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You can access publicly available information related to this document using the following methods:

•NRC's Public Document Room (PDR):The public may examine and have copied, for a fee, publicly available documents at the NRC's PDR, Room O-1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

•NRC's Agencywide Documents Access and Management System (ADAMS):Publicly available documents created or received at the NRC are available electronically at the NRC's Electronic Reading Room athttp://www.nrc.gov/reading-rm/adams.html.From this page, the public can gain entry into ADAMS, which provides text and image files of NRC's public documents. If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRC's PDR reference staff at 1-800-397-4209, or 301-415-4737, or by e-mail toPDR.Resource@nrc.gov.

•Federal Rulemaking Web Site:Public comments and supporting materials related to this proposed rulemaking can be found athttp://www.regulations.govby searching on Docket ID NRC-2011-0058.

On March 31, 2008, the NRC adopted a final rule which substantially revised its regulations for fitness for duty (FFD) in Title 10 of the Code of Federal Regulations (10 CFR) part 26 (73 FR 16966; March 31, 2008). The revised regulations updated the NRC's FFD requirements and made them more consistent with other relevant Federal rules, guidelines, and drug and alcohol testing programs that impose similar requirements on the private sector. In addition, by establishing clear and enforceable requirements for the management of worker fatigue, the 2008amendments require nuclear power plant licensees to ensure that worker fatigue does not adversely affect public health and safety and the common defense and security. Among these fatigue management requirements is a minimum days off requirement, which requires licensees to manage cumulative fatigue by providing workers with a minimum number of days off over the course of a period not to exceed 6 weeks.

On September 3, 2010, the Nuclear Energy Institute (NEI) submitted a petition for rulemaking (PRM-26-5). In PRM-26-5, the NEI states that “the new rule has resulted in consequences not originally envisioned when the rule was developed and that these consequences have diminished the safety benefits of the rule.” The NEI states that the unintended consequences stem from the minimum days off requirements, specifically § 26.205(d)(3) through § 26.205(d)(6), because they create an undue level of complexity and inflexibility in managing worker fatigue. These regulations mandate a specified minimum average number of days off per week, averaged over a fixed time period. The minimum average number of days off depends on the duties the individual performs and, for § 26.205(d)(3), the length of an individual's shift schedule (i.e.,whether the individual is working 8-, 10- or 12-hour shifts).

The NEI requests, among other changes, that 10 CFR part 26, Subpart I, be amended to replace the minimum days off requirements in § 26.205(d) with a performance-based objective, consisting of an average of 54 hours worked per week, averaged over a calendar quarter. The NEI also proposes changing the § 26.205(e)(1) annual assessment of actual hours worked and performance of individuals subject to the work hour controls to a quarterly assessment to provide a more frequent review of hours worked. The NEI proposes to eliminate the minimum days off requirements in § 26.205(d)(3) through § 26.205(d)(6), while the work hour limits and break requirements in § 26.205(d)(1)(i)-(iii) and (d)(2)(i)-(ii), respectively, would remain unchanged.

Separately from PRM-26-5, on September 23, 2010, the NEI submitted a request for enforcement discretion regarding the minimum days off provisions of part 26. The request reiterates the NEI's opinion that the regulations that govern fatigue management impede “many safety-beneficial practices at plant sites, adversely [impact] the quality of life of covered workers, and [result] in conflicts between rule requirements and represented bargaining unit agreements.” The letter requests that the NRC “exercise enforcement discretion from the [minimum days off] provisions of the rule” until the final disposition of PRM-26-5.

Mr. Erik Erb, a nuclear security officer at the Nine Mile Point Nuclear Station, submitted a petition for rulemaking (PRM-26-6) on August 17, 2010. Mr. Erb requests that the NRC amend 10 CFR part 26, subpart I, to decrease the minimum days off requirement for security officers working 12-hour shifts from an average of 3 days per week to an average of 2.5 or 2 days per week. This petition was endorsed by 91 security officers.

The NRC held a public meeting on November 18, 2010, to learn, directly from the affected stakeholders, more details about the unintended consequences of the minimum days off requirements. Although some of the stakeholders are comfortable with the current minimum days off requirements, the stakeholders at this public meeting claimed that the unintended consequences have diminished the safety benefits of the fatigue management provisions of 10 CFR part 26 and expressed the need for an alternative that is simpler and would provide greater scheduling flexibility. Additional public meetings were held on January 6, 2011, and January 25, 2011, to provide opportunities for stakeholders and the NRC to discuss alternatives to the minimum days off requirements.

In a February 8, 2011, public meeting, the NRC staff and stakeholders briefed the Commission on the implementation of the 10 CFR part 26 fatigue management requirements. The nuclear power industry stakeholders conveyed many of the same concerns raised in the three public meetings. The NRC staff presented the scientific and technical bases for the current requirements for managing cumulative fatigue and a proposal to address the concerns raised by the industry stakeholders. The NRC staff proposed a maximum average 54-hour work week, averaged over a 6-week rolling period, as an alternative to the § 26.205(d)(3) minimum days off requirements. The NRC staff and industry stakeholders generally agreed that this proposal could provide the relief sought by the industry while meeting the objectives of the minimum days off requirements. Other stakeholders were less certain that the NRC should consider proposals to change the current requirements.

On March 24, 2011, the Commission issued a Staff Requirements Memorandum that directed the NRC staff to conduct a rulemaking to provide an alternative to the minimum days off requirements that would be consistent with the proposal presented by the NRC staff at the February 8, 2011, briefing. The Commission limited the scope of the rulemaking to the alternative to the minimum days off requirements and instructed the NRC staff to consider other issues related to the petitions for rulemaking, other changes to 10 CFR part 26, and comments received in this rulemaking proceeding that are outside the limited scope of this rulemaking, in a separate rulemaking effort. The Commission also directed the staff to expedite this rulemaking and provide a 30-day public comment period for this proposed rule instead of the typical 75-day public comment period.

One cause of cumulative fatigue is consecutive days of restricted or poor quality sleep. In turn, consecutive days of restricted or poor quality sleep may be caused by such things as shift-work, extended work days, and extended work weeks. Currently, Subpart I of 10 CFR part 26 requires nuclear power plant licensees to manage cumulative fatigue primarily by providing individuals with a minimum number of days off over the course of a period not to exceed 6 weeks. The distribution of the days off during the 6-week period acts to either prevent or mitigate cumulative fatigue.

An alternative method for managing cumulative fatigue would be to establish a requirement to limit actual hours worked instead of mandating the number of days off that individuals receive. A limit on actual hours worked, when applied to schedules that require regular shift coverage, would limit the number of work hours that can contribute to cumulative fatigue and, as a practical matter, result in periodic days off for recovery rest. A schedule resulting in a weekly average of 54 hours worked, calculated using a rolling period of up to 6 weeks, would be such a schedule.

In general, most individuals that work their normal shift schedule and receive only the minimum number of days off required under the current minimum days off requirements of § 26.205(d)(3) could average as many as 54 hours ofwork per week. However, the NEI has indicated that implementation of the minimum days off requirements has reduced licensee scheduling flexibility and imposed a substantial administrative burden. By comparison, limiting work hours to an average of not more than 54 hours per week by using a rolling window (i.e.,averaging period) of up to 6 weeks would limit the number of consecutive weeks of extended work hours that an individual can work by using a comparable but simpler and more flexible requirement. The 6 week limit would also remain consistent with the averaging duration and technical basis of the minimum days off requirements, as described in the Statement of Considerations (SOC) for the 2008 10 CFR part 26 final rule. In addition, this alternative would not depend on the length of an individual's shift schedule and would eliminate the burden of tracking the number of days off that an individual receives in a period not to exceed 6 weeks. Based on stakeholder input, the alternative would relieve operational burdens by enabling licensee personnel to engage in certain safety-beneficial practices with fewer scheduling restrictions, such as holding off-shift shift manager meetings and using the most knowledgeable workers in responding to plant events and conditions.

In summary, the maximum number of hours that could be worked under the proposed alternative approach would be comparable to the maximum number of hours that can be worked by most individuals under the current 10 CFR part 26 minimum days off requirements, except that the alternative requirement would provide for greater simplicity and flexibility. This proposed approach could be used only in place of the minimum days off requirements in § 26.205(d)(3) and would be applicable only to individuals subject to work hour controls under § 26.205(a). Under § 26.205(a), the subject individuals are those described in § 26.4(a). The NRC determination that the proposed alternative would be equivalent to the minimum days off requirements considered the collective advantages and disadvantages of having all individuals who are subject to the work hour controls under a single set of cumulative fatigue management requirements. Thus, licensees would not be able to subject one group of individuals under § 26.4(a) to the requirements in § 26.205(d)(3) and another group of individuals under § 26.4(a) to proposed § 26.205(d)(7) requirements. Allowing licensees to implement the minimum days off and proposed alternative requirements simultaneously would also create a burden for NRC oversight and inspections.

Although the rolling schedule required under the proposed alternative approach would limit the number of consecutive extended work weeks and thereby limit the potential for cumulative fatigue, there are unusual potential circumstances in which the proposed alternative requirement could be met and the schedule could be fatiguing. Such schedules include having only one in every nine days off or consistently working the maximum allowable hours, which would likely result in cumulative fatigue. However, the industry has stated that these unusual schedules are improbable. The NRC believes that this proposed alternative approach, together with other aspects of the rule that will remain unchanged, would provide reasonable assurance that licensees will manage cumulative fatigue in a manner that contributes to the protection of public health and safety and common defense and security.

The NRC proposes to create a new § 26.205(d)(7) that would contain the proposed alternative. The proposed rule would allow nuclear power plant licensees and other entities identified in § 26.3(a) and, if applicable, (c) and (d) to choose whether or not to implement this alternative approach, in lieu of compliance with the current rule's minimum days off requirements in § 26.205(d)(3). The NRC is not proposing to remove the current § 26.205(d)(3) minimum days off requirements and mandate that all licensees instead adopt new maximum average work hour requirements. Some licensees may be satisfied with the current requirements. In addition, a mandated change would constitute backfitting under the NRC's Backfit Rule, 10 CFR 50.109. None of the exceptions in § 50.109(a)(4) to preparation of a backfit analysis could be justified, and a backfit analysis could not demonstrate that a mandatory rule would constitute a cost-justified substantial increase in protection to public health and safety or common defense and security. For these reasons, the NRC has decided to propose the maximum weekly average of 54 work hours, averaged over a rolling window of up to 6 weeks, as an alternative to the minimum days off requirements.

Consistent with the current rule's minimum days off requirements in § 26.205(d)(3), the proposed alternative maximum average work hours provisions would apply to all periods of operations, with several specified exceptions: during force-on-force exercises and plant emergencies and for security personnel when they are needed to maintain the common defense and security. In those limited circumstances, special provisions, described below, would apply. In addition, licensees currently have the option under § 26.205(d)(4) to comply with the minimum days off requirements in either § 26.205(d)(3) or § 26.205(d)(4) during unit outages when the affected individuals are working on outage activities, and have the option under § 26.205(d)(5) to comply with the minimum days off requirements in either § 26.205(d)(3) or § 26.205(d)(5) during unit outages, security system outages, or increased threat conditions. Under the proposed rule, licensees also would have the option to comply with the maximum average work hours requirements under the above conditions. The reasons that the Commission permits the exceptions and options involving the minimum days off requirements are explained in the SOC for the 2008 10 CFR part 26 final rule. Because the proposed optional approach would offer licensees an equivalent minimum days off alternative that is equally effective at managing cumulative fatigue, the 2008 10 CFR part 26 final rule SOC also provides the justification for why the proposed alternative would apply to the exceptions and options described herein.

The current rule, in § 26.205(d)(4), offers licensees the option to apply different minimum days off requirements during the first 60 days of a unit outage for individuals working on outage activities. During this part of outages, licensees are not required to calculate the requisite number of an individual's days off by a weekly average over a period of up to 6 weeks. The regulation requires licensees who choose the outage option to provide affected individuals with a fixed number of days off over a 15-day period or 7-day period, depending on the duties performed by the individuals. Similarly, the cumulative fatigue management provisions for security personnel in current § 26.205(d)(5)(i) allow licensees, during the first 60 days of a unit outage or a planned security system outage, the option to comply with the minimum days offrequirements in § 26.205(d)(3) or provide security personnel with a fixed number of days off over a 15-day period. Under proposed § 26.205(d)(4) and (d)(5)(i), licensees that choose the alternative maximum average work hours approach during non-outage periods would have the option to use the proposed alternative or the fixed number of days off approaches during the first 60 days of outages.

During the first 60 days of an unplanned security system outage or increased threat condition, current § 26.205(d)(5)(ii) provides a discretionary exception from the minimum days off requirement in § 26.205(d)(3) and (d)(5)(i) so that security personnel subject to the work hour requirements would not be required to meet the minimum days off requirements. The proposed § 26.205(d)(5)(ii) would permit licensees who implement the maximum average work hours approach during non-outage periods to not meet the proposed § 26.205(d)(7) requirements during the first 60 days of an unplanned security system outage or increased threat condition.

Section 26.207(b) of the current regulations relieves licensees from the minimum days off requirements of § 26.205(d)(3) by allowing licensees to exclude shifts worked by security personnel during the actual conduct of NRC-evaluated force-on-force tactical exercises when calculating the individuals' required number of days off. The proposed rule would permit licensees who implement the proposed alternative during non-outage periods to exclude from the proposed § 26.205(d)(7) calculations the hours worked by security personnel during the actual conduct of NRC-evaluated force-on-force tactical exercises.

Current § 26.207(c) provides a licensee relief from the work hour control requirements of § 26.205 for security personnel upon written notification from the NRC, for the purpose of assuring the common defense and security for a period the NRC defines. In the proposed rule, licensees would also be relieved from the requirements of proposed § 26.205(d)(7) in this situation.

As stated in current § 26.207(d), a licensee need not meet the work hour controls, including the minimum days off requirements, during declared emergencies, as defined in the licensee's emergency plan. Under the proposed rule, consistent with the current approach for minimum days off requirements during declared emergencies, licensees would not need to meet the requirements of the proposed § 26.205(d)(7) during the period of the declared emergency.

The NRC Office of Enforcement issued EGM-09-008, “Enforcement Guidance Memorandum—Dispositioning Violations of NRC Requirements for Work Hour Controls Before and Immediately After a Hurricane Emergency Declaration,” dated September 24, 2009, to give the NRC staff guidance for processing violations of work hour controls requirements during conditions before and immediately after the declaration of an emergency for a hurricane, when licensees sequester plant staff on site to ensure personnel are available for relief of duties, and potentially granting enforcement discretion for the affected requirements. Under EGM-09-008, the NRC may exercise enforcement discretion and not cite licensees for violations of 10 CFR 26.205(c) and (d) while a licensee sequesters site personnel in preparation for hurricane conditions that are expected to result in the declaration of an emergency caused by high winds. The EGM refers to § 26.205(d) generally, and therefore, the requirements in proposed § 26.205(d)(7) would also fall under the enforcement discretion described by EGM-09-008.

Section 26.203 establishes requirements for licensees' fatigue management policies, procedures, training, examinations, recordkeeping, and reporting. The NRC proposes to make conforming changes to paragraphs within § 26.203 to ensure consistency between the implementation of the minimum days off requirements in § 26.205(d)(3) and the implementation of the maximum average work hours requirements in proposed § 26.205(d)(7).

Section 26.203(d)(2) currently requires licensees to retain records of shift schedules and shift cycles of individuals who are subject to the work hour requirements established in § 26.205. These records are necessary, in part, to ensure that documentation of the licensee's fatigue management program is retained and available for the NRC inspectors to verify that licensees are complying with the work hour requirements and waiver and fatigue assessment provisions. Because licensees that implement the alternative would need to show inspectors that individuals subject to the new work hour controls have not exceeded the average weekly work hour limit, inspectors would need to know the averaging periods used by the licensee. Therefore, the NRC proposes to amend § 26.203(d)(2) to include the requirement that licensees implementing the requirements in proposed § 26.205(d)(7) maintain records showing the beginning and end times and dates of all 6-week or shorter averaging periods. These licensees would also need to retain records of shift schedules to ensure compliance with the requirements in § 26.205(c) and § 26.205(d)(2).

Current § 26.203(e)(1) requires licensees to provide the NRC with an annual summary of all instances during the previous calendar year in which the licensee waived each of the work hour controls specified in § 26.205(d)(1) through (d)(5)(i) for individuals who perform the duties listed in § 26.4(a)(1) through (a)(5). Section 26.203(e)(1) would be revised in the proposed rule to require licensees to also report the instances when the licensee waived the requirements in proposed § 26.205(d)(7).

Section 26.203(e)(1)(i) and (e)(1)(ii) requires licensees to report whether work hour controls are waived for individuals working on normal plant operations or working on outage activities. The proposed rule would require licensees to include whether the alternative requirements in proposed § 26.205(d)(7) were waived during normal plant operations or while working on outage activities.

Section 26.205 sets forth the NRC's requirements governing work hour controls applicable to individuals performing the duties in 10 CFR 26.4(a)(1) through (a)(5). The NRC proposes to add a new § 26.205(d)(7) and make conforming changes to existing paragraphs within § 26.205 to ensure consistency between the implementation of the minimum days off requirements in § 26.205(d)(3) and the implementation of the maximum average work hours requirements in proposed § 26.205(d)(7).

Section 26.205(b)(5) currently allows licensees to exclude from the calculation of an individual's work hours unscheduled work performed off site (e.g.,technical assistance provided by telephone from an individual's home), provided the total duration of the work does not exceed a nominal 30 minutes during any single break period. For the purposes of compliance with theminimum break requirements of § 26.205(d)(2) and the minimum days off requirements of § 26.205(d)(3) through (d)(5), such duties do not constitute work periods or work shifts. The proposed rule would revise § 26.205(b)(5) to exclude these incidental duties from hours worked under proposed § 26.205(d)(7).

Currently, § 26.205(d)(3) requires licensees to ensure that subject individuals have, at minimum, the days off as specified in this section. Under the proposed rule, licensees would have the option of either complying with the minimum days off requirements in § 26.205(d)(3) or the alternative requirements in proposed § 26.205(d)(7).

Current § 26.205(d)(4) provides a limited discretionary exception from the minimum day off requirements in § 26.205(d)(3) for individuals performing the duties specified in § 26.4(a)(1) through (a)(4) (i.e.,certain operations, chemistry, health physics, fire brigade, and maintenance activities). The exception from the minimum days off requirements is available during the first 60 days of a unit outage while a subject individual is working on outage activities. In these circumstances, if the licensee elects to apply the exception, § 26.205(d)(4) requires licensees to ensure that individuals specified in § 26.4(a)(1) through (a)(3) have a minimum of 3 days off in each successive (i.e.,non-rolling) 15-day period and that individuals specified in § 26.4(a)(4) have at least 1 day off in any 7-day period. Detailed guidance on the applicability of this rule provision is available in Regulatory Guide 5.73, “Fatigue Management for Nuclear Power Plant Personnel.” After the first 60 days of a unit outage, regardless of whether the individual is working on unit outage activities, the individual is again subject to the minimum days off requirements of § 26.205(d)(3), except as permitted by § 26.205(d)(6). The NRC proposes to revise § 26.205(d)(4) to allow licensees that choose the maximum average work hours alternative during non-outage periods to have the option to use the proposed alternative or the fixed number of days off approach during the first 60 days of a unit outage.

Section 26.205(d)(5)(i) currently provides a discretionary exception from the minimum days off requirements of § 26.205(d)(3) for personnel performing the duties described in § 26.4(a)(5) during unit outages or unplanned security system outages. The requirement limits this exception period to 60 days from the beginning of the outage and requires that individuals performing the security duties identified in § 26.4(a)(5) during this period have a minimum of 4 days off in each non-rolling 15-day period. Proposed § 26.205(d)(5)(i) would allow licensees that choose the maximum average work hours alternative during non-outage periods to have the option to use the proposed alternative or the fixed number of days off approach in § 26.205(d)(5)(i) for security personnel during the first 60 days of a unit outage or unplanned security system outage.

Current § 26.205(d)(5)(ii) provides a discretionary exception from the minimum days off requirements of § 26.205(d)(3) for security personnel during the first 60 days of an unplanned security system outage or an increased threat condition. Individuals performing the security duties identified in § 26.4(a)(5) during this period do not have to meet the minimum days off requirements of § 26.205(d)(3). Proposed § 26.205(d)(5)(ii) would provide that, during the first 60 days of an unplanned security system outage or an increased threat condition, licensees would not need to meet the requirements of § 26.205(d)(3), § 26.205(d)(5)(i), or proposed § 26.205(d)(7) for security personnel.

This would be a new section governing maximum average work hours for subject individuals, with which licensees could voluntarily choose to comply as an alternative to complying with comparable provisions in § 26.205(d)(3). Licensees who choose to comply with this alternative would nonetheless comply with all requirements in § 26.205 other than the minimum days off requirements in § 26.205(d)(3).

The individuals subject to the proposed maximum average work hours requirements in this section would be the same as the individuals subject to the comparable controls in § 26.205(d)(3), which, according to § 26.205(a), are the individuals described in § 26.4(a). Unlike the minimum days off requirements, the proposed maximum average work hours alternative would apply to all individuals described in § 26.205(a) without regard for their assigned duties or the length of their shift schedules.

Licensees who elect to implement the requirements of proposed § 26.205(d)(7)(i) would manage affected individuals' cumulative fatigue by limiting the number of hours they work each week to an average of 54 hours. The 54-hour average would be computed over a rolling period of up to 6 weeks. Licensees would roll (i.e.,adjust forward) the beginning and end times and dates of their averaging periods (of up to 6 weeks) by no more than 7 consecutive calendar days at any time. Licensees would be expected to describe in their FFD procedures, as required by proposed § 26.205(d)(7)(ii), the beginning and end times and days of the week for the averaging periods.

In proposed § 26.205(d)(7)(ii), each licensee would need to explicitly state, in its FFD policies and procedures required by 10 CFR 26.27 and 10 CFR 26.203, with which requirements it is complying: The minimum days off provisions in § 26.205(d)(3) or the maximum average work hours requirements in proposed § 26.205(d)(7). As a general matter, good regulatory practice requires each licensee to clearly document its licensing basis, especially where the NRC's requirements offer the licensee one or more regulatory alternatives. If a licensee clearly and sufficiently documents its licensing basis, then the licensee can more easily determine, despite changes (as applicable) in personnel, procedures, or its design, whether the licensee continues to comply with its licensing basis and applicable NRC requirements. Effective documentation also allows the NRC to quickly and accurately determine the licensee's status of compliance and affords the public an opportunity to understand the legal constraints to which that licensee is subject.

Arguably, the NRC's regulations would already require the licensee to document its decision to comply with the alternative to the minimum days off requirements in proposed § 26.205(d)(7). Section 26.27 requires licensees to establish written FFD policies and procedures, and 10 CFR 26.203(a) and (b) requires licensees to include in the § 26.27 written policies and procedures the specific policies and procedures for the management of fatigue, including the process for implementing the work hour controls in § 26.205. However, to avoid ambiguity on this matter, the NRC would make clear in § 26.205(d)(7)(ii) the licensee's (and applicant's) regulatory obligation to document in itsFFD policies and procedures, required by § 26.27 and § 26.203(a) and (b), including the process for implementing the work hour controls, with which requirements it will comply: The requirements in § 26.205(d)(3) or proposed § 26.205(d)(7).

The cumulative fatigue management requirements with which each licensee elects to comply, either the requirements in § 26.205(d)(3) or proposed § 26.205(d)(7), would be the legally-binding requirements for that licensee for all individuals subject to the work hour controls of § 26.205. For example, licensees would not be able to subject one group of individuals under § 26.4(a) to the requirements in § 26.205(d)(3) and another group of individuals under § 26.4(a) to proposed § 26.205(d)(7) requirements. Implementing the minimum days off and proposed alternative requirements simultaneously would create a burden for NRC inspectors because before they could even begin their inspection review, the inspectors would have to ascertain which groups of individuals were subject to which set of requirements. The review itself would then be more burdensome because the review would include additional steps depending on the applicable individuals and requirements. In addition, the NRC assessed the proposed alternative as equivalent to the minimum days off requirements considering the collective advantages and disadvantages of having all individuals who are subject to the work hour controls under a single set of cumulative fatigue management requirements. Nevertheless, licensees would be free to switch to the other set of legally-binding requirements, so long as the requirement of proposed § 26.205(d)(7)(ii) was met.

Currently, § 26.205(e)(1) requires licensees to review the actual work hours and performance of individuals who are subject to this section for consistency with the requirements of § 26.205(c), so that licensees can determine if they are controlling the work hours of individuals consistent with the objective of preventing impairment from fatigue due to the duration, frequency, or sequencing of successive shifts. Section 26.205(e)(1)(i) requires the licensees to assess the actual work hours and performance of individuals whose actual hours worked during the review period exceeded an average of 54 hours per week in any shift cycle while the individuals' work hours are subject to the requirements of § 26.205(d)(3). The NRC proposes to amend § 26.205(e)(1)(i) to require licensees to assess the actual work hours and performance of individuals whose actual hours worked during the review period exceeded an average of 54 hours per week in any averaging period of up to 6 weeks. The duration of the averaging periods would be the same duration that the licensees use to control the individuals' work hours to comply with the requirements of proposed § 26.205(d)(7).

Section 26.207 provides the criteria that licensees must meet to authorize waivers and enact exceptions from the work hour requirements in § 26.205(d)(1) through (d)(5)(i). The NRC proposes to make conforming changes to paragraphs within § 26.207 to ensure consistency between the implementation of the minimum days off requirements in § 26.205(d)(3) and the implementation of the maximum average hours worked requirements in proposed § 26.205(d)(7).

Section 26.207(a) permits licensees to authorize waivers from the work hour requirements in § 26.205(d)(1) through (d)(5)(i) for conditions that meet the two criteria specified in § 26.207(a). Section 26.207(a) would be revised in the proposed rule to authorize licensees to grant waivers from the work hour requirements in proposed § 26.205(d)(7) if the criteria in § 26.207(a) are met.

Current § 26.207(b) relieves licensees from the minimum days off requirements of § 26.205(d)(3) by allowing them to exclude shifts worked by security personnel during the actual conduct of NRC-evaluated force-on-force tactical exercises when calculating the individual's number of days off. The proposed rule would amend § 26.207(b) to permit licensees to exclude from the maximum average work hours requirements of proposed § 26.205(d)(7) the hours worked by security personnel during the actual conduct of NRC-evaluated force-on-force tactical exercises.

Section 26.209 requires licensees to take immediate action in response to a self-declaration by an individual who is working under, or being considered for, a waiver from the work hour controls in § 26.205(d)(1) through (d)(5)(i). The NRC proposes to make a conforming change to § 26.209(a) to ensure consistency between the implementation of the minimum days off requirements in § 26.205(d)(3) and the implementation of the maximum average hours worked requirements in proposed § 26.205(d)(7).

Section 26.209(a) would be amended in the proposed rule to address the situation when an individual is performing, or being assessed for, work under a waiver of the requirements contained in proposed § 26.205(d)(7) and declares that, due to fatigue, he or she is unable to safely and competently perform his or her duties. As in the current § 26.209(a), the licensee shall immediately stop the individual from performing any duties listed in § 26.4(a), except if the individual is required to continue performing those duties under other requirements in 10 CFR part 26. If the subject individual must continue performing the duties listed in § 26.4(a) until relieved, then the licensee shall immediately take action to relieve the individual.

Section 26.211 currently requires licensees to conduct fatigue assessments under several conditions. The NRC proposes to make conforming changes to paragraphs within § 26.211 to ensure consistency between the implementation of the minimum days off requirements in § 26.205(d)(3) and the implementation of the maximum average hours worked requirements in proposed § 26.205(d)(7).

Section 26.211(b)(2)(iii) prohibits individuals from performing a post-event fatigue assessment if they evaluated or approved a waiver of the limits specified in § 26.205(d)(1) through (d)(5)(i) for any of the individuals who were performing or directing the work activities during which the event occurred if the event occurred while such individuals were performing work under that waiver. The proposed rule would amend § 26.211(b)(2)(iii) to prohibit individuals from performing a post-event fatigue assessment if they evaluated or approved a waiver of the limits specified in proposed § 26.205(d)(7) for any of the individuals who were performing or directing the work activities during which the event occurred if the event occurred while such individuals were performing work under that waiver.

Current § 26.211(d) prohibits licensees from concluding that fatigue has not degraded or will not degrade the individual's ability to safely andcompetently perform his or her duties solely on the basis that the individual's work hours have not exceeded any of the limits specified in § 26.205(d)(1) or that the individual has had the minimum rest breaks required in § 26.205(d)(2) or the minimum days off required in § 26.205(d)(3) through (d)(5). The NRC proposes to amend § 26.211(d) to include the maximum average work hours among the criteria that licensees may not solely rely on when concluding that fatigue has not degraded or will not degrade an individual's ability to safely and competently perform his or her duties.

The NRC is seeking advice and recommendations from the public on this proposed rule. The NRC will consider all comments received within the limited scope of this proposed rulemaking and address them in the final rule. We are particularly interested in comments and supporting rationale from the public on the following issue: Would the alternative approach provide comparable assurance of the management of cumulative fatigue as the current minimum days off requirements?

The following table lists documents that are related to this proposed rule and available to the public and indicates how they may be obtained. See Submitting Comments and Accessing Information of theSUPPLEMENTARY INFORMATIONsection on the physical locations and Web sites where the documents may be accessed.

For the purposes of Section 223 of the Atomic Energy Act (AEA), as amended, the NRC is issuing this proposed rule that would amend 10 CFR part 26 under one or more of Sections 161b, 161i, or 161o of the AEA. Willful violations of the rule would be subject to criminal enforcement. Criminal penalties as they apply to regulations in 10 CFR part 26 are discussed in § 26.825.

Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs,” approved by the Commission on June 20, 1997, and published in theFederal Registeron September 3, 1997 (62 FR 46517), this proposed rule is classified as compatibility “NRC.” Compatibility is not required for Category “NRC” regulations. The NRC program elements in this category are those that relate directly to areas of regulation reserved to the NRC by the AEA or the provisions of 10 CFR, and although an Agreement State may not adopt program elements reserved to the NRC, it may wish to inform its licensees of certain requirements via a mechanism that is consistent with a particular State's administrative procedure laws but does not confer regulatory authority on the State.

The Plain Writing Act of 2010 (Pub. L. 11 1-274) requires Federal agencies to write documents in a clear, concise, well-organized manner that also follows other best practices appropriate to the subject or field and the intended audience. Although regulations are exempt under the Act, the NRC is applying the same principles to its rulemaking documents. Therefore, the NRC has written this document, including the proposed amended and new rule language, to be consistent with the Plain Writing Act. In addition, where existing rule language must be changed, the NRC has rewritten that language to improve its organization and readability. The NRC requests comment on the proposed rule specifically with respect to the clarity and effectiveness of the language used. Comments should be sent to the NRC as explained in theADDRESSEScaption of this document.

The NRC proposes using this standard instead of the following voluntary consensus standard developed by the American Nuclear Society (ANS): American National Standards Institute (ANSI)/ANS-3.2-1988. The NRC has determined that using a Government-unique standard would be justified. The NRC declined to use the ANS standard when the fatigue management provisions in Subpart I of 10 CFR part 26 were adopted in 2008. (73 FR 16966; March 31, 2008, at 17170 (second and third column)). The alternative for managing cumulative fatigue through a maximum average work hours requirement in this proposed rule has no counterpart in ANSI/ANS-3.2-1988 that could be adopted to manage cumulative fatigue, and the NRC declines to reconsider its overall decision in the 2008 rulemaking not to adopt the fatigue management approach embodied in the ANS standard. Accordingly, the NRC concludes that there are no voluntary consensus standards that could be adopted in lieu of the proposal to adopt the Government-unique standard in this proposed rule.

The Commission has determined under the National Environmental Policy Act of 1969, as amended, and the Commission's regulations in Subpart A of 10 CFR part 51, that this proposed rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required. This proposed rule would allow licensees of nuclear power reactors to voluntarily use a different method from the one currently prescribed in the NRC's regulations for determining whether certain nuclear power plant workers must be afforded time off from work.

The NRC has determined that the alternative for determining time off would not significantly alter the likelihood that there will be an increase in fatigued workers causing operational problems or a radiological event, or being unable to properly perform their functions. The alternative would provide affected licensees with a more-easily implemented approach for determining when subject individuals must be afforded the time off. The NRC recognizes that there are unusual potential circumstances in which the proposed alternative requirement could be met and the schedule could be fatiguing. Such schedules include having only one in every nine days off or consistently working the maximum allowable hours, which would likely result in cumulative fatigue. However, the industry has stated that these unusual schedules are improbable. The NRC believes that this proposed alternative approach, together with other aspects of the rule that will remain unchanged, would provide reasonable assurance that licensees will manage cumulative fatigue in a manner that contributes to the protection of public health and safety and common defense and security. In addition, the proposed alternative is expected to reduce scheduling constraints on certain safety-beneficial practices. Because the NRC's regulatory objective would continue to be met under the alternative adopted in this proposed rule, there should be no change in environmental impacts, during operation or while the nuclear power plant is in shutdown, as compared with the environmental impact of the current rule.

The primary alternative to this action would be the no-action alternative. The no-action alternative could result in a greater administrative burden on nuclear power plant licensees in complying with the minimum days off requirements in the current rule, as compared with the alternative to the minimum days off requirements under the proposed rule. In addition, individuals subject to minimum days off requirements could personally believe that their quality of life and work conditions are less under the no-action alternative, as compared with the alternative maximum average work hours requirements that could be selected under the proposed rule.

The no-action alternative would provide little or no environmental benefit. In addition, the no-action alternative has led nuclear power plant licensees to use work scheduling approaches that, for example, reduce their capability to use the most knowledgeable workers in responding to plant events and conditions. This may provide less safety and greater risk as compared with the less burdensome scheduling approaches that licensees would be allowed to use under the alternative to the minimum days off requirements under the proposed rule.

For these reasons, the NRC concludes that this rulemaking would not have a significant adverse impact on the environment. This discussion constitutes the environmental assessment for this proposed rule. However, public stakeholders should note that the NRC is seeking public participation. Comments on any aspect of this environmental assessment may be submitted to the NRC as indicated under theADDRESSESsection.

The public burden for this information collection is estimated to be 257 hours, which is insignificant. Because the burden for this information collection is insignificant, Office of Management and Budget (OMB) clearance is not required. Existing requirements were approved by the OMB Control Number 3150-0146.

This proposed rule would allow holders of nuclear power plantoperating licenses the option to use a different method than the one currently prescribed in the NRC's regulations for determining when certain nuclear power plant workers must be afforded time off from work to ensure that such workers are not impaired due to cumulative fatigue caused by work schedules. Licensees using the alternative method would calculate the number of hours worked by applicable individuals, with a per-person limit of a maximum weekly average of 54 hours worked over a 6-week rolling window. Burden would not increase for ongoing requirements, such as scheduling work hours, recording calculations of work hours, or recording and trending problems regarding work hours. Licensees choosing to use the alternate method would incur a one-time implementation burden to revise FFD procedures, modify their work hour tracking systems and individual work scheduling systems, and state in their FFD policies which method of fatigue management is being used.

The NRC is seeking public comment on the potential impact of the information collections contained in this proposed rule and on the following issues:

1. Is the proposed information collection necessary for the proper performance of the functions of the NRC, including whether the information will have practical utility?

2. Is the estimate of burden accurate?

3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?

4. How can the burden of the information collection be minimized, including the use of automated collection techniques?

The public may examine and have copied, for a fee, publicly available documents, including the NRC Form 670, “Information Required for Making an Insignificant Burden Determination To Support a Decision That OMB Clearance Is Not Required,” at the NRC's PDR, One White Flint North, 11555 Rockville Pike, Room O-1 F21, Rockville, MD 20852. The NRC Form 670 and proposed rule are available at the NRC's Web site:http://www.nrc.gov/public-involve/doccomment/omb/index.htmlfor 30 days after the signature date of this notice.

Send comments on any aspect of these proposed information collections, including suggestions for reducing the burden and on the above issues, by May 26, 2011, to the Information Services Branch, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, or by e-mail toInfocollects.Resource@nrc.gov;and to Christine J. Kymn, Desk Officer, Office of Information and Regulatory Affairs, NEOB-10202 (3150-0146), Office of Management and Budget, Washington, DC 20503. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given to comments received after this date. You may also e-mail comments toChristine_J._Kymn@omb.eop.govor comment by telephone at 202-395-4638.

The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection unless the requesting document displays a currently valid OMB control number.

The NRC has not prepared a full regulatory analysis for this proposed rulemaking. The NRC has determined that the proposed maximum average work hours requirement would provide reasonable assurance that subject individuals are not impaired due to cumulative fatigue caused by excessive work hours. As such, adequate implementation of the alternative approach would maintain reasonable assurance that persons subject to work hour controls can safely and competently perform their assigned duties and therefore meets the intent of the current minimum days off requirement. The 2008 10 CFR part 26 final rule contained a regulatory analysis to support the minimum days off requirement. Because the proposed approach would offer licensees an alternative that is generally equivalent to the current minimum days off requirements in managing cumulative fatigue, the 2008 final rule regulatory analysis also supports this proposed rule.

Furthermore, both nuclear power plant licensees and individuals subject to the NRC's existing requirements in 10 CFR 26.205(d)(3) governing minimum days off would derive substantial benefits if the NRC were to adopt an alternative approach for controlling cumulative fatigue through maximum average work hours that could be voluntarily adopted by those licensees. In addition, the NRC concludes that providing an alternative would maintain the ability of those licensees to continue using scheduling practices that have a positive safety benefit. The NRC's conclusions in this regard are based upon information presented by two petitioners for rulemaking seeking changes to the work hour controls in 10 CFR 26.205, NEI's request for enforcement discretion of those same regulatory provisions in 10 CFR 26.205, evidence gathered from stakeholders at the three public meetings, and analysis performed by the NRC staff and explained in a January 4, 2011, memorandum and a February 28, 2011, memorandum to the Commission. In these memoranda, the NRC staff documented its evaluation of the options available to the Commission to address the concerns raised in the petitions for rulemaking and request for enforcement discretion. At the February 8, 2011, Commission briefing on the implementation of 10 CFR part 26, stakeholders appeared to support the use of an expedited rulemaking process to address the issues presented by the industry. In view of all of this information, the NRC did not see any value in preparing a more detailed regulatory analysis for this proposed rule. The NRC requests public comment on this draft regulatory analysis. Comments on the draft regulatory analysis may be submitted to the NRC as indicated under theADDRESSESsection of this document.

Under the Regulatory Flexibility Act (5 U.S.C. 605(b)), the NRC certifies that this proposed rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. This proposed rule affects only licensees that do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act or the size standards established by the NRC (10 CFR 2.810).

The NRC has determined that the Backfit Rule, 10 CFR 50.109, would not apply to this proposed rule, nor would the proposed rule be inconsistent with any of the finality provisions in 10 CFR part 52. The proposed rule, in 10 CFR 26.205(d)(7), would provide nuclear power plant licensees with an alternative for compliance with the existing controls in 10 CFR 26.205(d)(3) governing minimum days off for certain nuclear power plant workers. Licensees would be free to comply with either the existing rule's requirements governing minimum days off or with the proposed alternative requirements in 10 CFR 26.205(d)(7). The NRC concludes that a backfit analysis would not be required for this proposed rule because this proposed rule would not contain any provisions that constitute backfitting.

The proposed rule would not be inconsistent with any finality provisionsin 10 CFR part 52. No standard design certification rule or standard design approval issued under 10 CFR part 52, or currently being considered by the NRC, addresses fitness-for-duty requirements in 10 CFR part 26. Accordingly, there are no issues resolved in those design certification rules or design approvals that would be within the scope of the minimum days off controls in this proposed rule. In addition, the NRC has not issued any combined licenses under 10 CFR part 52. Hence, there are currently no holders of combined licenses who would be protected by applicable issue finality provisions. The NRC concludes that this proposed rule would not contain any provisions that would be inconsistent with any of the finality provisions in 10 CFR part 52.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 553, the NRC is proposing to adopt the following amendments to 10 CFR part 26.

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under theADDRESSESsection. Include “Docket No. FAA-2011-0385; Directorate Identifier 2010-NM-256-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

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

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2010-0191, dated September 27, 2010 [Corrected October 7, 2010] (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

The roundtable discussion will take place on Monday, May 2, 2011, and Tuesday, May 3, 2011, commencing each day at 9:30 a.m. and ending at 4 p.m. Members of the public who wish to comment on the topics addressed at the discussion, or on any other topics related to the schedule for implementing final rules for swaps and security-based swaps under the Act, may do so via:

• Paper submission to David Stawick, Secretary, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581, or Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090; or

• Electronic submission via visitinghttp://comments.cftc.gov/PublicComments/CommentForm.aspx?id=1000and submitting comments through the CFTC's Web site; and/or by e-mail torule-comments@sec.gov(all e-mails must reference the file number 4-625 in the subject field) or through the comment form available at:http://www.sec.gov/rules/other.shtml.

All submissions will be reviewed jointly by the Agencies. All comments must be in English or be accompanied by an English translation. All submissions provided to either Agency in any electronic form or on paper will be published on the Web site of the respective Agency, without review and without removal of personally identifying information. Please submit only information that you wish to make publicly available.

I concur in supporting the Commission's roundtable on the implementation process.

Along with the Chairman, I believe that our entire rulemaking process should be as transparent as possible to the public. Consequently, after the Roundtable is complete, I strongly recommend that the Commission submit both a proposal on the order in which the Commission will consider final rulemakings and a proposed implementation plan to theFederal Registerto allow the public to comment before we begin to consider final rules. Once we receive and review comments, a final rulemaking and implementation schedule should be published in theFederal Register. This level of transparency will give the market a clear picture of how the Commission intends to proceed, and how we can be held accountable as we undertake this massive regulatory overhaul. It will also provide the market with certainty market participants need to make the critical investment decisions necessary to be in compliance with the rules upon implementation. Finally, this type of transparency will help guide the Commission's decision regarding when to make critical investments in advanced technology that are necessary for us to effectively oversee the futures, options, and swaps markets.

The more thoughtful, deliberate, and transparent our sequencing and implementation processes are, the more orderly this Commission's regulation of the swaps market will be.

Before Commissioners: Jon Wellinghoff, Chairman; Marc Spitzer, Philip D. Moeller, John R. Norris, and Cheryl A. LaFleur.

1. Under section 215 of the Federal Power Act (FPA),1 the Federal Energy Regulatory Commission (Commission) proposes to approve the North American Electric Reliability Corporation's (NERC's) proposed interpretation of Requirement R8 in Commission-approved NERC Reliability Standard TOP-001-1 — Reliability Responsibilities and Authorities.2 The Commission proposes to approve the interpretation as discussed below.

2. Section 215 of the FPA requires a Commission-certified Electric Reliability Organization (ERO) to develop mandatory and enforceable Reliability Standards, which are subject to Commission review and approval. If approved, the Reliability Standards are enforced by the ERO, subject to Commission oversight, or by the Commission independently.

3. Pursuant to section 215 of the FPA, the Commission established a process to select and certify an ERO3 and, subsequently, certified NERC as the ERO.4 On March 16, 2007, the Commission issued Order No. 693, approving 83 of the 107 Reliability Standards filed by NERC, including Reliability Standard TOP-001-1.5

4. NERC's Rules of Procedure provide that a person that is “directly and materially affected” by Bulk-Power System reliability may request an interpretation of a Reliability Standard.6 The ERO's “standards process manager” will assemble a team with relevant expertise to address the requested interpretation and also form a ballot pool. NERC's Rules provide that, within 45 days, the team will draft an interpretation of the Reliability Standard, with subsequent balloting. If approved by ballot, the interpretation is appended to the Reliability Standard and filed with the applicable regulatory authority for regulatory approval.

5. Reliability Standard TOP-001-1 (Reliability Responsibilities and Authorities) centers on the responsibilities of balancing authorities and transmission operators during a system emergency. Specifically, the stated purpose of Reliability Standard TOP-001-1 is to ensure reliability entities have clear decision-making authority and capabilities to take appropriate actions or direct the actions of others to return the transmissionsystem to normal conditions during an emergency. Requirement R8 of the standard provides:

6. NERC submitted its petition for approval for an interpretation of Requirement R8 in Commission-approved Reliability Standard TOP-001-1 on July 16, 2010. Consistent with the NERC Rules of Procedure, NERC states that it assembled a team to respond to the request for interpretation and presented the proposed interpretation to industry ballot, using a process similar to the process it uses for the development of Reliability Standards.8 According to NERC, the interpretation was developed and approved by industry stakeholders using the NERC Reliability Standards Development Procedure and approved by the NERC Board of Trustees (Board). In the NERC Petition, NERC explains that it received a request from Florida Municipal Power Pool (FMPP) seeking an interpretation of Reliability Standard TOP-001-1, Requirement R8. Specifically, FMPP requested clarification on several aspects of Requirement R8. FMPP asked the following:

7. In response to FMPP's interpretation request, NERC provided the following:

8. NERC contends that the interpretation is consistent with the stated purpose of the Reliability Standard, which is to ensure reliability entities have clear decision-making authority and capabilities to take appropriate actions or direct the actions of others to return the transmission system to normal conditions during an emergency. NERC adds that the interpretation clarifies the responsibilities of balancing authorities and transmission operators during a system emergency by referencing theNERC Glossary of Terms Used in Reliability Standardsas well as other relevant Reliability Standards.11

9. On February 14, 2011, NERC made a supplemental filing in response to a Commission staff data request.12 With regard to whether Requirement R8 obligates a joint response in a system emergency, NERC explained that Requirement R8 does not use the word “joint” or otherwise infer joint responsibility during system emergencies. Rather, NERC responded that the balancing authority and transmission operator have separate responsibilities to restore real and reactive power balance during system emergencies. NERC also stated that the use of “and” between the two entities should not construe communication or coordination. NERC added that the Blackout Report13 correctly identifies communication and coordination issues as reliability issues and that communication and coordination are addressed in the Communications (COM) Reliability Standards.14

10. We propose to approve NERC's interpretation of Reliability Standard TOP-001-1, Requirement R8. We believe that the ERO has presented a reasonable interpretation consistent with the language of the Reliability Standard. In addition, as discussed below, we note that a balancing authority and transmission operator each have coordination and communication functions that are necessary for maintaining real and reactive power balance.

11. We propose to approve NERC's interpretation of TOP-001-1, Requirement R8. As explained by NERC, the interpretation supports the stated purpose of the Reliability Standard, i.e., ensuring that reliability entities have clear decision-making authority and capabilities to take appropriate actions or direct the actions of others to return the transmission system to normal conditions during an emergency.15 The interpretation also clarifies the responsibilities of a balancing authority and transmission operator during a system emergency. Further, the language is consistent with the language of the requirement. Accordingly, the Commission proposes to approve the ERO's interpretation of TOP-001-1, Requirement R8.

12. We agree, as discussed in the interpretation, that the balancing authority is responsible for restoring real power balance during a system emergency and the transmission operator is responsible for restoring reactive power balance during a system emergency. However, during a system emergency, communication and coordination between the transmission operator and balancing authority can be essential to restore real and reactive power balance. For example, during an emergency, the balancing authority may rely on the real power output of a generator to fulfill its responsibility, while the transmission operator may expect the same generator unit to reduce real power to generate greater reactive power output.16

Background

The Department proposes to modify its regulation to establish that the provisional measures during an antidumping or countervailing duty investigation will normally take the form of a cash deposit. The provisional measures period is the period between the publication of the Department's preliminary affirmative determination and the earlier of (1) the expiration of the applicable time period set forth in sections 703(d) and 733(d) the Tariff Act of 1930, as amended (the Act), or (2) the publication of the International Trade Commission's final affirmative injury determination.1 During the provisional measures period in antidumping and countervailing duty investigations, the Department is instructed by the Act to order “the posting of a cash deposit, bond, or other security, as the administering authority deems appropriate.”SeeSections 703(d)(1)(B) and 733(d)(1)(B) of the Act.

Our regulations describe the preliminary determination in antidumping and countervailing duty investigations as the first point at which the Department may provide a remedy if we preliminarily find that dumping or countervailable subsidies has occurred. The regulations at 19 CFR 351.205(a) state that, “[t]he remedy (sometimesreferred to as `provisional measures') usually takes the form of a bonding requirement to ensure payment if antidumping or countervailing duties ultimately are imposed.” Section 351.205(d) states that, “[i]f the preliminary determination is affirmative, the Secretary will take the actions described in section 703(d) or section 733(d) (whichever is applicable).”

A key reason for requiring that the provisional measures during an antidumping or countervailing duty investigation take the form of a cash deposit is to better ensure that importers bear full responsibility for any future antidumping and countervailing duties they may owe. While most of the duties on entries secured by a bond during the provisional measures period are ultimately collected, these collections can be very slow and involve burdensome administrative problems for U.S. Customs and Border Protection (CBP).

We also believe that this change to our regulation will bring the United States in line with the practices of other World Trade Organization (WTO) Members. We are aware of no other WTO Member that is currently permitting importers the option of posting bonds during the provisional measures period of antidumping and countervailing duty investigations.

The second sentence of 19 CFR 351.205(a) states that, “[t]he remedy (sometimes referred to as `provisional measures') usually takes the form of a bonding requirement to ensure payment if antidumping or countervailing duties ultimately are imposed.” The Department proposes deleting most of this sentence because U.S. importers would normally no longer be permitted to post bonds during the provisional measures period. The Department proposes keeping the “(sometimes referred to as `provisional measures')” phrase and moving it to the first sentence of 19 CFR 351.205(a). We view this phrase as a useful link between this part of our regulations and the terminology under Article 7 of the WTO Antidumping Agreement. Further, to clarify that provisional measures will take the form of cash deposits the Department proposes adding a sentence to 19 CFR 351.205(d) that states, “[w]ith respect to section 703(d)(1)(B) and 733(d)(1)(B) of the Act, the Secretary will normally order the posting of cash deposits to ensure payment if antidumping or countervailing duties ultimately are imposed.” This change, in our view, places the requirement for cash deposits in the appropriate part of 19 CFR 351 (i.e.,in the part that explains the effects of an affirmative preliminary determination). These modifications would reflect the Department's change in practice of normally requiring cash deposits rather than bonds during the provisional measures period. This modification is also in line with 19 CFR 351.205(d), which provides that “if the preliminary determination is affirmative, the Secretary will take the actions described in section 703(d) or section 733(d) of the Act (whichever is applicable)” because these sections of the Act provide that the Department shall order the posting of cash deposits or bonds, as the Department deems appropriate.

This rule has been determined to be not significant for purposes Executive Order 12866.

The Chief Counsel for Regulation has certified to the Chief Counsel for Advocacy of the Small Business Administration (“SBA”) under the provisions of the Regulatory Flexibility Act, 5 U.S.C. 605(b), that the proposed rule would not have a significant economic impact on a substantial number of small business entities. A summary of the need for, objectives of, and legal basis for this rule is provided in the preamble, and is not repeated here.

The entities upon which this rulemaking could have an impact include foreign exporters and producers, some of whom are affiliated with U.S. companies, and U.S. importers. Some of these entities may be considered small entities under the SBA small business size standard. The Department is not able to estimate the number of small entities this proposed rule will affect; however, the Department anticipates that it will not be a substantial number based on our experience with the administration of antidumping and countervailing duty proceedings.

The Department also estimates that this proposed rule's economic impact on small entities will not be significant. In 2008 and 2009, antidumping and countervailing duty remedies were applied to less than 2% of imports into the United States. Further, because provisional antidumping and countervailing duties only apply during the investigation phase of a case, this proposed rule is not applicable to a significant portion of our antidumping and countervailing duty remedies. Finally, the Act provides that provisional measures may only be in force for a four-month period, which can be extended to no longer than six months in antidumping cases.

Moreover, given the nature of our retrospective duty assessment system, eliminating effectively the bonding option and requiring cash deposits during the provisional measure period should not have a significant economic impact on small business entities. Under the U.S. retrospective system, for the provisional measure period an estimated antidumping or countervailing duty rate is established (based on the dumping margin or subsidy rate found in the preliminary determination of the original investigation), and this rate is applied to subject merchandise as it is imported. This duty rate is for deposit purposes only. Final duties are not assessed at the time the subject merchandise is imported into the United States. Rather, beginning one year after the imposition of any antidumping or countervailing duty order, interested parties (e.g.,domestic producers, importers, or foreign exporters) may request an administrative review to determine the actual amount of duties to be collected based on the level of dumping or subsidization that occurred during the review period. Further, small business entities will continue to have the option to post cash deposits during the provisional measures period, either from the entity's assets or borrowed from third parties.

For all of these reasons, the proposed rule would not have a significant economic impact on a substantial number of small business entities. Since this proposed modification to 19 CFR 351.222, if adopted, will not have a significant economic impact on a substantial number of small entities, an Initial Regulatory Flexibility Analysis is not required and, therefore, has not been prepared.

This rule does not contain a collection of information for purposes of the Paperwork Reduction Act of 1980, as amended (44 U.S.C. 3501et seq.).

For the reasons stated, 19 CFR part 351 is proposed to be amended 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-2011-0230), 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 online viahttp://www.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 e-mail 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-2011-0230” in the “Keyword” box. Click “Search” then click on the balloon shape in the “Actions” column. 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 preambleas 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-2011-0230” 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 State of North Carolina Department of Transportation awarded a contract to Astron General Contracting Company of Jacksonville, NC to perform bridge maintenance on the US Highway 70 Fixed bridge crossing Newport River at Morehead City, North Carolina. The contract provides for cleaning, painting, and steel repair to begin on June 1, 2011 and will be completed by August 20, 2011. The contractor requires the main channel in the vicinity of the bridge to remain closed during demobilization on August 20, 2011 from 10 a.m. to 4 p.m. The Coast Guard will temporarily restrict access to this section of Newport River during the demobilization of the bridge maintenance equipment.

The temporary safety zone will encompass the waters of the Newport River directly under the bridge, latitude 34°43′15″ North, longitude 076°41′39″ West, and 100 yards on either side of the US Highway 70 Fixed bridge. All vessels are prohibited from transiting this section of the waterway while the safety zone is in effect. Entry into the safety zone will not be permitted except as specifically authorized by the Captain of the Port or a designated representative. To seek permission to transit the area, mariners may contact Sector North Carolina at (252) 247-4570. This zone will be enforced from 10 a.m. to 4 p.m. on August 20, 2011.

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, as supplemented by Executive Order 13563, 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.

Although this regulation will restrict access to the area, the effect of this rule will not be significant because: (i) The safety zone will be in effect for a limited time, from 10 a.m. to 4 p.m., on August 20, 2011, (ii) the Coast Guard will give advance notification via maritime advisories so mariners can adjust their plans accordingly, and (iii) although the safety zone will apply to the section of the Newport River in the immediate vicinity of the US Highway 70 Fixed bridge, vessel traffic may use alternate waterways to transit safely around the safety zone. All Coast Guard vessels enforcing this regulated area can be contacted on marine band radio VHF-FM channel 16 (156.8 MHz).

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 rule will affect the following entities, some of which may be small entities: the owners or operators of recreational and fishing vessels intending to transit the specified portion of Newport River from 10 a.m. to 4 p.m. on August 20, 2011.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will only be in effect for six hours from 10 a.m. to 4 p.m. Although the safety zone will apply to the section of the Newport River in the vicinity of the bridge, vessel traffic may use alternate waterways to transit safely around the safety zone. Before the effective period, the Coast Guard will issue maritime advisories widely available to the users of the waterway.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) 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 the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact CWO3 Joseph Edge, Waterways Management Division Chief, Sector North Carolina, at (252) 247-4525. 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 rule elsewhere in this preamble.

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

This 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 would 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 is categorically excluded, under figure 2-1, paragraph (34)(g), of this instruction. This proposed rule involves the establishment of a temporary safety zone to protect the public from bridge maintenance operations. 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:

If you wish to comment, you may submit your comments by one of several methods:

You may mail comments to Director (630) Bureau of Land Management, U.S. Department of the Interior, Mail Stop 2143LM, 1849 C St., NW., Washington, DC 20240,Attention:1004-AE19. You may deliver comments to U.S. Department of the Interior, Bureau of Land Management, 20 M Street, SE., Room 2134LM,Attention:Regulatory Affairs, Washington, DC 20003; or

You may access and comment on the proposed rule at the Federal eRulemaking Portal by following the instructions at that site (see ADDRESSES).

Written comments on the proposed rule should be specific, should be confined to issues pertinent to the proposed rule, and should explain the reason for any recommended change. Where possible, comments should reference the specific section or paragraph of the proposed rule that the comment is addressing.

The BLM need not consider or include in the Administrative Record for the proposed rule comments that we receive after the close of the comment period (see DATES) or comments delivered to an address other than those listed above (see ADDRESSES). Comments, including names and street addresses of respondents, will be available for public review at the U.S. Department of the Interior, Bureau of Land Management, 20 M Street, SE., Room 2134LM, Washington, DC 20003 during regular hours (7:45 a.m. to 4:15 p.m.) Monday through Friday, except holidays. They will also be available at the Federal eRulemaking Portalhttp://www.regulations.gov. Follow the instructions at this Web site.

Before including your address, telephone number, e-mail address, or other personal identifying information in your comment, be advised that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask in your comment for the BLM to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

Congress has directed the Department of the Interior (Department) to facilitate the development of renewable energy resources. Promoting renewable energy is one of this Administration's and this Department's highest priorities. In Section 211 of the Energy Policy Act of 2005 (119 Stat. 660, Aug. 8, 2005) (EPAct), Congress declared that before 2015 the Secretary of the Interior should seek to have approved non-hydropower renewable energy projects (solar, wind, and geothermal) on public lands with a generation capacity of at least 10,000 megawatts (MW) of electricity. Even before the EPAct was enacted by Congress, President Bush issued Executive Order 13212, “Actions to Expedite Energy-Related Projects” (May 18, 2001), which requires Federal agencies to expedite the production, transmission, or conservation of energy.

After passage of the EPAct, the Secretary of the Interior issued several orders emphasizing the importance of renewable energy development on public lands. On January 16, 2009, Secretary Kempthorne issued Secretarial Order 3283, “Enhancing Renewable Energy Development on the Public Lands,” which states that its purpose is to “facilitate[ ] the Department's efforts to achieve the goal Congress established in Section 211 of the * * * [EPAct] to approve non-hydropower renewable energy projects on the public lands with a generation capacity of at least 10,000 megawatts of electricity by 2015.” The order also declared that “the development of renewable energy resources on the public lands will increase domestic energy production, provide alternatives to traditional energy resources, and enhance the energy security of the United States.”

Approximately 1 year later, Secretary Salazar issued Secretarial Order 3285A1, “Renewable Energy Development by the Department of the Interior” (Feb. 22, 2010), which reemphasized the development ofrenewable energy as a priority for the Department. The order states: “Encouraging the production, development, and delivery of renewable energy is one of the Department's highest priorities. Agencies and bureaus within the Department will work collaboratively with each other, and with other Federal agencies, departments, states, local communities, and private landowners to encourage the timely and responsible development of renewable energy and associated transmission while protecting and enhancing the Nation's water, wildlife, and other natural resources.” As a result of these and other initiatives, the interest in renewable energy development on public lands has increased significantly.

In addition to these specific directives, the BLM is charged generally with managing the public lands for multiple uses under the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. 1701,et seq.,including for mining and energy development. In some instances, different uses may present conflicts. For example, a mining claim located within a proposed ROW for a utility-scale solar energy generation facility could impede the BLM's ability to process the ROW application because the Federal government's use of the surface cannot endanger or materially interfere with a properly located mining claim. In order to help avoid such conflicts while carrying out the Congressional and Executive mandates and direction to prioritize the development of renewable energy, the BLM is proposing this rule. This rule will help promote the orderly administration of the public lands by giving the BLM a tool to minimize potential resource conflicts between ROWs for proposed solar and wind energy generation facilities and other uses of the public lands. Under existing regulations, lands within a solar or wind energy generation ROW application or within an area identified by the BLM for such ROWs, unlike lands proposed for exchange or sale, remain open to appropriation under the public land laws, including location and entry under the Mining Law, while BLM is considering the ROW.

Over the past 5 years, the BLM has processed 24 solar and wind energy development ROW applications. New mining claims were located on the public lands described in two of these proposed ROWs during the BLM's consideration of the applications. Many of the mining claims in the two proposed ROWs were not located until after the existence of the wind or solar ROW application or the identification of an area by the BLM for such ROWs became publicly known. In addition, over the past 2 years, 437 new mining claims were located within wind energy ROW application areas in Arizona, California, Idaho, Nevada, Oregon, Utah, and Wyoming and 216 new mining claims were located within solar energy ROW application areas. In the BLM's experience, some of these claims are likely to be valid, but others are likely to be speculative and not located for true mining purposes. As such, the latter are likely filed for no other purpose than to provide a means for the mining claimant to compel some kind of payment from the ROW applicant to relinquish the mining claim. The potential for such a situation exists because, while it is relatively easy and inexpensive to file a mining claim, it can be difficult, time-consuming, and costly to prove that the mining claim was not properly filed or does not contain a valid discovery. Regardless of the merits of a particular claim, the location of a mining claim in an area covered by a ROW application (or identified for such an application) creates uncertainty that interferes with the orderly administration of the public lands. This uncertainty makes it difficult for the BLM, energy project developers, and institutions that finance such development to proceed with such projects because a subsequently located mining claim potentially precludes final issuance of the ROW and increases project costs, jeopardizing the planned energy development.

For example, the location of a new mining claim during the pendency of the BLM's review process for a ROW application could preclude the applicant from providing a concrete proposal for their use and occupancy of the public lands. This is because under the Mining Law, a ROW cannot materially interfere with a previously located mining claim. Since all properly located claims are treated as valid until proven otherwise, the filing of any mining claim can substantially delay the processing of a ROW application. As a result, a ROW applicant could either wait for the BLM to determine the validity of a claim, or the applicant could choose to modify or relocate its proposed surface use to avoid conflicts with the newly located mining claim, leading to additional expense, which could jeopardize the renewable energy project.1 The BLM's processing time for the ROW application could be significantly increased if any changes necessitated by the newly located mining claim require the BLM to undertake any additional analyses, such as those required by the National Environmental Policy Act, 42 U.S.C. 4321et seq.(NEPA). Under these circumstances, the BLM's ability to administer the public lands in an orderly manner is impeded.

This proposed rule is needed to provide the BLM with the necessary authority to ensure the orderly administration of the public lands and to prevent conflicts between competing uses of those lands. By allowing for temporary segregation, it would enable the BLM to prevent new resource conflicts from arising as a result of new mining claims that may be located within land covered by any pending or future wind or solar energy generation facility ROW applications, or public lands identified by the BLM for potential future wind or solar energy generation ROWs pursuant to its ROW regulations. Temporary segregation is generally sufficient because once a ROW has been authorized, subsequently located mining claims would be subject to the previously authorized use, and any future mining claimant would have notice of such use.

The proposed rule would supplement the authority contained in 43 CFR subpart 2091 to allow the BLM to segregate from appropriation under the public land laws, including location under the Mining Law, but not the Mineral Leasing Act or the Materials Act, public lands included in a pending or future wind or solar energy generation ROW application or public lands identified by the BLM for a wind or solar energy generation ROW authorization under 43 CFR subpart 2804, subject to valid existing rights.2 This proposed rule would not affect valid existing rights in mining claims located before any segregation made pursuant to the final rule. The proposed rule also would not affect ROW applications for uses other than wind or solar energy generation facilities.

Segregations under the proposed rule would be accomplished by publishing a notice in theFederal Registerand would be effective upon the date of publication. The BLM considered a rule that would allow for segregation through notation to the public land records, but it rejected this approach because it would not provide the publicwith the same level of notice that aFederal Registernotice would accomplish. The proposed rule would provide for segregation periods of up to 2 years, with the option, if deemed necessary by the appropriate BLM State Director, to extend the segregation of the lands for up to an additional 2 years. The proposed rule would not authorize the BLM to continue the segregation after a final decision on a ROW has been made. Finally, not all wind or solar ROW applications would lead to a segregation, as the BLM may reject some applications and others may not require segregation because conflicts with mining claims are not anticipated.

Segregation rules, like this proposed rule, have been held to be “reasonably related” to the BLM's broad authority to issue rules related to “the orderly administration of the public land laws,”3 because they allow the BLM to protect an applicant for an interest in such lands from “the assertion by others of rights to the lands while the applicant is prevented from taking any steps to protect” its interests because it has to wait for the BLM to act on its application.4 It is for this purpose that existing regulations at 43 CFR subpart 2091 provide the BLM with the discretion to segregate lands that are proposed for various types of land disposals, such as land sales, land exchanges, and transfers of public land to local governments and other entities under the Recreation and Public Purposes Act of 1926. These regulatory provisions allowing segregations were put in place over the years to prevent resource conflicts, including conflicts arising from the location of new mining claims, which could create encumbrances on the title of the public lands identified for transfer out of Federal ownership under the applicable authorities.

Such a situation occurred in Nevada, and the proposed land purchaser chose to pay the mining claimant to relinquish his claims in order to enable the sale to go forward. In fact, in the land sales context, the segregative period was increased from 270 days to a maximum term of 4 years, as it was found that the original segregative period was insufficient and that conflicting mining claims were being located before sales could be completed. This proposed rule would provide the BLM the same flexibility it currently has for land disposals by allowing the BLM to temporarily segregate lands that are included in pending or future applications for solar and wind facility ROWs or on lands identified by the BLM for such ROWs. This would allow for the orderly administration of the public lands by eliminating the potential for conflicts with mining claims located after the BLM publishes aFederal Registernotice of such ROW applications or areas.

As noted above, the development of renewable energy is a high priority for the Department of the Interior and the BLM. The location of mining claims, however, under certain circumstances, may impede the BLM's ability to administer the public lands in an orderly manner and to carry out its Congressional and Executive mandate to facilitate renewable energy development on those lands because the BLM currently lacks the ability to maintain the status quo on such lands while it is processing a ROW application for a wind or solar energy generation facility. This proposed rule would help the BLM maintain the status quo and prevent potential resource use conflicts by allowing the BLM to temporarily segregate lands being considered for a wind or solar energy generation facility.

This proposed rule would revise 43 CFR sections 2091.3-1 and 2804.25 by adding language that would allow the BLM to segregate lands, if the BLM determines it to be necessary for the orderly administration of the public lands. This authority to segregate lands would be limited to lands included in a pending or future wind or solar energy ROW application, or public lands identified by the BLM for a wind or solar energy generation ROW authorization under the BLM's ROW regulations. If segregated under this rule, such lands, during the limited segregation period, would not be subject to appropriation under the public land laws, including location under the Mining Law, but not the Mineral Leasing Act or the Materials Act, subject to valid existing rights.

The new language also specifies that the segregative effect terminates and the lands would automatically reopen to appropriation under the public land laws, including the mining laws: (1) Upon the BLM's issuance of a decision regarding whether to issue a ROW authorization for the solar or wind energy generation proposal; (2) Upon publication of aFederal Registernotice of termination of the segregation; or (3) Without further administrative action at the end of the segregation period provided for in theFederal Registernotice initiating the segregation, whichever occurs first. The segregation would be effective for a period of up to 2 years; however, the rule provides that the segregation may be extended for an additional 2 years if the appropriate BLM State Director determines and documents in writing, prior to the expiration of the segregation, that an extension of the segregation is necessary for the orderly administration of the public lands. The BLM would publish an extension notice in theFederal Register, if it determines that an extension of the segregation is necessary. The extension of the segregation would not be for more than 2 years. The maximum total segregation period would not exceed 4 years.

This proposed rule is not a significant regulatory action5 and is not subject to review by the Office of Management and Budget under Executive Order 12866. The proposed rule would provide the BLM with regulatory authority to segregate public lands included within a pending or future wind or solar energy generation ROW application, or public lands identified by the BLM for a potential future wind or solar energy generation ROW authorization, from appropriation under the public land laws, including location under the Mining Law, but not the Mineral Leasing Act or the Materials Act, if the BLM determines that segregation is necessary for the orderly administration of the public lands. To assess the potential economic impacts, the BLM must first make some assumptions concerning when and how often this segregation authority may be exercised. The purpose of any segregation would be to allow for the orderly administration of the public lands to facilitate the development of renewable energy resources by avoiding conflicts between renewable energy development and the location of mining claims.

Wind—Wind energy ROW site testing and development applications are widely scattered in many western states. Most of the public lands with pendingwind energy ROW applications are currently managed for multiple resource use, including being open to mineral entry under the mining laws. Over the past 2 fiscal years, 437 new mining claims were located within wind energy ROW application areas in Arizona, California, Idaho, Nevada, Oregon, Utah, and Wyoming. Based on the BLM's recent experience processing wind energy ROW applications, it is anticipated that approximately 25 percent of the lands with current wind energy ROW applications will reach the processing stage where a Notice of Intent (NOI) is issued. Without trying to identify specific locations of new mining claims located within those application areas, we assume a quarter of those new mining claims, or 109 new mining claims, would be located within wind application areas that would be segregated under this new regulation.

The actual number of claimants affected will likely be less than this estimate since a single claimant typically files and holds multiple mining claims. Of the 437 new mining claims filed within the wind energy ROW application areas in fiscal year (FY) 2009 and 2010, there was an average of about eight mining claims per claimant. Assuming that there was nothing unique about the number of claims and distribution of claims per claimant for FY 2009 and 2010, we estimate that 14 entities would be potentially precluded from filing new mining claims on lands that would be segregated within the identified wind energy ROW application areas under this rule. For these entities, the economic impacts of the segregation are the delay in when they could locate their mining claims and a potential delay in the development of such claims because such development would be subject to any approved ROW issued during the segregative period. However, a meaningful estimate of the value of such delays is hard to quantify given the available data because it depends on the validity and commercial viability of any individual claim, and the fact that the location of a mining claim is an early step in a long process that may eventually result in revenue generating activity for the claimant.

The other situation where entities might be affected by the segregation provision is if a new Plan of Operations or Notice is filed with the BLM during the 2-year segregation period. In such a situation, the BLM has the discretion under the Surface Management Regulations (43 CFR subpart 3809) to require the preparation of a mineral examination report to determine if the mining claims were valid before the lands were segregated before it processes the Plan of Operations or accepts the filed Notice. If required, the operator is responsible to pay the cost of the examination and report.

Within the past 2-year period, five Plans of Operations and two Notices were filed with the BLM within wind ROW application areas. Assuming (1) A quarter of those filings would be on lands segregated under this rule, (2) the number of Plan and Notice filings received in the past 2 years is somewhat reflective of what might occur within a 2-year segregation period, and (3) the BLM would require mineral examination reports to determine claim validity on all Plans and Notices filed within the segregation period, we estimate two entities might be affected by this rule change.6

Should the BLM require the preparation of mineral examination reports to determine claim validity, the entity filing the Plan or Notice would be responsible for the cost of making that validity determination. Understanding that every mineral examination report is unique and the costs vary accordingly, we assume an average cost of $100,000 to conduct the examination and prepare the report. Based on the number of Plans and Notices filed within the wind energy right-of-way application areas in FY 2009 and 2010, we estimate the total cost of this provision could be about $200,000 over the 2-year period.

Solar—As noted above, the primary purpose of any segregation under this proposed rule would be to allow for the orderly administration of the public lands to facilitate the development of valuable renewable resources and to avoid conflicts between renewable energy generation and mining claim location. The main resource conflict of concern involves mining claims that are located after the first public announcement that the BLM is evaluating a ROW application, and prior to when the BLM issues a final decision on the ROW application.

Most of the public lands with pending solar energy ROW applications are currently managed for multiple resource use, including mineral entry under the mining laws. Where the BLM segregates lands from mineral entry, claimants would not be allowed to locate any new mining claims during the 2-year segregation period. Over the past 2 years, 216 new mining claims were located within solar energy ROW application areas. Based on the BLM's recent experience processing solar energy ROW applications, it is anticipated that approximately 25 percent of the lands with current solar energy ROW applications would reach the processing stage where a NOI is issued. Without trying to identify which ROWs would be granted or the specific locations of new mining claims within those application areas, we assume a quarter of those new mining claims, or 54 new mining claims, would be located within solar ROW application areas that would be segregated under this rule.

The actual number of claimants affected will likely be less than this estimate since a single claimant typically locates and holds multiple mining claims. Of the 216 new mining claims located within solar energy ROW application areas in the past 2 years, there was an average of about eight mining claims per claimant. Assuming that there was nothing unique about the number and distribution of claims per claimant for the past 2 years, we estimate seven entities would potentially be precluded from locating new mining claims on lands segregated within the identified solar energy ROW application areas under the rule change. For these entities the economic impacts of the segregation would be the delay in when they can locate their mining claim and a potential delay in the development of such claim because such development would be subject to any approved ROW issued during the segregative period. However, a meaningful estimate of the value of such delays is hard to quantify given the available data because it depends on the validity and commercial viability of any individual claim, and the fact that the location of a mining claim is an early step in a long process that may eventually result in revenue generating activity for the claimant.

The other situation where entities might be affected by the proposed segregation provisions is where a new Plan of Operations or Notice is filed with the BLM during the 2-year segregation period. In such a situation, the BLM has the discretion under the Surface Management Regulations (43 CFR subpart 3809) to require a mineral examination to determine if the mining claims were valid before the lands were segregated before it approves the Plan of Operations or accepts the filed Notice. If required, the operator is responsible to pay the cost of the examination and report.

Within the past 2-year period, two Plans of Operations and two Notices were filed with the BLM within solarROW application areas. Assuming (1) a quarter of those filings would be on lands segregated under this rule, (2) the number of Plan and Notice filings received in the past 2 years is reflective of what might occur within a 2-year segregation period, and (3) the BLM would require mineral examination reports to determine claim validity on all Plans and Notices filed within the segregation period, we estimate one entity might be affected by this rule change.7

Should the BLM require a mineral examination to determine claim validity, the entity filing the Plan or Notice would be responsible for the cost of making that validity determination. Understanding that every mineral examination report is unique and the costs would vary accordingly, we assume an average cost of $100,000 to conduct the examination and prepare the report. Based on the number of Plans and Notices filed within the solar energy ROW application areas in the past 2 years, we estimate the total cost of this provision could be about $100,000 over the 2-year period.

It is not possible to estimate the number of future rights-of-way for wind or solar energy developments that could be filed on areas identified as having potential for either of these sources of energy. This is because there are many variables that could have an impact on such filings. Such variables include: the quantity and sustainability of wind at any one site, the intensity and quantity of available sunlight, the capability of obtaining financing for either wind or solar energy projects, the proximity of transmission facilities that could be used to carry the power generated from a specific wind or solar energy right-of-way project, and the topography of the property involved. The number of mining claims would also be based on speculation as to the mineral potential of an area, access to markets, potential for profitability, and a host of other geologic factors, such as type of mineral, depth of the mineral beneath the surface, quantity and quality of the mineral, and other such considerations.

Based on this analysis, the BLM concludes that this proposed rule would not have an annual effect of $100 million or more on the economy. It would not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities. This proposed rule would not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. This proposed rule would not alter the budgetary effects of entitlements, grants, user fees or loan programs or the rights or obligations of their recipients; nor would it raise novel legal or policy issues. The full economic analysis is available at the office listed under theADDRESSESsection of this preamble.

Executive Order 12866 requires each agency to write regulations that are simple and easy to understand. The BLM invites your comments on how to make this proposed rule easier to understand, including answers to questions such as the following:

1. Are the requirements in the proposed rule clearly stated?

2. Does the proposed rule contain technical language or jargon that interferes with its clarity?

3. Does the format of the proposed rule (grouping and order of sections, use of headings, paragraphing,etc.) aid or reduce its clarity?

4. Would the regulations be easier to understand if they were divided into more (but shorter) sections?

5. Is the description of the proposed rule in theSUPPLEMENTARY INFORMATIONsection of this preamble helpful in understanding the proposed rule? How could this description be more helpful in making the proposed rule easier to understand?

The BLM has determined that this proposed rule is administrative in nature and involves only procedural changes addressing segregation requirements. This proposed rule would result in no new surface disturbing activities and therefore would have no effect on ecological or cultural resources. Potential effects from associated wind and/or solar ROWs would be analyzed as part of the site-specific NEPA analysis for those activities. In promulgating this rule, the government is conducting routine and continuing government business of an administrative nature having limited context and intensity. Therefore, it is categorically excluded from environmental review under section 102(2)(C) of NEPA, pursuant to 43 CFR 46.205. The proposed rule does not meet any of the extraordinary circumstances criteria for categorical exclusions listed at 43 CFR 46.215. Pursuant to Council on Environmental Quality regulation (40 CFR 1508.4) and the environmental policies and procedures of the Department, the term “categorical exclusion” means a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect on procedures adopted by a Federal agency and for which, therefore, neither an environmental assessment nor an environmental impact statement is required.

The Congress enacted the Regulatory Flexibility Act (RFA) of 1980, as amended, 5 U.S.C. 601-612, to ensure that Government regulations do not unnecessarily or disproportionately burden small entities. The RFA requires a regulatory flexibility analysis if a rule would have a significant economic impact, either detrimental or beneficial, on a substantial number of small entities. The RFA requires agencies to analyze the economic impact of regulations to determine the extent to which there is anticipated to be a significant economic impact on a substantial number of small entities. We anticipate that the proposed rule could potentially affect a few entities that might otherwise have located new mining claims on public lands covered by a wind or solar energy facility ROW application currently pending or filed in the future. We further anticipate that most of these entities would be small entities as defined by the Small Business Administration; however, we do not expect the potential impact to be significant. Therefore, the BLM has determined under the RFA that this proposed rule would not have a significant economic impact on a substantial number of small entities. A copy of the analysis that supports this determination is available at the office listed under theADDRESSESsection of this preamble.

For the same reasons as discussed under the Executive Order 12866, Regulatory Planning and Review section of this preamble, this proposed rule is not a “major rule” as defined at 5 U.S.C. 804(2). That is, it would not have an annual effect on the economy of $100 million or more; it would not result in major cost or price increases for consumers, industries, government agencies, or regions; and it would nothave significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. A copy of the analysis that supports this determination is available at the office listed under theADDRESSESsection of this preamble.

This proposed rule would not impose an unfunded mandate on State, local, or Tribal governments, in the aggregate, or the private sector of $100 million or more per year; nor would it have a significant or unique effect on State, local, or Tribal governments. The rule would impose no requirements on any of these entities. Therefore, the BLM does not need to prepare a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531et seq.).

This proposed rule is not a government action that interferes with constitutionally protected property rights. This proposed rule would set out a process, by publication of a notice in theFederal Register, that could be used to segregate public lands included within a pending or future solar or wind energy generation ROW application, or public lands identified by the BLM for a potential future wind or solar energy generation ROW authorization. This segregation would remove public lands from the operation of the public land laws, including the location of new mining claims under the Mining Law, but not the Mineral Leasing Act or the Materials Act for a period of up to 2 years, with the authority to extend the segregation for up to an additional 2-year period, in order to promote the orderly administration of the public lands. Because any segregation under this proposed rule would be subject to valid existing rights, it does not interfere with constitutionally protected property rights. Therefore, the Department has determined that this proposed rule does not have significant takings implications and does not require further discussion of takings implications under this Executive Order.

The proposed rule would not have a substantial direct effect on the States, or the relationship between the national government and the States, or on the distribution of power and responsibilities among the levels of government. It would not apply to States or local governments or State or local government entities. Therefore, in accordance with Executive Order 13132, the BLM has determined that this proposed rule does not have sufficient Federalism implications to warrant preparation of a Federalism Assessment.

Under Executive Order 12988, the BLM has determined that this proposed rule would not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order.

In accordance with Executive Order 13175, the BLM has found that this proposed rule does not include policies that have Tribal implications. This rule would apply exclusively to lands administered by the BLM. It would not be applicable to and would have no bearing on trust or Indian lands or resources, or on lands for which title is held in fee status by Indian Tribes, or on U.S. Government-owned lands managed by the Bureau of Indian Affairs.

In developing this proposed rule, the BLM did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Section 515 of Pub. L. 106-554).

In accordance with Executive Order 13211, the BLM has determined that this proposed rule is not likely to have a significant adverse effect on energy supply, distribution, or use, including a shortfall in supply, price increase, or increased use of foreign supplies. The BLM's authority to segregate lands under this rule would be of a temporary nature for the purpose of encouraging the orderly administration of public lands, including the generation of electricity from wind and solar resources on the public lands. Any increase in energy production as a result of this rule from wind or solar sources is not easily quantified, but the proposed rule is expected to relieve obstacles and hindrances to energy development on public lands.

In accordance with Executive Order 13352, the BLM has determined that this proposed rule would not impede the facilitation of cooperative conservation. The rule takes appropriate account of and respects the interests of persons with ownership or other legally recognized interests in land or other natural resources; properly accommodates local participation in the Federal decision-making process; and provides that the programs, projects, and activities are consistent with protecting public health and safety.

The proposed rule does not contain information collection requirements that the Office of Management and Budget must approve under the Paperwork Reduction Act of 1995.

The principal author of this rule is Jeff Holdren, Realty Specialist, Division of Lands and Realty, assisted by the Division of Regulatory Affairs, Washington Office, Bureau of Land Management, Department of the Interior.

For the reasons stated in the preamble and under the authorities stated below, the BLM proposes to amend 43 CFR parts 2090 and 2800 as follows:

I. Background A. Current FAR Subpart 9.5, Organizational and Consultant Conflicts of Interest

The integrity of the Federal acquisition process is protected, in part, by OCI rules currently found in FAR subpart 9.5. These rules are designed to help the Government in identifying and addressing circumstances in which a Government contractor may be unable to render impartial assistance or advice to the Government or might have an unfair competitive advantage based on unequal access to information or prior involvement in setting the ground rules for an acquisition. FAR 9.504 directs contracting agencies to “identify and evaluate potential OCIs as early in the acquisition process as possible” and “avoid, neutralize, or mitigate significant potential conflicts before contract award.”

FAR coverage on OCIs has remained largely unchanged since the initial publication of the FAR in 1984. The FAR coverage was adapted from an appendix to the Defense Acquisition Regulation, which dated back to the 1960s.

1.Changes in Government and Industry.In recent years, a number of trends in acquisition and industry have led to the increased potential for OCIs, including—

• Industry consolidation;

• Agencies' growing reliance on contractors for services, especially where the contractor is tasked with providing advice to the Government; and

• The use of multiple-award task- and delivery-order contracts, which permit large amounts of work to be awarded among a limited pool of contractors.

2.SARA Panel.In its 2007 report, the Acquisition Advisory Panel (established pursuant to section 1423 of the Services Acquisition Reform Act of 2003) (SARA Panel) concluded that the FAR does not adequately address “the range of possible conflicts that can arise in modern Government contracting.” The SARA Panel observed that the FAR provides no detailed guidance to contracting officers regarding how they should detect and mitigate actual and potential OCIs and called for improved guidance, to possibly include a standard OCI clause or set of clauses. See Report of the Acquisition Advisory Panel (January 2007), available athttps://www.acquisition.gov/comp/aap/24102_GSA.pdf,at pp. 405-407, 417, 422.

3.Duncan Hunter National Defense Authorization Act for Fiscal Year 2009.Congress subsequently directed, in Section 841 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (Pub. L. 110-417), a review of the conflicts of interest provisions in the FAR. Section 841 required that appropriate revisions, including contract clauses, be developed as necessary, pursuant to that review.

The Councils have worked with OFPP and consulted with OGE to evaluate FAR subpart 9.5. This evaluation was informed, in part, by the following:

1. A review of recent case law and opinions from the Government Accountability Office (GAO) and Court of Federal Claims (CoFC). Collectively, this review indicated that, when addressing OCIs, agencies do not always perform adequate, case-by-case, fact-specific analysis.

2. The findings of the SARA Panel, which concluded that contracting officers and agencies have encountered difficulties implementing appropriate OCI avoidance and mitigation measures.

3. Responses to a 2008 ANPR which sought comment on whether the current guidance on OCIs adequately addresses the current needs of the acquisition community or whether providing standard provisions and/or clauses might be beneficial. The ten respondents to the ANPR offered a range of views, from the complete rewrite of FAR subpart 9.5, to maintaining the current coverage largely as is. Several respondents encouraged the Councils to adopt already-existing agency-level regulations, while two respondents stated that the regulations should consider providing Governmentwide standard clauses that allow agencies to add more stringent requirements, if needed, on a procurement-specific basis. One respondent suggested that any change to FAR subpart 9.5 should be consistent with existing case law on OCIs, as developed by GAO and the CoFC. Copies of all responses may be obtained athttp://www.regulations.gov.

4. Public comments provided in response to Defense Federal Acquisition Regulation Supplement (DFARS) Proposed Rule 2009-D015, published in theFederal Registeron April 22, 2010 (see 75 FR 20954-20965). DFARS Proposed Rule 2009-D015 was designed to implement section 207 of the Weapons System Acquisition Reform Act of 2009 (WSARA) (Pub. L. 111-23), which requires DoD to revise the DFARS to provide uniform guidance and tighten existing rules regarding OCIs concerning major defense acquisition programs. To implement section 207 in the most effective manner possible, DoD concluded that the basic principles, policies, and practices governing OCIs must be clearly understood. DoD reviewed the FAR coverage and issued the proposed rule that clarified the prescribed general rules and procedures for identifying, evaluating, and resolving OCIs. As with the ANPR, respondents to the DFARS proposed rule provided a range of views regarding the proposed coverage.

Based on their review, the Councils and OFPP reached the following main conclusions regarding OCIs:

Because the proposed DFARS rule (2009-D015) not only addressed the requirements of the WSARA but also contained a comprehensive OCI framework, the public now has a unique opportunity to comment on two distinct options for revising the regulatory coverage on OCIs. To this end, this proposed rule diverges substantially from the framework presented in the proposed DFARS rule, and we are seeking specific feedback regarding which course of action, or whether some combination of the two, is preferable.

The fundamental approach provided in the proposed DFARS rule is sound and provides a regulatory framework that thoroughly implements the established OCI case law. However, the fact that the OCI regulations are not primarily based in statute means that revisions to the regulations need not conform with existing case law. Rather, substantive departures from the case law should be considered if such changes will produce an OCI framework that is clearer, easier to implement, and better suited to protecting the interests of the Government.

Both this proposed FAR rule and the proposed DFARS rule propose coverage that recognizes the present-day challenges faced by acquisition officials in identifying and addressing OCIs in the procurement of products and services to satisfy agency requirements. In particular, both this proposed rule and the proposed DFARS framework—

1. Reorganize and move OCI coverage to FAR part 3, so that OCIs are addressed along with related issues, namely other business practices and personal conflicts of interest (on which final coverage is pending under FAR Case 2008-025);

2. Clarify key terms and provide more detailed guidance regarding how contracting officers should identify and address OCIs while emphasizing that each OCI case may be unique and therefore must be approached with thoughtful consideration;

3. Provide standard OCI clauses, coupled with the opportunity for contracting officers to tailor the clauses as appropriate for particular circumstances; and

4. Address unique policy issues and contracting officer responsibilities associated with OCIs arising in the context of task- and delivery-order contracts.

The coverage in this proposed rule differs from that provided by the framework presented in the DFARS rule by—

1. Providing an analysis of the risks posed by OCIs, and the two types of harm that can come from them,i.e.,—

• Harm to the integrity of the competitive acquisition system; and

• Harm to the Government's business interests;

2. Recognizing that harm to the integrity of the competitive acquisition system affects not only the Government, but also other vendors, in addition to damaging the public trust in the acquisition system. The risk of such harm must be substantially reduced or eliminated. In contrast, the risk of harm to the Government's business interests may sometimes be assessed as an acceptable performance risk;

3. Moving coverage of unequal access to nonpublic information and the requirement for resolving any resulting unfair competitive advantage out of the domain of OCIs and treating it separately in FAR part 4. Competitive integrity issues caused by unequal access to nonpublic information are often unrelated to OCIs. Therefore, treating this topic independently will allow for more targeted coverage that properly addresses the specific concerns involved in such cases; and

4. Adding broad coverage regarding contractor access to nonpublic information, to provide a more detailed framework in which to address the topic of unequal access to nonpublic information.

The Councils propose the following FAR coverage on OCIs:

As noted above, OCIs are currently addressed in FAR subpart 9.5, which deals with contractor qualifications. While the ability to provide impartial advice and assistance is an important qualification of a Government contractor, the larger issues that underlie efforts to identify and address OCIs are more directly associated with some of the business practices issues discussed in FAR part 3. For this reason, the Councils propose to relocate the FAR coverage on OCIs from FAR subpart 9.5 to a new FAR subpart 3.12.

This proposed rule makes the following changes to clarify OCI policy:

a.Organizational Conflict of Interest.The proposed FAR rule establishes a clearer definition for “organizational conflict of interest” (which is included in FAR part 2 and applies throughout the FAR). The definition of “organizational conflict of interest” is refined to reflect the two types of situations that give rise to OCI concerns.

b.Address.The verb “address” is defined in FAR subpart 3.12, for the purposes of the subpart, to provide a summary term for the various approaches for dealing with the risks and preventing the harms that may be caused by OCIs; each of those approaches is then explained in more detail in FAR 3.1204.

c.Marketing consultant.In addition, the existing definition of “marketing consultant” in FAR subpart 9.5 is removed as unnecessary because the proposed coverage is expanded beyond contracts for these entities.

2.Policy.Within the new policy section at FAR 3.1203, the proposed rule explains the harm OCIs can cause and the actions the Government must take to address the risks of such harm. This involves an expanded discussion of the two types of harm that OCIs cause to the procurement system—harm to the integrity of the competitive acquisition process and harm to the Government's business interests.

a.Harm to the Integrity of the Competitive Acquisition Process.In cases where there is a risk of harm to the integrity of a competitive acquisition process, both the Government's interests and the public interest in fair competitions are at risk. For this reason, such risks must be eliminated to the maximum extent possible. In the extremely rare case that such a risk cannot be eliminated, but award is nonetheless necessary to meet the Government's needs, a waiver provision that requires approval at the head of the contracting activity level or above is provided.

b.Harm to the Government's Business Interests.In cases where the potential harm from an OCI threatens only the Government's business interests, it may be appropriate to accept this potential harm as a performance risk. Acceptance of performance risk represents a novel means of addressing OCIs and will often only be appropriate after other steps to reduce the risk have been taken, either by the contractor (e.g.,implementation of a mitigation plan) or by the Government (e.g.,additional contract management steps or oversight).

This proposed rule assists contracting officers in implementing the Government's OCI policy by amending existing FAR coverage in two ways: consolidating the contracting officer's responsibilities regarding OCIs; and providing standard, but customizable, solicitation provisions and contract clauses related to OCIs.

1.Consolidated Discussion of Contracting Officer Responsibilities.This proposed rule creates a new section FAR 3.1206 that provides a consolidated discussion of contracting officer responsibilities, including the steps a contracting officer must take during the different phases of an acquisition to identify and address OCIs.

• FAR section 3.1206-2 addresses OCI-related responsibilities associated with presolicitation activities and requires the contracting officer to determine whether an acquisition has the potential to give rise to an OCI early enough in the acquisition process to include an appropriate provision in the solicitation, if necessary.

• FAR section 3.1206-3 provides guidance related to evaluating information from the offeror and other sources to determine if an OCI is present during the evaluation phase and to then address or waive any OCI before making a contract award.

• FAR section 3.1206-4 addresses OCI-related responsibilities associated with contract award.

• FAR section 3.1206-5 addresses task- and delivery-order contracts, and requires the contracting officer to consider OCIs both at the time of award and at the time of issuance of each order.

○ For interagency acquisitions where the ordering (customer) agency places orders directly under another agency's contract (a “direct acquisition”), the ordering agency would be responsible for addressing OCIs.

○ For interagency acquisitions where the servicing agency performs acquisition activities on the requesting agency's behalf (an “assisted acquisition”), the interagency agreement entered into between the servicing and requesting agency to establish the terms and conditions of the assisted acquisition would need to identify which party is responsible for carrying out these responsibilities.

By providing a more complete description of the steps involved in addressing OCIs, the rule will better equip contracting officers to identify conflicts and work with contractors to address them. This approach should also help to address the criticism with current FAR coverage that describing OCIs only through examples misleads contracting officers to believe that OCIs do not exist in contract actions that do not fall within the scope of an identified example.

2.New Solicitation Provision and Contract Clauses Related to OCIs.This proposed rule contains a new solicitation provision and three new contract clauses related to OCIs. Existing FAR coverage anticipates appropriate handling of OCI issues through solicitation provisions and contract clauses, but does not provide a standard format (seeFAR 9.507). The Councils determined that it was desirable to provide contracting officers with standard language that can be used or tailored as appropriate. The Councils used the requirements currently in FAR 9.506 and 9.507 as the basis for the proposed provision and clauses on OCI, providing specific fill-ins the contracting officer must complete, and language that incorporates any mitigation plan by reference.

The proposed solicitation provision and clauses are as follows:

• FAR 52.203-XX, Notice of Potential Organizational Conflict of Interest. This provision—

○ References the definition of “organizational conflict of interest;”

○ Provides notice to offerors that the contracting officer has determined that the nature of the work is such that OCIs may result from contract performance;

○ Requires an offeror to disclose all relevant information regarding any OCI (including active limitations on future contracting), and to represent, to the best of its knowledge and belief, that it has disclosed all relevant information regarding any OCI;

○ Requires an offeror to explain the actions it intends to use to address any OCI,e.g.,submit a mitigation plan if it believes an OCI may exist or agree to a limitation on future contracting; and

○ Identifies the clauses that may be included in the resultant contract, depending upon the manner in which the OCI is addressed (i.e.,FAR 52.203-YY or 52.203-YZ, described below);

• FAR 52.203-ZZ, Disclosure of Organizational Conflict of Interest After Contract Award. The Councils recognize that events may occur during the performance of a contract that give rise to a new conflict, or that a conflict might be discovered only after award has been made. This clause, which is included in solicitations and contracts when the solicitation includes the provision FAR 52.203-XX, Notice of Potential Organizational Conflicts of Interest, includes by reference the definition of “organizational conflict of interest” and requires the contractor to make a prompt and full disclosure of any new or newly discovered OCI.

• FAR 52.203-YY, Mitigation of Organizational Conflicts of Interest. This clause is generally intended to be used when the contract may involve an OCI that can be addressed by an acceptable contractor-submitted mitigation plan prior to contract award. The clause—

○ Includes a reference to the definition of “organizational conflict of interest;”

○ Incorporates the mitigation plan in the contract;

○ Addresses changes to the mitigation plan;

○ Addresses noncompliance with the clause or with the mitigation plan; and

○ Requires flowdown of the clause.

• FAR 52.203-YZ, Limitation of Future Contracting. This clause is intended for use when the contracting officer decides to address a potential conflict of interest through a limitation on future contracting. The contracting officer must fill in the nature of the limitation on future contractor activities and the length of any such limitation.

In addition to the changes described above, the Councils note the following proposed coverage:

• This rule continues to apply to contracts with both profit and non-profit organizations (current FAR 9.502(a)).

• This rule does not exclude the acquisition of commercial items, including commercially available off-the-shelf (COTS) items. This proposed rule only requires use of the provision and clauses in solicitations when the contracting officer determines that the work to be performed has the potential to give rise to an OCI. Therefore, use in acquisitions of commercial items, especially COTS items, will probably not be frequent. The Councils decided that allowing this discretion to the contracting officer is better than an outright exclusion of applicability to contracts for the acquisition of commercial items.

• This rule applies to contract modifications that add additional work. The Councils recognize that contracting officers may not be able to identify conflicts arising from all future modifications to a contract at the time of contract award.

• This rule adds a requirement at FAR 7.105(b)(18) to consider OCIs when preparing acquisition plans.

FAR subpart 9.5 and the GAO and CoFC cases interpreting the subpartcurrently treat situations involving contractors having an unfair competitive advantage based on unequal access to nonpublic information as OCIs. However, the Councils recognized that these situations do not actually involve conflicts of interest at all, and may arise from circumstances unrelated to conflicts of interest, such as where a former Government employee (who has had access to competitively useful nonpublic information) has been hired by a vendor. Further, the Councils observed that the methods available to resolve situations involving unequal access to information differ from those available to address actual OCIs. For these reasons, the Councils determined that separating the coverage of unfair competitive advantage based on unequal access to nonpublic information from the general coverage of OCIs is a desirable outcome, as it will remove some of the confusion often associated with identifying and addressing OCIs.

In developing coverage to treat situations involving unfair competitive advantage based on unequal access to information, the Councils recognized that much of such access comes from performance on other Government contracts. Accordingly, if appropriate contractual safeguards are established prior to, or at the time of, such access, the number of situations where unequal access to information will taint a competition can be minimized. For this reason, this proposed rule provides a new uniform Governmentwide policy regarding the disclosure and protection of nonpublic information to which contractors may gain access during contract performance. This coverage provides substantial safeguards designed to address some of the concerns created by unequal access to nonpublic information, while leaving it to the contracting officer to determine, for any given acquisition, whether the protections are adequate, or if a situation involving an unfair competitive advantage remains to be resolved. Because protection and release of information are administrative matters, this coverage has been placed in FAR part 4.

The coverage provides—

• A definition of “nonpublic information” to clearly identify the scope of information covered;

• Coverage of contractor access to nonpublic information during the course of contract performance;

• Specific coverage for situations involving unfair competitive advantage based on unequal access to nonpublic information; and

• Appropriate solicitation provisions and contract clauses.

The definition of “nonpublic information” provided by this proposed rule includes information belonging to either the Government or a third party that is not generally made publicly available,i.e.,information that cannot be released under the Freedom of Information Act, or information for which a determination has not yet been made regarding ability to release.

The SARA Panel recommended that the Federal Acquisition Regulatory (FAR) Council review existing rules and regulations and, to the extent necessary, create uniform, Governmentwide policy and clauses dealing with protection of nonpublic information. Additionally, a recent GAO report, “Contractor Integrity: Stronger Safeguards Needed for Contractor Access to Sensitive Information” (GAO-10-693), recommended that OFPP act with the FAR Council to provide more thorough protections when contractors are allowed access to sensitive information. These recommendations, combined with the need to provide preventive protections in dealing with cases of unfair competitive advantage based on unequal access to information, have prompted the Councils to develop the coverage in this section.

Traditionally, the Government has relied primarily on civil servants to perform the functions that require access to third-party contract information and other information in the Government's possession that requires protection from unauthorized use and disclosure. However, in recent years, the Government has significantly increased its use of contractors to assist in performing many such functions. In addition, some agencies now utilize contractors to perform research studies that require the contractors to access third-party information. With the increasing need for contractor access to nonpublic information, this rule seeks to establish a uniform, and more streamlined and efficient approach.

The Councils are proposing that contractors should be contractually obligated to protect all nonpublic information to which they obtain access by means of contract performance (whether information from the Government or a third party), with certain exceptions (e.g.,the information was already in the contractor's possession) (seeFAR 52.204-XX(c)). Further, the Councils are proposing that contractors should require all employees who may access nonpublic information to sign nondisclosure agreements and that the obligations arising from these agreements will be enforceable by both the Government and third-party information owners. By implementing these protections as the default position, the proposed approach substantially enhances the protection for third-party and Government information provided by the FAR.

Many contracts of the type described above involve not only multiple subcontractors, but also many lower-tier subcontracts. The current ad hoc approach employed by Government agencies for ensuring that all of these contractors have properly executed nondisclosure agreements among themselves has resulted in the existence of a substantial number of overlapping, but not necessarily uniform, agreements—and oftentimes confusion and misunderstandings between the Government and its contractors. The Councils have determined that the approach of requiring inclusion of an “access” clause to protect information disclosed to a contractor, and a “release” clause to notify third-party information owners of their rights when their information is improperly used or disclosed should provide thorough protection while eliminating the need for many interconnecting nondisclosure agreements.

1.Access Clause.The first element of this new approach is the proposed Access clause at FAR 52.204-XX, Access to Nonpublic Information. The purpose of the Access clause is to preclude contractors from using Government or third-party information for any purpose unrelated to contract performance. This clause requires that contractors receiving access to nonpublic information must limit the use of such nonpublic information to the purposes specified in the contract, safeguard the nonpublic information from unauthorized outside disclosure, and inform employees of their obligations and obtain written nondisclosure agreements consistent with those obligations. The clause also sets forth certain exceptions (relating to the applicability of the contractor's obligations), but the exceptions do not apply unless the contractor can demonstrate to the contracting officer that an exception is applicable.

The Access clause is subordinate to all other contract clauses or requirements that specifically address the access, use, handling, or disclosure of nonpublic information. If any restrictions or authorizations in the clause are inconsistent with any other clause or requirement of the contract,the other clause or requirement takes precedence.

This rule proposes, as the default position, mandatory use of the Access clause in solicitations and contracts when contract performance may involve contractor access to nonpublic information. However, the prescription allows agencies to provide otherwise in their procedures. The Access clause is prescribed on the same basis for use in solicitations and contracts for the acquisition of commercial items and in simplified acquisitions.

a.Alternate I.Alternate I is prescribed for use if the contracting officer anticipates that there may be a need for executing confidentiality agreements between the contractor and one or more third parties that have provided nonpublic information to the Government. This alternate requires the contractor, if requested by the contracting officer, to negotiate and sign an agreement identical, in all material respects, to the restrictions on use and disclosure of nonpublic information in the Access clause, with each entity that has provided the Government nonpublic information to which the contractor must now have access to perform its obligations under the contract.

b.Alternate II.Alternate II is for use if the contracting officer anticipates that the contractor may require access to a third party's facilities or nonpublic information that is not in the Government's possession. This alternate requires the contractor, if requested by the contracting officer, to execute a Government-approved agreement with any party to whose facilities or nonpublic information it is given access, restricting the contractor's use of the nonpublic information to performance of the contract.

3.Release Clause.The purpose of the Release clause at FAR 52.204-YY, Release of Nonpublic Information, is to obtain the consent of the original owners of third-party nonpublic information for the Government to release such information to those contractors who need access to it for purposes of contract performance and who have signed up to the conditions of the Access clause.

Unless agency procedures provide otherwise, the contracting officer must use the Release clauses in all solicitations and contracts, including solicitations and contracts for the acquisition of commercial items and below the simplified acquisition threshold.

A solicitation provision at FAR 52.204-XY, Release of Nonpublic Information, that provides similar coverage is prescribed for all solicitations.

1.Policy.FAR section 4.402 addresses situations in which access to nonpublic information constitutes a risk to the competitive integrity of the acquisition process. It includes a policy section, expressing the Government's policy that contracting officers must take action to resolve situations where one or more offerors hold an unfair competitive advantage. The policy section also states that disqualification of an offeror is the least-favored approach and should only be adopted if no other method of resolution will adequately protect the integrity of the competition.

2.General Principles.FAR subsection 4.402-3 contains general principles for determining when access to nonpublic information requires resolution. Specifically, the access must be Government-provided, the access must be unequal (that is, not all of the prospective offerors have access), the information must be competitively useful, and the competitive advantage must be unfair.

3.Contracting Officer Responsibilities.FAR subsection 4.402-4 contains details covering contracting officer responsibilities. This begins with requirements to collect information regarding unequal access to nonpublic information, both from within the Government and from offerors. If the contracting officer becomes aware that an offeror may have unequal access to nonpublic information, the rule requires that the contracting officer conduct an analysis, consistent with the general principles discussed above, to determine whether resolution is required. If resolution is not required, the contracting officer simply documents the file. If resolution is required, the contracting officer must take action consistent with the section detailing appropriate resolution techniques, which consist of information sharing, mitigation through the use of a firewall, or disqualification.

4.Solicitation Provision.FAR subsection 4.402-5 prescribes a solicitation provision, FAR 52.204-YZ, Unequal Access to Nonpublic Information, that requires offerors to identify, early in the solicitation process, whether it or any of its affiliates possesses any nonpublic information relevant to the solicitation and provided by the Government. It also requires that the contractor certify by submission of its offer that, where a mitigation plan involving a firewall is already in place (addressing nonpublic information relevant to the current competition), the offeror knows of no breaches of that firewall.

When commenting on the proposed rule, respondents are encouraged to offer their views on the following questions:

A. Do the policy and associated principles set forth in the proposed rule provide an effective framework for evaluating and addressing conflicts of interest?

B. Is the definition of “organizational conflict of interest” sufficiently comprehensive to address all potential forms of such conflicts?

C. Do the enumerated techniques for addressing OCIs adequately address the Government's interests? Are any too weak or overbroad? Are there other techniques that should be addressed?

D. Does the rule adequately address the potential conflicts that may arise for companies that have both advisory and production capabilities? What, if any, improvements might be made?

E. Do the proposed solicitation provisions and contract clauses adequately implement the policy framework set forth in the proposed rule? For example, is a clause limiting future contracting an operationally feasible means of resolving a conflict? Would it be beneficial and appropriate for this information generally to be made publicly available, such as through a notice on FedBizOpps? Do the solicitation provisions and contract clauses afford sufficient flexibility to help an agency meet its individual needs regarding a prospective or actual conflict?

F. Is there a need for additional guidance to supplement the proposed FAR coverage of OCIs (e.g.,guidance addressing the management of OCI responsibilities)? If so, what points should the guidance make?

G. Is the framework presented by this proposed rule preferable to the framework presented in the DFARS Proposed Rule 2009-D015 published in theFederal Registeron April 22, 2010 (75 FR 20954-20965)? Why or why not? Would some hybrid of the two proposed rules be preferable?

H. Does the proposed rule strike the right balance between providing detailed guidance for contracting officers and allowing appropriate flexibility for dealing with the variety of forms that organizational conflicts of interest take and the variety of circumstances under which they arise?

Are there certain types of contracts, or contracts for certain types of services,that warrant coverage that is more strict than that provided by the proposed rule?

This is a significant regulatory action and, therefore, was subject to Office of Management and Budget review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

In accordance with Executive Order 13563, Improving Regulation and Regulatory Review, dated January 18, 2011, DoD, GSA, and NASA determined that this rule is not excessively burdensome on the public, and is consistent with Section 841 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009, which required a review of the FAR coverage on OCIs.

A. The proposed changes are not expected to result in a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,et seq.,because—

1. The requirements of FAR subpart 3.12 do not differ from the burden currently imposed on offerors and contractors by FAR subpart 9.5 and the requirements of subpart 3.12 are not significantly burdensome. It is good business practice to have procedures in place to identify potential organizational conflicts of interest and to have prepared mitigation plans for obvious conflicts. This proposed rule has also reduced the potential burden by—

a. Not including a certification requirement; and

b. Providing for avoidance, neutralization, or mitigation of organizational conflicts or interest or, under exceptional circumstances, waiver of the requirement for resolution.

2. Unless the Access clause is used with Alternate I or Alternate II, this approach standardizes and simplifies the current system of third-party agreements envisioned by FAR 9.505-4. Having each contractor implement specific safeguards and procedures should offer the same or better protection for information belonging to small business entities. Moreover, this rule should ease the burden on most small business entities by not requiring them to enter multiple, interrelated third-party agreements with numerous service contractors. If the Access clause is used with Alternate I or Alternate II, then that is no more burdensome than the current requirements of FAR 9.505-4.

B. However, an Initial Regulatory Flexibility Analysis has nevertheless been prepared and is summarized as follows:

This proposed rule implements Section 841 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (Pub. L. 110-417) by providing revised regulatory coverage on organizational conflicts of interest (OCIs) and unequal access to information. The rule also provides additional coverage regarding contractor access to nonpublic information, and adds related provisions and clauses.

The objective of the rule is to help the Government in identifying and addressing circumstances in which a Government contractor may be unable to render impartial assistance or advice to the Government or might have an unfair competitive advantage based on unequal access to information or prior involvement in setting the ground rules for an acquisition.

In recent years, a number of trends in acquisition and industry have led to the increased potential for OCIs, including—

• Industry consolidation;

• Agencies' growing reliance on contractors for services, especially where the contractor is tasked with providing advice to the Government; and

• The use of multiple-award task- and delivery-order contracts, which permit large amounts of work to be awarded among a limited pool of contractors.

Section 841 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (Pub. L. 110-417) directed a review of the conflicts of interest provisions in the FAR. Section 841 required that appropriate revisions, including contract clauses, be developed as necessary, pursuant to that review.

Competitive integrity issues caused by unequal access to nonpublic information are often unrelated to OCIs. Therefore, treating this topic independently will allow for more targeted coverage that properly addresses the specific concerns involved in such cases; and including broad coverage of contractor access to nonpublic information will provide a framework for the topic of unequal access to nonpublic information.

An OCI is defined as a situation in which a Government contract requires a contractor to exercise judgment to assist the Government in a matter (such as in drafting specifications or assessing another contractor's proposal or performance) and the contractor or its affiliates have financial or other interests at stake in the matter, so that a reasonable person might have concern that when performing work under the contract, the contractor may be improperly influenced by its own interests rather than the best interests of the Government; or a contractor could be viewed as having an unfair competitive advantage in an acquisition as a result of having previously performed work on a Government contract, under circumstances such as those just described, that put the contractor in a position to influence the acquisition. The circumstances that lead to OCIs are most likely to occur in large businesses that have diverse capacity to provide both upfront advice and also a capacity for production. Although a small business might become involved in OCIs through its affiliates, we estimate that the proposed rules on OCIs would not impact a significant number of small entities. Furthermore, this rule is not adding burdens relating to OCIs that are beyond the current expectations of FAR subpart 9.5. It is just providing standard procedures and clauses, rather than requiring each contracting officer to craft unique provisions and clauses appropriate to the situation.

With regard to contractor access to information, the rule will impact entities that have access to nonpublic information in performance of a Government contract. We estimate that about half of the entities impacted will be small entities (estimated at 25,000 small entities). Typical contracts that may provide access to nonpublic information include services contracts such as professional, administrative, or management support or special studies and analyses. Furthermore, small entities that are submitting offers to the Government must inform the Government, prior to submission of offers, if they possess any nonpublic information relevant to the current solicitation (estimated at 5,750 small entities).

This rule requires the following projected reporting burdens for access to information:

a. Provide copy of nondisclosure agreement upon request (6,250 respondents × .5 hours per response = 3,125 hours).

b. Notify contracting officer of violation (250 respondents × 4 hours per response = 1,000 hours).

c. Notify contracting officer if access information that should not have access to (125 respondents × 1 hour per response = 125 hours).

d. Explain in solicitation any unequal access to nonpublic information (5,750respondents × 3 hours per response = 17,250).

e. Explain if firewall was not implemented, or breached (rare) (10 respondent × 5 hours per response = 50 hours).

We estimate that the respondents will be administrative employees earning approximately $75 per hour (+ .3285 overhead).

This rule overlaps, with other Federal rules: FAR Cases 2007-018, 2007-019, 2008-025, 2009-022, and 2009-030; and DFARS Case 2009-D015.

The Councils identified a significant alternative that would accomplish the objectives of the statute and the policies. See the discussion in the rule preamble about DFARS case 2009-D015.

DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by the rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR Case 2011-001), in correspondence.

The proposed changes to the FAR impose a new information collection requirement that requires the approval of the Office of Management and Budget under 44 U.S.C. chapter 35,et seq.Under this proposed rule, an offeror may be required to submit information to identify an OCI and propose a resolution, such as a mitigation plan submitted by the offeror with its proposal. While this requirement existed informally since 1984 in FAR subpart 9.5, it is only now being formalized via the new contract provision and clause at FAR 52.203-XX and FAR 52.203-YY.

Public reporting burden for this collection of information is estimated to average approximately 4.6 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

The annual reporting burden is estimated as follows:

1. Organizational Conflicts of Interest.

Respondents:30,930.

Responses per respondent:1.0.

Total annual responses:30,930.

Preparation hours per response:6.96.

Total response burden hours:215,273.

2. Contractor Access to Nonpublic Information.

Respondents:24,760.

Responses per respondent:1.

Total annual responses:24,760.

Preparation hours per response:2.

Total response burden hours:49,520.

3. Total.

Respondents:55,690.

Responses per respondent:1.

Total annual responses:55,690.

Preparation hours per response:4.755.

Total response burden hours:264,793.

Submit comments, including suggestions for reducing this burden, not later than June 27, 2011 to: FAR Desk Officer, OMB, Room 10102, NEOB, Washington, DC 20503, and a copy to the General Services Administration, Regulatory Secretariat (MVCB),Attn:Hada Flowers, 1275 First Street, NE., 7th Floor, Washington, DC 20417.

Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.

Requester may obtain a copy of the supporting statement from the General Services Administration, Regulatory Secretariat (MVCB), 1275 First Street, NE., 7th Floor, Washington, DC 20417. Please cite OMB Control Number 9000-0178, Organizational Conflicts of Interest, in correspondence.

Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 2, 3, 4, 7, 9, 11, 12, 13, 14, 15, 16, 18, 37, 42, 52, and 53 as set forth below:

1. The authority citation for 48 CFR parts 2, 3, 4, 7, 9, 11, 12, 13, 14, 15, 16, 18, 37, 42, 52, and 53 continues to read as follows:

Background

On March 14, 2005, MIC submitted to the agency a petition for rulemaking requesting that the agency include an additional subpart to FMVSS No. 108. Specifically, MIC requested the addition of a subpart to be designated as S5.1.1.30, which would read as follows:

MIC submitted this petition for rulemaking with the understanding that the current FMVSS No. 108 requires license plates to be mounted at ± 15 degrees of perpendicular to the plane on which the vehicle stands. In their petition, MIC took note that “although the lighting standard doesn't directly speak to license plate mounting, the requirement at issue is contained in SAE J587 October 1981, which is incorporated into FMVSS No. 108 in Table III for license plate lamps.” Petitioner notes that the requirements of the October 1981 Standard J587 are different from the European Community (ECE) regulations. By including the proposed subpart, petitioner hopes to harmonize the current motorcycle license plate requirements with the requirements in the ECE regulations.

Petitioner stated that this harmonization would not adversely affect safety or law enforcement efforts but would serve to reduce unnecessary design and manufacturing complexities for its member companies. Further, petitioner believes that by allowing a 30 degree upward angle, the manufacturers will be afforded greater flexibility in design without any detriment to real world reflective illumination of the license plates. As additional support fortheir request, MIC mentions that SAE Standard J587 was updated in 1997 to also allow for the 30 degree upward angle permitted by the ECE regulations.

In addition to the MIC petition for rulemaking of March 14, 2005, the agency has received petitions for reconsideration of the December 4, 2007 final rule that reorganized FMVSS No. 108. These petitions for reconsideration were also concerned with license plate holders and the mounting requirements. In that final rule, the agency included the license plate mounting requirements of SAE Standard J587 (October 1981) directly into the regulatory text. Petitioners objected on the grounds that the license plate mounting requirements of the 1981 SAE standard were never incorporated into FMVSS No. 108 and thus should not be included in an administrative rewrite of FMVSS No. 108 where the agency has stated no intent to substantively change the standard. A more detailed discussion of these petitions is available in today'sFederal Registerwhere the agency has issued a notice denying, in part, the petitions for reconsideration of the December 4, 2007 final rule.

Having received this petition for rulemaking and the aforementioned petitions for reconsideration of the December 4, 2007 final rule reorganizing FMVSS No. 108, the agency has decided that MIC's petition merits further consideration through the rulemaking process and hereby grants its petition for rulemaking. The agency plans to initiate the rulemaking process later this year through the publication of a notice of proposed rulemaking. This agency also announces in a separate notice published in today'sFederal Registerthat it is denying the aforementioned petitions for reconsideration as the agency has decided to resolve this issue through rulemaking. However, due to the special circumstances and confusion surrounding the license plate mounting requirements among the relevant stakeholders, the agency announces through this notice that it will not enforce the 15 degree license plate holder mounting requirement during the pendency of rulemaking on the issue of that requirement.

The granting of the petition from MIC, however, does not indicate that a final rule will be issued as requested by MIC. The determination of whether to issue a rule and the content of the rule is made after the study of the requested action and the various alternatives in the course of the rulemaking proceeding, in accordance with statutory criteria.

On December 30, 2005, the agency published in theFederal Registera notice of proposed rulemaking concerning 49 CFR 571.108 (Federal Motor Vehicle Safety Standard No. 108).1 The agency stated that the goal of the proposal was to “amend the standard by reorganizing the regulatory text so that it provides a more straight-forward and logical presentation of the applicable regulatory requirements.” After the publication of a final rule on December 4, 2007,2 adopting the proposal with revisions, the agency received petitions for reconsideration from Harley-Davidson Motor Company (January 18, 2008) and Ford Motor Company (January 18, 2008) asking the agency to reconsider the license plate holder requirements in subpart S6.6.3. A submission by the Motorcycle Industry Council (MIC) on March 19, 2009 also requested a similar change to S6.6.3. However, the MIC submission was not timely for the purposes of reconsidering this final rule and has been considered as a petition for rulemaking per 49 CFR 553.35.

In subpart S6.6.3 of the December 4, 2007 final rule, the agency included provisions expressly requiring that manufacturers of motor vehicles design license plate holders so that the plane surface of a license plate in the holder would be within ± 15° of perpendicular to the plane surface on which the vehicle stands.

Paragraph S5.1.1 of the pre-reorganized version of FMVSS No. 108 required that passenger vehicles and motorcycles be equipped with the “lamps, reflective devices, and associated equipment” listed in Table III of Standard 108. Table III listed lamps such turn signal lamps, reflectors such as reflex reflectors, and associated equipment such as turn signal operating units. Further, S5.1.1 required that the equipment listed in Table III conform to the corresponding SAE Standards listed in that table. One of the listed items of equipment was “license plate lamps.” Table III required “license plate lamps” to be designed to conform to SAE Standard J587 (October 1981). Among other requirements, SAE Standard J587 states in paragraph 6.1 that “the angle between the plane of the license plate and the plane on which the vehicle stands will be 90 ± 15 deg.”

Petitioners request that the agency reconsider subpart S6.6.3 on a number of grounds. First, petitioners contend that license plate holders are not lamps, reflective devices, or associated equipment listed in Table III and thus were never regulated under S5.1.1 of the pre-reorganized version of FMVSS No. 108. Therefore, petitioners believe that as a result of including S6.6.3 in the reorganization of FMVSS No. 108, the agency was imposing a new requirement and contravening its statement in the December 4, 2007 final rule that the “final rule does not impose any new substantive requirements on manufacturers.” In addition, petitioners assert that the license plate mounting provisions of SAE Standard J587 are intended to serve the purpose of ensuring an objective means of measuring photometric performance, but not intended to be a requirement. Finally, petitioners request that should the agency consider license plate holders to be regulated, the agencyshould harmonize the license plate holder requirements with the most recent revision of SAE Standard J587 and the requirements in European Union.3

In 1995, the agency stated that FMVSS No. 108 “incorporated SAE J587 in its entirety, and there is no exclusion of paragraph 6.1.” The agency made this statement in an interpretation letter addressed to Volkswagen of America, Inc.4

Notwithstanding that interpretation, NHTSA takes note that there has been significant confusion among the relevant stakeholders as to whether or not the mounting provisions of SAE Standard J587 were incorporated into FMVSS No. 108 via Table III as referenced through S5.1.1. On the one hand, the Motorcycle Industry Council (MIC) petitioned this agency for rulemaking in March of 2005 (before the December 30, 2005 NPRM in this rulemaking) requesting that the agency update the incorporated SAE Standard J587 to allow for a 30 degree upward angle mounting position for license plates. The March 2005 petition seems to indicate that MIC believed that the license plate mounting provisions of SAE Standard J587 were incorporated into FMVSS No. 108 via S5.1.1 and Table III. On the other hand, the Alliance of Automobile Manufacturers commented on March 30, 2006 to the 2005 NPRM and disputed the view that those provisions were ever incorporated into FMVSS No. 108.

Given the confusion over whether or not SAE Standard J587's provisions on license plate holders were incorporated into the prior version of FMVSS No. 108 and given the petition to initiate rulemaking premised on their incorporation and requesting their relaxation, the agency has decided to resolve this matter through rulemaking. Thus, through this document, the agency denies the aforementioned petitions for reconsideration as they relate to S6.6.3 (License Plate Holder) of the December 4, 2007 final rule. However, the agency is granting the petition from MIC requesting the agency to initiate rulemaking to examine the issue of license plate holders and their mounting requirements5 in a separate document published in today'sFederal Register. Further, due to the confusion and special circumstances surrounding this rule, the agency announced in the aforementioned document in today'sFederal Registerthat it will not enforce the 15 degree license plate holder mounting requirement during the pendency of rulemaking on the issue of that requirement.

The agency also notes that it is still considering the comments and requests relating to other issues in the petitions for reconsideration of the December 4, 2007 final rule and will respond to them in a separate document.

When we make a finding that a petition presents substantial information indicating that listing a species may be warranted, we are required to promptly review the status of the species (status review). For the status review to be complete and based on the best available scientific and commercial information, we request information on the Arapahoe snowfly from governmental agencies, Native American Tribes, the scientific community, industry, and any otherinterested parties. We seek information on:

(1) The species' biology, range, and population trends, including:

(a) Habitat requirements for feeding, breeding, and sheltering;

(b) Genetics and taxonomy;

(c) Historical and current range, including distribution patterns;

(d) Historical and current population levels, and current and projected trends; and

(e) Past and ongoing conservation measures for the species, its habitat, or both.

(2) The factors that are the basis for making a listing determination for a species under section 4(a) of the Act (16 U.S.C. 1531et seq.) are:

(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.

If, after the status review, we determine that listing the Arapahoe snowfly is warranted, we will propose critical habitat (seedefinition in section 3(5)(A) of the Act), under section 4 of the Act, to the maximum extent prudent and determinable at the time we propose to list the species. Therefore, within the geographical range currently occupied by the Arapahoe snowfly, we request data and information on:

(1) What may constitute “physical or biological features essential to the conservation of the species”;

(2) Where these features are currently found; and

(3) Whether any of these features may require special management considerations or protection.

In addition, we request data and information on “specific areas outside the geographical area occupied by the species” that are “essential to the conservation of the species.” Please provide specific comments and information as to what, if any, critical habitat you think we should propose for designation if the species is proposed for listing, and why such habitat meets the requirements of section 4 of the Act.

Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.

Submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination. Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”

You may submit your information concerning this status review by one of the methods listed in theADDRESSESsection. If you submit information viahttp://www.regulations.gov,your entire submission—including any personal identifying information—will be posted on the Web site. If you submit a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this personal identifying information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions onhttp://www.regulations.gov.

Information and supporting documentation that we received and used in preparing this finding is available for you to review athttp://regulations.gov,or you may make an appointment during normal business hours at the U.S. Fish and Wildlife Service, Colorado Field Office (seeFOR FURTHER INFORMATION CONTACT).

Section 4(b)(3)(A) of the Act (16 U.S.C. 1533(b)(3)(A)) 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 the finding promptly in theFederal Register.

Our standard for substantial scientific or commercial 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 or commercial information was presented, we are required to promptly conduct a species status review, which we subsequently summarize in our 12-month finding.

On April 6, 2010, we received a petition of the same date from The Xerces Society for Invertebrate Conservation, Dr. Boris Kondratieff, Save the Poudre: Poudre Waterkeeper, Cache la Poudre River Foundation, WildEarth Guardians, and Center for Native Ecosystems, requesting that the Arapahoe snowfly be listed as endangered and that critical habitat be designated under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioners, as required by 50 CFR 424.14(a). In an April 13, 2010, letter to the petitioners, we responded that we 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. We also stated that due to previously received petitions, court orders, other listing actions with statutory deadlines, and judicially approved settlement agreements that would take the remainder of Fiscal Year 2010 to complete, we anticipated responding to the petition in Fiscal Year 2011. On December 1, 2010, the petitioners filed a Notice of Intent to sue regarding our failure to complete a 90-day finding concerning their April 6, 2010, petition to list the Arapahoe snowfly. This finding addresses the petition.

On July 30, 2007, we received a formal petition dated July 24, 2007, from Forest Guardians (now WildEarth Guardians), requesting that the Service consider all full species in our Mountain-Prairie Region ranked as G1 or G1G2 by the organization NatureServe (except those that are currently listed, proposed for listing, or candidates for listing), and list each species as either endangered or threatened. The Arapahoe snowfly was one of the 206 species included in the petition. On March 19, 2008, WildEarth Guardians filed a complaint indicating that the Service failed to make a preliminary 90-day finding on their two multiple-species petitions—one for mountain-prairie species, and one for southwest species. We subsequently published two 90-day findings, on January 6, 2009 (74 FR 419), and February 5, 2009 (74 FR 6122). The February 5, 2009 (74 FR 6122), 90-day finding concluded that the petition did not present substantial scientific or commercial information indicating that listing may be warranted for 165 of the 206 species, including the Arapahoesnowfly. The finding noted that the petition described two actions potentially impacting Arapahoe snowfly—construction of a small lake in the headwaters of one tributary providing habitat for the species, and recreational use along the length of the other tributary providing habitat for the species. However, the 2007 petition did not link these actions with impacts to the species. The most recent petition, dated April 6, 2010, provided new and more detailed information regarding the Arapahoe snowfly. This finding responds to that additional information.

The Arapahoe snowfly is a species in the class Hexapoda (insects), in the order Plecoptera (stonefly), the family Capniidae (small winter stoneflies), and the genusCapnia(NatureServe 2009, p. 1). The species was first discovered in 1986 and was identified as a new species in 1988 (Nelson and Kondratieff 1988, p. 77). The Arapahoe snowfly is most closely related to the Utah snowfly (Capnia utahensis), found in Utah, Nevada, and California, and the Sequoia snowfly (C. sequoia), found in California (Nelson and Kondratieff 1988, p. 79). Its current taxonomic status is accepted by the scientific community (Integrated Taxonomic Information System 2010, p. 1). Therefore, we recognize the Arapahoe snowfly as a valid species and a listable entity.

Arapahoe snowfly adults are dark colored (Mazzacano undated, p. 1) and have a body length of approximately 0.2 inches (in) (5 millimeters (mm)) and a wing length of also approximately 0.2 in (5 mm) (Nelson and Kondratieff 1988, p. 77). Both sexes have unusually large wings for stoneflies (Nelson and Baumann 1989, p. 312). The species' size at the immature stage has not been described.

Few studies have been conducted on the Arapahoe snowfly. Therefore, most of the information below comes from knowledge about stoneflies (order Plecoptera) in general, and other members of the winter stonefly family (family Capniidae). We expect that the life history of the Arapahoe snowfly would be consistent with that found for other stoneflies and snowflies. Stoneflies have a complex lifecycle that requires terrestrial habitat during adult phases and aquatic habitat during the immature (nymph) phases (Lillehammeret al.1989, p. 183; Williams and Feltmate 1992, p. 33). In late winter, adult winter stoneflies commonly emerge from the space that forms under stream ice as water levels fall through the winter (Hynes 1976, p. 136). In early spring, both male and female adult stoneflies fly upstream along the stream corridor (Macnealeet al.2005, p. 1117). The Arapahoe snowfly's dispersal capabilities are unknown. However, known dispersal distances of other stoneflies range from 197 feet (ft) (60 meters (m)) to several miles (mi) (kilometers (km)), with long-distance dispersal possibly due to drifting in the wind or attraction to lights (Petersenet al.1999, p. 411). In their search for mates, male winter stoneflies drum (beat their abdomen on the ground or on dead vegetation) with a frequency that is species-specific (Hynes 1976, p. 139). Mated females detach a ripened egg mass onto the water (Hynes 1976, p. 140). The eggs hatch in early spring. As water temperatures rise, the nymphs move into the stream's hyporheic zone (a loose rocky substrate under the stream saturated with water), undergo a period of inactivity (diapause) during the warm months, complete development during the late fall and early winter, and emerge as adults in late winter and early spring (Mazzacano undated, p. 1). This development is completed in a 1-year life cycle.

Additional details regarding the life history of many species in the genusCapniaare poorly known due to the inherent difficulties of sampling under ice in winter and distinguishing between species (Mazzacano undated, p. 2). Consequently, specific feeding behavior has not been observed, but nymphs of most species in this family feed by shredding detritus (Mazzacano undated, p. 2).

Stoneflies, including the Arapahoe snowfly, are typically found in cold, well-oxygenated streams and rivers with a mean temperature less than 61 degrees Fahrenheit (°F) (16 degrees Celsius (°C)) (Baumann 1979, p. 242; Hartet al.1991, p. 124; Williams and Feltmate 1992, p. 33). Stoneflies are sensitive to most types of pollution, and their numbers will decrease with a decrease in water quality (Baumann 1979, p. 241; Hartet al.1991, p. 136; Williams and Feltmate 1992, p. 35; Rosenberg and Resh 1993, p. 244; Barbouret al.1999, pp. 7-15).

The Arapahoe snowfly has been collected from two small tributaries to the Cache la Poudre River (Young Gulch and Elkhorn Creek) in the Front Range of the Rocky Mountains of Colorado (Nelson and Kondratieff 1988, p. 79). The species was collected near the confluence of both streams with the river (Colorado State University (CSU) 2005, p. 1). Aerial distance between these two tributaries is approximately 5 mi (8 km). Upper reaches of the streams are typified by steep slopes with ponderosa pine (Pinus ponderosa) (CSU 2005, p. 1). Lower reaches, near the confluence with the river, have a more open topography, with narrowleaf cottonwood (Populus angustifolia), coyote willow (Salix exigua), Drummond's willow (S. drummondiana), Rocky Mountain maple (Acer glabrum), chokecherry (Padus virginiana), and alder (Alnus incana) occurring along the stream margins (CSU 2005, p. 1). The stream substrate consists of pebble, cobble, and bedrock (CSU 2005, p. 1). In summer and fall, portions of both streams have only intermittent water flow (CSU 2005, p. 1).

Both streams where the Arapahoe snowfly has been located are within the Canyon Lakes Ranger District in Roosevelt National Forest on U.S. Forest Service (USFS) lands, but some adjacent land is privately owned, particularly in the Elkhorn Creek watershed (Mathesonet al.2010, p. 9; Mazzacano undated, p. 3).

The distribution and abundance of the Arapahoe snowfly are not known prior to the species' discovery in 1986. Elkhorn Creek and Young Gulch are the only known locations where the Arapahoe snowfly has been detected (CSU 2005, p. 1). From 2007 to 2009, B. Kondratieff and B. Heinold searched six additional sites that have suitable habitat, including the Cache la Poudre River and its nearby tributaries close to Young Gulch and Elkhorn Creek, but did not locate the species (Mathesonet al.2010, p. 7). Numerous visits to Young Gulch since the species was found there in 1986 have failed to yield additional specimens (Nelson and Kondratieff 1988, p. 79; CSU 2005, p. 1; Mazzacano undated, p. 2). During routine survey work on Elkhorn Creek from 2007 to 2009, only 5 of the 500Capniastoneflies collected were identified as the Arapahoe snowfly, indicating rarity at its only known occupied habitat (Mathesonet al.2010, p. 7). Based upon the information available, the species currently has an extremely narrow distribution near the confluence of one small stream, is rare within its only known occupied habitat, and has likely been extirpated from one of the two streams where it was known to occur.

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations in the Code of Federal Regulations (CFR) at 50 CFR 424 set forth the procedures for adding a 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 the significance of that threat. 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 threatened or endangered, 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 shall contain evidence sufficient to suggest that these factors may be operative threats that act on the species to the level that the species may meet the definition of threatened or endangered under the Act.

In making this 90-day finding, we evaluated whether information regarding threats to the Arapahoe snowfly, as presented in the petition and other information 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 asserts that recreation, grazing, certain forest management practices, development, and barriers to dispersal threaten the Arapahoe snowfly. These assertions are described in more detail below.

Recreation—The petition asserts that recreation is a threat to the Arapahoe snowfly, and provides citations indicating that both stream drainages, but especially Young Gulch, experience recreational activities such as hiking, bicycling, camping, cross-country skiing, and horseback riding (Singletracks 2006, p. 1; USFS 2009a, p. 1; Two Knobby Tires 2009, p. 1; Trailcentral 2010, p. 1; Localhikes undated, p. 1). The petition asserts that these activities can adversely affect Arapahoe snowfly habitat via: (1) Runoff of pollutants from roads and trails (2) the introduction of bacteria and excess nutrients from dog, horse, and human waste; (3) trampling of streamside riparian habitat; (4) increased sedimentation from erosion caused by foot and bike traffic; and (5) the construction and maintenance of stream crossings and culverts that can interrupt streamflow and deposit sediments. The petition provided two references that speak generally to the impacts of recreation on stream habitats (Goeft and Alder 2001, p. 193; International Mountain Biking Association 2007, pp. 1, 8); however, these sources do not directly reference the Arapahoe snowfly or its habitat.

Grazing—The petition asserts that grazing can degrade water quality and negatively impact aquatic invertebrates such as the Arapahoe snowfly via: (1) Livestock trampling and consuming riparian vegetation, (2) livestock defecating and urinating in or adjacent to the stream channel, and (3) livestock increasing rates of erosion and sedimentation in the stream channel (Mathesonet al.2010, p. 14). The petition provided several citations to support the assertions regarding the general impacts of livestock on riparian habitat and associated invertebrate communities (Kennedy 1977, p. 52; Roath and Krueger 1982, p. 100; Clary and Webster 1989, p. 1; Schulz and Leininger 1990, p. 295; Chaneyet al.1993, p. 6; Fleischner 1994, pp. 629, 635; Leonardet al.1997, p. 3; Belskyet al.1999, pp. 419, 420-424; Strand and Merritt 1999, pp. 17-18; Agouridiset al.2005, p. 592; Braccia and Voshell 2007, pp. 186, 196-198; McIver and McInnis 2007, pp. 293, 294, 298, 301). However, these sources do not directly reference the Arapahoe snowfly or its habitat.

Forest Management Practices—The petition asserts that control of the mountain pine beetle (Dendroctonus ponderosae) and the Red Feather Fuels Reduction Project—both conducted by the USFS—threaten the Arapahoe snowfly (Mathesonet al.2010, p. 16). The petition notes that spraying with carbaryl to control the ongoing mountain pine beetle outbreak is occurring at sites near Elkhorn Creek (USFS 2009c, pp. 1-2). It also notes that carbaryl is highly toxic to invertebrates, including stoneflies (Beyerset al.1995, p. 32; U.S. Environmental Protection Agency (EPA) 2004, pp. 1, 46).

The Red Feather Fuels Reduction Project includes the removal of hazardous timber in order to restore healthy forests. The petition notes that road construction and controlled burning are actions associated with the removal of timber, and asserts that these actions impact the Arapahoe snowfly. We address potential impacts from roads under the “Development” section below. The source associated with controlled burns does not directly reference the Arapahoe snowfly or its habitat (Nearyet al.2008, pp. 142-143). Furthermore, the petition notes that an uncontrolled wildfire, which may be more likely to occur without prescribed burning, would likely be catastrophic (Mathesonet al.p. 17).

Development—The petition asserts that the proximity of Elkhorn Creek to the Red Feather Lakes community poses risks to stream water quality and consequently to the Arapahoe snowfly, because of recreational use, road impacts, dewatering, and waste seepage from septic systems.

The petition notes general impacts to water systems caused by erosion from roads (Cederholmet al.1980, p. 1; Anderson and Potts 1987, p. 681; Furnisset al.1991, p. 302; Forman and Alexander 1998, p. 219; Trombulak and Frissell 2000, p. 18; Fischel 2001, p. ii; Gucinskiet al.2001, pp. 24-25; Angermeiret al.2004, p. 19; Center for Environmental Excellence 2009, pp. 4-7). The petition notes that an increase in recreational activities is anticipated due to recently improved road and trail access in the Elkhorn Creek watershed (USFS 2009b, p. 4). It also notes that roads and trails are already causing damage to Elkhorn Creek (USFS 2009a, p. 48). The petition notes that road salts, primarily magnesium chloride, are used as deicers on roads in the area and may increase the salinity of Elkhorn Creek (Lewis 1999, p. i). The petition asserts that an increase in salinity could pose risks to the Arapahoe snowfly (Lewis1999, p. 30). However, this reference does not directly address the Arapahoe snowfly or its habitat.

The petition also asserts that existing water withdrawals from Elkhorn Creek may result in higher water temperatures and decreased dissolved oxygen concentrations, thereby impacting the species, which requires cool, well-oxygenated waters. The petition notes the numerous water rights associated with the community of Red Feather Lakes (Red Feather Historical Society 2004, p. 405). The petition asserts that dewatering can impact biological activity in stream substrates, rendering them unsuitable for many aquatic invertebrates (Hancock 2002, p. 764). However, these references do not directly address the Arapahoe snowfly or its habitat.

The petition notes that most development in the Red Feather Lakes area relies on septic systems (George Weber Environmental, Inc. 2007, p. 11). The petition asserts that septic systems pose a potential risk of introducing excess nutrients and bacteria into Elkhorn Creek (Hancock 2002, pp. 764-765; Petersonet al.2003, pp. 6, 16). However, these sources do not directly reference the Arapahoe snowfly or its habitat.

Barriers to Dispersal—The petition notes that habitat conditions in the Cache la Poudre River are impaired (City of Fort Collins 2008a, p. 7). The petition asserts that this may limit the capacity of the Arapahoe snowfly to use the river as a route for dispersal to colonize other nearby tributaries. This outcome would result in the species being entirely confined to Elkhorn Creek. However, this reference does not directly address the Arapahoe snowfly or its habitat.

Recreation—As the petition noted, the Young Gulch trail is popular with hikers and mountain bikers (Localhikes.com undated, p. 1). Young Gulch also is one of the few trails that allows off-leash dogs, so it is particularly popular with dog owners (Singletracks 2006, p. 1; Trailcentral 2010, p. 1; Localhikes.com undated, p. 1). Horseback riding, cross-country skiing, backcountry camping, and hunting also are allowed (Two Knobby Tires 2009, p. 1). A USFS campground is located adjacent to where the Arapahoe snowfly was found in Young Gulch.

Information in our files supports the assertion in the petition that mountain biking can cause soil erosion and compaction, degraded water quality, trail widening, and changes in vegetation (Goeft and Alder 2001, p. 193; International Mountain Biking Association 2007, p. 1). Eroded soil can enter water bodies at stream crossings, resulting in sedimentation that can affect aquatic organisms and contribute to algal blooms that deplete dissolved oxygen (International Mountain Biking Association 2007, p. 8). Sedimentation in the stream substrate can clog pore spaces in the substrate, resulting in a decrease in invertebrates that depend on a well-oxygenated hyporheic zone (Anderson 1996, p. 6). Hiking and horseback riding can have similar effects, and animal waste may have an additional impact on water quality (Mazzacano undated, p. 2). In addition, the total number of species of aquatic insect larvae (including stoneflies) present in a stream decreases as the number of stream crossings increases (Gucinskiet al.2001, p. 26). Young Gulch is estimated to have 30-48 stream crossings (Singletracks 2006, p. 1; Two Knobby Tires 2009, p. 1; Trailcentral 2010, p. 1; Localhikes undated, p. 1).

Recreational use is currently lower in Elkhorn Creek than in Young Gulch (USFS 2009a, p. 4). However, construction of a parking area for 12 cars and 6 trucks pulling horse trailers is under way, to provide improved access for hikers, bikers, and horseback riders (USFS 2009b, p. 4). The Elkhorn Creek watershed is currently rated as Class II, or “at risk” of no longer being able to support its beneficial uses related to native plants and wildlife, soils, and watershed functions, with several areas where roads and trails are causing increased runoff and erosion into the Creek (USFS 2009a, p. 48). Class-II watersheds exhibit some impairment relative to their potential optimum condition (USFS 2009a, p. 48). Taxa in the order Plecoptera (stoneflies), which includes the Arapahoe snowfly, are sensitive to impaired water quality caused by run-off and erosion, and their numbers will decrease with a decrease in water quality (Baumann 1979, p. 241; Hartet al.1991, p. 136; Williams and Feltmate 1992, p. 35; Rosenberg and Resh 1993, p. 244; Barbouret al.1999, pp. 7.15-7.16).

Most visitors to USFS lands are from local areas (USFS 2008b, p. 8). The population of nearby Fort Collins has grown in recent years (City of Fort Collins 2008, p. 1; City of Fort Collins 2009, p. 1). Consequently, recreational use at Elkhorn Creek and Young Gulch is likely to increase (USFS 2009b, p. 1). Increased recreational use will likely increase erosion and resultant sedimentation in both streams. Water quality in both streams also is likely to decrease, due to the introduction of more animal waste.

Information we have in our files supports the assertion in the petition that the recreational use documented for Elkhorn Creek and Young Gulch will increase the rate of erosion of sediments and the amount of fecal deposition into those streams. However, the only site-specific water quality information we have is that the Elkhorn Creek watershed is currently rated as Class II, or “at risk” of no longer being able to support its beneficial uses, with several areas where roads and trails are causing increased runoff and erosion into the creek (USFS 2009a, p. 48). Young Gulch currently receives more recreational use than Elkhorn Creek. Consequently, we assume that similar impacts to the Young Gulch watershed are likely. More detailed water quality information is not available. Taxa in the order Plecoptera (stoneflies), which includes the Arapahoe snowfly, are sensitive to most types of pollution, and their numbers will decrease with a decrease in water quality (Baumann 1979, p. 241; Hartet al.1991, p. 136; Williams and Feltmate 1992, p. 35; Rosenberg and Resh 1993, p. 244; Barbouret al.1999, pp. 7.15-7.16). Based on the above evaluation, we find that the information provided in the petition, as well as other information readily available in our files, presents substantial scientific or commercial information indicating that recreational use in both Elkhorn Creek and Young Gulch may pose a threat to the Arapahoe snowfly such that the petitioned action may be warranted.

Grazing—Three active allotments lie within the Elkhorn Creek watershed, including one directly upstream from known Arapahoe snowfly habitat (USFS 2009a, p. 56). No active grazing allotments occur within the Young Gulch watershed. The effects of cattle grazing on stream water quality in the western United States have been well documented, and include increased soil erosion, sedimentation, fecal deposition, and water temperature, as well as decreased dissolved oxygen and willow canopy (Chaneyet al.1993, p. 6; Fleischner 1994, pp. 631-635; Belskyet al.1999, p. 420; Agouridiset al.2005, p. 592; Hollandet al.2005, p. 149; Coles-Ritchieet al.2007, p. 733; McIver and McInnis 2007, p. 294). Livestock excrement elevates streamwater concentrations of inorganic phosphorus and nitrogen, which in turn increases growth of filamentous algae and production by microbes that can reduce dissolved oxygen concentrations (Strand and Merrit 1999, p. 17).

Reduced concentrations of dissolved oxygen can adversely affect stoneflynymphs, which have high oxygen requirements (Williams and Feltmate 1992, p. 39). Overall, these changes can result in decreased populations of invertebrates that require cleaner, colder waters and coarser substrates (Belskyet al.1999, p. 424). When this occurs, sensitive taxa such as stoneflies are typically replaced by more tolerant taxa such as Chironomidae (Braccia and Reese Voshell 2007, p. 186; McIver and McInnis 2007, p. 301). We have no site-specific water quality data regarding concentrations of phosphorus, nitrogen, or dissolved oxygen, or water temperature or other parameters affected by fecal deposition from livestock. We also have no site-specific data regarding sedimentation caused by livestock disturbance. However, based upon the presence of known active grazing allotments in the Elkhorn Creek watershed, and well-documented impacts to water quality caused by grazing at other streams in the western United States, there appears to be substantial information indicating that grazing may be negatively impacting the species. Based on the above evaluation, we find that the information in the petition, as well as other information readily available in our files, presents substantial scientific or commercial information indicating that livestock grazing may pose a threat to the Arapahoe snowfly such that the petitioned action may be warranted.

Forest Management Practices—The forest management practices noted by the petition were control of the mountain pine beetle and the Red Feather Fuels Reduction Project. Both of these management practices could result in increased road use or the construction of new roads (USFS 2009a, RAP Appendix). We address impacts from roads in the following “Development” section. Effects from spraying insecticide, tree thinning, and controlled burns are discussed in this section.

Recent mountain pine beetle outbreaks have killed millions of trees in Colorado (Blacket al.2010, p. 3). Mountain pine beetle infestations are building in ponderosa pine forests along the Colorado Front Range, including in Larimer County (Ciesla 2010, p. 2). Control of the mountain pine beetle in the Canyon Lakes Ranger District includes use of the insecticide carbaryl. The USFS crews sprayed more than 11,000 infested trees in 2009 and 16,000 infested trees in 2010 in the Canyon Lakes Ranger District, with some locations near Elkhorn Creek, including campgrounds at West and Bellaire Lakes (USFS 2009c, p. 1; Matheson 2010, p. 16). Despite the existence of no-spray buffer zones near aquatic habitats, insecticide can be deposited in streams via aerial drift or runoff from adjacent upland areas (Beyerset al.1995, p. 27). Stoneflies are particularly sensitive to carbaryl. The EPA rated carbaryl as “very highly toxic” to aquatic invertebrates, and used a species of stonefly (Chloroperla grammatica) as one of the test species in their evaluation (EPA 2004, p. 46). We assume that, as a species of stonefly, the Arapahoe snowfly would be similarly vulnerable. Another study reported that virtually all stoneflies were dead following an application of carbaryl (Courtemanch and Gibbs 1980, as reported by Beyerset al.1995, p. 32). In a healthy invertebrate population, colonization by unaffected organisms living upstream would probably compensate for this mortality (Beyerset al.1995, p. 32). However, a narrow endemic such as the Arapahoe snowfly could potentially be extirpated. Therefore, there appears to be substantial information indicating that the use of carbaryl to control the ongoing outbreak of mountain pine beetles may be a potential threat to the Arapahoe snowfly. Based on the above evaluation, we find that the information provided in the petition, as well as other information readily available in our files, presents substantial scientific or commercial information indicating that the use of carbaryl to control the ongoing outbreak of mountain pine beetles may pose a threat to the Arapahoe snowfly such that the petitioned action may be warranted.

The ongoing Red Feather Fuels Reduction Project includes thinning of forest stands and controlled burns. Tree removal associated with thinning can increase sedimentation within the drainage basin (Anderson 1996, p. 1). Increased sedimentation can reduce exchange between surface waters and the hyporheic zone, and, without flow to renew nutrients and oxygen and flush wastes, the sediments become unsuitable for invertebrates that utilize this zone (Hancock, 2002, p. 764). Arapahoe snowfly nymphs depend upon the hyporheic zone as habitat to undergo diapause during the summer months (Mazzacano undated, p. 1). However, as noted by the petitioners, an intense wildfire in the Elkhorn Creek drainage, which would be more likely to occur without fuel reduction, could be catastrophic for the species. The responses of aquatic invertebrates to fire are indirect and vary widely, with some studies showing a decline in abundance, species richness, and diversity, and others showing a long-term increase in these same parameters (Nearyet al.2008, pp. 142-143). Consequently, there is not substantial information to suggest that the Red Feather Fuels Reduction Project is likely to adversely impact the Arapahoe snowfly. Based on the above evaluation, 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 Red Feather Fuels Reduction Project may pose a threat to the Arapahoe snowfly such that the petitioned action may be warranted.

Development—The petition asserts that development from roads, dewatering, and septic systems associated with the Red Feather Lakes community poses a risk to the Arapahoe snowfly. Red Feather Lakes has approximately 600 residents, as well as several tourist facilities. At its closest point, Elkhorn Creek comes within approximately 2.5 mi (4 km) of Red Feather Lakes.

Information in our files supports the fact that road construction and subsequent use and maintenance can result in increased erosion and sedimentation of streams, as well as decreased water quality due to accidental spills and use of deicers (Cederholmet al.1980, p. 1; Anderson and Potts 1987, p. 681; Furnisset al.1991, p. 302; Forman and Alexander 1998, p. 219; Trombulak and Frissell 2000, p. 18; Fischel 2001, p. ii; Gucinskiet al.2001, pp. 24-25; Angermeiret al.2004, p. 19; Center for Environmental Excellence 2009, pp. 4-7). Increased sedimentation can compromise the hyporheic zone, upon which Arapahoe snowfly nymphs depend (Mazzacano undated, p. 1). We are not aware of any road crossings or roads running adjacent to Young Gulch. There are several areas where roads and trails along Elkhorn Creek are causing increased runoff and erosion, and the watershed is rated as Class II or “at risk” (i.e.,the watershed exhibits moderate integrity relative to its potential condition and is at risk of no longer being able to support its beneficial uses) (USFS 2009a, p. 48). Total average road density in the Red Feather Lakes area of the Canyon Lakes Ranger District is 3.5 mi of road per square mile (mi2) (2.2 km of road per square kilometer (km2), with five stream crossings in the Elkhorn Creek watershed (USFS 2009a, RAP Appendix). Additional temporary roads will be constructed during the Red Feather Fuels Reduction Project and later rehabilitated; however, they will be in upland areas, at least 100 ft (30 m) from any streams or riparian areas (USFS 2008, p. 10).

The Elkhorn Creek watershed is currently rated as Class II, or “at risk” of no longer being able to support its beneficial uses, with several areas where roads and trails are causing increased runoff and erosion into the Creek (USFS 2009a, p. 48). Based upon the presence of roads in the Elkhorn Creek watershed, including several stream crossings of Elkhorn Creek, there appears to be substantial information indicating that erosion from roads may be adversely impacting the species. Based on the above evaluation, we find that the information provided in the petition, as well as other information readily available in our files, presents substantial scientific or commercial information indicating that erosion from roads in the Elkhorn Creek watershed may pose a threat to the Arapahoe snowfly such that the petitioned action may be warranted.

The Colorado Department of Transportation uses magnesium chloride liquid deicers on mountain roads (Lewis 1999, p. i). Deicers can increase salinity of nearby water bodies that receive runoff from roads, which in turn degrades habitat for aquatic organisms (Kaushalet al.2005, p. 13517). If streams are frozen, flushing may not occur until temperatures rise in the spring (Silveret al.2009, p. 942). Stoneflies are not commonly found in waters where salinities are greater than 1,000 milligrams per Liter (mg/L) (1,000 parts per million (ppm)) (Hartet al.1991, pp. 124, 136). Most studies indicate that contamination begins to decline within 66 ft (20 m) from the road, but may occur 660 ft (200 m) or more from the road (Trombulak and Frissell 2000, p. 22). We have no information indicating what the amount of deicer used on these roads may be, or if any of the roads where deicer is used are near Elkhorn Creek or Young Gulch. We also do not have any evidence that these stream systems are impacted by deicers. Consequently, there is not substantial information that deicers are likely to adversely impact the Arapahoe snowfly. Based on the above evaluation, 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 deicers may pose a threat to the Arapahoe snowfly such that the petitioned action may be warranted.

Existing and proposed water rights, associated with private lands in and around Red Feather Lakes, allow well construction and irrigation diversion, and may result in dewatering of adjacent streams (Red Feather Historical Society 2004, p. 4; Colorado Water Conservation Board 2009, p. 10). Based upon topographic maps, these water rights appear to be predominantly in the Gordon Creek and Lone Pine watersheds adjacent to Elkhorn Creek. We have no information indicating that these diversions may have an impact on the Elkhorn Creek watershed. Similarly, septic systems in and around Red Feather Lakes appear to be located predominantly in the Gordon Creek and Lone Pine watersheds, and not the Elkhorn Creek watershed (Red Feather Historical Society 2004, p. 4; Colorado Water Conservation Board 2009, p. 10). However, one wastewater treatment facility is located on Elkhorn Creek (George Weber Environmental, Inc. 2007, p. 11). Effluents in wastewater discharge may concentrate in the hyporheic zone (Hancock 2002, pp. 763-764). However, we have no information indicating that these septic systems and treatment facility are impacting the Elkhorn Creek watershed. Consequently, there is not substantial information that dewatering or septic systems is likely to adversely impact the Arapahoe snowfly. Based on the above evaluation, 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 dewatering or septic systems may pose a threat to the Arapahoe snowfly such that the petitioned action may be warranted.

Barriers to Dispersal—Most stoneflies are clumsy fliers that have difficulty crossing even small ecological barriers (Hynes 1976, p. 135). Consequently, they are poor dispersers (Lillehammeret al.1989, p. 173). However, precise dispersal capabilities for the Arapahoe snowfly are unknown (Mazzacano undated, p. 2). The species has unusually large wings for a stonefly (Nelson and Baumann 1989, p. 312), but there is no information indicating what effect this may have on dispersal capabilities. There also is no information regarding whether the species uses the Cache la Poudre River as a dispersal corridor. Typically, adult stoneflies fly upstream along the stream corridor prior to mating and laying eggs (Macnealeet al.2005, p. 1127) and, therefore, would not likely use the river, which is downstream of the locale. Dispersal of larval stoneflies can include downstream drift and upstream movement (Petersonet al.2004, p. 935), so it is possible that larvae could drift downstream into the river. Upstream portions of the river, which would include the confluences with Elkhorn Creek and Young Gulch, are considered generally pristine, with no contaminants detected during several years of routine sampling (George Weber Environmental, Inc. 2007, p. 7). In Fort Collins, the river is highly modified, with reduced flow, increased water temperature, and nutrient loading that are detrimental to aquatic insects (City of Fort Collins 2008a, pp. 5-7). However, the river reach through Fort Collins does not have the necessary habitat for the species and is many miles downstream from Elkhorn Creek and Young Gulch. Consequently, there is not substantial information that barriers to dispersal are likely to adversely impact the Arapahoe snowfly. Based on the above evaluation, 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 barriers to dispersal may pose a threat to the Arapahoe snowfly such that the petitioned action may be warranted.

Based upon the information provided in the petition, as well as other information readily available in our files, and considering the very limited range of the Arapahoe snowfly and its apparent small numbers, we find that the petition presents substantial scientific or commercial information indicating that the Arapahoe snowfly may warrant listing due to the present or threatened destruction, modification, or curtailment of the species' habitat or range primarily due to: (1) Sedimentation caused primarily by erosion from recreation, livestock grazing, and roads; (2) reduced concentrations of dissolved oxygen caused by nutrient enrichment from waste deposition during recreation and livestock grazing; and (3) the use of carbaryl to control the ongoing outbreak of mountain pine beetles. There is not substantial information to indicate that tree thinning, controlled burns, deicers, dewatering, septic systems, or barriers to dispersal are causing noticeable impacts within the Elkhorn Creek or Young Gulch watersheds. We will assess all of these stressors more thoroughly during our status review in order to better quantify potential effects on the Arapahoe snowfly.

The petition notes that the Arapahoe snowfly is not used commercially and is not at risk of over collection. Neither the petition nor information within our filespresents substantial scientific or commercial information that collection was, or is, occurring at a level that impacts the overall status of the species. Therefore, we find the petition does not present substantial scientific or commercial information to indicate that overutilization for commercial, recreational, scientific, or educational purposes may present a threat to the Arapahoe snowfly such that the petitioned action may be warranted. However, we will assess this factor more thoroughly during our status review for the species.

The petition notes that disease and predation are not known to threaten the Arapahoe snowfly. However, the petition also notes that threats from disease and predation have never been assessed. The petition asserts that the rarity and limited range of the species make it more vulnerable to extinction from normal population fluctuations resulting from disease or predation.

We address the potential risks due to a small population size under Factor E. We reviewed information in our files and the information provided by the petition, and did not find substantial information to indicate that disease or predation may be outside the natural range of variation such that either could be considered a threat to the Arapahoe snowfly. Therefore, we find the petition does not present substantial scientific or commercial information to indicate that disease or predation may present a threat to the Arapahoe snowfly such that the petitioned action may be warranted. However, we will assess this factor more thoroughly during our status review for the species.

The petition claims that the Arapahoe snowfly receives no recognition or protection under Federal or state law. The petition notes that it is recognized as “critically imperiled” by Colorado's Natural Heritage Program. This designation means that the species is considered to be at very high risk of extinction due to extreme rarity (five or fewer populations), very steep declines, or other factors. However, this designation does not provide any protection for the species or its habitat. The petition notes that the Arapahoe snowfly is not listed as a “sensitive species” by the USFS. On June 23, 2003, we designated a portion of the Cache la Poudre River, including the confluences of Elkhorn Creek and Young Gulch, as critical habitat for the Preble's meadow jumping mouse (Zapus hudsonius preblei) (68 FR 37275). On December 15, 2010, we published a revised critical habitat rule for Preble's meadow jumping mouse, reaffirming the designation of this area (75 FR 78429). However, the petition notes that this designation does not affect any upstream activities, and there is no signage within the critical habitat area of Elkhorn Creek and Young Gulch indicating the presence of the mouse. Therefore, the petition asserts that the Arapahoe snowfly derives no protection from the critical habitat designation.

The Arapahoe snowfly currently receives no direct protection under Federal or State law. It is designated as “critically imperiled” at both the State and global level by Colorado's Natural Heritage Program and NatureServe (NatureServe 2009, p. 1), respectively, but, as previously noted, this designation does not provide any legal protection for the species or its habitat. The Colorado Natural Heritage Program has proposed a Potential Conservation Area (PCA) for the species that would encompass approximately 5,000 acres (ac) (2,000 hectares (ha)) and include portions of both Elkhorn Creek and Young Gulch (CSU 2005, p. 2). This PCA has a Biodiversity Significance Rank of B1 for outstanding biodiversity significance. This is the highest level of biological diversity that can be assigned to a site. A PCA can provide planning and management guidance, but infers no legal status. The Arapahoe snowfly is designated as a “species of greatest conservation need” by Colorado Division of Wildlife, based upon its global and State ranking by the Colorado Natural Heritage Program (Colorado Division of Wildlife 2006, pp. 17, 20), but this also confers no protection.

The Arapahoe snowfly occurs on USFS lands and is protected indirectly by general Federal laws and regulations mandating how USFS lands are managed. However, no direct protection of the Arapahoe snowfly is provided by USFS.

Projects conducted within the species' occupied habitat may be subject to the requirements of the National Environmental Policy Act of 1970 (42 U.S.C. 4321et seq.) (NEPA). All Federal agencies are required to adhere to NEPA for projects they fund, authorize, or carry out. The Council on Environmental Quality's regulations for implementing NEPA (40 CFR 1500-1518) state that agencies shall include a discussion on the environmental impacts of the various project alternatives, any adverse environmental effects which cannot be avoided, and any irreversible or irretrievable commitments of resources involved (40 CFR 1502). Additionally, activities on non-Federal lands are subject to NEPA if there is a Federal action. NEPA is a disclosure law, and does not require subsequent minimization or mitigation measures by the Federal agency involved. Although Federal agencies may include conservation measures for sensitive species as a result of the NEPA process, any such measures are typically voluntary in nature and are not required by the statute.

Both stream reaches where the Arapahoe snowfly has been located are included in critical habitat designated for the Preble's meadow jumping mouse in 2010. Critical habitat extends 360 ft (110 m) from the edge of the stream on both sides for Young Gulch, and extends 394 ft (120 m) from the edge of the stream on both sides for Elkhorn Creek. The bodies of the streams are not included. This designation indirectly provides some protection to the Arapahoe snowfly through section 7(a)(2) of the Act, which requires Federal agencies to confer with us on any action funded, authorized, or carried out by a Federal agency that is likely to jeopardize the continued existence of the Preble's meadow jumping mouse or destroy or adversely modify its critical habitat.

Examples of specific actions that may adversely affect Preble's meadow jumping mouse critical habitat and therefore require consultation include land clearing, road construction, grazing, water diversions, and activities that change water, sediment, or nutrient inputs, or that significantly and detrimentally alter water quantity (75 FR 78456). Any other activities that might adversely affect critical habitat would also require consultation. However, actions that do not affect the Preble's meadow jumping mouse or its habitat, or do not have a Federal nexus, would not require consultation. Additionally, Federal actions that occurred prior to 2003 did not require consultation because critical habitat for the Preble's meadow jumping mouse had not yet been designated. Consequently, there was no potential benefit to the Arapahoe snowfly with regard to these types of actions before the 2003 critical habitat designation.

Although there are no regulatory mechanisms that directly protect the Arapahoe snowfly, its habitat may be protected from future adverse impacts caused by Federal actions that impact Preble's meadow jumping mouse critical habitat. It is not clear whether the existing regulatory mechanisms, including consultation with Federal agencies under section 7 of the Act, adequately protect the Arapahoe snowfly from potential threats such as those determined to be substantial under Factor A. At this phase in the review process, we cannot seek input from outside agencies such as the USFS. However, we intend to contact them during the status review regarding any additional information that they may be able to provide on the extent to which their existing regulatory mechanisms serve to protect the Arapahoe snowfly.

There is uncertainty about whether or not existing regulatory mechanisms are adequate for protecting Arapahoe snowfly. The petitioners present information for further consideration of this factor. The fact that the known sites lie within the designation of Preble's meadow jumping mouse critical habitat offers the Arapahoe snowfly some protection from several potential threat factors. Additionally, Arapahoe snowfly-occupied habitat is on USFS lands that are subject to general Federal laws and regulations mandating how those lands are managed. Given the level of information that we have at this 90-day finding stage, it is unclear whether the regulatory mechanisms pertaining to Preble's meadow jumping mouse critical habitat and impacts from Factor A are inadequate. We recognize that the information presented in Factor A was substantial. Consequently, we will assess all factors, including the adequacy of existing regulatory mechanisms, more thoroughly during our status review for the species, including consideration of stressors existing in the immediate vicinity of occupied habitat, as well as stressors that exist upstream from the critical habitat designation.

The petition asserts that small population size and climate change threaten the Arapahoe snowfly. The petition presents one citation that supports that small populations are generally at greater risk of extinction from normal population fluctuations, natural disasters, and loss of genetic diversity (Shaffer 1981, p. 131). The petition provides several citations describing current and future impacts in the western United States from climate change (Roodet al.2005, p. 217; Fieldet al.2007, p. 623; Barnettet al.2008, p. 1080; Saunderset al.2008, p. 42). The petition asserts that global climate change may impact the species through increased floods and droughts and management actions taken in response to the proliferation of mountain pine beetles.

Small Population Size—The Arapahoe snowfly is currently known to occur only at one site on Elkhorn Creek near its confluence with the Cache la Poudre River. It is likely extirpated from the other known location on Young Gulch. The species is apparently rare at its only known occupied habitat on Elkhorn Creek—during routine survey work from 2007 through 2009, only 5 of the 500Capniastoneflies collected were identified as the Arapahoe snowfly (Mathesonet al.2010, p. 7). Information in our files supports the information presented in the petition that a species with such limited distribution and rarity is vulnerable to extinction from systematic pressures or stochastic (random) disruptions (Shaffer 1981, p. 131). This vulnerability is increased when threats are present. Systematic pressures on the Arapahoe snowfly include impacts on habitat from sedimentation caused by recreational use, livestock grazing, and road construction. Potential stochastic disruptions could include natural catastrophes such as flood, fire, and drought, or genetic changes resulting from limited genetic diversity.

Based upon the information discussed under Factor A, and considering the very limited range of the Arapahoe snowfly and its apparent rarity, we find that the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted due to the species' small population size. Such a small population is more vulnerable to systematic pressures such as those described above, and any adverse effects are likely exacerbated. However, there is not sufficient information to indicate that stochastic disruptions are likely. We will assess all of these stressors more thoroughly during our status review in order to better quantify potential effects on the Arapahoe snowfly.

Climate Change—According to the Intergovernmental Panel on Climate Change (IPCC 2007, p. 6), “warming of the climate system is unequivocal, as is now evident from observations of increases in global average air and ocean temperatures, widespread melting of snow and ice, and rising global average sea level.” Average Northern Hemisphere temperatures during the second half of the 20th century were very likely the highest in at least the past 1,300 years (IPCC 2007, p. 6). It is very likely that over the past 50 years, cold days, cold nights, and frosts have become less frequent over most land areas, while hot days and hot nights have become more frequent (IPCC 2007, p. 6). It is likely that heat waves have become more frequent over most land areas, and the frequency of heavy precipitation events has increased over most areas (IPCC 2007, p. 6).

Changes in the global climate system during the 21st century are likely to be larger than those observed during the 20th century (IPCC 2007, p. 19). For the next two decades, a warming of about 0.4 °F (0.2 °C) per decade is projected (IPCC 2007, p. 19). By the end of the 21st century, average global temperatures are expected to increase 1.1 to 7.2 °F (0.6 to 4.0 °C) from current temperatures, with the greatest warming expected over land (IPCC 2007, p. 20). Several scenarios are virtually certain or very likely to occur in the 21st century, including: (1) Over most land, there will be warmer days and nights in general, fewer cold days and nights, and more frequent hot days and nights; (2) areas affected by drought will increase; and (3) the frequency of warm spells and heat waves over most land areas will likely increase (IPCC 2007, pp. 22, 27). The IPCC predicts that the resiliency of many ecosystems is likely to be exceeded this century by an unprecedented combination of climate change, associated disturbances (e.g.,flooding, drought, wildfire, and insects), and other global drivers. With medium confidence, IPCC predicts that approximately 20 to 30 percent of plant and animal species assessed so far are likely to be at an increased risk of extinction if increases in global average temperature exceed 3 to 5 °F (1.5 to 2.5 °C).

The western United States is being affected more by a changed climate than any other part of the United States outside of Alaska (Saunderset al.2008, p. iv). Colorado is 3.1 °F (1.7 °C) warmer over the past 100 years (Saunderset al.2008, p. 42). Numerous studies of the western United States show more winter precipitation falling as rain instead of snow, earlier snow melt, and associated changes in river flow (Barnettet al.2008, p. 1080). Sensitive coldwater species are likely to be stressed by increasing water temperatures (Roodetal.2005, p. 217). Disturbances such as wildfire and insect outbreaks are increasing and are likely to intensify with drier soils and a longer growing season (Fieldet al.2007, p. 619). The mountain pine beetle has expanded its range into areas previously too cold to support it (Fieldet al.2007, p. 623; Saunderset al.2008, pp. 21, 23). The USFS predicts that in Colorado and southern Wyoming, mountain pine beetles will likely kill the majority of mature lodgepole pine forests within the next 3 to 5 years (Saunderset al.2008, pp. 21 and 23).

Aquatic insects may respond to elevated temperatures in the following ways: (1) Behaviorally, by emigrating from, or changing distribution within, stressed regions; or (2) physiologically, by adjusting the duration and extent of growth and development in immature stages, and ultimate size, condition, and fecundity as adults (Williams and Feltmate 1992, p. 285). Impacts from global warming will vary greatly at the species level (Williams and Feltmate 1992, p. 287). The Arapahoe snowfly will likely be affected by warmer streamflows and by continuing outbreaks of mountain pine beetle. However, we cannot predict the extent to which the species will be able to adjust behaviorally or physiologically to these changes. We will assess this factor more thoroughly during our status review for the species.

In summary, we find that the information provided in the petition, as well as other information readily available in our files, presents substantial scientific or commercial information indicating that the petitioned action may be warranted due to other natural or manmade factors affecting its continued existence such as the apparent small population size of the Arapahoe snowfly, especially given the stressors it faces from recreation, grazing, and certain forest management practices. The species also will likely be affected by climate change; however, we cannot currently predict the extent to which it will be able to adjust to these changes.

On the basis of our determination under section 4(b)(3)(A) of the Act, we have determined that the petition presents substantial scientific or commercial information indicating that listing the Arapahoe snowfly throughout its entire range may be warranted. This finding is based on information provided under factors A and E. The information provided in the petition under factors B, C, and D is not substantial.

We are not aware of any information regarding impacts from factors A and E that specifically pertains to the Arapahoe snowfly. However, there is adequate information documenting that recreation, grazing, carbaryl spraying, and road usage are ongoing in Elkhorn Creek and that recreation is occurring in Young Gulch. There also is adequate information documenting the likely adverse effects of these activities on stoneflies. Consequently, we have concluded that since the Arapahoe snowfly is a species of stonefly, it is likely being adversely affected by these activities, particularly in view of its very narrow known range and rarity within that range. We will assess all of these factors more thoroughly during our status review for the species.

Because we have found that the petition presents substantial information indicating that listing the Arapahoe snowfly may be warranted, we are initiating a status review to determine whether listing the Arapahoe snowfly under the Act is warranted.

The “substantial information” standard for a 90-day finding differs from the Act's “best scientific and commercial data” standard that applies to a status review to determine whether a petitioned action is warranted. A 90-day finding does not constitute a status review under the Act. In a 12-month finding, we will determine whether a petitioned action is warranted after we have completed a thorough status review of the species, which is conducted following a substantial 90-day finding. Because the Act's standards for 90-day and 12-month findings are different, as described above, a substantial 90-day finding does not necessarily mean that the 12-month finding will result in a warranted finding.

A complete list of references cited is available on the Internet athttp://www.regulations.govor upon request from the Colorado Field Office (seeFOR FURTHER INFORMATION CONTACT).

The primary authors of this notice are staff members of the Regional Office and the Colorado Field Office (seeADDRESSES).

Section 4(b)(3)(A) of the Act (16 U.S.C. 1531et seq.) requires that we make a finding on whether a petition tolist, 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 the finding promptly in theFederal Register.

Our standard for substantial scientific or commercial 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 or commercial information was presented, we are required to promptly conduct a species status review, which we subsequently summarize in our 12-month finding.

On April 5, 2005, we received a petition, dated March 23, 2005, from Robert Showler of Homestead, Florida, requesting that the smooth-billed ani (Crotophaga ani), a bird, be listed as endangered under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner(s), as required by 50 CFR 424.14(a). In an April 29, 2005, letter to the petitioner, we responded that we received the petition for the smooth-billed ani, and that because of inadequate funding for listing-related actions pursuant to court orders and judicially approved settlement agreements, we would not be able to address the petition at that time. We also noted that the species had been included on the list of birds of conservation concern in peninsular Florida in 2002 and that we had begun to compile information on this and other species of conservation concern in peninsular Florida. This finding addresses the petition.

The smooth-billed ani (Crotophaga ani) is a member of the Family Cuculidae (cuckoo family). We concur with the petition's taxonomic characterization of the smooth-billed ani (Crotophaga ani) as a species. This species is a resident in parts of Florida, the Caribbean, Mexico, and Central and South America (Stevenson and Anderson 1994, p. 355; Quinn and Startek-Foote 2000, section 3, p. 1). The smooth-billed ani is a medium-sized cuculid, with a length of 12-14 inches (30-36 centimeters) and a mass of approximately 3.5 ounces (100 grams) (Ridgway 1916 and Loflin 1983 as cited in Quinn and Startek-Foote 2000, section 2, p. 1). Males tend to be slightly larger than females (Quinn and Startek-Foote 2000, section 2, p. 1). This species is distinguished by: all-black plumage, glossed with greenish or violet iridescence in parts; a long tail (approximately 6.8 in (17.2 cm)); a large, arched, and laterally compressed bill, usually showing a raised hump on the basal half of the upper mandible; and a distinctive call, including a whining “ah-nee,” which is usually delivered 1-4 times, along with other vocalizations (Quinn and Startek-Foote 2000, section 1, p. 1; section 2, p. 1; section 8, p. 1). Immature birds resemble adults, but their plumage contains a mixture of dull and glossy blackish feathers, and the bill is slightly shallower (Quinn and Startek-Foote 2000, section 2, p. 1). Juveniles are also similar in appearance to adults, but with plumage that is entirely dull blackish in color with little or no gloss, and a smaller bill without a raised hump (Quinn and Startek-Foote 2000, section 2, p. 1).

The smooth-billed ani occurs over a considerable global geographic range. It is considered a resident from central Florida south through the Caribbean, and south into Central and South America through Ecuador and northern Argentina, except in the Andes (Stevenson and Anderson 1994, p. 355; Quinn and Startek-Foote 2000, section 3, p. 1). The species is generally nonmigratory; however, some local movement occurs during the dry season, when many groups leave their territories and gather in large flocks with neighboring groups (Loflin 1983 as cited in Quinn and Startek-Foote 2000, section 5, p. 1). Records in the Dry Tortugas suggest some movement between the Caribbean and Florida (Robertson and Woolfenden 1992 as cited in Mlodinow and Karlson 1999, p. 241). This species may regularly disperse from the Bahamas and Cuba to Florida (Mlodinow and Karlson 1999, p. 242). The smooth-billed ani has been described as a casual occurrence north to North Carolina and west to Louisiana (Stevenson and Anderson 1994, p. 355). Vagrant records elsewhere in the United States are scarce; few acceptable records outside of Florida exist (e.g.,New Jersey or Pennsylvania, North Carolina, South Carolina, and Georgia) (Mlodinow and Karlson 1999, pp. 241-242).

Throughout its range, and year round, the smooth-billed ani occupies savanna, disturbed and human-altered rural and suburban areas, open areas with brush or scrub, plantations, gardens, farmlands, and forest clearings (Quinn and Startek-Foote 2000, section 6, p. 1). Preferred habitat is considered to be open grassland (Blanchard 2000, p. 5). In Puerto Rico, Guyana, Cuba, Jamaica, Colombia, and the Galápagos Islands, this species uses cow pastures and adjacent lands (Quinn and Startek-Foote 2000, section 6, p. 1). In south Florida, density was positively correlated with amount of grazing lands and human habitation (Loflin 1983 as cited in Quinn and Startek-Foote 2000, section 6, p. 1). In general, this species typically occupies lowlands, often near the coast, preferring a source of water (e.g.,marsh, pond, river) and avoiding dense forest (Quinn and Startek-Foote 2000, section 6, p. 1). In a study area in south Florida, the smooth-billed ani was found to occupy discontinuous patches of habitat (e.g.,parks, nurseries, small undeveloped plots of land) and avoid tall grasses of the Everglades (Loflin 1983 as cited in Quinn and Startek-Foote 2000, section 6, p. 1). Additionally, the species has been found within and near impoundments within the Loxahatchee National Wildlife Refuge (NWR) (Service 1997, p. 48; 1998, p. 50; 1999a, p. 65; 2003a, pp. 113-114) and on various outer islands within the Florida Keys NWR Complex (Service 1992, p. 85; 1999b, p. 60; 2001, p. 69; 2003b, p. 84).

This species feeds primarily on insects and small vertebrates, especially when these forage items are abundant during the rainy season; fruit is an important component of the diet during the dry season (Quinn and Startek-Foote 2000, section 1, p. 1 and section 7, pp. 1-2; Blanchard 2000, p. 5). Fields of grass are typically used for foraging; more densely vegetated stream edges may be used for nesting and roosting (Quinn and Startek-Foote 2000, section 6, p. 1; Blanchard 2000, p. 5). The smooth-billed ani is a highly social bird that nests, roosts, feeds, and travels in pairs or in communal groups (Quinn and Startek-Foote 2000, section 9, p. 3; Blanchard 2000, pp. 5-6). This species uses a communal breeding system in which a number of females lay eggs and incubate in the same nest; late-laying females bury the eggs of early-laying females with twigs and leaves, which can create a number of layers, but only the top layer of eggs eventually hatches (Quinn and Startek-Foote 2000, section 1, p. 1; Blanchard 2000, pp. 1-101). Blanchard (2000, p. 30) found evidence for monogamy, polygamy (extra-pair fertilizations), and brood parasitism (egg-laying in the nests of other birds) inboth single-pair and group nests in a study of the species' communal breeding system in Puerto Rico. Observed nesting groups of smooth-billed anis ranged from a single pair to 12 adults and nests containing more than 30 eggs (Blanchard 2000, p. 11). Female-female competition at the nest may result in the destruction of other females' eggs through egg burial under nesting material (Blanchard 2000, p. 11).

The smooth-billed ani has a large global population, estimated in 2004 to be 20,000,000 individuals, with less than or equal to 1 percent occurring in the United States (Rich et al. 2004, p. 70). Global long-term trend data did not exist at that time (Rich et al. 2004, p. 70). In general, little information on global population size or trends was available in Service files at the time the petition was received. Available information suggested that the smooth-billed ani's conservation status was “not threatened” (Quinn and Startek-Foote 2000, section 12, p. 1). The species was not recognized as a National Audubon Society Watch List Species or Stewardship Species (Richet al.2004, p. 70). The Audubon Watch List categorizes species on the list if they are declining rapidly and/or have very small populations or limited ranges and face major conservation threats (e.g.,typically species of global conservation concern) or if the species are either declining or rare (e.g.,typically species of national conservation concern).

The smooth-billed ani is an uncommon-to-rare resident of southern Florida (Mlodinow and Karlson 1999, p. 241). Prior to the 1930s, few records existed in Florida, suggesting that the species was rare or poorly known (Quinn and Startek-Foote 2000, section 3, p. 2). Sprunt (1939, pp. 335-336) documented the first record of breeding in Florida in 1938. By the late 1930s, the species was considered established in the Lake Okeechobee area, and subsequently breeding was recorded elsewhere in south Florida (Quinn and Startek-Foote 2000, section 3, p. 2). The species' status in Florida remained relatively unchanged until the 1960s, when increasing numbers were recorded in central and north Florida (Quinn and Startek-Foote 2000, section 3, p. 2). Based upon National Audubon Society Christmas Bird Counts, the number observed per party hour (p-hr) (average number of counts per party per hour spent censusing) tripled by 1962-63, reaching 0.17 per p-hr in West Palm Beach and 2.41 per p-hr in Fort Lauderdale (Mlodinow and Karlson 1999, p. 241). In the 1960s the species was fairly common to common from the Everglades north to Brevard County on the east coast and Lee County on the west coast (Mlodinow and Karlson 1999, p. 241). By 1968-69, the number observed reached 1.51 per p-hr in West Palm Beach and 4.20 per p-hr in Fort Lauderdale (Mlodinow and Karlson 1999, p. 241).

Numbers appeared to have peaked in Florida during the period 1968-1976, when the species was recorded north to Jacksonville Beach (Duval County) in the east and St. Petersburg (Hillsborough County) in the west (Mlodinow and Karlson 1999, p. 241; Quinn and Startek-Foote 2000, section 3, p. 2). At that time, numbers observed were typically in the 3.0-4.0 per p-hr range in Fort Lauderdale, while Fort Pierce reached 1.87 per p-hr and Sanibel Island/Captiva Island reached 0.41 per p-hr (Mlodinow and Karlson 1999, p. 241). By winter 1977-1978, numbers had declined sharply, returning to mid-1960s levels (Mlodinow and Karlson 1999, p. 241). This decline continued, and by 1988-1989, total numbers were comparable to those reported in the 1950s (Mlodinow and Karlson 1999, p. 241). The decline continued in Florida into the 1990s, and by 1998, the smooth-billed ani was found locally from the Florida Keys north to West Palm Beach on the east coast, and north to Collier County on the west coast (Mlodinow and Karlson 1999, pp. 241-242). Mlodinow and Karlson (1999, p. 242) suggested that the status of the smooth-billed ani in Florida in 1998 may be the norm rather than an aberration.

Available information in Service files suggests that the species uses Loxahatchee NWR (Service, annual narrative reports from 1996 to 2005) and the Florida Keys NWR Complex (Service, annual narrative reports from 1939 to 2003). According to a notation in the 2000 annual narrative report from Loxahatchee NWR, local long-time birders have indicated that the numbers of smooth-billed anis in south Florida and on the Refuge have declined significantly and that annual Christmas Bird Counts are showing the same trend (Service 2000, p. 110).

The reasons for expansion and contraction of the species' range in Florida are not known. Expansion may have been facilitated by residential development, which resulted in anthropogenic habitat changes that initially favored this species (Mlodinow and Karlson 1999, p. 242). However, continued residential and agricultural development, which reduced suitable habitat, and exceptionally cold winters during the 1970s may have contributed to subsequent declines (Stevenson and Anderson 1994, p. 357; Mlodinow and Karlson 1999, p. 242). Overall, the reasons for the decline in south Florida are not clear (Mlodinow and Karlson 1999, p. 242; National Audubon Society 2001, p. 335).

The smooth-billed ani was one of 668 taxa evaluated in an effort to help prioritize vertebrate conservation efforts in Florida (Millsapet al. 1990, pp. 3-57). The evaluation system ranked taxa (species and subspecies) according to biological vulnerability, extent of current knowledge of population status, and management needs (Millsapet al.1990, pp. 3-57). During this ranking process, the smooth-billed ani was not considered to be an imperiled taxon in Florida as indicated from its biological score, which was based upon facets of its distribution, abundance, and life history (Millsapet al.1990, pp. 28-29).

Information available in Service files at the time the petition was received indicated that, in 2002, the Service's Division of Migratory Bird Management included the smooth-billed ani as a bird of conservation concern in peninsular Florida in its report, entitled “Birds of Conservation Concern 2002” (Service 2002, p. 68). The purpose of the report was to identify migratory and nonmigratory birds of the United States and its territories that are of conservation concern to encourage coordinated and proactive conservation actions among Federal, State, and private partners (Service 2002, p. 3). The overall goal of that report was to accurately identify the migratory and nonmigratory bird species (beyond those already designated as federally threatened or endangered) that represented the Service's highest conservation priorities and draw attention to species in need of conservation action (Service 2002, p. 3). The geographic scope of this endeavor comprised the United States in its entirety, including island “territories” in the Pacific and Caribbean (Service 2002, p. 1). Although the smooth-billed ani was identified as one of 78 birds of conservation concern in the Southeast, only the U.S. mainland portion of the Region was identified as of concern; Puerto Rico and the U.S. Virgin Islands were not identified as of concern (Service 2002, p. 68). In addition, the report does not include foreign countries.

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations at 50 CFR part 424 set forth the procedures for adding a species to, or removing a species from, the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may bedetermined 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 threatened or endangered 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 shall 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 threatened or endangered under the Act.

In making this 90-day finding, we evaluated whether information regarding the threats to the smooth-billed ani, as presented in the petition and other information 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 acknowledges that the smooth-billed ani's historic range in the United States has largely been restricted to southern Florida (Bent 1940; Terres 1980, p. 146) and that the species is considered common in many parts of its range throughout the Caribbean, including the Bahamas. The petition states that numerous records in the Dry Tortugas during the last 150 years indicate that the species is capable of traveling from Cuba to Florida (Birds of North America Online). The petition indicates that the species was reported in low numbers in Florida during the 1800s and early 1900s (Sprunt 1932; Bent 1940), with the first report of breeding in Florida in 1938 (Sprunt 1932; Terres 1980, p. 146). It also cites records from Louisiana and North Carolina dating back to the early 1800s (Bent 1940). The petition suggests that the species seems to have experienced an increase in population from the late 1950s through the early 1970s, and then a rapid decline from the 1970s to 2005. The petition claims that smooth-billed anis are extremely rare everywhere in the United States, noting data from various National Audubon Society Christmas Bird Counts.

The petition indicates that the species generally prefers “open” habitats, such as weedy and shrubby fields, pastures, farmland, and occasionally residential areas. Based upon a variety of unspecified sources, the petition states that the species is not commonly found in heavily forested or extensive marshes.

The petition states that rapid human population growth and associated development throughout peninsular Florida, much of it occurring within the species' preferred habitat and historic range, may be a potential contributor to the decline of the smooth-billed ani. The petition provides the following statement: “Apparently [the ani is] declining as southern Florida continues to develop, and the brushland shrub/scrub habitat is lost (Alsop 2002).” No additional information or citations relating to habitat loss as a threat are given in the petition.

The smooth-billed ani appears to have declined from previous high levels in Florida (Stevenson and Anderson 1994, pp. 356-357; Mlodinow and Karlson 1999, p. 242; National Audubon Society 2005, pp. 1-3). However, it has been suggested that this species' current status in Florida may be the norm rather than an aberration (Mlodinow and Karlson 1999, p. 242). It was not until 1938 that the species was established and breeding in Florida (Sprunt 1939, pp. 335-336; Stevenson and Anderson 1994, p. 355). One hypothesis suggests that prior to the World War I era, south Florida had little suitable smooth-billed ani habitat, since it was largely a wetland surrounded by an inner zone of pine forests and outer zones of mangroves and sandy beaches (Mlodinow and Karlson 1999, p. 242). Substantial anthropogenic changes beginning in the 1920s, consisting of agricultural development and low-level residential development, may have created enough suitable habitat for dispersing anis to successfully colonize south Florida in the 1930s (Mlodinow and Karlson 1999, p. 242). Over time, residential development increased and more intensive agricultural practices and other factors may have reduced suitable habitat and dispersal habitat, causing decreased reproductive success and lower recruitment (Mlodinow and Karlson 1999, p. 242). Alsop (2002, p. 212) noted that the smooth-billed ani is apparently declining in south Florida as the area continues to develop and brushland shrub/scrub habitat is lost.

Information in our files supports the statement in the petition that human population growth and associated land-use changes are occurring in peninsular Florida, and that additional growth is expected in the future. In the 50 years prior to 1994, more than 8 million acres [(3.24 million hectares (ha)] of forest and wetland habitats (roughly 24 percent of the State) were cleared to accommodate an expanding human population (Coxet al.1994, p. i). Statewide, between 1936 and 1987, cropland and rangeland increased by 4.25 million acres (1.72 million ha), or 30 percent; urban areas increased by 3.95 million acres (1.60 million ha), or 538 percent; herbaceous wetlands declined by 3.88 million acres (1.57 million ha), or 56 percent; and forests declined by 4.30 million acres (1.74 million ha), or 21 percent (Service 1999c, p. 4-128).

Although some anthropogenic habitat changes may initially favor this species, areas where the smooth-billed ani can be locally found in Florida, from the Keys north to West Palm Beach on the east coast and Collier County on the west coast (Mlodinow and Karlson 1999, p. 242), are expected to grow and become more urbanized. The human population within south Florida surpassed 1 million (337 persons per square mile (mi2) (130 persons per square kilometer (km2)) in 1950, 3 million (1,013 persons per mi2(391 persons per km2)) in 1970, and 6 million (2,020 persons per mi2(780 persons per km2)) in 1990 (Service 1999c, p. 4-127). South Florida's human population was projected to reach 8.2 million (2,771 persons per mi2(1,070 persons per km2)) by 2010 (Floyd 1996 as cited in Service 1999c, p. 4-127). With continuing habitat loss and humanpopulation growth, it is likely that habitat within the smooth-billed ani's range in south Florida will continue to be impacted.

The petition did not contain information indicating that habitat loss and modification are threats to the smooth-billed ani elsewhere in its range (i.e., outside south Florida). Throughout its range, this species uses disturbed and human-altered rural and suburban areas, open areas with brush or scrub, plantations, gardens, farmlands, forest clearings, cow pastures, and grazing lands with human habitation (Loflin 1983 as cited in Quinn and Startek-Foote 2000, section 6, p. 1; Quinn and Startek-Foote 2000, section 6, p. 1). Although the landscape throughout the smooth-billed ani's considerable range is undoubtedly changing, we do not have evidence to suggest that the species is threatened by habitat loss and modification. In fact, ongoing disturbance of forest habitats by humans may create additional suitable habitat for smooth-billed anis, suggesting the possibility that populations are increasing within the range of the species (Quinn and Startek-Foote 2000, section 11, p. 3).

Information in the petition regarding rapid human population growth and associated development in Florida is supported by information in our files. Although increased habitat loss and human population growth may have affected the smooth-billed ani in south Florida, reasons for the expansion and contraction of its range in Florida are unclear. The species uses a wide array of disturbed and human-altered habitats (Quinn and Startek-Foote 2000, section 6, p. 1). Expansion in Florida may have temporarily been facilitated by anthropogenic habitat changes that initially favored this species; however, the species' current status in Florida may be the norm (Mlodinow and Karlson 1999, p. 242).

We currently have no information, and the petition provided no information, to support a determination that this factor is a substantial risk to the species in south Florida or elsewhere in its considerable range. In summary, we find that the information provided in the petition, as well as other information in our files, does not present substantial scientific or commercial information indicating that the petitioned action may be warranted due to destruction, modification, or curtailment of the smooth-billed ani's habitat or range, especially given that the species uses a wide array of disturbed habitats over a considerable range.

The petition did not present information, nor do we have information in our files, suggesting that overutilization is threatening the smooth-billed ani.

The petition did not provide any information concerning disease or predation. Information available in Service files does not report evidence of diseases. For instance, Quinn and Startek-Foote (2000, section 11, p. 2), found no reports of diseases for this species. Two species of mallophaga (bird lice) have been reported in the species (Davis 1940 as cited in Quinn and Startek-Foote 2000, section 11, p. 2). However, we do not have any information that ties these ectoparasites to any specific disease affecting the smooth-billed ani. Based upon limited information in Service files, disease is not considered to be a threat for the smooth-billed ani.

The smooth-billed ani may be vulnerable to predators, because it is an awkward, slow-flying bird (Stevenson and Anderson 1994, p. 357). However, the species also employs a sentinel system, with usually one individual positioned at an open, elevated site to warn others of predators (Loflin 1983 as cited in Quinn and Startek-Foote 2000, section 9, p. 4). In addition, Merritt (1953 as cited in Stevenson and Anderson 1994, p. 357) has postulated that a very disagreeable odor given off when the bird is alarmed “probably tends to discourage predation.” Smooth-billed anis have been attacked or taken by sharp-shinned hawks (Accipiter striatus), fish crows (Corvus ossifragus), climbing rats (Rattus rattus), and feral cats (Felis catus) (Loflin 1983 as cited in Quinn and Startek-Foote 2000, section 9, p. 4; Startek 1997 as cited in Quinn and Startek-Foote 2000, section 9, p. 4; Quinn and Startek-Foote 2000, section 9, p. 4). In a limited study, Blanchard (2000, p. 45) noted a high incidence of egg and chick predation, documenting predation at 7 of 10 nests in Puerto Rico, most likely from brown rats (Rattus norvegicus) and feral cats. Predation rates are not available, but group vigilance likely limits diurnal predation to low levels (Davis 1940 as cited in Quinn and Startek-Foote 2000, section 11, p. 2).

In summary, disease is not known to be a threat to the species. Although information on predation within our files is limited, we do not have reason to believe that predation is a threat to the species. Accordingly, we find that the information in our files does not present substantial scientific or commercial information indicating that the petitioned action may be warranted due to disease or predation.

The petition did not present information, nor do we have information in our files, suggesting that inadequacy of existing regulatory mechanisms is a threat to the species.

The petition suggests that one popular explanation for the smooth-billed ani's recent decline in Florida may have been periods of cold temperatures in south Florida; however, the petition also provides information that contradicts this explanation. Smooth-billed anis using the Clewiston area near Lake Okeechobee were reported to have survived subfreezing temperatures in the 1940s (reportedly 28 °F in 1944 and 26 °F in 1947) (Dilley 1948, p. 314). The petition suggests that the apparent increase in the smooth-billed ani's numbers during the late 1950s and early 1960s (National Audubon Society Christmas Bird Count data) coincides with two cold spells, but the beginning of the species' decline in the early 1970s does not correlate with a notable period of cold weather (McGovern 2004). The petition indicates that the severest cold weather to hit south Florida was during the 1980s, when smooth-billed ani populations continued to decline, but the species' decline had begun before this time.

The petition suggests that another explanation for this species' decline in Florida may be hurricanes, but this also does not seem to be reinforced by data. The petition indicates that smooth-billed ani populations increased from 1957 to 1974, when at least five hurricanes impacted south Florida. The petition indicates that as populations began to decrease in the 1970s and 1980s, south Florida was struck by only two hurricanes (Barnes 1998).

The petition, citing Birds of North America Online, suggests that possible ingestion of pesticides resulting from this species' insect diet is another explanation for its decline.

The petition suggests, without reference, that smooth-billed anis in the United States have undergone inexplicable natural population fluctuations for centuries and that no research has been conducted to investigate this phenomenon.

The Service has only limited information regarding the possible effects of cold temperatures on the smooth-billed ani. The information regarding cold temperatures as a factor appears to be reliable based upon limited information in Service files. The decrease in numbers of smooth-billed anis in south Florida from the late 1970s through 1986 has been suggested to be due possibly to a series of unusually cold winters, which may have affected birds directly or indirectly through the reduction of the supply of insects (Stevenson and Anderson 1994, p. 357). Mlodinow and Karlson (1999, p. 242) acknowledged that a series of cold winters during the late 1970s likely played a role (citing Robertson and Woolfenden 1992), but suggested that a continued decrease in the population does not seem to be explained by weather alone. The petition does not present information, nor does the Service have information in our files, indicating that cold temperatures are a threat to the species elsewhere in its range.

The Service has little information regarding the possible effects of hurricanes on the smooth-billed ani. The petition acknowledges that data do not seem to reinforce the explanation that hurricanes caused declines in south Florida. Also, the petition does not present information indicating that hurricanes are a threat to the species elsewhere in its range. In Jamaica, the mean number of smooth-billed anis in 10 habitats before and after Hurricane Gilbert in 1988 was not significantly different (Wunderleet al.1992, pp. 164-165). Similarly, no obvious decline in smooth-billed ani abundance was observed after Hurricane Georges in Puerto Rico in 1998 (Quinn and Startek-Foote 2000, section 11, p. 2). In general, stochastic (random) events are not likely to pose a significant threat to the smooth-billed ani, due to the species' considerable population size and geographic range.

The information provided in the petition regarding pesticides as a factor appears to be reliable, based upon limited information in Service files. Stevenson and Anderson (1994, p. 357) suggested that the smooth-billed ani's diet of insects could result in the ingestion of pesticides in the agricultural areas that the species often inhabits; they list this as an adverse factor that may have contributed to the smooth-billed ani's decrease in abundance in Florida from the late 1970s through 1986. Mlodinow and Karlson (1999, p. 242) suggested that pesticides may have also reduced food sources, and that this reduction was one possible factor contributing to the decline in Florida. Neither the petition nor the Service's files present information indicating that pesticides are a threat to the smooth-billed ani elsewhere in its range.

The Service has little information on natural population fluctuations of the smooth-billed ani in Florida or elsewhere in its range. The petition suggests, without reference, that smooth-billed anis in the United States have undergone inexplicable natural population fluctuations for centuries and that no research has been conducted to investigate this phenomenon. Based upon limited information in our files, it appears that the species has received relatively little research attention. More research is needed on the species' mating system and genetic relationships, reproductive and social behaviors, habitat quality, and foraging patterns (Quinn and Startek-Foote 2000, section 15, p. 1). Blanchard (2000, pp. 1-101) studied the communal breeding system of the species in Puerto Rico. The petition did not present information indicating that such natural population fluctuations are a threat to the smooth-billed ani elsewhere in its range. We have no additional information to suggest that demographic or other factors are a threat to the smooth-billed ani in Florida or elsewhere in its range.

Information provided by the petitioner regarding cold temperatures, hurricanes, pesticides, and natural population fluctuations is generally supported by the limited information in our files. However, we have no information or data that suggest that such factors are threats to the smooth-billed ani in south Florida or elsewhere in its range. In summary, we find that the information provided in the petition, as well as other information in our files, does not present substantial scientific or commercial information indicating that the petitioned action may be warranted due to natural or anthropogenic factors, especially given that the species appears to have a large population over a considerable range.

In summary, the petition does not present substantial information, because it does not provide specific information on threats to the smooth-billed ani and only alludes to possible threats within Florida, which is a small portion of the species' considerable range. Information in our files indicates that the smooth-billed ani has a large population size, uses a wide array of disturbed habitats, and occupies a considerable range. While we agree with the petitioner's general statements about possible causes for the species' recent decline in Florida, information in our files suggests that the species' current status in Florida may be the norm; the species was not known to breed in Florida prior to the late 1930s. Neither the petition nor our files contain information suggesting that threats affecting the species' continued existence occur elsewhere in its range.

As for the threats identified in this petition, we found no information to suggest that they are acting on the smooth-billed ani such that the species may become extinct 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 the smooth-billed ani under the Act as threatened or endangered 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 the smooth-billed ani. If you wish to provide information regarding the smooth-billed ani, you may submit your information or materials to the Field Supervisor/Listing Coordinator, South Florida Ecological Services Office (see ADDRESSES), at any time.

A complete list of references cited is available on the Internet athttp://www.regulations.govor upon request from the South Florida Ecological Services Office (see FOR FURTHER INFORMATION CONTACT).

The primary author of this notice is Paula Halupa of the South Florida Ecological Services Office (see ADDRESSES).

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