classifications made by other organizations such as NatureServe or State Agencies, as evidence of extinction risk for a species. Risk classifications by other organizations or made under other Federal or State statutes may be informative, but the classification alone does not provide the rationale for a positive 90-day finding under the Act. For example, as explained by NatureServe, their assessments of a species' conservation status do “not constitute a recommendation by NatureServe for listing under the U.S. Endangered Species Act” because NatureServe assessments “have different criteria, evidence requirements, purposes and taxonomic coverage than government lists of endangered and threatened species, and therefore these two types of lists should not be expected to coincide” (http://www.natureserve.org/prodServices/statusAssessment.jsp).

We find that Aztec gilia receives no protection from the NatureServe designations because these lists only serve to notify the public of the species' status and do not require any conservation or management actions or provide any regulatory authority for conservation of species.

The State of New Mexico lists Aztec gilia as endangered. As such, Aztec gilia is protected from unauthorized collection, transport, or sale by the New Mexico Endangered Plant Species Act, 75-6-1 NMSA 1978. This law prohibits the taking, possession, transportation and exportation, selling or offering for sale any listed plant species. Listed species can only be collected under permit from the State of New Mexico for scientific studies and impact mitigation; however, this law does not provide any protection for Aztec gilia habitat. There are no statutory requirements under the jurisdiction of the State of New Mexico that serve as an effective regulatory mechanism for reducing or eliminating the threats that may adversely affect Aztec gilia habitat. There are also no requirements under the New Mexico State statutes to develop a recovery plan that will restore and protect existing habitat for the species.

The petitioner incorrectly claims that Aztec gilia is listed as an endangered species on the Navajo Nation. The species is classified as a G4 species, which means that the NNDFWL does not currently have sufficient information to support it being listed as an endangered species (Navajo Nation 2008, pp. 1, 3). As such, the NNDFWL actively seeks information on this species to determine if it warrants protection. Because Aztec gilia is listed as a G4 species, there is no regulatory protection provided to the species on the Navajo Nation.

The ACEC was established in the BLM's Farmington Field Office 1988 RMP, but was rescinded in 2003, when the RMP was revised (2003 RMP). During the revision, the BLM determined that lands within the ACEC were already leased for oil and gas exploration prior to the 1988 designation and the ACEC contained poor quality habitat for Aztec gilia (DeBruin 1991, entire; DeBruin 1995, pp. 10-11; BLM 2003, p. 3). The petition implicitly relies on a general assumption that rescinding the ACEC would be detrimental to the species, but does not include any information regarding the improved protections from the species-specific measures provided by the 2003 RMP.

Nearly 70 percent (52 of 75) of the Aztec gilia occurrences are completely or partially on Federal land, and are therefore protected under the 2003 RMP and the Aztec gilia's status as a BLM special management species. For example, on BLM lands, Aztec gilia is managed as a candidate for Federal listing in order to minimize impacts and preclude listing. As a BLM special management species, all of the protections provided by the pre-2003 ACEC apply. Additionally, the BLM's Special Management Species Policy requires biological surveys prior to project implementation in known orsuitable Aztec gilia habitat. If plants or suitable habitat are found, the pad or pipeline must be relocated and directional drilling can be used as needed. Avoidance is the primary conservation measure; transplanting plants is only used as a last resort. As such, the BLM currently provides protective measures throughout habitat with the potential to support Aztec gilia. Based on our evaluation, we conclude that the 2003 RMP is more protective than the 1988 RMP and previous ACEC designation. The current guidelines under the 2003 RMP will minimize various impacts to Aztec gilia across the San Juan Basin (BLM 2003, pp. 3, 2.32; BLM 2008a, entire). Consequently, the petition fails to present substantial information indicating that the withdrawal of the ACEC designation is a threat. Further, we have no information concerning the potential well sites within the previous ACEC or Kutz Canyon, nor is there any documentation that if these sites were developed the species would be threatened.

The petitioner correctly notes that the Service identifies Aztec gilia as a species of concern (Service 2010). While not a formal legal designation under Service regulations, a species of concern is defined as a taxon for which further biological research and field study are needed to resolve its conservation status or which is considered sensitive, rare, or declining on lists maintained by Natural Heritage Programs, State wildlife agencies, other Federal agencies, or professional and academic scientific societies. Species of concern are identified for planning purposes only, and the title confers no regulatory protection.

The information in the petition and currently available in our files indicates that the existing regulatory mechanisms are providing adequate protection for the species. We find that the petitioner's claim that there are few protections within the range of Aztec gilia does not constitute an argument for inadequacy of existing regulations, because we do not find substantial evidence that there are any threats to Aztec gilia. Based on our evaluation of the information presented in the petition and readily available in our files, we have determined that the petition does not present substantial information to indicate that listing Aztec gilia may be warranted due to the inadequacy of existing regulatory mechanisms.

The petitioner asserts that the following conditions under Factor E threaten Aztec gilia: Mitigation techniques; climate change; and the plant's narrow range. Each of these potential threats is discussed below.

The petitioner asserts there has been difficulty with mitigation efforts involving transplanting or reseeding of Aztec gilia and collection of seeds (WildEarth Guardians 2010, pp. 19-20). The petitioner indicates that Federal agencies generally avoid transplanting for mitigation purposes because they rarely succeed (WildEarth Guardians 2010, p. 19, citing U.S. Army Corp of Engineers 1997).

In reference to the petitioner's claim concerning difficulties with mitigation techniques, the factual information presented appears plausible. Our records indicate that for one project, Aztec gilia was transplanted and monitored from 1990 to 1995 (BLM 1996, pp. 5-6). The transplants had a 5 percent survival rate (Ecosphere 1996, p. 6). Another project in 1991, transplanted 92 Aztec gilia; by 1994, only 5 individuals survived, and by 1996, only 2 individuals survived (BLM 1996, p. 7; Floyd-Hanna 1994, pp. 5-6). As a result of these attempts, the BLM does not consider transplanting to be viable mitigation. We found one reseeding report in our files that summarized Aztec gilia germination efforts in a greenhouse where there was 100 percent mortality before seedlings reached transplantable size (Reeves 1996, entire). Another report demonstrated that seed collection can be difficult in some years (Murray 2006, entire). No specific information was provided or is readily available in our files, to indicate that population size, range, and number of populations are so restricted that the limited success of transplanting, reseeding, or seed collection efforts are detrimental to the species. In addition, the petition did not provide evidence that mitigation techniques may pose a threat to Aztec gilia. Therefore, we find that the information provided in the petition, as well as other information readily available in our files, does not present substantial scientific or commercial information indicating that the petitioned action may be warranted due to concerns about mitigation techniques.

The petitioner claims that, because of its restricted range, Aztec gilia is threatened by climate change predictions of rising temperatures and increased duration of drought (WildEarth Guardians 2010, p. 20, citing Parmesanet al.2000; National Safety Council (NSC) 2003; Intergovernmental Panel on Climate Change (IPCC) 2007; U.S. Climate Change Science Program (CCSP) 2008; Karlet al.2009). The petitioner cites Allen and Breshears (1998), who predict that climate change would cause unprecedented rates of vegetation shifts due to increased warming, especially along boundaries of semi-arid ecosystems (WildEarth Guardians 2010, p. 21). The petitioner states that climate change effects are being tracked in New Mexico, and temperatures are warming at a rate comparable to projections for the next century with continued increases of greenhouse gases (WildEarth Guardians 2010, p. 20, citing Enquist and Gori 2008).

In reference to the petitioner's claim concerning impacts from climate change, the factual information presented appears plausible. The petitioner does not cite any information or publications in support of the claim that there is a substantiated relationship between climate change and the persistence of Aztec gilia. At a global or regional scale, the Service acknowledges that climate change could result in rising temperatures and increased drought periods, based on models and research cited in the petitioner's references (IPCC 2007a, pp. 30, 48; Karlet al.2009, pp. 129-134; NSC 2003, p. 38; Parmesanet al.2000, entire; CCSP 2008, pp. 37-46). The Service also recognizes that vegetation shifts could occur in semi-arid ecosystems as a result of climate change, even though citations provided by the petitioner (Allen and Breshears 1998, entire) discuss forest-woodland ecotones where Aztec gilia does not occur. Enquist and Gori (2008, pp. 4-7) used 30-year climate data from New Mexico to develop trend climatology maps applied to specific conservation areas. Their results indicate that the Colorado Plateau ecoregion in the far northwestern portion of New Mexico, where Aztec gilia does occur, had a climate exposure score in the 78th percentile, which is considered amoderate to high ranking, meaning this ecoregion is more likely to have negative ecological impacts from warming (Enquist and Gori 2008, pp. 20, 32).

We acknowledge that current climate projections indicate that warming in the U.S. Southwest will persist, and may worsen (IPCC 2007b, p. 15; IPCC 2007c, p. 887). However, we find the information presented in the petition and readily available in our files on the subject of climate change to be insufficiently specific to Aztec gilia to be considered substantial. Additionally, no data are available to evaluate whether long-term weather patterns have negatively affected the habitat or population sizes of Aztec gilia. In fact, we are not aware of any Aztec gilia populations that have been extirpated since 1986, nor are we aware of monitoring data to compare population sizes to determine whether there has been a downward trend in the number of plants across the range of the species. Based on these results, we find that the information provided in the petition, as well as other information readily available in our files, does not present substantial scientific or commercial information indicating that the petitioned action may be warranted due to threats from climate change.

The petitioner states that because the Service routinely recognizes small population size and restricted range as increasing the likelihood of extinction, Aztec gilia should be considered particularly vulnerable (WildEarth Guardians 2010, p. 21). The petitioner asserts that the species' limited range indicates vulnerability to weather events, such as drought and storms, suggesting the Service should consider this plant's narrow range a threat to the taxon (WildEarth Guardians 2010, p. 21).

No specific information was provided or is available in our files to indicate that Aztec gilia may be imperiled by its population size or narrow range. The petitioner provides information about generalized threats to other species with limited population size or small geographic ranges, but they are located on islands in the Pacific Ocean and not relevant to Aztec gilia. Therefore, we find that the information provided in the petition, as well as other information readily available in our files, does not present substantial scientific or commercial information indicating that the petitioned action may be warranted due to concerns about small population sizes and a narrow range.

The petition does not present substantial information on whether oil and gas activities, surface mining, road construction and use, off-road vehicle use, electric transmission line construction, domestic livestock grazing, human population growth, other BLM land uses, inadequate regulatory mechanisms, limited ability to reseed or transplant, climate change, small population size, or a restricted range may threaten Aztec gilia populations and their habitat. Even though Aztec gilia and its habitat may be exposed to the factors listed above, this does not necessarily mean that the species may be threatened by those factors. We found very few negative impacts to the plant resulting, or documented, from the potential threats cited in the petition or in our review of information readily available in our files. The petitioner cites generalized information about potential impacts that can occur due to these situations and stressors. Little information is presented in the petition regarding the magnitude of potential impacts on the species, or whether the potential impacts may have population-level effects. The loss of a few individuals does not necessarily mean that the species may be in danger of extinction. Our review of the readily available information indicates that the species appears to be maintaining its presence in all known locations throughout its range.

In summary, we find no information to suggest that threats are acting on Aztec gilia such that the species may be in danger of extinction now or in the foreseeable future. On the basis of our determination under section 4(b)(3)(A) of the Act, we conclude that the petition does not present substantial scientific or commercial information to indicate that listing Aztec gilia under the Act as endangered or threatened may be warranted at this time.

Although we will not review the status of the species at this time, we encourage interested parties to continue to gather data that will assist with the conservation of Aztec gilia. If you wish to provide information regarding Aztec gilia, you may submit your information or materials to the Field Supervisor/Listing Coordinator, New Mexico Ecological Services Field Office, U.S. Fish and Wildlife Service (seeADDRESSESsection, above), at any time.

A complete list of all references cited in this finding is available upon request from the New Mexico Ecological Services Field Office (seeADDRESSESsection, above).

The primary authors of this rule are the staff members of the New Mexico Ecological Services Office (seeFOR FURTHER INFORMATION CONTACT).

The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531et seq.).

Public Comments

We want any final rule resulting from this proposal to be as effective as possible. Therefore, we invite tribal and governmental agencies, the scientific community, industry, and other interested parties to submit comments regarding our recommendations regarding the six substantive changes to our proposed rule, and comments on our draft EA associated with our proposed revised special rule for the Utah prairie dog. Comments should be as specific as possible.

Before issuing a final rule to implement this proposed action, we will take into account all comments and any additional information we receive. Such communications may lead to a final rule that differs from our proposal. All comments, including commenters' names and addresses, if provided to us, will become part of the supporting record.

You may submit your comments and materials concerning our changes to the proposed rule, and/or our draft Environmental Assessment by one of the methods listed in theADDRESSESsection. Comments must be submitted tohttp://www.regulations.govbefore 11:59 p.m. (Eastern Time) on the date specified in theDATESsection.

We will post your entire comment—including your personal identifying information—onhttp://www.regulations.gov.If you provide personal identifying information in your comment, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection onhttp://www.regulations.gov,or by appointment, during normal business hours at the U.S. Fish and Wildlife Service, Utah Ecological Services Field Office (seeFOR FURTHER INFORMATION CONTACT).

The Endangered Species Act of 1973, as amended (Act or ESA) (16 U.S.C. 1531et seq.), provides measures to prevent the loss of species and their habitats. Section 4 of the Act sets forth the procedures for adding species to the Lists of Endangered and Threatened Wildlife and Plants, and section 4(d) authorizes the Secretary of the Interior (Secretary) to extend to threatened species the prohibitions provided for endangered species under section 9. Our implementing regulations for threatened wildlife, found at title 50 of the Code of Federal Regulations (CFR) in § 17.31, incorporate the section 9 prohibitions for endangered wildlife, except when a special rule is promulgated. Under section 4(d) of the Act, the Secretary may specify the prohibitions and any exceptions to those prohibitions that are appropriate for a threatened species, provided that those prohibitions and exceptions are necessary and advisable to provide for the species' conservation. A special rule issued under section 4(d) of the Act for a threatened species includes provisions tailored specifically for the conservation needs of that species, and these provisions may be more or less restrictive than the general provisions at 50 CFR 17.31.

Since 1984, the Service has implemented a special rule for the Utah prairie dog. This special rule (also referred to as a “4(d) rule”) is found in 50 CFR 17.40(g). We published a proposed rule to revise the current special rule for the Utah prairie dog on June 2, 2011 (76 FR 31906). It is our intent in this document to discuss only those topics directly relevant to (1) our substantive changes to our June 2, 2011, proposed rule (76 FR 31906) to revise the special rule for the Utah prairie dog, and (2) information related to our draft environmental assessment. For more information on previous Federal actions concerning the special rule for Utah prairie dogs and species information, refer to the June 2, 2011, proposed rule, which is available online athttp://www.regulations.govat Docket Number FWS-R6-ES-2011-0030, or by appointment during normal business hours, at the U.S. Fish and Wildlife Service, Utah Ecological Services Field Office (seeFOR FURTHER INFORMATION CONTACT).

Our 1984 special regulations for the Utah prairie dog, as amended in 1991, did not apply the take prohibitions described in section 9 of the ESA to activities occurring on private lands across the range of the species, under a permit system developed by the Utah Division of Wildlife Resources (UDWR), as authorized by Utah Code R657-19-6 and R657-19-7. Our June 2, 2011 (76 FR 31906), proposed rule would revise the1991 rule to provide limits to the allowable take and to expand the range of otherwise legal activities where applying the take prohibitions in section 9 of the Act is not necessary and advisable. Our June 2, 2011, proposal had a 60-day comment period, ending August 2, 2011. We received no requests for a public hearing; therefore, no public hearing was held.

We have prepared a draft EA analyzing the proposed revisions to our 4(d) regulations. The draft EA incorporates the substantive changes to our proposed rule, as described in the following section. We evaluated three alternatives in the draft EA:

1. Alternative 1 (No Action)—continuation of the current special rule as implemented by the UDWR permitting process under Utah State Code R657-19-6 and R657-19-7.

2. Alternative 2 (Preferred Action)—limiting where direct take can be permitted, limiting the amount of rangewide direct take allowed, providing site-specific limits on the amount of direct take, identifying timing of permitted direct take, identifying methods allowed to implement direct take, and adding incidental take authorization for standard agricultural practices.

3. Alternative 3—promulgating the blanket 4(d) rule that applies all Endangered Species Act section 9(a) take prohibitions to the Utah prairie dog. Under this alternative, lethal take would not be allowed unless permitted pursuant to section 10(a)(1)(A) of the Act.

We are seeking comment on the draft EA, which is available upon request or online athttp://www.regulations.govat Docket No. FWS-R6-ES-2011-0030 or athttp://www.fws.gov/mountain-prairie/species/mammals/UTprairiedog/index.htm.

Public comments received on our June 2, 2011, proposed rule included a recommendation that we should amend the proposed 4(d) rule to allow take in situations where human safety is at risk and in cemeteries. We are now proposing to include properties where Utah prairie dogs create serious human safety hazards or disturb the sanctity of significant cultural or human burial sites as locations where take would not be prohibited.

Take would be allowed in these areas when Utah prairie dogs are determined, with the written approval of the Service to be presenting a serious human safety hazard (e.g., airport safety areas, recreational sports fields, nursing homes, schools), or disturbing the sanctity of a significant human cultural or human burial site sites (e.g., public cemetery, sacred tribal sites) if these lands are determined not necessary for the conservation of the species. No UDWR permit would be required in these instances. This change would only apply to areas where a credible, serious public safety hazard or harm to significant human cultural or human burial sites could be clearly demonstrated. Areas of serious human safety hazards would not include public rangelands or properties being developed for residential or commercial uses. In addition, we would not intend for this rule to be used to eliminate prairie dogs because of concerns regarding plague transmission to humans, unless this disease becomes a proven human safety issue in the future, and is directly linked to the presence of Utah prairie dogs in specific circumstances.

Lethal take in these situations would be used as a last resort, and only allowable after all practicable measures to resolve the conflict are implemented. All practicable measures means, with respect to these situations, the (1) construction of a prairie-dog proof fence, above and below grade to specifications approved by the Service, around the area in which there is concern, and (2) translocation of Utah prairie dogs out of the area in which there is a concern. Lethal take would be allowed only to remove prairie dogs that remain in these areas after the measures to fence and translocate are successfully carried out. Despite our best engineering efforts, prairie-dog proof fences may still be breached by prairie dogs. The local communities or private entities would be required to maintain the fence, fix any breaches, or modify the fences as necessary to limit access of prairie dogs in order for the lethal take authorization to be sustained long-term. These qualifying circumstances would be certified in writing by the Service following any necessary site visits and coordination with the requesting entity. As stated above, a UDWR permit would not be required to allow take under these conditions.

We would not limit the amount, timing, or methods of lethal take allowed on lands where Utah prairie dogs create serious human safety hazards or disturb the sanctity of significant human cultural or human burial sites, as long as the qualifying circumstances described above are met. These sites are relatively small areas, would be fenced, and prairie dogs would be removed by translocation prior to the permitting of lethal take. Thus, we expect that the numbers of Utah prairie dogs lethally removed would be small. In addition, these areas do not contribute to conservation of the species because they are generally within otherwise developed areas with substantial human activity and habitat fragmentation.

Based on public and peer review comments received on our June 2, 2011, proposed rule, we are proposing to make substantive changes for our final rule. These changes are described below in response to the comments received, and tables comparing the provisions of the current special rule, the proposed revisions to that rule, and the Utah code follows this discussion.

We received a comment from the State of Utah recommending that entities other than the UDWR be allowed to issue permits for control of Utah prairie dogs. The previous special rules (49 FR 22330, May 29, 1984; 56 FR 27438, June 14, 1991) allowed take of Utah prairie dogs when permitted by UDWR. Under these rules, UDWR biologists were required to count Utah prairie dogs, determine extent of damage, determine level of take, and issue permits to applicants who requested the ability to control prairie dogs on their lands. At the time the previous rules were published, UDWR biologists were likely the only persons with the expertise to perform these permitting tasks. However, we now have a larger partnership effort, in the form of the Utah Prairie Dog Recovery Implementation Program, in which members of other state, federal, tribal, local entities and the public are working together on various programs to facilitate the species' recovery. Because of this partnership, we can reasonably assume that other entities may be available to conduct many of the permitting responsibilities previously undertaken by the UDWR. Approved permitting entities would at a minimum be required to employ a sufficient number of professional wildlife biologists to conduct all permitting responsibilities; request and complete permitting training from the UDWR for staff assigned to permitting; complete the Service's annual Utah prairie dog survey training; maintain a completereporting and tracking system for take, including annual reports on the number and location of permits issued, spring population counts and boundaries of permitted colonies, number of animals allowed to be taken, number of animals actually taken, method of take, and method of disposal of all Utah prairie dogs taken. Thus, we are proposing that this special rule will allow, with the Service's written approval, other entities to perform the permitting and reporting tasks for control activities formerly only conducted by UDWR.

In this section of the proposed rule, we propose to make changes to (1) limiting take by season and (2) limiting the amount of take—

(1) Limiting Take by Season—One commenter recommended that we revise our timing of permitted take from June 1 to July 1 on the Awapa and Paunsaugunt recovery units to protect pups in these areas, which emerge later than those within the West Desert Recovery Unit. We reviewed the available literature and discussed the permit dates with the Utah Prairie Dog Recovery Team relative to differences in pup emergence from dens in the lower elevations of the West Desert Recovery Unit as compared to the Awapa and Paunsaugunt Recovery Units. Generally, pups emerge from their dens earlier in the West Desert Recovery Unit as compared to the Awapa and Paunsaugunt Recovery Units. We propose to allow direct lethal take to start on June 15 each year throughout the range of the species, including the West Desert Recovery Area. Despite the earlier emergence of pups in the West Desert, we find it prudent for consistency and simplicity to select a range of dates best supported by the available scientific information to apply throughout the range of the species. This is a moderate change from the dates of June 1 through December 31 proposed in our June 2, 2011 proposed rule and authorized by the 1991 special rule.

Our proposed change is based on our most current knowledge of the species biology: pups emerge from their burrows by mid to late June at which time they are foraging independently (Hoogland 2003, p. 236). Therefore, the loss of female adult prairie dogs after the pups emerge from their dens would not negatively affect the survivability of the remaining young. In addition, prairie dog populations with seasonal shooting closures of March 14 to June 15 show positive population growths and low to negligible risk of extirpation (Colorado Division of Wildlife 2007, p. 135). These seasonal shooting closure dates directly correspond to our proposed timing of June 15 through December 31 for allowing direct lethal take. Thus, we can conclude that restricting use of the 4(d) rule between the dates of January 1 through June 14 would result in positive population growths with low to negligible risk of extinction. This conclusion is supported by our observations that we have never verified the loss of a Utah prairie dog colony because of take permitted by UDWR, and prairie dog counts have remained stable to increasing on sites where permits were repeatedly requested over the last 25 years (Day 2010). In this timeframe, UDWR provided permits to landowners beginning June 1. Thus, our proposed revision to June 15 is more conservative than past practice, and is based on the best current available science.

(2) Limiting the Amount of Take—We received comments from a couple of peer reviewers questioning whether our proposed rule was supported by the available modeling of population responses to shooting. Based on the comments, we reevaluated the available literature.

According to the literature, a harvest rate based on a percentage of the known population (i.e.,fluctuating harvest rate) can ensure the maintenance of a sustainable population, with no risk of extinction (Reeve and Vosburgh 2006, pp. 123-125). Our June 2, 2011, proposed rule limits the allowable permitted direct take on agricultural lands and properties neighboring conservation lands to no more than 10 percent of the estimated annual rangewide population (adults and juveniles)—agricultural lands would be limited to take not exceeding 7 percent of the estimated annual rangewide population and the remaining allowable take is reserved for properties neighboring conservation lands. We conclude that our proposed limit is a fluctuating harvest rate, is conservative, based on available modeling, and will continue to result in stable to increasing Utah prairie dog population trends. Therefore, we do not propose to change this portion of our proposed rule based on the available literature.

Our proposed rule of June 2, 2011, established that UDWR could only permit direct lethal take under the revised 4(d) rule on prairie dog colonies that had a minimum spring count of five animals (total population estimate = 36 animals; see our June 2, 2011, proposed rule for population calculations). After reviewing public and peer review comments, we are now proposing that a minimum spring count of seven animals (total population estimate = 50 animals) is established to ensure that permits are authorized only where resident prairie dogs have become established on agricultural lands and to ensure that shooting does not result in the loss of a colony. If the maximum amount of take (one-half of the colony's productivity = 18 prairie dogs) occurs on this size colony, it would reduce the total colony size to 32 animals prior to the following breeding season. Colonies of at least 25 prairie dogs are likely to show population growth with very little risk of extinction. Populations with 50 or greater animals show no risk of extinction and strong population growth (Colorado Division of Wildlife 2007, p. 128). Therefore, we would expect prairie dog colonies of 32 animals to continue to exist long-term with annual, regulated shooting pressure. This conclusion is supported by our observations that we have never verified the loss of a Utah prairie dog colony because of take permitted by UDWR and prairie dog counts have remained stable to increasing on sites where permits were repeatedly requested since 1985 (Day 2010).

In addition, we are proposing to include a provision that UDWR or other entities (as described above) would spatially distribute the 7 percent allowed take on agricultural lands across the three Recovery Units, based on the distribution of the total annual population estimate within each Recovery Unit. This spatial distribution will help ensure that the take is not clustered in one area, and is instead more uniform based on comparative annual population numbers.

Several commenters, including peer reviewers, were confused because we used two numeric limits to take—an upper annual limit of 6,000 Utah prairie dogs, and a limit based on calculating 10 percent of the total estimated annual rangewide Utah prairie dog population.

We propose to limit take using only the 10 percent limit. This is a fluctuating harvest rate that is supported by the available literature and based on total annual Utah prairie dog population numbers. Therefore, we do not believe there is a need to place an additional limit at 6,000 animals annually.

We conclude that these proposed changes are consistent with the available population models and ensure that our proposed rule is based on the best available science. These proposed changes are more restrictive than past practice under the 1984 special rule, as amended in 1991. In the last 25 years, Utah prairie dog population trends have remained stable to increasing. Thus, weconclude that these proposed changes will continue to support Utah prairie dog conservation efforts and are based on the best available science.

One peer reviewer recommended that we prohibit the use of gas cartridges, anticoagulants, and explosive devices as methods of permissible lethal control. The revised 4(d) rule would specifically prohibit the use of gas cartridges, anticoagulants, and explosive devices as methods of permissible lethal control on agricultural lands and properties adjacent to conservation lands. These types of methods could be applied across large areas and kill large numbers of prairie dogs. These techniques do not allow control agents to target a specific number of prairie dogs or track actual take. However, the use of any methodology will be allowed in areas where Utah prairie dogs create serious human safety hazards or disturb the sanctity of significant cultural or human burial sites (seeAddition to the Proposed Rule—Allowing Take at Significant Human Cultural or Burial Sites,above).

Table 1 describes the Current Special Rule and Practice of 1991, the revisions we proposed in our June 2, 2011 rule (76 FR 311906), and the additions and changes included in this revised proposed rule. Table 2 provides a summary of our proposed amendments to the existing special rule based on both our June 2, 2011, proposed rule and the additions and changes described in this revised proposed rule.

The Office of Management and Budget (OMB) has determined that this rule is not significant and has not reviewed this proposed rule under Executive Order 12866 (E.O. 12866). OMB bases its determination upon the following four criteria:

a. Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government;

b. Whether the rule will create inconsistencies with other Federal agencies' actions;

c. Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients; or

d. Whether the rule raises novel legal or policy issues.

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency publishes 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 effects of the rule on small entities (small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended RFA to require Federal agencies to provide a statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities. Thus, for a regulatory flexibility analysis to be required, impacts must exceed a threshold for “significant impact” and a threshold for a “substantial number of small entities.” See 5 U.S.C. 605(b). Based on the information that is available to us at this time, we certify that this regulation will not have a significant economic impact on a substantial number of small entities. The following discussion explains our rationale.

Utah prairie dogs have been listed under the ESA since the early 1970s (38 FR 14678, June 4, 1973; 39 FR 1158, January 4, 1974). A 4(d) special rule has been in place since 1984 that provides protections deemed necessary and advisable to provide for the conservation of the species (49 FR 22330, May 29, 1984; 56 FR 27438, June 14, 1991). These special regulations allow limited take of Utah prairie dogs on private land from June 1 through December 31, as permitted by UDWR (50 CFR 17.40(g)). While this proposed rule places limits on the current special rule, the proposed changes are largely consistent with current UDWR permitting practices. Because this proposal largely institutionalizes current practices, there should be little or no increased costs associated with this proposed regulation compared to the past similar special rules that were in effect for the last several decades.

In summary, we have considered whether the proposed rule would result in a significant economic impact on a substantial number of small entities. For the above reasons and based on currently available information, we certify that these amendments if promulgated would not have a significant economic impact on a substantial number of small entities. Therefore, an initial regulatory flexibility analysis is not required.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), we make the following findings:

a. If adopted, this proposal will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or Tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or [T]ribal governments,” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or Tribal governments “lack authority” to adjust accordingly. Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”

This proposed rule would not impose a legally binding duty on non-Federal Government entities or private parties. Instead, this proposed amendment to the existing special rule proposes to establish take authorizations and limitations deemed necessary and advisable to provide for the conservation of the Utah prairie dog. Application of the provisions within this proposed rule, as limited by existing regulations and this proposed amendment, is optional.

b. We do not believe that this rule would significantly or uniquely affect small governments. The State of Utah originally requested measures such as this proposed regulation to assist with reducing conflicts between Utah prairie dogs and local landowners on agricultural lands (49 FR 22331, May 29, 1984). In addition, the UDWR actively assists with implementation of the current special rule, and would do the same under this proposed regulation, through a permitting system. Thus, no intrusion on State policy or administration is expected; roles or responsibilities of Federal or State governments will not change; and fiscal capacity will not be substantially directly affected. The special rule operates to maintain the existing relationship between the States and the Federal Government. Furthermore, the proposed limitations on where permitted take can occur, the amount of take that can be permitted, and methods of take that can be permitted, are largely consistent with current UDWR practices. Therefore, the rule would not have a significant or unique effect on State, local, or Tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act is not required.

This action is exempt from the requirements of E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights). Specifically, according to section VI (D) (3) of the Attorney General's Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings, regulations allowing the take of wildlife issued under the ESA are categorically exempt. This proposed amendment pertains to regulation of take (defined by the ESA as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct”) deemed necessary and advisable to provide for the conservation of the Utah prairie dog. Thus, this exemption applies to this action.

Regardless, we do not believe this action would pose significant takings implications. This rule will substantially advance a legitimate government interest (conservation and recovery of listed species). However, it will not deny property owners economically viable use of their land, and will not present a bar to all reasonable and expected beneficial use of private property. We believe the existing special regulation and the proposed amendments providesubstantial flexibility to our partners while still providing for the conservation of the Utah prairie dog. Should additional take provisions be required, an applicant has the option to develop a Habitat Conservation Plan and request an incidental take permit (see Section 10(a)(1)(B) of the ESA). This approach would allow permit holders to proceed with an activity that is legal in all other respects, but that results in the “incidental” take of a listed species.

We have concluded that this action would not result in any takings of private property. Should any takings implications associated with the proposed amendment be realized, they will likely be insignificant.

In accordance with E.O. 13132 (Federalism), this proposed rule would not have significant Federalism effects. A Federalism assessment is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of this proposed amendment with, appropriate State resource agencies in Utah. The State of Utah originally requested measures such as this proposed regulation to assist with reducing conflicts between Utah prairie dogs and local landowners on agricultural lands (49 FR 22331, May 29, 1984). In addition, the UDWR actively assists with implementation of the current special rule, and would do the same under this proposed regulation, through a permitting system. Thus, no intrusion on State policy or administration is expected; roles or responsibilities of Federal or State governments will not change, and fiscal capacity will not be substantially directly affected. The special rule operates and, if amended, would continue to operate to maintain the existing relationship between the State and the Federal government. 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 E.O. 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have proposed this amendment to the existing special rule for the Utah prairie dog in accordance with the provisions of the ESA. Under section 4(d) of the ESA, the Secretary may extend to a threatened species those protections provided to an endangered species as deemed necessary and advisable to provide for the conservation of the species. The amendments proposed here satisfy this standard.

This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. 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 1983, upon recommendation of the Council on Environmental Quality, the Service determined that National Environmental Policy Act (NEPA) documents need not be prepared in connection with regulations adopted pursuant to section 4(a) of the ESA. The Service subsequently expanded this determination to section 4(d) rules. A section 4(d) rule provides the appropriate and necessary prohibitions and authorizations for a species that has been determined to be threatened under section 4(a) of the ESA. It is our view that NEPA procedures unnecessarily overlay NEPA's own matrix upon the ESA section 4 decisionmaking process. For example, the opportunity for public comment—one of the goals of NEPA—is already provided through section 4 rulemaking procedures. This determination was upheld inCenter for Biological Diversityv.U.S. Fish and Wildlife Service,No. 04-04324 (N.D. Cal. 2005).

However, out of an abundance of caution, we developed a draft Environmental Assessment that is available for public inspection and comment. All appropriate NEPA documents will be finalized before this rule is finalized.

We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

a. Be logically organized;

b. Use the active voice to address readers directly;

c. Use clear language rather than jargon;

d. Be divided into short sections and sentences; and

e. Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in theADDRESSESsection. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, and the sections where you feel lists or tables would be useful.

In accordance with the President's memorandum of April 29, 1994, Government-to-Government Relations with Native American Tribal Governments (59 FR 22951), E.O. 13175, and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes. Therefore, we intend to coordinate with affected Tribes within the range of the Utah prairie dog. We will fully consider all of the comments on the proposed special regulations that are submitted by Tribes and Tribal members during the public comment period, and we will attempt to address those concerns, new data, and new information where appropriate.

E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use, requires agencies to prepare Statements of Energy Effects when undertaking certain actions. We do not expect this action to significantly affect energy supplies, distribution, or 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 rulemaking is available upon request from our Utah Ecological Services Field Office (seeFOR FURTHER INFORMATION CONTACTsection).

Accordingly, we propose to further amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as proposed to be amended at 76 FR 31906, June 2, 2011, as follows: