        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 52
        [EPA-R08-OAR-2019-0268; FRL-9994-77-Region 8]
        Approval and Promulgation of Air Quality Implementation Plans; Montana; Incorporation by Reference Updates

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:
          The Environmental Protection Agency (EPA) is proposing to approve State Implementation Plan (SIP) revisions submitted by the State of Montana on August 6, 2018. The revisions include an update to incorporate by reference the 2016 version of the Code of Federal Regulations (CFR) and 2015 version of the United States Code (U.S.C.) within the Adminstrative Rules of Montana (ARM) that are part of the Montana SIP. The revisions also include administrative changes that consolidate the ARM's references to the CFR and U.S.C. and remove two CFR exemptions from incorporation by reference into the ARM. Additional revisions remove incorporation by reference of certain EPA standards for which the state already has delegated authority from the EPA, and correct an internal reference in the ARM.

          DATES:

            Comments: Written comments must be received on or before July 10, 2019.

          ADDRESSES:

          Submit your comments, identified by Docket ID No. EPA-R08-OAR-2019-0268, to the Federal Rulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from www.regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

            Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Air and Radiation Division, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129. The EPA requests that if at all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding federal holidays.

          FOR FURTHER INFORMATION CONTACT:

          Chris Dresser, Air Quality Planning Branch, EPA, Region 8, Mailcode 8ARD-QP, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6385, dresser.chris@epa.gov.

          I. Background
          On September 29, 2017, and February 9, 2018, the Montana Board of Environmental Review conducted public hearings pursuant to 40 CFR 51.102 to consider the adoption of revisions to the ARM. The approved changes were submitted to the EPA for approval into Montana's SIP on August 6, 2018. The SIP submittal includes changes that: (1) Amend ARM 17.8.103, 17.8.302, 17.8.602, 17.8.767, 17.8.802, 17.8.902, 17.8.1002, 17.8.1102, and 17.8.1402 to remove repetitive text describing the location of rule reference material and centralize and consolidate those reference citations into sections 17.8.102(3) and (4); (2) Modify air quality rules by correcting an internal reference in ARM 17.8.904; (3) Amend ARM 17.8.102(2), to remove the exemptions of 40 CFR part 63, subparts JJJJJ and KKKKK; (4) Remove references to 40 CFR parts 60, 61, and 63 in sections 17.8.102(2), 17.8.103(1)(f)-(i), 17.8.302(1)(a)-(c), 17.8.767(1)(c)-(d), 17.8.802(1)(c)-(d), 17.8.902(1)(a)-(b), and 17.8.1002(1)(a)-(b), for which Montana is already delegated authority; and (5) Update ARM 17.8.102(1) to incorporate by reference the 2016 version of the CFR and the 2015 version of the U.S.C.
          II. Analysis of the State's Submittal
          The EPA evaluated the proposed SIP revisions (amendments to the ARM) submitted by the State on August 6, 2018. The subsequent analysis for each rule change in the SIP is as follows:

            (1) The State of Montana is requesting that the EPA revise the SIP to remove text in ARM sections 17.8.103, 17.8.302, 17.8.602, 17.8.767, 17.8.802, 17.8.902, 17.8.1002, 17.8.1102, and 17.8.1402 describing the location of references to the CFR and U.S.C. The location of rule reference material would be consolidated into ARM sections 17.8.102(3) and (4). Identifying this information once, in the General Provisions of ARM 17.8.102(3) and (4), would eliminate repetition of the information in ARM 17.8.103, 17.8.302, 17.8.602, 17.8.767, 17.8.802, 17.8.902, 17.8.1002, 17.8.1102 and 17.8.1402. The EPA proposes to find that this revision is necessary and appropriate to efficiently describe the location of referenced material.

            (2) The State of Montana is requesting to revise the SIP to incorporate an amendment to ARM 17.8.904(7) which corrects an internal reference. In 2011, the State amended the rule, which was submitted to the EPA the following year for inclusion in the SIP. In January 2016, the EPA identified an incorrect internal reference in ARM 17.8.904(7). This change proposes to amend the text from a reference to ARM 17.8.904(5) to the correct reference to ARM 17.8.904(6). The EPA proposes to find this change necessary and appropriate as it will allow the rule to be properly implemented.
            (3) The State of Montana is requesting to revise the SIP to incorporate an amendment to ARM 17.8.102(2) which removes the exemptions for 40 CFR part 63, subparts JJJJJ and KKKKK. Subparts JJJJJ and KKKKK are National Emission Standards for Hazardous Air Pollutants (NESHAP) for brick and structural clay products manufacturing and clay ceramics manufacturing, respectively. Originally adopted into the ARM in 2003, these NESHAPS were vacated and remanded by the Federal Court of Appeals for the District of Columbia Circuit on March 13, 2007, leading to their exemption in the ARM. The EPA addressed the vacatur and remand by issuing new subparts JJJJJ and KKKKK on October 26, 2015. Therefore, the EPA proposes to find it necessary and appropriate to remove the exemptions for JJJJJ and KKKKK; effectively incorporating the most recent federal rules covering emissions from brick and structural clay products manufacturing and clay ceramics manufacturing into Montana's SIP.

            (4) The State of Montana is requesting removal from the SIP certain rules that incorporate by reference 40 CFR parts 60, 61, and 63. These rules include: ARM 17.8.103(1)(f)-(i)—pertaining to EPA emission source reference test methods for stationary sources, EPA performance specification and test procedures for continuous emission monitoring systems, EPA emission source reference test methods for sources subject to national emission standards for hazardous air pollutants, and emission standards for hazardous air pollutant source categories; 17.8.302(1)(a)-(c)—pertaining to standards of performance for new stationary sources and modifications, emission standards for hazardous air pollutants; and emission standards for hazardous air pollutant source categories; 17.8.767(1)(c)-(d)—specifying standards of performance for new stationary sources and for hazardous air pollutants; 17.8.802(1)(c)-(d)—specifying standards of performance for new stationary sources and for hazardous air pollutants; 17.8.902(1)(a)-(b)—specifying standards of performance for new stationary sources and for hazardous air pollutants; and 17.8.1002(1)(a)-(b)—specifying standards of performance for new stationary sources and for hazardous air pollutants. Each of these sections references federal requirements for which the State has already received federal delegation of authority. The EPA proposes to find that this update is necessary and appropriate to remove the redundancy. The EPA also proposes to find that removing the previously mentioned references to 40 CFR parts 60, 61, and 63 in the ARM does not impact any other part of the State's SIP (i.e., no other sections of the approved SIP reference the sections that Montana is requesting for removal).
            (5) The State of Montana is requesting revisions to the SIP concerning ARM 17.8.102 to update incorporation by reference dates to reflect federal regulations published in the July 1, 2016, edition of the CFR as it is published on the website of the U.S. Government Printing Office, and the 2015 edition of the U.S.C., as it is published on the website of the U.S. Government Printing Office. The EPA proposes to find that this change is necessary and appropriate to cite the 2015 and 2016 versions of the U.S.C. and CFR, respectively.

          III. The EPA's Proposed Action
          In this action, the EPA is proposing to approve the SIP submittal, containing recent amendments to the ARM, submitted by the State of Montana on August 6, 2018. This action proposes updates to: (1) Amend ARM 17.8.103, 17.8.302, 17.8.602, 17.8.767, 17.8.802, 17.8.902, 17.8.1002, 17.8.1102, and 17.8.1402 to remove repetitive text describing the location of rule reference material and centralize and consolidate those reference citations into sections 17.8.102(3) and (4); (2) Modify air quality rules by correcting an internal reference in ARM 17.8.904; (3) Amend ARM 17.8.102(2), to remove the exemptions of 40 CFR part 63, subparts JJJJJ and KKKKK; (4) Remove references to 40 CFR parts 60, 61, and 63 in sections 17.8.102(2), 17.8.103(1)(f)-(i), 17.8.302(1)(a)-(c), 17.8.767(1)(c)-(d), 17.8.802(1)(c)-(d), 17.8.902(1)(a)-(b), and 17.8.1002(1)(a)-(b), for which Montana is already delegated authority; and (5) Update ARM 17.8.102(1) to incorporate by reference the 2016 version of the CFR and the 2015 version of the U.S.C.
          IV. Incorporation by Reference

          In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the amendments described in section II. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 8 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).
          V. Statutory and Executive Order Reviews
          Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this 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 Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
          • Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;

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

          • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
          • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
          • Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
          • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
          • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
          • Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
          • Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

          In addition, the SIP is not proposed to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the proposed rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

            List of Subjects in 40 CFR Part 52
            Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements.

            Authority:
            42 U.S.C. 7401 et seq.

            Dated: June 4, 2019.
            Debra Thomas,
            Acting Regional Administrator, EPA Region 8.

      [FR Doc. 2019-12156 Filed 6-7-19; 8:45 am]
      BILLING CODE 6560-50-P


        DEPARTMENT OF ENERGY
        48 CFR Part 970
        RIN 1991-AC03
        Acquisition Regulation: Nondisplacement of Qualified Workers Under Service Contracts and Other Changes to the Contractor Purchasing System Clause

          AGENCY:
          Department of Energy.

          ACTION:
          Notice of proposed rulemaking and opportunity for comment.

          SUMMARY:
          The Department of Energy (DOE) is proposing to amend the Department of Energy Acquisition Regulation (DEAR) to address the applicability of Executive Order 13495 as implemented by Federal Acquisition Regulation (FAR) subpart 22.12 to its management and operating contracts and subcontracts under such contracts. DOE is also proposing to increase dollar thresholds in its contractor purchasing system clause for management and operating contracts to conform to FAR subpart 28.1. Finally, DOE is revising the DEAR in accordance with a class deviation addressing Buy American Act non-availability determinations.

          DATES:
          Written comments on the proposed rulemaking must be received on or before close of business May 26, 2016.

          ADDRESSES:
          You may submit comments, identified by DEAR: Nondisplacement of Qualified Workers and RIN 1991-AC03, by any of the following methods:
          • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
          • Email to: DEARrulemaking@hq.doe.gov Include DEAR: Nondisplacement of Qualified Workers and RIN 1991-AC03 in the subject line of the message.
          • Mail to: U.S. Department of Energy, Office of Acquisition Management, MA-611, 1000 Independence Avenue SW., Washington, DC 20585. Comments by email are encouraged.

          FOR FURTHER INFORMATION CONTACT:
          Lawrence Butler at (202) 287-1945 or by email lawrence.butler@hq.doe.gov.

        SUPPLEMENTARY INFORMATION:

          I. Background
          II. Section-by-Section Analysis
          III. Procedural Requirements
          A. Review Under Executive Orders 12866 and 13563.
          B. Review Under Executive Order 12988.
          C. Review Under the Regulatory Flexibility Act.
          D. Review Under the Paperwork Reduction Act.
          E. Review Under the National Environmental Policy Act.
          F. Review Under Executive Order 13132.
          G. Review Under the Unfunded Mandates Reform Act of 1995.
          H. Review Under the Treasury and General Government Appropriations Act, 1999.
          I. Review Under Executive Order 13211.
          J. Review Under the Treasury and General Government Appropriations Act, 2001.
          K. Approval by the Office of the Secretary of Energy.

        I. Background

        The Department of Energy Acquisition Regulation (DEAR) does not presently address the applicability of the new FAR subpart 22.12, Nondisplacement of Qualified Workers Under Service Contracts, and the associated Department of Labor regulations at title 29 of the Code of Federal Regulations, to subcontracts under DOE's management and operating contracts. This proposed rule clarifies that FAR subpart 22.12 applies to subcontracts under the Department's management and operating contracts. A management and operating contract requires a contractor to operate, maintain, and support a Government-owned or -controlled research, development, special production, or testing establishment which is devoted to a major program(s) of the contracting agency. Service subcontracts awarded by management and operating contractors, e.g., contracts for routine, recurring maintenance, are subject to various labor laws implemented by FAR part 22.
        Additionally, DEAR section 970.5244-1, Contractor purchasing system, paragraphs (f)(1) through (f)(3) do not presently reflect the applicable dollar threshold in FAR 28.102-2(b) and (c), so this proposed rule replaces the dollar amount in these paragraphs with reference to title 48 of the Code of Federal Regulations, sections 28.102-2(b) and (c), as appropriate.
        Section 970.5244-1, paragraph (g) requires contractor purchasing systems on management and operating contracts to comply with the Buy American Act. Pursuant to a DEAR class deviation dated August 29, 2011, the proposed rule increases the dollar threshold in this paragraph from $100,000 to $500,000 for: (1) Determinations of individual item non-availability requiring the prior concurrence of the Head of Contracting Activity (HCA); and (2) HCA authorization of management and operating contractors with approved purchasing systems to make determinations of non-availability for individual items.
        II. Section-by-Section Analysis
        DOE proposes to amend the DEAR as follows:
        1. Section 970.2212 is added to clarify that FAR subpart 22.12 is applicable to subcontracts of management and operation contractors.
        2. Section 970.5244-1, paragraph (f) is revised to replace all dollar amounts with references to title 48 of the Code of Federal Regulations, sections 28.102-2(b) and (c), as appropriate.
        3. Section 970.5244-1, paragraph (g) is revised to increase the dollar threshold from $100,000 to $500,000.
        4. Section 970.5244-1, paragraph (x) is revised to add the clause prescribed in FAR 22.1207 as item (7).
        III. Procedural Requirements
        A. Review Under Executive Orders 12866 and 13563
        Today's regulatory action has been determined to be a “significant regulatory action” under Executive Order 12866, “Regulatory Planning and Review,” (58 FR 51735, October 4, 1993). Accordingly, this proposed rule was reviewed under that Executive Order by the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB).
        DOE has also reviewed this regulation pursuant to Executive Order 13563, issued on January 18, 2011 (76 FR 3281, January 21, 2011). Executive Order 13563 is supplemental to and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, agencies are required by Executive Order 13563 to: (1) Propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public.

        DOE emphasizes as well that Executive Order 13563 requires agencies to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. In its guidance, the Office of Information and Regulatory Affairs has emphasized that such techniques may include identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes. DOE believes that today's proposed rule is consistent with these principles, including the requirement that, to the extent permitted by law, agencies adopt a regulation only upon a reasoned determination that its benefits justify its costs and, in choosing among alternative regulatory approaches, those approaches maximize net benefits.
        B. Review Under Executive Order 12988
        With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” (61 FR 4729, February 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct, rather than a general standard, and promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the United States Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or if it is unreasonable to meet one or more of them. DOE has completed the required review and determined that this proposed rule meets the relevant standards of Executive Order 12988.
        C. Review Under the Regulatory Flexibility Act

        This proposed rule has been reviewed under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., which requires preparation of an initial regulatory flexibility analysis for any rule that must be proposed for public comment and which is likely to have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” (67 FR 53461, August 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process (68 FR 7990). DOE has made its procedures and policies available on the Office of General Counsel's Web site at http://www.gc.doe.gov.

        This proposed rule would not have a significant economic impact on small entities because it imposes no significant burdens. The proposed rule clarifies that FAR subpart 22.12 applies to subcontracts under the Department's management and operating (M&O) contracts. M&O subcontractors, including any small entities, who perform service contracts are currently required to follow the policies and procedures of FAR subpart 22.12. The proposed rule merely clarifies that M&O subcontractors are not exempt from the pre-existing policy. The other changes contained in the proposed rule update dollar thresholds to conform to the FAR or a DEAR class deviation. Those changes will result in fewer burdens to small entities because they raise the thresholds at which certain Buy American, bonds, and other financial protection requirements become applicable.
        Accordingly, DOE certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities, and, therefore, no regulatory flexibility analysis is required and none has been prepared.
        D. Review Under the Paperwork Reduction Act

        This proposed rule does not impose a collection of information requirement subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Existing burdens associated with the collection of certain contractor data under the DEAR have been cleared under OMB control number 1910-4100.
        E. Review Under the National Environmental Policy Act

        DOE has concluded that promulgation of this proposed rule falls into a class of actions which would not individually or cumulatively have significant impact on the human environment, as determined by DOE's regulations (10 CFR part 1021, subpart D) implementing the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.). Specifically, this proposed rule is categorically excluded from NEPA review because the amendments to the DEAR are strictly procedural (categorical exclusion A6). Therefore, this proposed rule does not require an environmental impact statement or environmental assessment pursuant to NEPA.
        F. Review Under Executive Order 13132
        Executive Order 13132, 64 FR 43255 (August 4, 1999), imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. The Executive Order requires agencies to have an accountability process to ensure meaningful and timely input by state and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations (65 FR 13735). DOE has examined the proposed rule and has determined that it does not preempt State law and does not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. No further action is required by Executive Order 13132.
        G. Review Under the Unfunded Mandates Reform Act of 1995
        The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally requires a Federal agency to perform a written assessment of costs and benefits of any rule imposing a Federal mandate with costs to State, local or tribal governments, or to the private sector, of $100 million or more. This rulemaking proposes changes that do not alter any substantive rights or obligations. This proposed rule does not impose any mandates.
        H. Review Under the Treasury and General Government Appropriations Act, 1999
        Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a Family Policymaking Assessment for any rulemaking or policy that may affect family well-being. This proposed rulemaking will have no impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
        I. Review Under Executive Order 13211

        Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use, (66 FR 28355, May 22, 2001) requires Federal agencies to prepare and submit to Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. This proposed rule is not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.
        J. Review Under the Treasury and General Government Appropriations Act, 2001
        The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516, note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed this proposed rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.
        K. Approval by the Office of the Secretary of Energy
        Issuance of this proposed rule has been approved by the Office of the Secretary of Energy.

          List of Subjects in 48 CFR Part 970
          Government procurement.

          Issued in Washington, DC on April 19, 2016.
          Berta Schreiber,
          Acting Senior Procurement Executive, Office of Acquisition Management, Department of Energy.

          Joseph Waddell,
          Senior Procurement Executive and Deputy Associate Administrator, National Nuclear Security Administration, Office of Acquisition Management.

        For the reasons set out in the preamble, the Department of Energy is proposing to amend chapter 9 of title 48 of the Code of Federal Regulations as set forth below.

          PART 970—DOE MANAGEMENT AND OPERATING CONTRACTS

        1. The authority citation for part 970 continues to read as follows:

          Authority:
           42 U.S.C. 2201; 2282a; 2282b; 2282c; 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401 et seq.

        2. Add section 970.2212 to subpart 970.22 to read as follows:

          970.2212
          Nondisplacement of qualified workers.
          48 CFR subpart 22.12 is applicable to subcontracts under the Department's management and operating contracts (see 970.5244-1(x)).

        3. Section 970.5244-1 is amended by:
        a. Revising the clause date;
        b. Revising the first sentence of paragraph (f)(1);
        c. Revising paragraphs (f)(2) and (3) and (g); and
        d. Adding paragraph (x)(7).
        The revisions and additions read as follows:

          970.5244-1
          Contractor purchasing system.

          Contractor Purchasing System (XXX 20xx)

          (f) * * * (1) The Contractor shall require performance bonds in penal amounts as set forth in 48 CFR 28.102-2(b)(1) for all fixed-price and unit-priced construction subcontracts in excess of the amount set forth in 48 CFR 28.102-2(b). * * *
          (2) For fixed-price, unit-priced and cost-reimbursement construction subcontracts in excess of the amount set forth in 48 CFR 28.102-2(b), a payment bond shall be obtained on Standard Form 25A modified to name the Contractor as well as the United States of America as obligees. The penal amounts shall be determined in accordance with 48 CFR 28.102-2(b)(2).
          (3) For fixed-price, unit-priced and cost-reimbursement construction subcontracts in an amount falling within the range in 48 CFR 28.102-2(c), the Contractor shall select two or more of the payment protections in 48 CFR 28.102-1(b), giving particular consideration to the inclusion of an irrevocable letter of credit as one of the selected alternatives.

          (g) Buy American. The Contractor shall comply with the provisions of the Buy American Act as reflected in 48 CFR 52.225-1 and 48 CFR 52.225-9. The Contractor shall forward determinations of non-availability of individual items to the DOE Contracting Officer for approval. Items in excess of $500,000 require the prior concurrence of the Head of Contracting Activity. If the Contractor has an approved purchasing system, the Head of the Contracting Activity may authorize the Contractor to make determinations of non-availability for individual items valued at $500,000 or less.

          (x) * * *

          (7) Nondisplacement of Qualified Workers clause prescribed in 48 CFR 22.1207.

      [FR Doc. 2016-09688 Filed 4-25-16; 8:45 am]
       BILLING CODE 6450-01-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [Docket Nos. FWS-R2-ES-2016-0099, FWS-R2-ES-2016-0100, FWS-R2-ES-2016-0130, FWS-R2-ES-2016-0137, FWS-R2-ES-2016-0119; FXES11130900000C2-167-FF09E32000]
        RINs 1018-BA74; 1018-BA75; 1018-BB90; 1018-BB89; 1018-BB87
        Endangered and Threatened Wildlife and Plants; Reopening the Comment Periods for Five Proposed Rules

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rules; reopening comment period.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce that we are reopening the comment periods for our proposed rules to list Festuca ligulata (Guadalupe fescue) as an endangered species; to designate Festuca ligulata critical habitat; to reclassify Sclerocactus brevihamatus ssp. tobuschii (Tobusch fishhook cactus) from endangered to threatened; to reclassify Echinocereus fendleri var. kuenzleri (Kuenzler hedgehog cactus) from endangered to threatened; and to remove Eriogonum gypsophilum (gypsum wild-buckwheat) from the Federal List of Endangered and Threatened Plants. We are reopening the comment period for each of these proposed rules for 30 days in order to publish a legal notice and to give all interested parties further opportunity to comment on the proposed rules. Comments previously submitted need not be resubmitted, as they will be fully considered in preparing the final listing determinations.

          DATES:
          To allow us adequate time to consider your comments on the proposed rule, we must receive your comments on or before July 13, 2017.

          ADDRESSES:

            Written comments: You may submit comments on the proposed rules by one of the following methods:
          • Federal eRulemaking Portal: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter the appropriate docket number (see Table 1, below). Then click on the Search button. On the resulting page, you may submit a comment by clicking on “Comment Now!” Please ensure that you have found the correct rulemaking before submitting your comment.
          • By U.S. mail or hand-delivery: Public Comments Processing, Attn: [Insert appropriate docket number; see Table 1, below], U.S. Fish and Wildlife Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.

          We request that you send comments only by the methods described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see SUPPLEMENTARY INFORMATION for more information).

          Table 1—List of Proposed Rules Reopened for Public Comment

            Proposed rule title

              Federal Register citation
            Docket No.

            Guadalupe Fescue Endangered Species Status
            81 FR 62450; September 9, 2016
            FWS-R2-ES-2016-0099

            Guadalupe Fescue Critical Habitat Designation
            81 FR 62455; September 9, 2016
            FWS-R2-ES-2016-0100

            Reclassifying the Tobusch Fishhook Cactus From Endangered to Threatened on the Federal List of Endangered and Threatened Plants
            81 FR 95932; December 29, 2016
            FWS-R2-ES-2016-0130

            Reclassifying Echinocereus fendleri var. kuenzleri From Endangered to Threatened
            82 FR 1677; January 6, 2017
            FWS-R2-ES-2016-0137

            Removing Eriogonum gypsophilum From the Federal List of Endangered and Threatened Plants
            82 FR 1657; January 6, 2017
            FWS-R2-ES-2016-0119

          Document availability: Comments and materials we receive, as well as supporting documentation we used in preparing the proposed rule, will be available for public inspection on http://www.regulations.gov under the appropriate docket number (see Table 1, above).

          FOR FURTHER INFORMATION CONTACT:

              Proposed rule title
              Contact person

              Guadalupe Fescue Endangered Species StatusGuadalupe Fescue Critical Habitat Designation
                Reclassifying the Tobusch Fishhook Cactus From Endangered to Threatened on the Federal List of Endangered and Threatened Plants

              Adam Zerrenner, Field Supervisor, U.S. Fish and Wildlife Service, Austin Ecological Services Field Office, 10711 Burnet Rd., Suite 200, Austin, TX 78758; telephone (512) 490-0057.

              Reclassifying Echinocereus fendleri var. kuenzleri From Endangered to ThreatenedRemoving Eriogonum gypsophilum From the Federal List of Endangered and Threatened Plants

              Susan Millsap, Field Supervisor, U.S. Fish and Wildlife Service, 2105 Osuna Road NE., Albuquerque, NM 87113-1001; telephone (505) 761-4781.

          Individuals who are hearing-impaired or speech-impaired may call the Federal Relay Service at (800) 877-8339 for TTY assistance 24 hours a day, 7 days a week.

        SUPPLEMENTARY INFORMATION:

        On September 9, 2016, we published proposed rules to list Guadalupe fescue as an endangered species on the Federal List of Endangered and Threatened Plants (81 FR 62450) and to designate its critical habitat (81 FR 62455). We sought information, data and comments from the public regarding the proposal for 60 days, ending November 8, 2016. We are reopening the comment period on the proposed rules for an additional 30 days (see DATES). We will accept written comments and information during this reopened comment period. In particular, we seek comments concerning the following: (1) New information concerning Guadalupe fescue taxonomic classification and conservation status; (2) new information on Guadalupe fescue historical and current status, range, distribution, and population size, including additional population locations; and (3) new information regarding Guadalupe fescue life history, ecology and habitats. Please refer to the proposed rules for more information on our proposed actions and the specific information we seek.

        On December 29, 2016, we published a proposed rule to reclassify Tobusch fishhook cactus from an endangered to a threatened species on the Federal List of Endangered and Threatened Plants (81 FR 95932). We sought information, data and comments from the public regarding the proposal for 60 days, ending February 27, 2017. We are reopening the comment period on the proposed rule for an additional 30 days (see DATES). We will accept written comments and information during this reopened comment period. In particular, we seek comments concerning the following: (1) New information concerning Tobusch fishhook cactus taxonomic classification and conservation status; (2) new information on Tobusch fishhook cactus historical and current status, range, distribution, and population size, including additional population locations; and (3) new information regarding Tobusch fishhook cactus life history, ecology and habitats. Please refer to the proposed rule for more information on our proposed action and the specific information we seek.

        On January 6, 2017, we published a proposed rule to reclassify Kuenzler hedgehog cactus from an endangered to a threatened species on the Federal List of Endangered and Threatened Plants (82 FR 1677). We sought information, data and comments from the public regarding the proposal for 60 days, ending March 7, 2017. We are reopening the comment period on the proposed rule for an additional 30 days (see DATES). We will accept written comments and information during this reopened comment period. In particular, we seek comments concerning the following: (1) New information concerning Kuenzler hedgehog cactus taxonomic classification and conservation status; (2) new information on Kuenzler hedgehog cactus historical and current status, range, distribution, and population size, including any additional population locations; and (3) new information regarding Kuenzler hedgehog cactus life history, ecology, and habitats. Please refer to the proposed rule for more information on our proposed action and the specific information we seek.

        On January 6, 2017, we published a proposed rule to remove gypsum wild-buckwheat from the Federal List of Endangered and Threatened Plants (82 FR 1657). We sought information, data and comments from the public regarding the proposal for 60 days, ending March 7, 2017. We are reopening the comment period on the proposed rule for an additional 30 days (see DATES). We will accept written comments and information during this reopened comment period. In particular, we seek comments concerning the following: (1) New information concerning gypsum wild-buckwheat taxonomic classification and conservation status; (2) new information on gypsum wild-buckwheat historical and current status, range, distribution, and population size, including any additional population locations; and (3) new information regarding gypsum wild-buckwheat life history, ecology, and habitats. Please refer to the proposed rule for more information on our proposed action and the specific information we seek.

        You may submit your comments and materials concerning any of the proposed rules by one of the methods listed in ADDRESSES. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. All comments and recommendations, including names and addresses, will become part of the administrative record.
        If you submit information via http://www.regulations.gov, your entire comment—including any personal identifying information—will be posted on the Web site. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

        If you mail or hand-deliver a hardcopy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review, but we cannot guarantee that we will be able to do so. To ensure that the electronic dockets for these rulemakings are complete and all comments we receive are publicly available, we will post all hardcopy submissions on http://www.regulations.gov.

        Authors
        This document's primary authors are Southwest Regional Office and Austin Ecological Services Field Office staff members.
        Authority

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

          Dated: March 30, 2017.
          James W. Kurth,
          Acting Director, U.S. Fish and Wildlife Service.

      [FR Doc. 2017-11968 Filed 6-12-17; 8:45 am]
       BILLING CODE 4333-15-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [FWS-R7-ES-2008-0105; 92210-1117-0000-B4]
        RIN 1018-AV92
        Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Southwest Alaska Distinct Population Segment of the Northern Sea Otter

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; extension of comment period, notice of availability of draft economic analysis, and amended required determinations.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service, announce the extension of the public comment period on the proposed designation of critical habitat for the southwest Alaska Distinct Population Segment (DPS) of the northern sea otter (Enhydra lutris kenyoni) under the Endangered Species Act of 1973, as amended. We also announce the availability of a draft economic analysis (DEA) and an amended required determinations section of the proposal. We are extending the comment period for an additional 30 days from the date of this notice to allow all interested parties an opportunity to comment simultaneously on the revised proposed rule, the associated DEA, and the amended required determinations section. If you submitted comments previously, you do not need to resubmit them because we have already incorporated them into the public record and will fully consider them in preparation of the final rule.

          DATES:
          We will consider comments received on or before July 9, 2009.

          ADDRESSES:
          You may submit comments by one of the following methods:
          • Federal eRulemaking Portal:
            http://www.regulations.gov. Follow the instructions for submitting comments.
          • U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS-R7-ES-2008-0105; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203.
          • Public Hearing: We will hold one public hearing on June 18, 2009, at the Z.J. Loussac Library in Anchorage, Alaska. In addition to having the opportunity to provide oral comments in person, telephone access will be provided for this hearing. Contact the Marine Mammals Management Office (see FOR FURTHER INFORMATION CONTACT) for more information about this public hearing.
          • Public Comment Hotline: We will also establish a toll-free public comment hotline at 877-577-6930. Callers will have an opportunity to record their comments at any time during the public comment period.
          We will post all comments on http://www.regulations.gov (see the “Public Comments” section below for more information).

          FOR FURTHER INFORMATION CONTACT:
          Douglas M. Burn, Wildlife Biologist, U.S. Fish and Wildlife Service, Marine Mammals Management Office, 1011 East Tudor Road, Anchorage, Alaska 99503, by telephone (907-786-3807), or by facsimile (907-786-3816). Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:

        Public Comments

        We will accept written and oral comments and information during this extended comment period on the proposed rule to designate critical habitat for the southwest Alaska DPS of the northern sea otter (Enhydra lutris kenyoni) that was published in the Federal Register on December 16, 2008 (73 FR 76454), the draft economic analysis of the proposed designation, and the amended required determinations provided in this document. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning:

        (1) The reasons why we should or should not designate habitat as critical habitat under section 4 of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et
          seq.), including whether there are threats to the species from human activity, the degree of which can be expected to increase due to the designation, and whether the benefit of designation would outweigh any threats to the species due to designation, such that the designation of critical habitat is prudent.
        (2) Specific information on:
        • The distribution of the northern sea otter in southwest Alaska;
        • The amount and distribution of habitat of the Southwest Alaska DPS of the northern sea otter; and

        • What areas occupied at the time of listing that contain features essential for the conservation of the species we should include in the designation and why, and

        • What areas not occupied at the time of listing are essential to the conservation of the species and why.
        (3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.
        (4) Any foreseeable economic, national security, or other relevant impacts that may result from the proposed designation and, in particular, any impacts on small entities, and the benefits of including or excluding areas from the proposed designation that exhibit these impacts.
        (5) Whether our approach to designating critical habitat could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments.
        (6) Information on the extent to which the description of economic impacts in the DEA is complete and accurate.
        (7) The likelihood of adverse social reactions to the designation of critical habitat, as discussed in the DEA, and how the consequences of such reactions, if likely to occur, would relate to the conservation and regulatory benefits of the proposed critical habitat designation.
        (8) Special management considerations or protections that the proposed critical habitat may require.

        You may submit your comments and materials concerning the proposed rule or DEA by one of the methods listed in the ADDRESSES section. We will not consider comments sent by e-mail or fax or to an address not listed in the ADDRESSES section.
        If you submit a comment via http://www.regulations.gov, your entire comment—including any personal identifying information that you provide, such as your address, phone number and e-mail address—will be posted on the Web site. If you submit a hardcopy comment that includes personal identifying information, 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. We will post all hardcopy comments on http://www.regulations.gov.

        Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule and DEA, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Marine Mammals Management Office (see FOR FURTHER INFORMATION CONTACT). You may obtain copies of the proposed rule and the DEA on the Internet at http://www.regulations.gov at Docket Number FWS-R7-ES-2008-0105, or by mail from the Marine Mammals Management Office (see FOR FURTHER INFORMATION CONTACT section).
        Background

        It is our intent to discuss only those topics directly relevant to the designation of critical habitat. On December 19, 2006, the Center for Biological Diversity filed suit against the Service for failure to designate critical habitat for the southwest Alaska DPS of the northern sea otter within the statutory timeframe (Center for Biological Diversity et al. v. Kempthorne et al., No. 1:06-CV-02151-RMC (D.D.C. 2007)). On April 11, 2007, the U.S. District Court for the District of Columbia entered an order approving a stipulated settlement of the parties requiring the Service on or before November 30, 2008, to submit to the Federal Register a determination as to whether designation of critical habitat for the southwest Alaska DPS of the northern sea otter is prudent, and if so, to publish a proposed rule. The order also requires the Service on or before October 1, 2009, to submit to the Federal Register a final rule designating critical habitat.
        On December 16, 2008, we published a proposed rule to designate critical habitat for the southwest Alaska DPS of the northern sea otter (73 FR 76454). We proposed to designate approximately 15,225 square kilometers (5,879 square miles) in 5 units located in southwest Alaska as critical habitat. The boundaries of these units correspond to management units in a draft recovery plan that is currently under development. The proposed rule had an initial 60-day comment period that closed on February 17, 2009. Because the initial comment period partially overlapped the holiday season, we reopened the public comment period on May 8, 2009. This second comment period was scheduled to close on July 1, 2009. This notice extends the second comment period to July 9, 2009. During the public comment period associated with this Notice, we will hold one public hearing in Anchorage, Alaska, that will include telephone access. In addition, we will establish a toll-free “public comment hotline” that will operate throughout the entire 30-day public comment period. Use of this hotline will provide greater access to concerned citizens who wish to submit verbal comments, but are unable to attend the public hearing in person or by telephone.

        For more information on the southwest Alaska DPS of the northern sea otter or its habitat, refer to the final listing rule published in the Federal Register on August 9, 2005 (70 FR 46366), which is available on the Internet at http://ecos.fws.gov/docs/federal_register/fr4423.pdf or from the Marine Mammals Management Office (see FOR FURTHER INFORMATION CONTACT).
        Section 3 of the Act defines critical habitat as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions that affect critical habitat must consult with us on the effects of their proposed actions, under section 7(a)(2) of the Act.
        Draft Economic Analysis
        Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific and commercial data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat.

        We have prepared a Draft Economic Analysis (DEA), which identifies and analyzes the potential economic impacts associated with the proposed critical habitat designation for the southwest Alaska DPS of the northern sea otter that we published in the Federal Register on December 16, 2008. The DEA quantifies the potential economic impacts of all conservation efforts for the southwest Alaska DPS of the northern sea otter; some of these costs will likely be incurred regardless of whether we designate critical habitat. The economic impact of the proposed critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.” The “without critical habitat” scenario represents the baseline for the analysis, considering protections already in place for the species (e.g., under the Federal listing and other Federal, State, and local regulations). The baseline, therefore, represents the costs incurred regardless of whether critical habitat is designated. The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts are those not expected to occur absent the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat above and beyond the baseline costs; these are the costs we may consider in the final designation of critical habitat. The analysis looks retrospectively at baseline impacts incurred since the species was listed, and forecasts both baseline and incremental impacts likely to occur if we finalize the proposed critical habitat.
        The DEA provides estimated costs of the reasonably foreseeable potential economic impacts of the proposed critical habitat designation for the southwest Alaska DPS of the northern sea otter over the next 20 years, which was determined to be the appropriate period for analysis because limited planning information was available for most activities to forecast activity levels for projects beyond a 20-year timeframe. It identifies potential incremental costs as a result of the proposed critical habitat designation, which are those costs attributed to critical habitat over and above those baseline costs attributed to listing. The DEA quantifies economic impacts of conservation efforts for the southwest Alaska DPS of the northern sea otter associated with the following categories of activity: (1) Oil spill planning and response; (2) oil and gas exploration and development; (3) marine and coastal construction activities; and (4) water quality management.
        Baseline economic impacts are those impacts that result from listing and other conservation efforts for the southwest Alaska DPS of the northern sea otter not attributable to designation of critical habitat and thus are expected to occur regardless of whether we designate critical habitat. Total future (2009-2028) baseline impacts are estimated to range from $37.7 million applying a 7 percent discount rate, to $49.8 million applying a 3 percent discount rate. Construction and water quality management activities are expected to bear the majority of forecast baseline impacts. The majority of baseline economic impacts are estimated to occur in critical habitat Unit 5 (56 percent) and Unit 2 (28 percent).
        Overall, the future (2009-2028) incremental impacts (those estimated to occur because of critical habitat designation) designating critical habitat are relatively small, ranging from $660,000 applying a 7 percent discount rate to $885,000 applying a 3 percent discount rate, amounting to an increase of 1.8 percent over baseline impact levels. The majority of incremental impacts are estimated to occur primarily in critical habitat Unit 5 (40 percent), followed by Unit 3 (30 percent). By comparison, estimated baseline and incremental impacts are relatively low in critical habitat Units 1 and 4. Oil spill planning and response activities are expected to bear a majority of the forecast incremental cost impacts associated with critical habitat designation. Administrative costs of consultation represent roughly 93 percent of the forecast incremental costs of otter critical habitat designation.
        As stated earlier, we are soliciting data and comments from the public on the DEA, as well as all aspects of the proposed rule and our amended required determinations. We may revise the proposed rule or supporting documents to incorporate or address information we receive during the public comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusions will not result in the extinction of this species.
        Areas Considered for Exclusion

        Based on comments submitted during the initial public comment period from December 16, 2008, to February 17, 2009, we are evaluating whether the benefits of the exclusion of some areas from the proposed critical habitat outweigh the benefits to the species from their inclusion in the designation. We summarize the requests for exclusion below. The complete comment submissions can be reviewed at http://www.regulations.gov, Docket ID: FWS-R7-ES-2008-0105. Exclusions, if any, will be made to the final designation.
        (1) In their comment letter dated February 10, 2009, the Department of the Navy (Document ID: FWS-R7-ES-2008-0105-0008.1) requested that we exclude critical habitat designation for the areas contiguous to each of the islands in Unit 5 under section 4(b)(2) of the Act due to national security importance.
        (2) In their comment letter dated February 17, 2009, the State of Alaska (Document ID: FWS-R7-ES-2008-0105-0018.1) noted that “some areas proposed for critical habitat designations will not meet part (b) of this definition (of critical habitat) because they are already protected and therefore do not require additional special management considerations or protection.” The State of Alaska also requested exclusion of several areas under Section 4(b)(2) of the Act for economic reasons. These areas are:
        • Port Moller-Herendeen Bay (Subunit 4C);
        • Areas in Cook Inlet/Eastern Alaska Peninsula/Kodiak Island identified through the pending economic analysis as economically important;
        • Tidelands adjacent to communities up to 1-mile radius;
        • Barefoot Beach Log Transfer Facility: within Kazakof Bay on Afognak Island;
        • Lookout Cove Log Transfer Facility: within Kazakof Bay on Afognak Island; and
        • Chignik Bay.
        (3) In their letter of February 17, 2009, the Resource Development Council (Document ID: FWS-R7-ES-2008-0105-0020.1) requested that we exclude the following areas under Section 4(b)(2) for economic reasons:
        • Areas surrounding activities relating to existing fishing and transportation on islands, including but not limited to: Attu, Atka, Adak, Unalaska, Akutan, Kodiak and Afognak.
        • Areas immediately surrounding established villages and existing transportation access for the villages in the area.
        • Areas where State of Alaska oil and gas leases have been issued, including but not limited to, Herendeen Bay and Port Moller.
        • Areas in western Cook Inlet, into the Lake Iliamna area from Williamsport, which will be used for fuel and supplies for residents as well as for potential large-scale mining projects.
        • Areas used for access by logging transportation around the Kodiak archipelago, including but not limited, to Kazikof Bay on Afognak Island.
        (4) In their submission on February 17, 2009, the Alaska Sea Otter and Steller Sea Lion Commission (Document ID: FWS-R7-ES-2008-0105-0021) noted the high cost of living in rural communities in southwest Alaska, and requested that we exclude areas “in immediate proximity to these communities” under section 4(b)(2) of the Act for economic reasons.

        Aside from these areas now being considered for possible exclusion from the final designation of critical habitat, no other areas are being considered for exclusion, at this time, and the proposed designation of critical habitat remains unchanged as presented.

        Required Determinations—Amended
        In our December 16, 2008, proposed rule, we indicated that we would defer our determination of compliance with several statutes and Executive Orders until the information concerning potential economic impacts of the designation and potential effects on landowners and stakeholders became available in the DEA. We have used the DEA data to make these determinations. In this document, we affirm the information in our proposed rule concerning Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 12630 (Takings), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform), the Unfunded Mandates Reform Act, the Paperwork Reduction Act, the National Environmental Policy Act, and the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951). However, based on the DEA data, we revise our required determination concerning the Regulatory Flexibility Act and E.O. 13211 (Energy, Supply, Distribution, and Use).
        Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
        Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions), as described below. However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. Based on our DEA of the proposed designation, we provide our analysis for determining whether the proposed rule would result in a significant economic impact on a substantial number of small entities. Based on comments we receive, we may revise this determination as part of our final rulemaking.
        According to the Small Business Administration, small entities include small organizations, such as independent nonprofit organizations, and small governmental jurisdictions including school boards and city and town governments that serve fewer than 50,000 residents, as well as small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors with less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation, as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.
        To determine if the proposed designation of critical habitat for the southwest Alaska DPS of the northern sea otter would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities, such as oil spill planning and response, oil and gas exploration and development, marine and coastal construction activities, and water quality management. Specifically, we identified 12 small entities that may be potentially affected by these activities (3 are in the deep sea freight transportation business, 2 are in the general construction business, 3 are government jurisdictions, and 4 are in the seafood processing business). In estimating the numbers of small entities potentially affected, we considered whether the activities of these entities may entail any Federal involvement. Critical habitat designation will not affect activities that do not have any Federal involvement; designation of critical habitat affects activities conducted, funded, or authorized by Federal agencies.
        If we finalize this proposed critical habitat designation, Federal agencies must consult with us under section 7 of the Act if their activities may affect designated critical habitat. Consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.
        In order to determine whether it is appropriate for our agency to certify that this rule would not have a significant economic impact on a substantial number of small entities, we considered in the DEA the potential impacts resulting from implementation of conservation actions related to the proposed designation of critical habitat for the southwest Alaska DPS of the northern sea otter on each of the 12 small entities discussed above. As described in Appendix A of the DEA, the potential impacts are likely to be associated with construction, oil spill response activities, and water quality issues. The average annualized incremental impacts to small entities ranges from $2,407 for seafood processors to $4,367 for deep sea freight transporters, applying a 7% discount rate. We therefore conclude that costs to small entities will not be significant. Please refer to the DEA for a more detailed discussion of potential economic impacts.
        In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. We have identified 12 small entities that may be impacted by the proposed critical habitat designation. For the above reasons and based on currently available information, we certify that if promulgated, the proposed designation would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.
        Executive Order 13211—Energy Supply, Distribution, and Use
        On May 18, 2001, the President issued an Executive Order (E.O. 13211; Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. The DEA concludes that the future of oil and gas exploration and development activities within the proposed critical habitat area are uncertain. Despite a significant body of research regarding the potential for oil and gas development activities in Alaska, no forecast exists for the proposed critical habitat area.

        The only potential economic impacts quantified in the DEA that may be relevant to E.O. 13211 are oil spill response activities associated with energy use. As described in the DEA, an estimated 152 oil spills requiring consultation are anticipated in southwest Alaska over the next 20 years. Because future consultations will consider both jeopardy and adverse modification of critical habitat, the incremental costs of these consultations is estimated to range from $148,000, applying a 7% discount rate, to $467,000 applying a 3% discount rate.

        In our proposed rule we stated that we did not expect the proposed rule to significantly affect energy supplies, distribution (including shipping channels), or use because most oil and gas development activities would not overlap with the habitats used by northern sea otters, and we would not expect the activities to cause significant alteration of the PCEs. Any proposed development project likely would have to undergo section 7 consultation to ensure that the actions would not destroy or adversely modify designated critical habitat. Consultations may entail modifications to the project to minimize the potential adverse effects to northern sea otter critical habitat. A spill-response plan would have to be developed to minimize the chance that a spill would have negative effects on sea otters or critical habitat. However, we conduct thousands of consultations every year throughout the United States, and in almost all cases, we are able to accommodate both project and species' needs. We expect that to be the case here. We conclude that this action is not a significant energy action, and no Statement of Energy Effects is required.
        Authors
        The primary authors of this notice are the staff members of the Marine Mammals Management Office, Alaska Region, U.S. Fish and Wildlife Service.
        Authority

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

          Dated: June 1, 2009.
          Jane Lyder,
          Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. E9-13314 Filed 6-8-09; 8:45 am]
      BILLING CODE 4310-55-P